Author: Helna George, Student at School of Indian Legal Thought, Mahatma Gandhi University, Kottayam, Kerala.
Over the years, feminist involvement with the law has taken many different forms. Feminists have engaged actively with the law and the legal profession through litigation, advocacy for legal reform, and legal education. Feminists have called into question the terms of legal debate by critically examining legal notions and procedures. Feminist jurisprudence is a philosophy that seeks to comprehend women’s problems. The purpose of this paper is to understand feminism in jurisprudence, its growth and changes that have emerged from its encounter with the law.
Keywords: feminist jurisprudence, feminist legal theory, feminism, women rights, law.
Feminism is a belief in and advocacy of the political, economic, and social equality of the sexes expressed especially through organized activity on behalf of women’s rights and interests.  It is a set of movement to seek gender equality and to achieve social, political and economic rights. A feminist view recognises that preserving social order requires the hierarchical organisation of the world around gender; that living lives labelled “male” and “female” is to live separate realities. But simultaneously, to be a feminist is to imagine occupying the marginal, relatively powerless position regarding every dominant framework that swallows up space at the centre.
Feminist Jurisprudence includes the study of different strands of feminist theory and the themes that have emerged and developed within feminist thought, as well as the application of theory to issues that interest members of the class. Feminist philosophies emphasise the role of law in perpetuating injustices and subordination of women.
Feminist Jurisprudence is a point of view that challenges the existing legal status and emphasises the need for and importance of progressive laws that resolve the gender imbalance in society. Inclusive and progressive laws with effective implementation are the focal point of feminist legal theories. It contends that law must provide a platform where equality prevails rather than control or dominance. Historical perceptions and laws written with the impact of patriarchy must be removed, and it is time to write their obituaries. The feminist legal theory provides a positive perspective for such changes, as laws can be formed using a feminist lens that is both neutral and inclusive. Feminist legal theory has a two-pronged project. First, feminist jurisprudence seeks to explain how the law contributed to women’s former subordination. Second, it focuses on changing women’s status through rewriting the law and widening its gender approach. Feminist jurisprudence is not politically neutral, but a normative approach, as expressed by philosopher Patricia Smith: “[F]eminist jurisprudence challenges basic legal categories and concepts rather than analyzing them as given. Feminist jurisprudence sees the workings of law as thoroughly permeated by political and moral judgments about the worth of women and how women should be treated. These judgments are not commensurate with women’s understandings of themselves, nor even with traditional liberal conceptions of (moral and legal) equality and fairness.
Although feminist jurisprudence revolves around several questions and features a diversity of focus and approach, two characteristics are central to it. First, because the Anglo-American legal tradition is built on liberalism and its tenets, feminist jurisprudence tends to respond to liberalism in some way. The second characteristic is the goal of bringing the law and its practitioners to recognize that law as currently constructed does not acknowledge or respond to the needs of women, and must be changed. These two features can be seen in the major debates in current feminist jurisprudence, which range from questions of the proper perspective from which to understand the problems of the law, to questions of legal theory and practice.
EARLY SIGNS OF FEMINIST JURISPRUDENCE
Ann Scales coined the word feminist jurisprudence in the late 1970s when organising Celebration 25, a party and conference held in 1978 to commemorate the twenty-fifth anniversary of the first female graduates from Harvard Law School. This feminist criticism of American law arose in response to the legal system’s overly gender-prioritized and patriarchal nature. Martha Fineman created the Feminism and Legal Theory Project at the University of Wisconsin Law School in 1984 to examine the connections between feminist theory, practice, and law, and it has played a significant role in the advancement of feminist legal theory. Even though the term was coined in 1978, events and movements occurred much earlier, for example, in the French Revolution, one of the most revolutionary movements in history, women played a crucial role. From universal suffrage to changes in women’s legal status today, feminist movements around the world have played an important role.
