Why Re-Write Judgments with a Feminist Lens
October 16, 2018
Image Courtesy: The Leaflet
The Second installment of the Feminist Judgment Workshop took place in New Delhi on October 6 and 7, 2018. The workshop involved discussions on thirty-two selected cases.
The Feminist Judgment Project India imagines the possibilities of collaborative writing of alternate judgments for several Indian cases across a broad range of legal issues having a significant bearing on women. Jindal Global Law School in collaboration with National Law University, Delhi and Ambedkar University hosted the workshop.
The first day of the second edition of the Feminist Judgment Writing Project Workshop began with an opening address by Aparna Chandra. In her introduction, she highlighted the need to challenge the myth of the neutrality of the law and translate feminist principles into legal practice. Taking inspiration from its sister projects, she reiterated the modalities and process of re-writing a judgment. She particularly emphasized on locating the re-written judgments in the time and space of the original.
Air India Nergesh Meerza and Ors. 1982 (1) SLR 117
Bench: J. S.M. Fazalali, J. Syed Murtaza
Judgment written by: J. S.M. Fazalali
The petition was transferred to the Supreme Court of India from the Bombay High Court, to be heard on the constitutionality of Air India Employees Service Regulations.
The Service Regulations were declared unconstitutional on the following grounds:
i) That the Service Regulations violate Article 14 of the Constitution of India: Although Air Hostesses from the same class of service as Assistant Flight Pursers and other members of the cabin crew performed identical or similar duties, they were divided into separate classes. ii) The termination of services on the ground of pregnancy and marriage within four weeks is wholly arbitrary and violative of Article 15 of the Constitution.
The Supreme Court while dealing with the aspects of equality and discrimination under Article 14 and 15 of the Constitution clearly brought out the concept of reasonable classification, finding that when equals and unequals are treated differently, Article 14 would have no application. The Supreme Court held that the Air Hostesses form a separate category from that of Assistant Flight Pursers in many respects, having different grades, different promotional avenues and different service conditions and hence it cannot amount to discrimination under Article 14 of the Constitution.
With respect to termination of services based on pregnancy, the Court held that it compels an Air Hostess not to have children, interfering with and diverting the ordinary course of human nature. Such an act is not only cruel and callous, but also an open insult to Indian womanhood, detestable and abhorrent to the notions of civilized society. The Court states that apart from being grossly unethical, the Service Regulations smack of a deep-rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Art.14 of the Constitution.
The second workshop built on the previous sessions that were conducted in May, 2018. It was organised to discuss the final drafts of the chosen judgments. It also sought to provide a platform to address difficulties and challenges in methodologies faced by the participants. Like its predecessor, this workshop was designed to be a collaborative exercise wherein participants could learn from each other and also provide critical feedback.
Uday State of Karnataka (2003) 4 SCC 46
Bench: J. N Santosh Hegde, J. B.P Singh
Judgment written by: J. B.P. Singh
This case was an appeal before the Supreme Court against the judgment of the Karnataka High Court convicting and sentencing the appellant under Section 376 of the Indian Penal Code.
The complainant had contended that she was induced to have sexual intercourse with the appellant on the promise that the appellant would marry her. Based on the fraud, deception and false inducement of marriage, she had consensual sexual intercourse with the appellant for several months, until it was discovered that she is pregnant. When the appellant did not agree to get married, the complainant lodged a report in the police station pursuant to which the police began to investigate the matter, and the appellant was tried before the Sessions Judge, Karwar.
The Supreme Court in the instant case did not apply Section 90 of the Indian Penal Code as two conditions must be fulfilled in such an instance viz., the consent must be given under a misconception of fact and secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given as a a consequence of such misconception. The Court seriously doubted that the promise to marry induced the complainant to consent to having sexual intercourse with the appellant as she knew that her marriage with the appellant was difficult because of he is Brahmin and she is Dalit.
