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Should Judges Have a Feminine Approach?

Should Judges Have a Feminine Approach?
Senior advocate Indira Jaising has stated that there are different standards for judging male and female advocates/Photo: Anil Shakya
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Above: Senior advocate Indira Jaising has stated that there are different standards for judging male and female advocates/Photo: Anil Shakya

In a male-dominated legal profession, the claiming of the derided and derogatory label of femininity by just-retired Supreme Court Justice AK Sikri is significant, and yet problematic

By Prof G Mohan Gopal

Judges don’t normally make confessions. They only hear them. Justice Arjan Sikri broke this convention. He made two confessions in his farewell speech to the Bench and the Bar on March 6, 2019, his final day in office as a judge of the Supreme Court of India. The first was mundane. The second, quite startling: “Let me make (a) confession today,” he said. “By nature, a part of me is feminine.”

The judge explained: “It is the attribute of femininity which instills the desired sensitivity, that is required in varied types of cases and in various circumstances…After all, the symbol of justice is a goddess, i.e. a female form. No doubt, she is shown blindfolded. However, her heart is not shut from where emanate the qualities imparting justice…It helps inhering the qualities of doing justice which is pregnated with mercy, justice which has the attribute of compassion.” (sic) He added: “It is well-known that women have sixth sense. I told earlier that while discharging judicial function, with the passage of time, judges acquire a sense of justice, which is their sixth sense. However, there is a pre-condition to that, namely, you have to have feminine approach to justice.” (sic) Justice Sikri also said: “I am of the firm opinion that every male, in order to be a complete human being, should possess some elements of femininity.”

The extremely misogynistic and macho environment in which Justice Sikri dared to say that a part of him is feminine is captured in an open letter written by senior advocate Indira Jaising to the chief justice of India two days later—on International Women’s Day, March 8.

In this letter, Jaising described the derogatory sexist language still used in courts. She said she had been called “shrill while my male colleagues are valourised for being totally aggressive in the court”. She spoke about how she has been “sexually harassed in the corridors of the Supreme Court of India, notwithstanding my grey hair and notwithstanding that the corridors are under CCTV surveillance”.  She added: “In over 50 years of practice, I have not found any improvement in the culture of the courts which is predominantly male. Women, though present, in larger numbers are invisible from public discourse, unless they are someone’s wife, sister, daughter, or politically connected to the powers that be.” Jaising also refers to judicial language still using “words and phrases which perpetuate patriarchy, endorse stereotypes of women’s perceived roles and behaviour and entrench biases that are detrimental to the status of women in our society”. She said: “The symbol of justice may be a blindfolded woman, but none of us will settle for tokenism or symbols.”

What do we make of the significance of Justice Sikri—at his retirement, the third most senior judge in our country—voluntarily claiming the derided and derogatory label of femininity in a misogynist legal profession? Do these remarks, coming from one of India’s most senior and scholarly judges, have any larger significance for gender equality?

Read as a whole, it is clear that the core theme of Justice Sikri’s farewell speech was quality of judges, not equality in society. Indeed, the speech was confined to law—legal education, practice of law and judging. There was no discussion of larger issues, internal or external, including, for example, the flaming controversies that have raged around him over the last few months over the independence of the judiciary.

Justice Sikri was not being epicene in saying that a part of him is feminine. His purpose in this claiming appears to have been to extol four qualities that he considers essential for a judge: sensitivity, mercy, compassion and a sense of justice, a so-called “sixth sense”. Highlighting these values implicitly signifies Justice Sikri’s judgment that they are currently in short supply. A corollary of his proposition would be that their antonyms are at large—insensitivity, mercilessness, injustice and cruelty. If true, this would have a deeply corrosive impact on faith and confidence in our courts and in the Republic itself.

Why are these extolled values in short supply? Justice Sikri’s comments show that values such as sensitivity, mercy and compassion are seen in the legal domain as “effeminate” (He says: “It is the attribute of femininity which instils the desired sensitivity, that is required in varied types of cases and in various circumstances”). In turn, the macho legal culture in our country associates the feminine with weakness. For example, the Supreme Court of India said in one of its judgments—State of UP vs Chatur Singh in 2005: “Woman by its feminine nature and with a feeble body, ordinarily would not pose threat or danger to life of a well bodied man with a lathi.”

If sensitivity, mercy and compassion are to be strengthened, the stigma associated with their being seen as “attributes of femininity” should be eliminated. One way to do this is to advance an idea, accepted religiously by many sections of Indians, that, like ardhanariswara, humans may also have in them both the feminine and the masculine. Such an approach would, in Justice Sikri’s line of argument, strengthen the status of these exalted values even though they are seen as attributes of femininity.

A fifth quality, lack of malice, was suggested in the other, more mundane “confession” Justice Sikri made in the same speech: “Even at this age of 65, there is a child in me. It has kept intact some kind of ‘innocence’. This innocence ensures that there is no malice for anyone, and that helps in doing justice.”

Notwithstanding his laudable intentions of improving the quality of judges, Justice Sikri’s remarks on femininity and feminine values are problematic at many levels. First, the theory of femininity and gender that Justice Sikri uses in this speech reflects a segregated, binary understanding of gender, packed with stereotypes, that, in the words of Judith Butler, “being a man or a woman is actually an internal reality, something that is true about us”.