THREE SCHOOLS OF FEMINIST JURISPRUDENCE
- CULTURAL FEMINISM
Carol Gilligan’s In A Different Voice, puts forward a school of thought widely described as ‘cultural feminist theory’ or ‘cultural feminism’. “Cultural feminism” starts with the assumption that women differ from men in a variety of significant ways, and that differences should be embraced and promoted rather than eradicated. Gilligan claims that studies of children’s development concentrate exclusively on men’s method of reasoning and neglect the counter-story of women’s method of reasoning, which has had a huge impact on feminist literature. Cultural feminists advocate for women’s contributions to society, such as child-rearing and caregiving, to be recognised. A lot of their work stresses the need for laws that encourage these practices, such as mandatory child-rearing leaves. It promotes independence and institution building and is centred on an essentialist view of the distinctions between men and women.
Critics of the school claim that it promotes gender roles that women have worked hard to overcome for years. This is an argument that has a lot of ground to stand on. Cultural feminists sound eerily similar to anti-feminist “traditional women” in some of their comments about the joys of childrearing. Cultural feminists, on the other hand, are not traditional women in many ways. 5 They have decided, at least from their viewpoint, to recapture the positive aspects of the traditional woman’s position while avoiding the negative aspects.
- LIBERAL FEMINISM
The classic statement of liberal feminism is Wendy Williams’: “we can’t have it both ways, we need to think carefully about which way we want to have it”, explains the theory of liberal feminism. Liberal feminism focuses on individualism which emphasises women’s ability to maintain equality through their actions and choices. They continue to believe that women must be treated the same as men in any way—this is the basic objective of feminism. As a result, they usually oppose legislation that would give preferential benefits to pregnant women, seeing them as perpetuating an unconstitutional disparity in women’s care. According to Wendy Williams, Women awakening to feminist thought in the early 1970s were confronted with a slew of laws specifically separating men and women and limiting women’s prospects for advancement. Their priority was the repeal of these laws. Women joining the feminist movement after 1978, on the other hand, saw a series of superficially “neutral” laws that continued to disadvantage women, and concluded that “neutrality” alone would not be enough to erase men’s lack of influence. As a result, criticising this school on the basis that liberal feminists recognise men’s experience as the standard and require women to comply is illogical.
- RADICAL FEMINISM
Radical feminism is also known as dominance theory and it posits the power relations among men and women. Radical feminism emphasises the importance of removing patriarchal norms from society. Radical feminists believe that society fundamentally is patriarchal in which men dominate women and thus calls for a social reordering of the society to eliminate male dominance. Radical feminists emphasise that men contribute to women’s subordination as sexual practices like rape, harassment, reproductive freedom and pornography are controlled by men Catharine MacKinnon makes a strong case for pornography as a form of gender abuse. It dehumanises and silences women by portraying them as objects. She believes there is a clear connection between pornography and crimes against women. She is credited with introducing the notion that workplace sexual harassment is a form of discrimination. Sexual abuse on the job was not deemed an actionable injury to women until the latter half of the 1970s, although many national surveys revealed that it was very widespread. Radical feminists struggle to be free of all types of male domination, while cultural feminists celebrate interaction and relationships. Andrea Dworkin argues that even so-called “voluntary” heterosexual intercourse81 is not a form of genuinely chosen intimacy, but yet another type of intrusion by men and that women who do not recognize this are engaging in denial.
Radical feminism is widely criticised by many people and even by other feminists. Radical feminists are always treated as man-hating people for their confronting analysis that says what they believed as consensual, right and harmless were all domination and male privilege.
FEMINIST JURISPRUDENCE IN INDIA
In India, feminism refers to a collection of movements oriented at defining, establishing, and protecting equal political, economic, and social rights and opportunities for women.
WAVES OF FEMINISM
- FIRST WAVE (1850- 1915)
The Women’s Movement originated as a social reform movement in the nineteenth century, before the country’s independence. Our educated elite was absorbing the western ideas of liberty, equality, and fraternity at this time through the study of English and contact with the West. This western liberalism was applied to the issue of women’s rights, resulting in a social reform movement.