The Supreme Court also reasoned that the complainant was an adult, and although she was deeply in love with the appellant, she must have been aware of the fact that since they belonged to different castes, marriage was not possible and in any event the proposal for their marriage was bound to be seriously opposed by their family members. She admitted to having told the appellant this when he proposed marriage to her the first time. The Court said that she must have understood the significance and moral quality of the act she was consenting to, which is why she kept it secret for as long as she could. Despite this, she did not resist the advances of the appellant, and succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act she was consenting to, especially given that she was conscious of the fact that their marriage may not take place at all because of caste considerations.
All these circumstances lead the court to the conclusion that the complainant freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact and hence, the appellant was acquitted of the charges made out against him under Section 376 of the Indian Penal Code.
The first day of the workshop saw a host of cases from various legal subjects including family law, tax law and criminal law being discussed elaborately. Discussions revealed that subjects which had earlier been characterized as being impersonal and technical such as tax law were also found to exhibit deep rooted patriarchy. There were also deliberations on what constitutes a feminist framework of the law particularly in cases where there appears to be no overt gender issue. The workshop also witnessed questions on whether the current feminist framework accommodates related identities such as caste, class and religion.
State of Punjab Ajaib Singh AIR 1953 SC 10
Bench: CJI M. Patanjali Sastri, J. Mukherjea, J. B.K. Das, J. Sudhi Ranjan, J. Bose, J. Vivian, J. Bhagwati, J. Natwarlal H.
Judgment written by: SR Das
This concerns questions of citizenship rights, abduction during the partition of India and Pakistan. Ajaib Singh found to be holding three abducted women in his house during a raid conducted of his house. The police rescued a woman and she was put under the authority of the officer-in-charge of the Muslim Transit Camp.
An enquiry into this matter was made by Deputy Superintendents of Police of both India and Pakistan. On basis of their findings, and the identification of the rescued woman’s mother and paternal uncle, they came to the conclusion, inter alia, that the abducted woman is a Muslim who was abducted during the riots of 1947 and was, therefore, an abducted person as defined in section 2(a)(1) of the Abducted Persons (Recovery and Restoration) Act, 1949. The police report recommended that she should be sent back to Pakistan to her next of kin.
The petitioner filed a Habeas Corpus petition and obtained an interim order from the Punjab High Court that the girl not be removed from Jullurpur until the final decision of the High Court is delivered. The state of Punjab then filed an appeal before the Supreme Court.
The Supreme Court said that the language of the Articles 22(1) and (2) indicates that the Articles were designed to give protection against the act of executive and non-judicial authority. The Court further held that the physical restraint exercised over a person in the process of recovering, taking said person into one’s custody, and then delivering that person to the officer in charge of the nearest camp under section 4 of the Abducted Persons (Recovery and Restoration) Act, 1949 is not arrest and detention within the meaning of Article 22(1) and 22(2) of the Constitution and dismissed the appeal.
The first day of the workshop ended with a round table on feminist lawyering and judging. The round table panel which consisted of J&K High Court Chief Justice Gita Mittal, former Madras High Court judge Justice Prabha Sridevan, Supreme Court judge Justice D.Y Chandrachud, Advocates Malavika Rajakotia and Vrinda Grover and academician Pratiksha Baxi was moderated by Senior Advocate Rebecca John. The engaging session was attended by a diverse crowd consisting of academicians, legal practitioners and students. The fruitful discussions addressed several issues on feminist lawyering, practicing and judging that currently plague the legal field.
