FACULTY OF LAW, BANARAS

HINDU UNIVERSITY

ASSIGNMENT FOR LL.M ONE YEAR

Theory of law and justice

Feminist theory and Indian perspective

SUBMITTED TO: SUBMITTED BY:

DR. ANOOP KUMAR JITESH SHARMA&

PROF -LAW FACULTY,BHU HIMANSHU VERMA
ROLL N0- 20425LLM049
LL.M. ONE YEAR
 Acknowledgement

“Words can never convey what deeds have done.”

Writing a project on any topic is never a single man’s job.though this
topic nore much related to subject tbut I am overwhelmed in all
humbleness and gratefulness to acknowledge my depth to all those who
have helped me to put these ideas, well above the level of simplicity and
into something concrete.
I am very thankful to my teacher Dr. Anoop kumar sir for HIS valuable
help. He was always there to show me the right track when I needed his
help. With the help of his valuable suggestions, guidance and
encouragement, I am able to perform   this project work. I would also like
to thank my friends, who often helped and gave me support at critical
junctures during the making to this project.
I hope you will appreciate the hard work that I have put in this project
work.
Jitesh Sharma
Himanshu verma
ABSTRACT
Feminist jurisprudence is a budding school of legal thought which envelopes legal
approaches and laws in the eye of the patriarchal-dominated society we live in. 1Constitutional
feminism is the relationship between feminist theory and the Indian document needed to
govern a country, i.e. the constitution. A country’s constitution, even where it comprises of
impartiality on the surface level, affects people differently when it comes to gender. Gender
equality is a known to all in theory, but application in real life at home or at work is
insufficient. The architecture and design of the constitution should be that, it needs to give
every citizen equal rights. These rights assured to women can help increase representation of
women in all walks of life. Due to the historical oppression of women, they have been termed
as the inferior sex as compared to cis-gendered men and therefore,women’s rights should be
protected.Constitutional design can never be considered final, due to the provision of
amendments and various interpretations which we can apply to the feminist perspective. A
constitution will always be susceptible to changes, either in written form or from different
view-points that arise through revision in jurisprudential and methodological style.Similarly,
some of the past judgements have changed the dimensions of patriarchal society leading to a
horizontal application of equality and dignified life to every citizen irrespective of
discriminations. Gender justice discussion would be rudimentary without seeing it from the
Indian Constitution’s frame of reference. The Constitution of India, also known as the
cornerstone of a nation2, lays down methods (through provisions) for social, economic and
political revolution in India. It is the primary document that gives the definition and
guarantee of equality, justice, liberty and democracy to the Indian citizens. The Preamble
states that one of the basic provisions of the Constitution is to make sure there is social,
economic and political justice for all its citizens. In this paper, the author intends to examine
the provisions of gender justice in the Constitution and the role of law in securing justice to
women. In doing so, the author shall also study, the feminist challenges to the interpretation
of the provisions of the Constitution as well as to the legal discourse. This paper raises the
point thatconditioning towards habitual regressive societal ideas restricts the possibility of
autonomous decisions. In conclusion, it is to be observed that laws need to bring about fair

1
Uzair Ahmed Khan, 'Feminist Jurisprudence in the Indian Constitution' (iPleaders, 14 October
2019) https://blog.ipleaders.in/feminist-jurisprudence-indian-constitution/last accessed 08/02/21
2
Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press,
1999)
conditions of social behaviour and a liberty-inducing model from disabilities that have been
socially imposed and encourage freedom of choice in decision making.3This feminist
intervention is linked with concept of justice and equality that has been embedded in the
constitutional framework. A study of the criminal and personal laws reveals that laws are
affiliated with protectionist and paternalistic idealsin order to manifest empowerment and
autonomy among women.4 This paper engages a discussion on issues at the core of gender
justice.

KEYWORDS
Feminism, Indian Constitution, Feminist Theory, Gender Equality, Constitutional Theory.