French feminist theorist and author Monique Wittig said 40 years ago (as Justice Sikri was starting his forensic career): “A materialist feminist approach to women’s oppression destroys the idea that women are a ‘natural group’. A lesbian society pragmatically reveals that the division from men of which women have been the object is a political one and shows that we have been ideologically rebuilt into a ‘natural group’. In the case of women, ideology goes far since our bodies as well as our minds are the product of this manipulation. We have been compelled in our bodies and in our minds to correspond, feature by feature, with the idea of nature that has been established for us. Distorted to such an extent that our deformed body is what they call ‘natural’, what is supposed to exist as such before oppression. Distorted to such an extent that in the end oppression seems to be a consequence of this ‘nature’ within ourselves (a nature which is only an idea). What a materialist analysis does by reasoning, a lesbian society accomplishes practically: not only is there no natural group ‘women’ (we lesbians are living proof of it), but as individuals as well we question ‘woman’, which for us, as for Simone de Beauvoir, is only a myth. She said: ‘One is not born, but becomes a woman. No biological, psychological, or economic fate determines the figure that the human female presents in society: it is civilisation as a whole that produces this creature, intermediate between male and eunuch, which is described as feminine.” (Monique Wittig, One is Not Born a Woman).

Famously, Judith Butler said gender is “performative”, a “phenomenon that is being produced and reproduced all the time” and that “nobody is really of a gender from the start”.

The Supreme Court fully understands this contemporary understanding of gender, but seems not to have accepted it. Even while recognising the social and political construction of gender, it largely holds on to the traditional construction of gender. A detailed analysis of gender theory by the Supreme Court is available in its landmark 2014 “Transgender” judgment (National Legal Services Authority vs. Union of India, dated April 15, 2014). Justice Sikri was a party to the judgment. Even though the Court took a welcome and progressive view and recognised transgender as a “third gender” (enlarging the binary to a trinary), it failed to fully accept that gender is merely “performative”, a false social and political construction, and to appreciate that, paraphrasing Siomone de Beauvoir, one is not born as, but is made into, one or other gender.

A persistent confusion between “feminine” (characteristic of or appropriate or unique to women) and “feminism” (theory of the political, economic, and social equality of the sexes and organised activity on behalf of women’s rights and interests to that end) continues to bedevil our jurisprudence.

This confusion shows through in the evidence that Justice Sikri offers in his speech for his proposition that as a necessary pre-condition, male judges “have to have feminine approach to justice” “if they are to acquire sense of justice”, “which is their sixth sense”, because “it is well-known that women have sixth sense”. (sic) The evidence offered by Justice Sikri is the United States Feminist Judgments Project, a collaborative effort of more than 100 feminist law professors to rewrite US (and later other) court decisions from a feminist perspective. Justice Sikri says that the rewriting of the judgments from a feminist perspective “demonstrated that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups.”

The point that Justice Sikri may be overlooking is that the authors who rewrote judgments from a feminist perspective under that project are not all women—they include men as well. He also overlooks the possibility that not all women will have a feminist approach either. This is because he appears to be of the view that a feminine perspective is a natural, biological attribute of women.

It’s clear that our courts are yet to accept the full force of feminist legal theory, described succinctly as “a body of scholarship produced over the last half of the twentieth century and the first quarter of this one that proffers explanations of law’s complicity in the ongoing subordination of women and sexual minorities, while also pursuing the possibilities within law for achieving lasting gender and sex equality. Its purpose is thus both descriptive and critical on the one hand, and normative and aspirational on the other.” (Robin West, Introduction to the Research Handbook on Feminist Jurisprudence).

In the absence of theoretical clarity on gender, gender equality and legal theory on gender, men being “feminine” (a la Justice Sikri) instead of becoming feminist is likely to be counter-productive. It will do little more than entrench the gender binary (or trinary), reinforce stereotypes, attaching “strong” qualities to the male and “weak” qualities to the female and the transgender, and lull judges into a false comfort that their judicial methods do not suffer from gender bias. This is an approach fraught with danger. Men becoming feminine cannot be a substitute for the due representation of women as an oppressed class.

If and when our courts recognise that gender is a system of subjugation and exploitation, and that women constitute a class of people deprived of freedom and equality because of the unique social and political construction of the idea of gender, our jurisprudence will align more closely with our Constitutional struggle for establishing a new social order based on equality and freedom for all.

Finally, it is important to place the feminist struggle in our country in a broader social context. Why wasn’t someone as sensitive as Justice Sikri also able to proclaim: “By nature, a part of me is Dalit/avarna/a landless labourer”? Is it because he lacks the same sense of shared heritage with the avarna/Dalit labourer as he does with women of his own family, caste and religion? Is it because the prejudice against the Dalit/avarna/working class is so strong that there is as yet no lore of exalted values associated with them (such as sensitivity, sense of justice, mercy and compassion)? Is it because there is no religious tradition of worship of the Dalit or the worker as there is of women? This underscores the importance of inter-sectionality in our approach to issues of gender jurisprudence and gender justice. Some 90 percent of Indian women are avarna/Dalit who are triply victimised—as women, as low caste and as working class and poor. Diversity and representation in the judiciary is essential so that we can have in the Supreme Court a due share of Dalits/avarna women who will be able to have, as part of their nature, the feminist as well as the Dalit/avarna and the poor.

—The writer was former Director, National Judicial Academy and former VC, National Law School of India, Bangalore

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