Abstract
This paper presents a feminist alternative judgment or a feminist (shadow) judgment to the Supreme Court of India’s judgment in Sarla Mudgal v Union of India and Ors. This shadow judgment is inspired by the Feminist Judgments Projects in UK, Australia, Canada, and other places to radically reimagine the role of a judge to adjudicate differently by remaining faithful to the legal and constitutional rules that bind her. The project situates writing alternative judgments to judgments that could have been written better or written differently by using a feminist lens. In Sarla Mudgal, the Supreme Court was specifically called to examine the validity of a Hindu marriage between a Hindu man and a Hindu woman and the issue of bigamy by the former after contracting a second marriage with another Hindu woman by a fraudulent conversion to Islam. However, instead of putting the responsibility of bigamy on the Hindu men, the SC blamed the act on the plurality of personal laws and the lack of a uniform civil code. Sarla Mudgal is an example how misplaced judicial zeal ends up as Hindutva’s uniform civil code stick to beat minorities with. The shadow judgment, written in the form of a separate but concurring opinion, explores whether there was any possibility of denouncing bigamy of Hindu men and holding the bigamous men responsible without ascribing their bigamy as a product of Muslim personal laws.
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Notes
In 2008, number of Canadian feminist scholars, activists and lawyers set up the Women’s Court of Canada, a collaborative to rewrite Supreme Court decisions on section 15, the equality clause in Canadian Charter of Rights and Freedom. The goal of this ‘shadow judgment’ project was to see what substantive equality could look like in judicial expression. The Canadian experiment was repeated in Australia and UK. Thirty-one feminist legal academics rewrote legal decisions in Australia from a feminist perspective. Fifty academics, legal practitioners and activists rewrote twenty-three significant cases in English law in a similar vein. There have been similar shadow judgement writing projects by feminist law professors in USA. In Ireland and Northern Ireland, the methodology has taken into account the peculiar Irish and Northern Irish challenges and aspirations, and consequently themes of collective identity have interacted and intersected with the theme of women’s experience with law. See, for example, FEMINIST JUDGMENTS: FROM THEORY TO PRACTICE (Rosemary Hunter et al., eds. 2010); AUSTRALIAN FEMINIST JUDGMENTS: RIGHTING AND REWRITING LAW (Heather Douglas, et al., eds. 2014); Diana Majury, Introducing the Women’s Court of Canada, 18 CAN. J. WOMEN & L. 1 (2006).
For example, see Naomi R. Cahn, Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice, 77 CORNELL L. REV. 1398 (1991).
Usha Ramanathan, Reasonable Man, Reasonable Woman and Reasonable Expectations, in ENGENDERING LAW: ESSAYS IN HONOUR OF LOTIKA SARKAR (Amita Dhanda & Archana Parashar, 1999).
Robert M. Cover, Nomos and Narrative, 97 HARV. L. REV. 4 (1983).
At the interface of feminism and power, the objective of liberal feminism was to get women in public institutions but there was little discussion on what happened after women ‘got’ there. Would the nature of the institution necessarily be transformed by the presence of women? This essentialist strand has been critiqued by feminist scholars since the presumption that only women can transform these institutions presupposes the existence of a universal quality of womanness shared only by women and blurs that presumes ‘woman’ to be a homogenized category without any difference. The presumption also overlooks the possibilities of institutions transforming women. For example, women as new entrants to hetero-patriarchal institutions are least likely to disturb the status quo to prove their legitimacy and worth. Feminist scholars have therefore argued that it is important to frame this in the language of feminism and power instead of women and power. See Rosemary Hunter, Can Feminist Judges Make a Difference? 15 INT’L. J. LEGAL PROF. 7–36 (2008).
See Naomi R. Cahn, Defining Feminist Litigation, 14 HARV. WOMEN'S L. J. 1 (1991). Cahn critiques and builds on the dialogue between Ruth Colker and Sally Burns in Harvard Women’s Law Journal about the meaning of feminist litigation and emphasizes that:
feminist lawyering involves a process that recognizes power in legal relationships-of women to the law, and of attorneys to their clients. It is committed to identifying and overcoming such traditionally unrecognized forms of exclusion as sexual harassment, woman abuse, and rape. Naming these experiences requires the use of practical reasoning, a method that works toward resolutions by drawing on both the lawyer's and the client's experience of exclusion.
See Martha Minow, Beyond Universality, 1989 U. CHI. LEGAL F. 115 (1989).