Sangramsinh P. Gaekwad Shantidevi P. Gaekwad (2005) 11 SCC 314
Bench: J. N. Santosh Hegde, J. S.B. Sinha
Judgment written by: J. S.B. Sinha
The case concerns allegations of mismanagement and oppression in a family-owned business. Patriarch Sir Pratapsingh Gaekwad’s estate fell into the hands of his son Fatehsinghrao P Gaekwad, who started several businesses using it. The one relevant to the present case is Baroda Rayon Corporation Ltd (‘BRC’), which he started in 1958. His youngest son Sangramsinh Gaekwad joined BRC in 1968. He was the Director of Managing Agents initially, and later became the Joint Managing Director in 1970. In 1976, he became the Managing Director. He was reappointed as Managing Director twice, each for a period of five years, in 1980 and then 1985. Following Fatehsinghrao Gaekwad’s death in 1988, Sangramsinh was appointed as the Chairman and Managing Director of BRC. Following a board meeting, it was decided that to generate extra capital the company would float 25,000 shares at Rs. 100 each; other important financial decisions were also made in this meeting. After a lot of financial discrepancies and slip-ups, a civil suit was filed about Pratapsinh Gaekwad by
Another company started from Sir Pratapsingh Gaekwad’s estate was Gaekwad Investment Corporation Company Ltd (‘GIC’). Its equity capital consisted of 425 shares of Rs. 100/- each, with most shares held by family members. In the financial years 1987 and 1988, GIC allegedly made losses, as a result of which a large part of the equity and reserves of the company were exhausted. BRC shares also dwindled as it GIC held a substantial number of shares in it. Eventually a suit of oppression and mismanagement was filed against him.
The Court held that the Director of a company owes a fiduciary duty to the company, indisputably. She does not ordinarily have a fiduciary relationship with the company’s shareholders, but exceptional circumstances may prompt a duty. Therefore, the Court said that each such case must be looked at considering its facts; a universal rule cannot be made. However, the court enumerated two specific instances where a director owes a duty to shareholders: (i) when directors choose to advice shareholders, and shareholders subsequently act on such advice, (ii) in the case of “transaction of sale and purchase of shares between the director and the shareholder.” (Para 75)
The second day of the workshop witnessed questions on the craft of legal re-writing, particularly, the length and brevity of judgments. It also saw discussions on the need to use simple language in judgments to increase their accessibility. The sessions ended with a panel discussion on the pedagogies of feminist judging. The panel consisted of Dr. Rosemary Hunter and former judges of Madras High Court, Justice Prabha Sridevan and Justice Chandru.
Budhadev Karmaskar State of West Bengal (2011) 11 SCC 538
Bench: J. Markandey Katju, J. Gyan Sudha Mishra
Judgment written by: J. Markandey Katju
This case concerns the brutal murder of Shirmati Mangla Singh, a sex worker, by Budhadev Karmaskar, by banging the victim’s head against a floor and wall.
Karmaskar was convicted by the Calcutta High Court, following which he filed an appeal before the Supreme Court of India. The Supreme Court, while dismissing the appeal based on evidence on record, expounded on the lives of sex workers and their rehabilitation into other occupations, noting their characterization in various pieces of literature and popular culture, such as Chandramukhi from ‘Devdas,’ Sonya Marmelodov from Dostoyevsky’s novel ‘Crime and Punishment.’ The Court notes the ‘plight’ of sex workers; women who are forced into this occupation. The judgment says that a woman becomes a ‘prostitute’ not because she enjoys it, but because of poverty.
The Supreme Court noted that sex workers are also human beings, and therefore no one has the right to assault or murder them. They are entitled to a life of dignity, a right entitled to them under Article 21 of the Constitution of India. Further, the judges note that society must have sympathy towards sex workers and must not look down on them.
The Supreme Court also directed the Centre and state governments to formulate social rehabilitation schemes for sex workers who are subjected to mental and physical abuse over several years, to help them access their right to live with dignity. As a part of such rehabilitation, the Court directed that technical, vocational training must be provided, to complete their rehabilitation and ensure that they do not return to sex work. ‘For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself.’
The panellists reflected on the sessions they attended and provided critical feedback to the participants. Justice Prabha Sridevan cautioned against judgments reading as academic essays. She emphasized on brevity, simple language and temporal limitations of the judgment. These sentiments were also echoed by Dr. Rosemary Hunter. Justice Chandru added that this project is immensely important and must be accessible to the larger public including colleges and judicial academies.
First published in The Leaflet.
Donate to the Indian Writers' Forum, a public trust that belongs to all of us.