3
K. T. Bartlett, Feminist legal methods (Harvard Law Review, 1990).
4
Shampa Dev, 'Gender Justice in India: A Feminist Jurisprudential Perspective' [2018] 10(1) Tattva-Journal of
Philosophy <https://doi.org/10.12726/tjp.19.5> last accessed 08/02/21
INTRODUCTION
The feminist movement/women’s movement/feminism refers to an array of campaigns of the
political nature for change in social evils and demand for bodily reproductive rights (pro-
choice), removal of domestic violence in the society, maternity leave, equal pay, women's
suffrage, sexual harassment, and sexual violence, all of which fall within the ambit
of feminism and the feminist movement. Our constitution has provided in article 14 read with
article 12 that state should not refuse to anyone equality for all in the eyes of the legal system
and equal protection of the law across India and no discrimination on grounds of religion,
race, caste, sex or place of birth. In consonance with this, article 15(3) also provides the
provision where nothing shall prevent the State from making any special provision for
women and children. Feminism in India is an arrangement of manoeuvres with the objective
of providing definition, establishment, and defence of equality in political, economic, social
rights of women in India. It is the pursuance of women's rights under Indian society. In
comparison with feminist movements in other countries, feminists in India want and believe
in gender equality: the right to equal pay for equal work, the right to get good quality health
and education, and equal political rights (eg. right to vote), etc. 5 Indian feminists also have
fought against issues that are specific to cultural mindsets within India's patriarchal society,
eg. inheritance laws and dowry. To Indian feminists, these are high-priority injustices which
is worth fighting for. In Western countries, there has been criticism of feminist movements in
India, as it is mostly first-world/mainstream feminism. Indian feminism in popular culture
and media platforms tend to focus on already privileged/cis-gender women, neglecting the
needs and representation of poorer or lower-caste/dalit/intersex/trans-women. Feminist
organizations and movements have now been initiated especially for caste. 6Though the legal
system helps to curb gender discrimination and injustice, some patriarchal notions guiding
the interpretation of legal provisions have compelled a feminist rethinking of law as a tool for
gender justice, eg. “enraging the modesty of a woman” in the IPC. It challenges the
dichotomy of the man and woman and states that if men and women are fundamentally
different as categories, then a single yardstick for measuring justice is wrong.

5
Ray, Raka. Fields of Protest: Women's Movements in India (University of Minnesota Press, 1999), 13.

6
Gangoli, Geetanjali, Indian Feminisms – Law, Patriarchies and Violence in India (Hampshire: Ashgate
Publishing Limited, 2007), 10-12.
HISTORY OF INDIAN FEMINISM
The history of feminism in India can be separated into three stages: the first phase, beginning
in the mid-19th century, started when reformists began to speak in favour of women rights by
making reforms in education, customs involving women7; the second phase, from 1915 to
Indian independence, when Gandhi incorporated women's movements into the Quit India
movement and independent women's organisations had begun an uprising; and finally, the
third phase, post-independence, which has focused on fair treatment of women at home after
marriage, in the work force and right to political parity. Despite the Indian feminist gaining
headway on certain issues, women living in modern India still face discriminatory behaviour,
which shows we still have a long way to go. India's patriarchal culture has made the process
of getting right to property and access to education challenging for girls. Over a period of 20
years,sex-selective abortion has become an emerging trend. This is due to the fact that they
believe the female child is a burden because of dowry to be paid when she attains a
marriageable age, which shows that one social evil results in another in a vicious cycle.
Feminists believe that history was written by men and for men, excluding women that have
made inventions or added structure to the society, which has created a hole of information in
the concepts of human nature, gender potential, and social arrangements. The language, logic,
and structure of the law are created by men and reinforce toxic masculinity. 8Male
characteristics are considered as normal, and female characteristics are shown as deviation
from the norm, so these prevailing conceptions of law reinforce and perpetuate patriarchal
power. Feminists oppose the belief that the women are so different from men biologically,
that it assigns generalized attributes to women as being too emotional. This shows feminism
is also good for women as it enables men to be more vulnerable and move away from
patriarchy. They believe gender is a social construct, and not determined biologically. Sex
ascertains matters like physical appearance and reproductive capacity (based on science, eg.
secondary sex characteristics), but not psychological, moral, or social traits.