For example, the Women’s Court of Canada in these parallel judgments came to radically different conclusions from the original judgments. For example, the court awarded a full Canada Pension Plan survivor benefits to a young widow when her husband died; a businesswoman was allowed to claim childcare costs as a business expense and despite budgetary constraints pay equity payments were maintained for government workers in Newfoundland. See Diane Peters, The Women’s Court of Canada¸ UNIV. AFF., Sept 12, 2011, http://www.universityaffairs.ca/features/feature-article/the-womens-court-of-canada/.
See Hunter et al. supra note 1.
Feminist critique of law as a strategy has developed considerably in the last few decades. The women’s movement in India has engaged with law substantially in the 1980s to address violence against woman, resulting in several legislative changes, but implementation of these laws remained conservative, uneven and partial leading to the inevitable conclusion that the law is severely limited as a transformative tool, especially in postcolonial societies, where the law was a product of the ‘exigencies of colonial administration’ and therefore does not come with the same emancipatory potential. See NIVEDITA MENON, RECOVERING SUBVERSION: FEMINIST POLITICS BEYOND THE LAW (2004).
See, for example, PRATIKSHA BAXI, PUBLIC SECRETS OF LAW: RAPE TRIALS IN INDIA (2014).
In fact, judiciary, if one is to follow Robert Dahl’s arguments is and never has been a counter-majoritarian institution. Judiciary, like legislature, tends to reflect the majoritarian aspirations and politics. See Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279–95 (1957). For a more contemporary discussion on the alignment of the priority of the court with the majoritarian (economic) culture, see MAYUR SURESH & SIDDHARTH NARRAIN, THE SHIFTING SCALES OF JUSTICE: THE SUPREME COURT IN NEO-LIBERAL INDIA (2014).
It might also be useful here to glance at the notorious lack of gender diversity on the bench in India to understand the hypermasculine nature of the SC. In the sixty-six years since its establishment, the SC has appointed only six women judges, with the first appointment made in 1989. The HCs display an equally skewed ratio. For a note on under representation of women in the judiciary and an argument for gender diversity on the bench, see Latika Vashist, Under-Representation of Women in the Judiciary: An Argument for Gender Diversity on the Bench, INDIA L. NEWS, December 1, 2013, http://indialawnews.org/2013/12/01/under-representation-of-women-in-the-judiciary-an-argument-for-gender-diversity-on-the-bench/. While no discernible trend can be observed to make a case for more women on bench for feminist judgments, it might be useful to look at some of the ‘feminist’ judgments delivered by women judges. For example, Justice Sujata Manohar, the second woman judge of the SC, was one of the members on the bench in Vishakha which recognized sexual harassment at workplace as an issue of women’s right to equality and non-discrimination at the workplace and in the absence of domestic legislation, looked at international law and outlined a policy to redress and prevent the same. Justice Ruma Pal, the third woman judge of the SC, delivered judgments in A. Jayachandra and Vinita Saxena, defining mental cruelty in marriage and cruelty as a ground for divorce. Similarly Justice Ranjana Desai was part of the bench that approved guidelines for the prevention and redressal of sexual harassment of women applicable to the SC complex and the lawyers chambers.
See Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 THIRD WORLD LEGAL STUD. 107 (1985). Baxi famously introduced the SC doing social action litigation as the SC of Indians, a transformation he argued, which was largely characterized by ‘judicial populism’ of a post Emergency era institution redeeming itself.
In Indra Sarma v. V.K.V Sarma, the SC was concerned with the question whether a ‘live-in relationship’ would amount to a ‘relationship in the nature of marriage’ falling within the meaning of Section 2(f) of the Protection of Women from Domestic Violence Act 2005 (PWDVA). The SC, while outlining eight indicators of relationships in the nature of marriage rejected the claims arising out of 18 years of cohabitation on the ground that the woman was aware of the pre-existing marriage of the man and therefore “could not have entered into a live-in relationship in the nature of marriage”. It went on to create a false distinction between live-in relationships and relationships in the nature of marriage on a moral reasoning that all live-in relationships are not relationships in the nature of marriage because a woman, knowingly in a relationship with a married man deserves no legal protection. She has the status of a ‘concubine’ or a ‘mistress’. Another SC ruling, few years before Indra Sarma denied maintenance to women who are in marriage-like relationships with married men on a similar moral musing. See, Veluswamy v Patchiammal (2010) 10 SCC 469.
