Feminist Jurisprudence

Dr. J. Uma Rao

 Feminist Jurisprudence
• 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
• Two terms need to be understood.
• Feminism in general means a set of movement
which is aimed at defining, defending and
establishing equal political, economic and social
rights and equal opportunities to women.
• This is because all over the world women have
been deprived of their rights and opportunities
in many fields by being labeled as a weaker
section .
 Feminist Jurisprudence
• Feminist jurisprudence argues that law must
provide a platform were equality prevails rather
than control or domination,
• Feminist jurisprudence can be said as a legal
movement against this injustice which is
happening all over the world.
• Feminist jurisprudence includes various theories,
ideologies and philosophies propounded by
various scholars from various places.
 Feminist Jurisprudence
• In a narrow sense feminist jurisprudence can
be mainly divided into two functions:
• Explaining how the legal system in the past
has played a major role in suppressing women
and their subordinate status in the society
• Using legal system itself as a tool to solve the
problem by reshaping of law to provide
gender equality.
 Feminist Jurisprudence
• Feminist jurisprudence and feminism were crucial in
allowing women to become their own masters by
becoming financially independent and channeling their
resources and skills to find new opportunities.
• Development of feminist jurisprudence around the world
was a slow paced movement which gained acceptance
with the passage of time.
• Legal scholars emphasized the important role played by
women in society. With such recognition and acceptance
there was created an awareness for their rights and
protection.
 Feminist Jurisprudence
• 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 Beauvoir, Betty
Friedman, Germaine Greer, Kate Millet and Eva Figes led
to development of academic disciplines like “Feminist
Sociology”, Feminist History”, “Feminist Philosophy” and
“Feminist Jurisprudence”.
 Feminist Jurisprudence
• The word feminist jurisprudence was first used by Anna
Scale during the celebration of a party and conference held
in 1978 to celebrate the twenty-fifth anniversary of the first
women graduating from Harvard Law School .Even though
the word was coined in 1978, feminist movements
happened prior to this.
• As a result, the feminist legal theorist became the
spokesperson for women’s rights and prevention of
violence against women. As the scope of feminist
jurisprudence began to expand more and more approaches
and thoughts began to develop within the school.
 Feminist Jurisprudence
• Contemporary feminist philosophy of law also
draws from diverse scholarly perspectives
such as international human rights theory,
postcolonial theory, critical legal studies,
critical race theory, queer theory, and
disability studies.
 Feminist Jurisprudence
• Feminist writers criticize the inherent
methodological framework used by such legal
positivists as Austin, Hart and Kelsen.
• Traditional command and positivist theorists
like John Austin, for example, are questioned
for their narrow framework of command,
obedience, and sanction as the essence of the
law.
 Feminist Jurisprudence
• Carole Pateman argue that traditional
jurisprudence treats relations between man
and woman as patriarchal, constructed in the
masculine image.
• The original relationships between sexes show
how sexual differences gave rise to a
patriarchal division of labour, not only in the
conjugal home between the wife and her
husband, but in the workplaces of civil society.
 Feminist Jurisprudence
• 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
advocacy, and deconstructing and
reconstructing women’s experiences.
 Feminist Jurisprudence
• Feminist jurisprudence primarily begins with
“asking how the law would be different if it
took women’s points of view and experiences
into account, while decoding legal concepts
and working of law in real world”.
 Feminist Jurisprudence
• Catherine MacKinnon sees maleness as the
organizing form of what is accepted as
“normal.”
• MacKinnon is very critical of most forms of
equality legislation for being vehicles of
making woman as men, rather than searching
for true equality.
 Feminist Jurisprudence
• MacKinnon's ideas have been influential. She is
credited with developing the now orthodox
idea that sexual harassment in the workplace
is a form of discrimination.
• Until the latter half of the '70s, sexual
harassment on the job was not considered an
actionable injury to women, and several
national studies showed that it was very
common.
 Feminist Jurisprudence
• Carol Gilligan, a social scientist, sparked much
of the thinking that we refer to as Feminist
Jurisprudence.
• Gilligan wondered why girls and women
consistently scored lower than boys and men
on tests for moral development.
• She found that the scales for measuring moral
development were developed by men
researchers using male subjects.
 Feminist Jurisprudence
• Margot Stubbs, sees feminist jurisprudence as
transcending the positivist conceptual
framework of both liberal legalism (e.g., the
rule of law) and Marxist (e.g., law as reflection
of the bourgeoisie class that is the capitalist
superstructure).
 Feminist Jurisprudence
• John Rawls postulates ‘pure reason’ in man’s original
state, where participants are ignorant of their self-
interest, desires, etc. Rawls calls this a “veil of
ignorance”.
• Only by stripping people of their individuality,
(including sexuality) does Rawls consider the
principles on which society and laws should be
based.
• Yet some writers criticize Rawls for avoiding real
earthly issues.
 Feminist Jurisprudence
• India's attitude towards women has been a
mixed bag of fortunes. In each stage there
were opportunities which came along with
restrictions and difficulties, this was mainly
due to the diverse nature of the country.
• Even present women in our county face
problems in fields like employment,
globalization, education, sex-select abortion
etc.
 Feminist Jurisprudence
• Despite all these Indian women have made progress
in almost all fields, this progress was due to the
development of various fields both legal and social,
along with feminist jurisprudence and other schools
which have also played a major role.
• It is the law’s neutrality that perpetuates injustices
against women.The advocates of this theory try to
challenge the existing legal order by looking into
what kind of institutions and legal system will help to
redress the injustice for women.
 Feminist Jurisprudence
• Unlike the western world, the feminist movement in India
was first started by men. With the combined efforts of
women later, it was a great success.