The reformers attempted to build a new society, modern yet entrenched in Indian heritage, inspired by new European notions of rationalism and progress. They initiated a critical examination of Indian culture to develop a new ethos free of all overt social abnormalities such as polytheism, polygamy, casteism, sati, child marriage, and illiteracy, which they saw as barriers to progress. To the reformers, the status of Indian women in the nineteenth century was abysmally low, therefore their efforts were focused on improving their general status through legislation, political action, and education dissemination (PANDE, 2015). This was mostly influenced by western first-wave feminism, which focused on women’s basic rights.
The Sati tradition, which had been practised for centuries, was uprooted at this period. Raja Ram Mohan Roy was the first to speak out against the oppression of women’s rights, and he was a staunch opponent of Sati. Beginning in 1818, he set out to enlighten the public on the issue. When the Orthodox Hindus petitioned parliament to deny Bentinck’s measure prohibiting the Sati ceremony, parliament refused. On the 4th of December 1829, Governor-General Lord William Bentinck signed the Bengal Sati Regulation. This was the movement’s most significant triumph during that period.
The Widow’s Remarriage Act of 1856, which forbade widows from remarriage, sparked a wave of feminism, with questions raised about the rules’ sanctity. . Widows used to be destined to a life of prayer, hardship, and fasting; they were a forgotten element of society; they were regarded to be unlucky, and they were excluded from any celebration. Pandit Vidyasagar was the one who started the fight against the social scourge of widow remarriage restriction. The Widow Remarriage Act was passed by the British-Indian government at that time.
- SECOND WAVE (1915- 1947)
Three significant organisations emerged in the second phase: the Women’s India Association (WIA), the National Council of Women in India (NCWI), and the All India Women’s Conference (AIWC). All of these groups were founded by women following World War I, between 1917 and 1927. During this time, the fight against colonial rule became more intense. Nationalism rose to prominence as the most important cause. By involving Indian women in the nonviolent civil disobedience movement against the Raj, Gandhi legitimised and increased their public actions. Women demonstrated significant participation in the independence movement in the decades that followed, opening the path for several women-only groups. . Sarojini Naidu, the first Indian female President of the Indian National Congress, took command in 1925 and was a pioneer of women’s rights. She travelled around India with the Annie Besant Women’s India Association to promote women’s literacy and education. When Gandhiji brought India’s freedom struggle to the forefront many women participated but men were reluctant to accept the second line of female leadership. Women took their leadership roles only when the men were in prison during the freedom struggle and this changed the course of womanhood in India. Irrespective of the caste and class, every woman took charge of the struggle and India witnessed a large mass of women in a mass organisation mobilised for political purposes. They were not only fighting against the British era but also smashing the age-old patriarchy.
- THIRD WAVE (1947 to Present)
Women in India gained the right to vote and total equality in the constitution largely thanks to the efforts of women and their part in the liberation war. Article 15(3) of the Constitution gives the government the authority to make special provisions for women. There was also a slew of policy documents that followed, but what happened was that there was a significant disconnect between the theoretical status of women and their rights as described in these documents and what occurred in reality.
In India, women did not have to fight for basic rights as they did in the West. This was essentially a period of accommodation. Marriage, divorce, succession, guardianship, and adoption were all addressed in the Marriage Act of 1954 and the Hindu Code Bill of 1955-56, respectively. The Hindu Marriage Act made monogamy lawful, outlawed polygamy among all Hindus, and granted men and women equal divorce rights. It also legalised intercaste and interfaith marriages. It also made it illegal to marry a minor under the age of 18. Other acts passed during this time include the Hindu Succession Act of 1956, the Hindu Minority and Guardianship Act of 1956, the Dowry Prohibition Act of 1961, and the Maternity Benefits Act of 1961.
The establishment of the National Commission for Women in 1992 was a significant step toward promoting and protecting women’s rights. Sexual harassment in the workplace was seen as a critical issue that needed to be addressed. In Vishaka v. the State of Rajasthan, the Supreme Court of India introduced the Prevention of Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. Bhanwari Devi, a social worker, was gang-raped by five men in the area where she worked for the Women’s Development Project and was acting in the course of her employment to teach people about the dangers of child marriage. Initially, the case was dismissed and the five defendants were acquitted by the session court. The Supreme Court looked at the issue through the prism of gender equality and the right to life and liberty, citing the International Convention on the Elimination of All Forms of Discrimination Against Women, and decided to enact regulations to ensure women’s safety at work.