The litigious Indian ‘wife’ is variously projected in popular culture, men’s rights groups and mass media as an ‘unscrupulous’ woman ‘fabricating stories’ to harass her husband by ‘misusing’ the law. The judicial language too has absorbed discourses, languages and rhetorics emerging from the outside “messy” world and ignored the assemblage of backlash politics and legal manoeuvres that shape the rhetoric of misuse. The two most notable cases in the SC that advanced the ‘misuse’ claim are Sushil Kumar Sharma vs Union of India and Preeti Gupta vs State of Jharkhand, both framing the judicial discourse on 498A in the language of ‘legal terrorism’ where ‘exaggerated versions of the incident’ and ‘tendency of over implication’ by the ‘unscrupulous’ wife potentially allowed her to ‘wreck personal vendetta or unleash harassment against the husband. Both judgments claimed that ‘many instances’ have come to light where the ‘complaints are not bona fide and have been filed with oblique motive’ and such instances, the SC noted was ‘a matter of common knowledge’. However, a preliminary engagement with some of the SC’s judgments show that the language of ‘misuse’ is seldom anchored to any data and often tends to shift the category of facts not proved to the category of disproved, thus marking a case of domestic violence as potentially fraudulent.
In the context of criminal law, more specifically laws on sexual violence, the fact that the criminal justice system has repeatedly failed to address the experience of the woman who comes in contact with it raises serious questions about meaning and scope of justice for the woman. The ‘tradition bound Indian woman’ very easily then positions herself between law’s guarantees and its threats and becomes the morally ‘loose’ tribal girl who consents to sexual intercourse in police custody (Mathura) or the ‘lower caste’ ‘lying’ woman who cannot be raped by upper caste respectable men (as alleged by perpetrators against the victim).
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 S.C.C. 217.
A.I.R. 1984 Delhi 66.
Bombay HC observed that wife should be like Sita and follow her husband everywhere in a divorce petition filed by a man on the ground that his wife was unwilling to relocate to his place of work. See, A Wife Should be Like Goddess Sita: Bombay HC, TIMES OF INDIA, May 8, 2012, http://timesofindia.indiatimes.com/city/mumbai/A-wife-should-be-like-goddess-Sita-Bombay-HC/articleshow/13054421.cms.
For a longer discussion on this, see Indira Jaising, Gender Justice and the Supreme Court, in SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA, (Ashok H. Desai et al., eds., 2000).
(1995) 3 S.C.C. 635.
The women’s movement in India has engaged with UCC in several ways. As early as 1937, the All India Women’s Conference demanded a uniform law for all communities. Till 1980, this demand was articulated by a significant number of women. The women’s movement by the middle of the 1990s, however assimilated a number of positions (including an outright rejection of UCC) and consensus, was built that a campaign for gender just laws will be done at three levels—reform within personal laws, legislating on areas which are not covered by secular or personal laws, setting up a ‘comprehensive gender-just framework’ covering ‘public’ domains as well. For a comprehensive summary of the UCC debate as late as 2014, see Nivedita Menon, Uniform Civil Code – The Women’s Movement Perspective¸ KAFILA, Oct.1, 2014, http://kafila.org/2014/10/01/uniform-civil-code-state-of-the-debate-in-2014/.
For an elaborate discussion, see FLAVIA AGNES, LAW AND GENDER EQUALITY 111–123 (1999).
Babri Masjid, a sixteenth-century mosque in Ayodhya, Uttar Pradesh, was demolished on 6 December 1992 by Hindu Kar Sevaks, in an attempt to reclaim the mythological birthplace (Ram Janmabhoomi) of Hindu God, Ram. The demolition was carefully planned by an assortment of Hindu Right including Bharatiya Janata Party (BJP), Vishwa Hindu Parishad (VHP) and Rashtriya Swayamsevak Sangh (RSS), and the riots that followed were ‘indicators of aggressive majoritarianism’.
See Hunter et al. supra note 1.
For example, that a judgment should be based strictly on evidence on record, and the judge should not go out of the record and base his findings on matters within his personal knowledge and conjecture. Language of the judgment should be sober and temperate and in no case satirical or factious. Judges should see that their pronouncements are judicial in nature and do not normally depart from sobriety, moderation and reserve. They should refrain from being sarcastic in their judgments. The language of the judgments should be entirely devoid of anything approaching factiousness. It is not obligatory for the judge to discuss purely hypothetical questions which may never arise. He should as a matter of fact not give any finding on points which are not in issue. See, SHAMBHU DAYAL SINGH, JUDGMENTS AND HOW TO WRITE THEM (1968).
See Bhaurao Lokhande v State of Maharashtra, A.I.R. 1965 S.C. 1564; Kanwal Ram & Ors v Himachal Pradesh Administration, A.I.R. 1966 S.C. 614; Priya Bala Ghosh v Suresh Chandra Ghosh, A.I.R. 1971 S.C. 1153. An examination of these judgments reveal that while lower courts have convicted Hindu males for bigamy, the SC has shown a more lenient attitude and acquitted them by demanding proof of essential ceremonies as a precondition for conviction, even when the husband and wife admit to the second marriage and cohabitation. In doing so, the court has ignored the pluralistic tendency of the Hindu society; the upper caste Brahmanical rituals served as the gold standard against which all other rituals and ceremonies had to be tested to fulfil the judicial standards of acceptable proof of bigamy.