7
Chaudhuri, Maitrayee. Feminism in India (Issues in Contemporary Indian Feminism) (New York: Zed, 2005.).
8
[8] Nancy E. Dowd and Michelle S. Jacobs, Feminist Legal Theory: An Anti-Essentialist Reader (New York
Univ. Press, 2003).
.
WOMEN CONSTITUTIONAL AND LEGAL RIGHTS IN
INDIA
Status of women prior to Independence
Old Ages: In Vedic period, women had a fair, equality and freedom in India equality. 9This
period is known as period of feminine glory. The education was gained in the Gurukuls
where they learnt Vedas. Rigveda has proven that the woman who lives in her husband house
was the queen of that house. The term ‘Dampati’, indicates the women’s high status, was
mentioned in Vedas, and symbolizes both wife and husband. 10There were many troubles for
the women like child marriage, sati, and female infanticide in Alexander and Huns time.
British Period: The attitude and behaviours of men in relation to women, however, changed
during the British period. Voice against ill-treatments and discrimination with women was
raised. At the time of British ruling the two movements were come which alter the women
status. In these movements, first one was the Social Reform Movement of the 19th Century
and the second was the Nationalist Movement of the 20th Century. British period may be
seen with enacting number of laws eradicating social evils and removing all disparities,
dissimilarities and discriminations against women.11These laws were related to the
authorization of widow’s remarriage act, Child Marriage Restraint Act, recognizing Hindu
Women’s Right to Property Act etc. Thus, at the time of British Ruling consciousness was
shaped for the removal of social illnesses. Many laws rectifying women’s unequal position
were passed.

FEMINIST SCHOOLS OF THOUGHT

Though all feminists believe in equality amongst genders, feminist jurisprudence is not
motivated by just one goal. There are three schools of thought under feminist jurisprudence.12
i. Traditional/liberal feminism attests that women are just as rational as men and
therefore should have equal opportunity to make their own choices.

9
PremPratapSingh Chauhan and Tathagat Sharma, 'Feminism and Indian Constitution' [2019] 1(1) Academic
Journal of Law and Judiciary <?> accessed 15 May 2020.
10
Dr. S.P. Dwivedi, Jurisprudence and Legal Theory (5th Ed. 2012), 433-34.
11
Ankita Chakraborty, Gender Justice Under Indian Constitution, International Journal of Legal Developments
and Allied Issues (2012).

12
Mohd.AqimAslam, 'Legal Service India' (Feminist Jurisprudence and Its Impact In India-An
Overview, ?) <http://www.legalserviceindia.com/legal/article-1859-feminist-jurisprudence-and-its-impact-in-
india-an-overview.html> last accessed 08/02/21.
 ii. Cultural feminists tend on the differences between men and women and
celebrates/embraces those differences. Propounders of this school uphold that
women tend to focus on the importance of relationships, whereas men give
importance to abstract principles of rights and logic. The goal of this school is
to show that communal and caring values of women are to be appreciated. The
author personally disagrees, as only men being associated with logical
thinking is frankly a hasty generalization and perpetuates sexism.
iii. Radical/dominant feminism aims to eradicate inequality. It asserts that men, as
a class, have suppressed women as a whole, creating gender inequality. They
are concerned with the imbalance of the power dynamics/matrix. Radical
feminists encourage us to abandon traditional approaches that consider men
the starting point of reference. They argue that sexual equality must be
constructed on the basis of differences between men and women.

FEMINIST JURISPRUDENCE
Feminist jurisprudence showcases the diversification of the theories/philosophies of feminist
ideals. All feminists agree on the fact the perpetuator has historically been men towards the
victim, which is often a weak and vulnerable woman, and that their oppression is in some or
another way illegitimate or unjustified, as the woman has no freedom of choice. The convoy
behind the recent women’s movement is feminism which has provided encompassing
knowledge across all fields such as feminist sociology, feminist philosophy, feminist history,
along with feminist jurisprudence’.Feminist jurisprudence provides an extension to law and
justice. Law-related strategies have boosted the campaigns of women’s organizations to
achieve greater equality and social justice. 13Feminists criticize the fact that law sometimes
engages in constructing, maintaining, reinforcing and perpetuating patriarchy and it looks at
ways in which this patriarchy can be undermined and ultimately eliminated, eg. unequal
succession rights. The feminist investigation into the depths of law fixates on the following
issues:
 Examination of legal concepts, rules, doctrines and process with reference to
women’s experiences.
 Analysis of the underlying legal assumptions based on male vs. female and gender-
neutral distinctions.

Richards, David A. J., Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in
13

Culture and Law(1998).