Similarly, Shah Bano Begum paved the way for thousands of women to make genuine claims that had previously been rejected by them. The practice of talaq-e-bidat and talaq-e-mughallazah has been deemed unlawful by the Indian judiciary. These activities generated substantial concerns about gender equality and rights.
Even now, women in our country confront challenges in areas such as work, globalisation, education, sex-select abortion, and so forth. Despite this, Indian women have made significant progress in practically all sectors, thanks to the growth of a variety of sectors, including the legal and social systems, as well as feminist jurisprudence and other schools, which have all played a significant role.
FEMINISM IN CONSTITUTION
The Indian Constitution has been referred to as a “charter for social revolution” several times since its adoption, implying that it was not only an attempt to govern the new age Indian polity but also a reflection of the Indian people’s desire, expressed through the Constituent Assembly, to transform Indian society from what it had been during its colonial struggles to the modern egalitarian society. There are various focal points for a political society on this journey of transition, one of the most essential of which is gender equality and equal rights for sexual minorities. While some women have played significant roles in India’s fight for justice, as well as governance, science and technology, art, and culture, it cannot be denied that gender inequality has long been one of the country’s most serious problems.
B.R. Ambedkar, the draftsman of the constitution, was a feminist before feminism, ensuring that women who had been deprived of power and treated unfairly in the past were treated with the same set of lenses in the post-independence period. The writers of India’s constitution were well aware of women’s discrimination and uneven treatment in many aspects of their lives, as well as violence against them, including domestic abuse.
The constitutional design and protection available under Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c), and 42 of the Indian Constitution can be traced to the origins of feminist jurisprudence in India. Article 14 guarantees equal protection under the law, stating that the state shall not deny any individual within India’s territory equality before the law or equal protection under the law. This article is gender-neutral, meaning it does not discriminate between men and women while providing equal legal protection to anyone in similar situations. In light of gender equality, the interpretation of Article 14 indicates that all people, including women, are equal in the eyes of the law and are entitled to equal protection under the law within India’s territorial jurisdiction.
India’s constitutional wording has a lot of potential for reducing women’s subordination to men. When compared to many Western equality guarantees, the language of article 15 recognises that sex has been turned into a societal disadvantage for women, in breach of the equality principle, in the structure and contents of the Indian Constitution. Article 15’s provisions provide a substantive lens through which women’s equality rights can be examined. Similarly, Article 15(3) indicates that nothing in this article precludes the State from making any special provision for women and children, implying that provisions could be established “for” rather than “against” women. This provision is based on the reality that women in India have been socially and economically disadvantaged for centuries, resulting in less involvement in the nation’s socio-economic activities on an equal footing. The provision’s primary idea is to create a platform for women and to reduce their socioeconomic backwardness, thereby empowering them. In matters relating to employment or appointment to any office under the State, all citizens shall have equal opportunity, according to Article 16 of the Indian Constitution.
Article 39 (a) of the Indian Constitution provides for the promotion of justice by providing gender-neutral legal aid, while Article 39(b& c) provides for positive state action to guarantee gender-neutral access to justice. The Directive principle of state policy is founded on a philosophy of striking a balance between individuality and socialism. The DPSP has made all necessary steps to address women’s issues in the postmodernist era. The framers had a long-sighted vision, which allowed them to consider the issues that a woman might have faced as society changed. To reinforce this, article 51(a) mentions a clause that forbids activities that are derogatory to women’s dignity.
All of the above, at least in theory, supports a road map for the development of Indian feminist law.
