20 Feminist Readings in Law

Jurisprudence, in its most ordinary meaning, refers to the science of law, which includes both Civil &   Criminal law. The philosophical genesis of jurisprudence has been subject matter of intense intellectual debate and twentieth century witnessed among others, the development of the concept of feminist jurisprudence.

Feminist jurisprudence is the result of women’s general movement where persons like Olsen. MacKinnon concerned themselves in issues relating to sexism, classism, and family. For a while it was believed that these issues would be taken up in conferences of Critical Legal Studies in a composite approach where issues relating to logic behind framing of laws would be deliberated upon critically and the feminist thoughts would receive some weightage. Women felt that the underlying principle of law making was deeply biased towards stereotypes of the patriarchy. However in the decade of the seventies it was observed that the conferences of CLS failed to address these issues effectively and the women members felt ghettoized. This thwarted the women’s hope of addressing laws relationship to oppression and patriarchy in private and public sphere.

During this time the writings of Simone De Beauvoir1, Betty Friedman2, Germaine Greer3, Kate Millet4, Eva Figes5 led to development of academic disciplines like “Feminist Sociology”, Feminist History”, “Feminist Philosophy” and “Feminist Jurisprudence”.

Feminist jurisprudence, a term coined by Ann Scales during the planning process for Celebration 25, a party and conference held in 1978 to celebrate the twenty-fifth anniversary of the first women

1  The Second Sex [1949]

2  The Feminine Mystique [1963]

3  The Female Eunuch [1971]

4  Sexual Politics [1970]

5  Patriarchal Attitudes [1970]

graduating from Harvard Law School and the term was first published in 1978 in the first issue of the Harvard Women’s Law Journal.

Feminist Jurisprudence enquires into women’s subordination and into its “how”s and “why”s. It examines the relationship between politics and the patriarchal hegemony. The method of feminist jurisprudence is consciousness raising, advocacy, and deconstructing and reconstructing women’s experiences.

Feminist jurisprudence primarily begins with “asking how the law would be different if it took women’s point of view and experiences into account, while decoding legal concepts and working of law in real world”. We all are aware of the fact that feminism, the concept itself, is divergently different in approach, emphasis and objectives, therefore generalization of perspectives, if not impossible, are difficult. While at its embryonic stage, feminist jurisprudence concentrated on the issue of gender difference as the genesis of feminist jurisprudence. The primary objective was to outlaw biased treatment and provide laws that allowed women equal opportunities with men. “Law has developed over time in the context of theories and institutions controlled by men and reflect their concerns. Historically law has been a public arena and its focus has been on those public concerns. Traditionally women belong to the private recesses of society, in families, in relationships controlled and defined by men, in silence”-wrote Robert W. Woodruff. Therefore the evolutionary nature of feminist jurisprudence, as it stands today, concerns with women’s poverty, financial dependency, motherhood, sexual accessibility, healthcare and all other related issues. The thematic centerpiece of the philosophy is the dignified humane existence backed by law.

The concept of feminist jurisprudence in India is not divergently different from western concept of feminist jurisprudence. In fact it can be safely stated that the literature on Indian concept of feminist jurisprudence is scant and the development of the philosophical genesis of the same is in nascent stage. The root of feminist jurisprudence in India can be traced to the constitutional design and protection available under Article 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of Indian Constitution. Article 14 provides for equal protection before law i.e. the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This article is gender neutral i.e. it does not discriminate on the between men and women while according equal protection of law to equally circumstanced human beings. India’s equality jurisprudence has long exhibited inklings of formal equality’s limits, undertows, intransigence, and backlash potential, and it displays a vigorous sense that a more substantive notion of equality is needed, observed Catherine A Mackinnon. She quoted Justice P. N. Bhagwati, joined by Justice Krishna Iyer, in Royappa, where it is observed of the so-called new doctrine that equality is “a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits.” Once the potential dynamism inherent in the equality concept is revealed in claims by subordinated peoples, as foregrounded in the alternate conception, a rich and substantive equality tradition is revealed beneath the existing equality jurisprudence in India. The Author further notes that India’s constitutional text hold a great potential for ameliorating the subordination of women to men. A signal beacon compared with many Western equality guarantees, the language of article 15 recognizes in the structure and provisions of the Constitution of India itself that sex has been made into a social disadvantage for women, in violation of the equality principle. The provisions of article 15 offer a substantive lens through which women’s equality rights can be read. Similarly Article 15(3) states that nothing in this article shall prevent the State from making any special provision for women and children which means provisions ‘for’ the women could be made and not ‘against’ the women. Article 16 of the Indian Constitution state that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State. Article 39 (a) of the Indian Constitution provides for promotion of justice by providing legal aid on gender neutral basis, while Article 39(b& c) provides for gender neutral accesses to justice by affirmative state action. All the above, at least in theory, proves for the road map for development of Indian Feminist Jurisprudence.

All the above laws contains women centric proviso’s which are primarily mean at protecting the legal rights of women in a non-discriminatory basis or classification basis. All the above laws provide for protection of rights of Indian women in the sphere of livelihood, employment, marriage, family, financial dependency, motherhood, sexual accessibility, healthcare and all other related issues.