  Inquiry into chaos, distortion or disintegration created by the gap created between
women’s actual life experiences and the assumption made by law and its imposed
structures
 Serving of the patriarchal interests which encourages imbalance/discrepancy.
 Reforms to be made in the law to eliminate patriarchal influences.
 Classification of feminism into four schools: liberal, radical, cultural and postmodern
and the exploration of the first wave of feminism, i.e. equality before law.

FEMINISM IN THE INDIAN CONSTITUTION

The Indian Constitution has adopted protective measures to protect women’s intereststhrough
various provisions.14 With reference to the case of National Legal Services Authority v.
Union of India15,it was held that the concepts of justice, social, economic and political,
equality of status and of opportunity and of assuring dignity of the individual incorporated in
the Preamble, clearly recognize the right of one and all amongst the citizens of these basic
essentials designed to flower the citizen’s personality to its fullest. The Indian Constitution,
which is the longest, most extensive constitution in the world, is gender-sensitive. It clearly
states that the mind-set of the constitution framers was based on the concept of equality and
positioning women equal at every sphere, even decades ago, when the feminist movement in
India was at a nascent stage.16

FEMINIST PROVISIONS OF THE CONSTITUTION

Fundamental Rights
Talking about equality, our constitution has provided us with certain rights and provisions
which protect the positivist/equalist atmosphere.17One of the main provisions of equality is
embodied in Article 14, which embodies equal treatment before the law. 18 In this Article,
‘equality before law’ is a negative concept that implies the absence of any special privilege in
favour of any individual. It ensures that all are equal before the law and no person is above