INTERPRETATION OF LAWS
Even though theoretically there exist elaborative laws for women’s protection, in practice that’s not the case. So then if laws are existing, where lies the problem? The problem lies with the interpretation of laws. The Constitution, at its foundation, demands equality, but interpreters have made this a difficult task. Indeed, women are still subjected to moral slavery in today’s world. Male dominance, or the patriarchal framework of society, has shaped the societal perspective and relegated ‘women’ to the status of second-class citizens. Women’s vulnerability is one of the concerns that have yet to see significant improvement in the age of globalisation and openness. The everlasting fact of constitutional morality is that no country can achieve full development in the social or economic sectors unless and until women’s problems are addressed and alleviated.
Examining the Supreme Court of India’s decisions that have influenced women’s emancipation and those that have omitted a feministic approach would provide a clear picture of the progress of feminist jurisprudence in India.
While theoretics of practice has helped to alleviate some of the tensions between feminist theory and practice, as well as informed feminism and revolutionised legal practice, feminist judgement has received far less attention until lately. Traditionally, feminists have written intellectual critiques of current judgments. With the global rise of the Feminist Judgment Project as a sort of ‘academic activism,’ this has changed. The project premises itself on a set of questions—What if a group of feminist scholars were to write the “missing” feminist judgment in key cases? Could we put theory into practice, in judgment form? What would these judgments look like? What impact would they have? 
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. At the heart of the project are a set of basic questions—can one formulate a distinctively feminist judicial practice If so, what are the limitations to that approach? In what manner does this approach differ from the common law approach the court takes?
The court, particularly the Supreme Court of India, has made a significant contribution to the development of feminist jurisprudence in India, as has many other aspects of the Indian legal system. The court’s impact on public perception is no longer limited to its role as a final arbitrator of disputes, but also as a frontline protector of constitutional ideals.
- Gita Hariharan vs. Reserve Bank of India (1999) 2 SCC 228
Ms Githa Hariharan had a son named Rishab with her husband, Dr Mohan Ram. She had signed off as his guardian and applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab. The RBI returned her application, instructing her to either provide the application signed by Rishab’s father or a certificate of guardianship in her favour from a competent authority. Based on Section 6(a) of the Hindu Minority and Guardianship Act, 1956, RBI determined that Dr Mohan was Rishab’s natural guardian (HMGA). The father is the natural guardian of a Hindu minor child, and the mother is the guardian “after” the father, according to that clause. Ms Hariharan filed a constitutional challenge to this provision in the Supreme Court, claiming that it breached Articles 14 and 15 of the Indian Constitution, which protect the right to equality. The Court cited the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) and the Beijing Declaration, which clearly instructs all State Parties to take necessary steps to prohibit all forms of discrimination against women. When there is no conflict between domestic and international laws, the Court concluded that domestic courts should pay fair consideration to international conventions and norms when construing domestic laws. However, as a result of this ruling, the mother now has to prove that the father was “negligent” in his treatment of the kid. Rather than giving her an equal partner by default, she has been asked to fight and litigate for it!
- Air India v. Nargis Mirza (AIR 1981 SC 1829)
Indian Airlines’ discriminatory rules were overturned by the Supreme Court. An Indian Airline Air Hostess disputed several elements of their service rules, claiming that they were unfair and unlawful because an Air Hostess may work until she was 35 years old, but maybe fired if she married within four years of her recruitment or had her first child. According to the Supreme Court, this restriction forced the Air Hostess not to have children, which is against human nature. The Supreme Court also maintained the right of Air Hostesses to work until they are 45 years old, rather than 35, if they are otherwise qualified. However, due to the exigencies of services, the constitutionality of the restriction prohibiting marriage for four years after joining was upheld.
- The Supreme Court’s decision in Vineeta Sharma v Rakesh Sharma (2020), in which the court held that daughters have equal coparcenary rights in Hindu Undivided Family property (HUF) by their birth and cannot be excluded from inheritance, regardless of whether they were born before the 2005 amendment to the Hindu Succession Act, 1956.
- In The Secretary, Ministry of Defence v Babita Puniya & Ors. (2020), the Supreme Court ruled that all-female army officers are eligible for permanent commissions, allowing them to command. When it comes to promotions, rank, benefits, and pensions, female officers are now on a level with their male counterparts, bolstering their position in the defence sector.