For example, Werner Menski explains this process by articulating that the frequent argument now is that Hindu concepts should prevail in India because they constitute the intellectual property of the demographic majority. One can see how easily this line of reasoning turns the arguments in favour of a Uniform Civil Code towards attempts to Hinduise the nation and to simply get rid of Muslim and Christian personal laws. See Werner Menski, Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda, 9 GERMAN L. J. 211 (2008). Also see, Paula Richman & Geetha, A View from the South, in THE CRISIS OF SECULARISM IN INDIA 66–88 (Anuradha Dingwaney Needham & Rajeswari Sunder Rajan, eds., 2006).
It is perhaps also useful to note an observation made by H.M. Seervai on the judicial frenzy of Justice Singh that purportedly eclipsed a dissent by Justice Sahai. Justice Kuldip Singh, however, gratuitously raised the question of a common civil code on the specious ground that the absence of such a code induced Hindu husbands to convert to Islam so that they could marry one or more wives although their wives were alive and had not been divorced, because Mohamedan law permitted a Muslim to marry four wives at a time. He further held that a common civil code did not violate the freedom of religion guaranteed by Articles 25, 26 and 27 of our Constitution. On this point, Justice Sahai dissented and referred to SC decisions which had held that religion was not merely a matter of faith and belief, but included rituals, ceremonies and prayers in temples, mosques, churches, etc. Justice Kuldip Singh praised Justice Sahai’s ‘concurring’ judgment. But on the question of whether a common civil code would violate freedom of religion, Justice Sahai did not concur. Both judges inadvertently overlooked Article 145(5) which provides that no judgment shall be delivered in the SC except with the concurrence of a majority of judges hearing the case. Since the two judges differed as aforesaid, they could deliver no judgment at all on the point whether a common code did or did not violate the freedom of religion.
BRENDA COSSMAN & RATNA KAPUR, SECULARISM'S LAST SIGH? HINDUTVA AND THE (MIS)RULE OF LAW 33 (1998).
See A.G. Noorani, Hindutva’s Stick, FRONTLINE, Nov. 27, 2015, http://www.frontline.in/the-nation/hindutvas-stick/article7866171.ece.
However, by oral observation, a Division Bench comprising Justice Kuldip Singh and Saghir Ahmad, shortly after the judgment was pronounced, indicated that the directions given by the Division Bench comprising Justice Kuldip Singh and Justice R.M. Sahai in its judgment in Sarla Mudgal v. Union of India, requesting through the Prime Minister that the Government of India to have a fresh look at Art. 44 of the Constitution and ‘endeavour to secure for the citizens a uniform Civil Code throughout the territory of India’ and further directing the Government to file an affidavit before it explaining steps taken and efforts made and suggesting the measures that could have been taken in this regards were in the nature of obiter observations and hence not binding on the government.
The alternate judgments are written as ‘missing’ judgments, or dissenting or separate but concurring opinions. I have chosen to (re)write Sarla Mudgal as a separate but concurring opinion, simply because the myths perpetuated by the ‘concurring’ judgment of Justice Kuldip Singh and Justice Sahai needed to be dismantled.
§ 494. Marrying again during lifetime of husband or wife. —Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
5 Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
1. neither party has a spouse living at the time of the marriage;
…………..
§ 13 Divorce. (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
……………..
2. has ceased to be a Hindu by conversion to another religion;
§ 15 Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
§ 2. Grounds for decree for dissolution of marriage. — A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: — A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: —
(viii) that the husband treats her with cruelty, that is to say,
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
In Re Nagarassayya, 1988 Mat. L.R. 123; B. Chandra Manakiamma 1988 A.P. L.J. 1848.
1954 S.C.R. 1005.
VISCOUNT JAMES BRYCE, 2 STUDIES IN HISTORY AND JURISPRUDENCE 237 (1901); SAID RAMADAU, ISLAMIC LAW, ITS SCOPE AND EQUITY 15–16, 27–30, 42–47 (1961).
1973 S.C.R. (1) 231.
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The author thanks Rosemary Hunter and the editors of this special issue for their very helpful comments.
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Jhuma Sen—Assistant Professor and Assistant Director.
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Sen, J. Righting Sarla Mudgal v Union of India and Others . Jindal Global Law Review 7, 97–112 (2016). https://doi.org/10.1007/s41020-016-0020-0
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DOI: https://doi.org/10.1007/s41020-016-0020-0