14
Versha Sharma, Constitutional Provisions Relating to Women and International Instruments on Rights (2002).
15
National Legal Services Authority v. Union of India, W.P. (Civil) No. 400 of 2012.
16
Matsuda, M., When The First Quail Calls(Routledge, London c2009).
17
Constitution Itself Is Feminist Justice Chandrachud on Transformative Constitution & Feminism, Live Law,
available at www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-transformative-constitution-
feminism/ last accessed 08/02/21
18
D.D. Basu, The Shorter Constitution of India, 36.
the law. It ensures that all persons are equally subject to the ordinary laws of the land. On the
other hand ‘equal protection of laws’ is a positive concept, which suggests the need for
affirmative action. On inspection of Article 14, Article 15 and Article 12, it reflects the
thinking of our constitution-makers to prevent women against gender discrimination. The
interpretation of the Article 14 in the light of gender equality states that all persons including
women are equal in the eyes of the law and they also have the entitlement to have the right of
equal protection of laws within the territorial jurisdiction of India. Law and the nation should
treat both the sexes equally in circumstances of similar type, whereas Article 15 whereas
protects the women from any kind of discrimination. Article 15(3) gives the power to the
state to make any special provision for women and children so that the concept of equal
protection of law remains stable in the cases where same treatment would have received but
was infringed.19 Thefirst approach is the ‘exceptional’ approach, which considers that Article
15(3) is an exception to the general guarantee of equality. Seen in this light, it is based on
formal equality, which reads equality as sameness. 20 Hence any difference in treatment is
considered an exception to equality. The second one called the ‘holistic’ approach considers
Article 15as a whole and hence Article 15(3) is used to interpret equality more broadly.
According to this approach any difference in treatment is not considered as an exception to
equality. Rather it considers that equality sometimes requires different treatment. In this
sense, it is based on substantive model of equality. Special treatment embedded in Article
15(3) is not seen as an exception but as a fundamental part of equality. According to the
substantive approach to equality, we find that ‘sex’ is a category that denotes disadvantage, in
the sense that sex of a person has been used as a basis for discrimination and has resulted in
women being disadvantaged as compared to men. However sometimes the Court views all
other social and economic factors that fortify disadvantage, as separate from ‘sex’, instead
ofseeing the fundamental relationship between them. Nevertheless, Article 15(3) has been
useful for legislating in favour of women. Many laws have been passed to prohibit female
infanticide, dowry, exposure of women in films and advertisements, child marriage,
molestation, abduction and rape, providing maternity benefits and protection in employment.
Another article directed at bringing about equality among sexes is Article 16 that guarantees
equality of opportunity to all citizens. Article 16(1) assures that all citizens get access to
19
David Oppenheimer, The Ubiquity of Positive Measures for Addressing Systemic Discrimination and
Inequality (Koninklijke Brill LV, Leiden, The Netherlands c2019) 32.
20
??, 'Constitution,Lawand Some Issues of
GenderJustice' (Shodhganga, ?) <https://shodhganga.inflibnet.ac.in/bitstream/10603/72176/8/08_chapter
%204.pdf> last accessed 08/02/21.
equal distribution of opportunity in matters about employment/appointment to any State-
owned office. Article 16(2) guarantees that no citizen shall, due to religion, race, caste, sex,
descent, place of birth, residence, etc. be disqualified for/discriminated against in respect of
any government job position. An exception (special measures) to Article 16, Article 16(4)
says that nothing in this article shall restrain the State from making any provision for the
reservation of posts for any backward class/weaker sections/minorities which, according to
the prudence and rationale of the State, is not correctly represented in the services under the
State.21Article 16, in conjunction with Article 14, has been used to guarantee equality of
opportunity and non-discrimination on the basis of sex in employment. Moreover, the marital
status or pregnancy of a woman if used to discriminate against her in employment is also held
as a violation of Articles 16 and 14.22Some High Courts have in fact stated that Articles 14,15
and 16 constitute a single code. In a judgement, Justice Mathews has argued that formal
equality is achieved when all people are treated equally, but states that men and women are
not equal in all aspects. As a result, some sort of proportionate equality is required to achieve
justice. Such a proportionate equality can be achieved only when equals are treated equally
and unequals are treated unequally.23 Some other articles that are important to gender justice
include Article 21, which states: “No person shall be deprived of his life or personal liberty
except according to the procedure established by law”.24This Article guarantees protection of
life and personal liberty and has often been employed for the protection of women. 25For
example, this article has formed the basis for the provision of protective and humane
treatment for inmates of women’s remand homes. Here the ‘right to life’ implies more than
mere existence, it implies the right to live with human dignity. At the core, rape is considered
a crime against basic human right of life with dignity, and hence in violation ofArticle
21.26Similarly, Articles 23 and 24, which prohibit traffic in human beings and forced labour,
and employment of any child below the age of fourteen respectively, can also be viewed as
provisions that are positive and progressive towards women. These provisions have inspired
many laws including those for the prevention of traffic in girls and women, and the Indecent
Representation of Women (Prohibition) Act, 1986.27The disadvantages of democratic process
21
D. D. Basu, The Shorter Constitution of India, 81.
22
Anjani Kant, Women and the Law (? edn, APH Publishing Corporation, New Delhi 1997) 133-135.
23
Rama Kapur and Brenda Cossman, On Women, Equality and the Constitution, 213.
24
Mahendra P. Singh, V. N. Shukla’s Constitution of India, 164.
25
Flavia Agnes, The Anti-Rape Campaign, 130.
26
Ratna Kapur and Brenda Cossman, Subversive Sites,180-183; Kapur and Cossman, On Women, Equality and
the Constitution, 216-219.
27
Anjani Kant, Women and the Law (? edn, APH Publishing Corporation, New Delhi 1997) 144-148.
and risks of parliamentary majoritarianism make it imperative that a pro-woman and anti-
subordination interpretation of Constitution 28 and laws shall be made and under the light of
positive discrimination further this provision was created. In the following case of
Bodhisattwa Gautama v. Subhra Chakraborty 29, the court talked about the need for laws
which shall curb the practices of dominance analysis that is found in our patriarchal society.
The court held that unfortunately, a woman, in our country, belongs to a class or group of
society who are in a disadvantageous position on account of several social barriers and
impediments and have, therefore, been the victim of tyranny at the hands of men it was held
that certain laws helps to soothe the position of women in the society. This indicates that they
are very much constitutionally valid as they come under the legitimate title of positive
discrimination which is fundamentally the rule of equal protection. 30In the landmark case of
Nargesh Meerza vs. Air India31, it was finely pronounced that on the basis of gender
discrimination, a woman shall not be rejected employment. 32 The Apex Court ruled that that
even however the first provision is sensible while the second and third provisions are
unpleasant, illogical and unauthorized. In the case of C. Rajakumari vs Commissioner of
Police33, Hyderabad the critical query was raised up before the Andhra Pradesh High Court
belong to the point whether the beauty competitions which offensively shows a women’s
body, figure and form is in violation of Article15 of the Constitution. The court states that if
in any beauty competition, the body is showed in a way of offense and is harmful to
community ethics then such beauty competition would be considered as the violation of the
provisions of Offensive Demonstration of Females (Prohibition) Act, 1986 and also
unauthorized as it interrupts Articles 14, 21 etc.