• Men like Raja Ram Mohan Roy, Ishwar Chandra Vidyasaga
and many more advocated for the basic human rights for
female population of the country.
• During the early stage of feminism and feminist
jurisprudence there were no efforts made by women of the
society to rise their voice against the patriarchal
domination but in certain regions of the country this was
different..
 Feminist Jurisprudence
• In parts of Kerala it was a practice to give a small portion
of land to daughters and wife, also in the interior parts of
Rajasthan and Gujarat there were powerful women who
controlled large areas of village and followed matriarchy.
• Efforts were also made by women to initiate separate
independent feminist movements: Savitribai Phule who
started the first girls school, Pandita Ramabai, who
openly criticized the religious and customary practice of
Hinduism, Tarabai Shinde, who wrote India's first
feminist text Stri Purush Tulana in 18826
 Feminist Jurisprudence
• After obtaining complete sovereignty over India, the
colonial rulers started to introduce codified laws which
started to have conflicts with the un codified law in
India.
• But with this intervention came modernity, and a cry
for equality and individual rights.
• The first phase was successful in removing social evils
like sati and child marriage, provisions for widow
remarriage was introduced and all these were brought
in with the help of the legal machinery.
 Feminist Jurisprudence
• Mahatma Gandhi put in great efforts to include
women in freedom struggle.
• As a result feminine roles became noticeable in
movements like non-corporation, civil disobedience.
• Along with this national level organizations for
women were also coming up, like All India Women
Conference (AIWC) ,National Federation of Indian
Women (NFIW) etc.
• These organizations helped in developing the political
and leadership skill of women.
 Feminist Jurisprudence
• After independence women were given the legal backing
to be included in the working force of the country.
• Industry and other sectors of the economy willingly took
the women but sexual divide within labour forces was
there which was initially accepted by most feminists.
• But after a point of time they challenged the
inequalities(unequal wages for women, relegation of
women to 'unskilled' spheres of work) and
discrimination.
 Feminist Jurisprudence
• Post-independence there was an increased influence of
western culture in India which resulted in betterment of
women population.
• After independence, with the codification of many Hindu
personal laws, there has been a partial success in bringing
gender equality.
• The changes that were brought in( Hindu Marriage Act
1955,Hindu Adoption and Maintenance Act 1956,etc)
helped in bringing some gender justice Hindu women.
• While this was a major advancement, it is still not a
complete triumph of feminism.
 Feminist Jurisprudence
• One drawback is that the entrenched caste
system influenced the feminism movement.
• There is also a criticism that women from upper
castes benefit more from feminism than the
lower caste.
• Same was the case with Islam. They were also
given separate religious laws and regulation,
and these laws were discriminatory with regard
women.
 Feminist Jurisprudence
• With time a series of events turned the tide
for women. The most important one was the
Shah bano case .
• The judgment was in favour of Shah bano and
there was chaos among the Islam community
as they thought this was an attack against
their religion.
 Feminist Jurisprudence
• Obstacles Today Against Feminist Jurisprudence
• I. Traditional Jurisprudence
• Law’s neutrality as the very mechanism that
perpetuates injustices against women.
• Feminist writers criticize the inherent
methodological framework used by legal
positivists.
• II. Other factors like marriage, education culture
etc.
 Feminist Jurisprudence
• Due to increase in the feminist movement and growing knowledge about
feminism various Acts are specially made for women rights such as
• The Immoral Traffic (Prevention) Act, 1956,
• The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986),
• The Indecent Representation of Women (Prohibition) Act, 1986,
• The Commission of Sati (Prevention) Act, 1987 (3 of 1988),
• Protection of Women from Domestic Violence Act, 2005, The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
• These Acts are significant proof that feminism exists in India and there are
several instances and amendments made for benefit of women.
• Hindu Law of Inheritance for women have been changed in 2005
Amendment.
 Feminist Jurisprudence
• National Commission for Women (NCW) is a statutory body
constituted under the National Commission for Women
Act, 1990 (No. 20 of 1990) on 31st January, 1992 with a
view to protect, promote and safeguard the interests and
rights of women. NCW has been performing a stellar role in
protecting and upholding women’s rights in India.
• Reservation for Women in Local Self-Government: The 73rd
Constitutional amendment Acts passed in 1992 by
Parliament ensure one-third of the total seats for women in
all elected offices in local bodies whether in rural areas or
urban areas
 Feminist Jurisprudence
• The National Plan of Action for the Girl Child (1991-2000) : The
plan of Action is to ensure survival, protection and
development of the girl child with the ultimate objective of
building up a better future for the girl child. The same has been
rejuvenated by the Prime Minister through “Beti Bachao
Andolan”
• National Policy for the Empowerment of Women-2001: The
Department of Women & Child Development in the Ministry of
Human Resource Development has prepared a “National Policy
for the Empowerment of Women” in the year 2001. The goal of
this policy is to bring about the advancement, development and
empowerment of women.
 Feminist Jurisprudence
• 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.
 Feminist Jurisprudence
• 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
rule 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 service
 Feminist Jurisprudence
• 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
 Feminist Jurisprudence
• 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.
 Feminist Jurisprudence
• 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!
 Feminist Jurisprudence
• 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.
 Feminist Jurisprudence
• 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 they 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 | [Type the company name] cause. Crimes
should not be tackled criminally or illegally, they should
be tackled always in a lawful manner in a democratic
country like ours.
 Feminist Jurisprudence
• 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.
 Feminist Jurisprudence
• 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.
 Feminist Jurisprudence
• 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.
Feminist Jurisprudence