- In rendering its decision in the Sabrimala (2019) case, the court also broke with its tradition of reluctance in pronouncing judgements in matters of faith. Despite a centuries-old custom prohibiting menstruating women from entering the Sabarimala Temple, the court concluded that devotion cannot be subjected to gender discrimination and allowed women of all ages to enter.
- With the Joseph Shine v Union of India (2018) decision, the court affirmed a woman’s right to exercise her sexual freedom in the personal sphere, relying on the right to privacy derived from Article 21 and declaring unconstitutional Section 497 of the Indian Penal Code, which gives a husband the exclusive right to prosecute his wife’s lover even as similar rights were not conferred on a wife to prosecute the woman with whom her husband has committed adultery.
- The court ruled in Shayra Bano v Union of India (2017) that the practice of instant triple talaq (talaq-e-bidat) is against the Quran’s core teachings. Talaq-e-bidat is a practice that allows a man to divorce his wife without her agreement by saying “talaq” three times in one sitting. The court ordered the government to enact legislation in this area, which resulted in the Muslim Women (Protection of Marriage Rights) Act, 2019.
- The court also tried to ensure the safety of women in the workplace by prohibiting sexual harassment. In the Vishakha v State of Rajasthan (1997) case, the court outlined detailed guidelines for employers to follow to establish a system for resolving employee issues. With the passage of The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, these recommendations were formalised into law, protecting millions of women who enter the workforce each year.
This area encompasses the majority of criminal laws. Any type of interference with the body, dignity, honour, or marriage is prohibited by the Indian Penal Code. In cases of arrests, the Indian Evidence Act establishes presumptions in favour of women, while the Criminal Procedure Code establishes protection in their favour. Despite all of the legal safeguards in place for women, justice remains elusive. A closer look finds paternalistic overtones. Adultery law which existed for so long is an instance to quote here. According to feminist ideas, law arises from patriarchal attitudes to uphold patriarchal norms. Finley argues that even the language used by the law is male legal language, which significantly influences the way we comprehend the world around us. Since men have had an overpowering voice in making the laws, defining them and shaping them, it reflects significantly how they see the ‘other’. Even where they accommodate the ‘other’, by making equality provisions in the laws, they do it in their light and understanding and hence it is fundamentally flawed.
OBSTACLES IN GROWTH OF FEMINIST JURISPRUDENCE IN INDIA
Feminist law still has a long way to go in terms of overcoming hurdles. Feminist jurisprudence focuses on the fundamental inequity that Traditional jurisprudence fosters. Feminists believe that the law is the primary source of pre-existing gender disparities, particularly within the context of capitalism. As a result, traditional jurisprudence emphasises the “rule of law,” rather than the “rule of men.” Men are arbitrary and inconsistent, whereas the “rule of law” can be understood as a universal, context-free standard that may be applied to every community in any situation. Feminist writers critique legal positivists like Austin, Hart, and Kelsen for their underlying methodological framework. As a result, classic command theorists like John Austin’s restrictive framework of command, obedience, and sanction as the substance of the law is questioned. 
Legal Positivism is a legal philosophy that focuses on the traditional character of law, which is a social construct. According to legal positivism, the law is closely associated with positive norms enacted by legislators or regarded as common law. For social standards to be regarded as a law, they must be enforced and effective. Law is not based on divine commandments, reason, or human rights. It’s one of the main reasons why lawyers accept the official version of the law as legal theory, and why they don’t examine the nature or purpose of the law. It also explains why the law comes to have the stature of impartiality, and why judges become truth-seekers.
Feminism can only be as strong as the people who propel it forward. And, unlike earlier generations, a new generation of men and women will not be constrained by gender. If and when young women and men feel compelled to oppose the restrictions placed on their sexual and reproductive lives, they will be able to draw on a long history of feminist resistance. In India, the growth of feminism and women’s emancipation are clear reflections of empowering movements and the influence of feminist legal theories.
 Merriam Webster
 Seeing like a Feminist, Nivedita Menon
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 The History of Feminism and Doing Gender in India, Rekha Pande
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