Directive Principles of State Policy

Article 39A and Article 39D of the DPSP talks about having an equal right to men and
women for an adequate means of livelihood whereas the latter supports equal pay for equal
work for both men and women. The framers had the long-sighted vision which allowed them
to think of the problems, a woman would have faced in the changing trends of the society. To

28
MP Jain, Indian Constitutional Law with Constitutional Documents(6th Edn., 2010).
29
Bodhisattwa Gautama v. Subhra Chakraborty, 1996 AIR 922.
30
Flavia Agnes, State, Gender and the Rhetoric of Law Reform, 14; Agnes, The Anti-Rape Campaign,125-126.
31
Nargesh Meerza v. Air India, 1981 AIR 1829.
32
Supra note 9.
33
C. Rajakumari v. Commissioner of Police, 1998 (1) ALD Cri 298.
support the fact, article 51A further talks about the provision which renounces practices
derogatory to the dignity of women.However, seeing the laws cumulatively, there is no going
back to the thought that the constitution has forgotten the position of women.

PROTECTIONIST INTERPRETATION OF LAWS FOR

WOMEN
Despite the broad horizon provided by the Constitution, the interpretations of these
provisions have echoed the patriarchal and conservative nature of the Indian society. Women
are subjected to as subordinate to men when they are put under the status of the weaker sex.
The constitution gave the tag of weaker sex keeping in mind the past discrimination that a
woman has gone through. The economic and sociological prejudices in their past have made
their progress rate slow and further, they need laws for the advancement. The Constitution
nowhere mentions that women are weak in comparison to the men according to nature. Such
patriarchal interpretations are prevalent for a long time.Taking an example of the law of
Adultery which is now unconstitutional, earlier in the case of W.Kalyani vs. State Tr. Insp.
Of Police & Anr.34, it was held that only men can be prosecuted for the offense of adultery
and women cannot be prosecuted. The judgment was further criticized on the grounds for
showing a strong gender bias making the position of a married woman almost as a property of
her husband.The women were seen as it was subordinate to men and in the jurisdiction of
them. It took almost 160 years for the court to understand that women are not a chattel and
have certainly equal status that of men. After having the provisions of equality in article 14,
the court continued to interpret the law basely. In the recent judgment of section 497, the
court held that there cannot be a patriarchal monarchy over the daughter or, for that matter, a
husband’s monarchy over the wife. On top of all of that, there cannot be a community
exposition of masculine dominance.The judgment passed is a step towards gender neutrality
but certainly, it is already become too late to know what all hardships a woman has faced.
The absence in understanding the concept of gender neutrality by the courts after having the
provisions laid down in the Constitution has resulted in the prima facie violation of women’s
independence.In Independent Thought v. Union of India35, a division bench of the Supreme
Court of India read “Exception 2” to Section 375, Indian Penal Code (hereinafter, IPC),

34
W. Kalyani vs. State Tr. Insp. Of Police & Anr., Criminal Appeal No. 2232 of 2011.

35
Independent Thought v. Union of India, 2017 10 SCC 800.
which now stands thus altered which stated that sexual intercourse by a man with his wife,
the wife not being less than 18, is not rape. Before the provision stated that the age was to be
15 years instead of 18 years. Sexual violence apart from being a de-humanising act is an
unlawful intrusion of the right to privacy and sanctity of a female. It is detrimental to her
supreme “honour” (which is also backward, as women are not an object) and offends her self-
esteem , well-being and dignity- it degrades and humiliates the victim where she is a helpless
innocent child, it leaves behind a trauma she could very likely never recover from. The
“traditional practice” being referred to in the case deals with child marriage and the rights
secured to women. The IPC sanctified the practice by allowing the husband of a girl child to
have sexual intercourse with her, regardless of her consent, provided she was not under the
age of 15. The Court identified the harm that the right of the girl child to maintain her bodily
integrity is destroyed when her husband is given the full control over her body, thereby
reducing her to nothing more than his property. Thus, the basis of the violation of Article 21,
as identified by the Court itself, is applicable equally, and in the same way, to adult married
women, as it is to child brides.36This judgement stood strong on the grounds of equality and
justice for women and throws out the patriarchal laws that were once prevalent in our
country.