Apart from the above, which have been certain women centric special incentives which are noted below:

Despite severe criticism from various quarters, these above stated special incentives have laid foundation stone for development of feminist jurisprudence in India. Like many spheres of Indian Legal System, the judiciary more particularly the Supreme Court of India has contributed immensely to the development of the feminist jurisprudence in India. However women have contributed very little or not at all in the making of these laws, these initiatives have failed to safeguard the interest of women to the fullest extent.

In GITA HARIHARAN vs. RESERVE BANK OF INDIA (1999) 2 SCC 228, the Court was faced with construing Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of Guardian and Wards Act, 1890. The sections were challenged as violative of the equality clause of the Constitution, in as much as the mother of the minor is relegated to an inferior position on ground of sex alone since her right, as a natural guardian of the minor, is made cognizable only ‘after’ the father. The Court relied upon the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (“CEDAW”) and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. It was held by the Court that the domestic courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them. However the effect of this decision is that the mother is now burdened to prove that the father has been “negligent” towards the child. Instead of categorically making her an equal partner she has been asked to fight and litigate for it!

In Air India v. Nargis Mirza (AIR 1981 SC 1829), the Supreme Court struck down the discriminatory Rules of Indian Airlines. An Air Hostess in Indian Airline challenged certain provisions of their service rile wherein an Air Hostess could have the job up to 35years of age, but can be terminated if she gets married within 4 years of her recruitment or her first pregnancy as unreasonable and invalid. The Supreme Court held that this provision compelled the Air Hostess not to have children which is against the human nature. The Supreme Court also upheld the right of the Air Hostess to work up to age of 45 years instead of 35 years of age, if they are otherwise found fit. But the validity of the rule for not allowing to get married for 4 years immediately after joining was upheld due to the exigencies of services.

In Municipal Corporation of Delhi v. Female Workers (Muster Roll) (AIR 2000 SC 1274), the Supreme Court extended the benefits of the Maternity Benefit Act, 1961 to the Muster Roll (Daily Wagers) female employees of Delhi Municipal Corporation. In this case, the Court directly incorporated the provisions of Article 11 of CEDAW, 1979 into the Indian Law.

In Vishakha v. State of Rajasthan (AIR 1997 SC 301), the Supreme Court took a serious note of the increasing menace of sexual harassment at workplace and elsewhere. It has been laid down in the judgment that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. The delays in such cases are to be taken up on fast tract mode, because the maxim; justice delayed is justice denied holds good more in women’s right violation cases. When, justice is delayed, the faith of the people on justice system wanes, and start taking law in to their hands in the form of mob justice, family fine, destroying properties and so on which are not actually helping the cause. Crimes should not be tackled criminally or illegally, they should be tackled always in a lawful manner in a democratic country like ours.

The Hon’ble High Court of Gujarat, in Mahila Utkarsh Trust vs. Union of India (2014 SCC Online Guj 7642), held the provisions contained in Section 66(1)(b) of the Factories Act, 1948 – prohibiting women from working in factories between 7.00 pm and 6.00 am – to be ultra vires Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India, relying on the decision of the Hon’ble Supreme Court in Anuj Garg vs. Hotel Association of India (AIR 2008 SC 663). The judgment of the Hon’ble High Court seeks to establish parity in the right to employment between men and women.

The Supreme Court of India in its observations recorded in ANUJ GARG & ORS vs. Hotel Association of India & Ors in Civil Appeal No-5657 of 2007 points to the judicial attitude towards feminist jurisprudence in India. It noted that: “The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring. “Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promote equal employment opportunity,” to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

It would not be out of context to note the observations of Honourable Justice Dipak Misra in one of his judgments, wherein his Lordship has wrote: “When centuries old obstructions are removed, age old shackles are either burnt or lost their force, the chains get rusted, and the human endowments and virtues are not indifferently treated and emphasis is laid on “free identity” and not on “annexed identity”, and the women of today can gracefully and boldly assert their legal rights and refuse to be tied down to the obscurant conservatism, and further determined to ostracize the “principle of commodity”, and the “barter system” to devoutly engage themselves in learning, criticizing and professing certain principles with committed sensibility and participating in all pertinent and concerned issues, there is no warrant or justification or need to pave the innovative multi-avenues which the law does not countenance or give its stamp of approval. …….. Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. That is the truth in essentiality”

The essence about the origin, development and evolution of feminist jurisprudence in India is best noted in the following lines of an eminent authority on the subject matter, when Catherine A Mackinnon wrote:

“If the sex equality in substance achieved for women under other such legal doctrines were combined with developments in equality law previously in search of a unifying rationale, a theory to match the vision and text already there would be supplied, and the pieces would fall into place.”

Learn More

(1) Barrnett, Hilaire- Introduction to feminist jurisprudence2013 Edn— Routledge Publications-USA.

(2) Baines, & Marin-Editors- The Gender of Constitutional Jurisprudence- 2005 Edn-CUP-London

(3) Sharma Gokulesh —Feminist Jurisprudence in India-Women’s Rights-2008 Edn-Deep & Deep Publications-Delhi