ROLE OF INDIAN WOMEN CONTRIBUTING TOWARDS

INDEPENDENCE
After Independence, the Congress made attempts to fulfill the promises made during pre-
Independence. Perhaps the most important of them was the enshrinement of equality of men
and women in the Constitution and many administrative bodies were set up for creating new
opportunities for women. By 1955, the Constitution included some of the most progressive
laws for women. Nandita Gandhi37 and Nandita Shah note that during this period “many
middle class women found a place in the expanding service and educational sectors,
governmental structures or the professions. This numerically small but conspicuous entry into
the formerly prohibited areas gave rise to an image of the ‘new’ emancipated Indian
woman”.38 Gradually the number of organizations and institutions for women began
36
Radha Kumar, The History of Doing (New Delhi: Kali for Women, 1993), 97.

37
??, 'CHAPTER IV- CONTEMPORARY INDIAN
WOMEN' (Shodhganga, ?) <https://shodhganga.inflibnet.ac.in/bitstream/10603/226/8/08_chapter4.pdf> last acc
essed 08/02/21.
38
Nandita Gandhi and Nandita Shah, The Issues At Stake (New Delhi: Kali for Women, 1992), 18.
increasing. The government supported the spread of “mabila mandals” and reformist
programmes. Yet many of the feminists’ expectations suffered a setback in post-
Independence period. The Hindu Code Bill was severely watered down. The Bill had
proposed equal inheritance rights, prohibited polygamy, and attempted to liberalise divorce
and custody rights for women. Moreover, the demand for a Uniform Civil Code, which then
was on the feminist agenda, was shrugged off. This gave rise to a new ferment of political
action, when people raised organised protests and struggles around various issues. The
Telangana Movement39, a peasant movement during the 1948-50, Jayprakash Narayan’s Total
Revolution’ in Bihar during the 1970s, the Chipko movement in the Garhwal, the Shahada
and anti-price rise in Maharashtra, and the SEWA and “Nav Nirman” in Gujarat could be
identified as some important people’s movements in post-Independence India. Though these
movements were not feminist per se, they had the massive participation of women. Some
movements like the Shahada challenged the practice of wife-beating; movements in many
other parts of India saw antiliquor agitations, wherein alcohol was identified as a main reason
for wife battering. Thus such people’s movements saw the massive participation of women in
raising issues that affected the family and/or women.40The year 1974 turned out to be a major
landmark in the history of women’s movement. This was the year when ‘Towards Equality’,
a report on the status of women in India was published. In 1971 the Ministry of Education
and Social Welfare appointed a committee to examine the constitutional, legal and
administrative provisions that affect women’s special status, their education and employment
and to gauge how effective they are in real life application. The report suggested that the
Constitutional guarantees of equality and justice for women had not been met with. It also
argued that the status of women had not improved but in fact had deteriorated since
Independence. An important argument it put forth was that most ofthe Indian women had not
benefited from modernity - whether social, economic, political or technological. 41Another
impetus to the IWM was given by the UN declaration of the year 1975 as International
Women’s Year. It was in response to a request by the UN, that Towards Equality’ was
prepared. However with the declaration of emergency in 1975, there was a break in the
movement.42Many political organisations were forced to go underground, activists were
arrested and those activists who were not, focussed entirely on securing civil rights. After the
39
Supra note 20.
40
Adriana Cavarero, Equality and Sexual Difference: Amnesia in Political Thought(London: Routledge, 1992),
45.
41
Geraldine Forbes, Women in Modern India (Cambridge University Press, 2000), 226.
42
Ilina Sen, Women’s Politics in India, (Delhi: Oxford University Press, 1996), 448.
lifting of the emergency, new ‘feminist’ groups were formed. These groups and organisations
took up several issues highlighting the denial of just conditions for women’s survival. One of
the major issues that engaged the attention of the IWM in the post-emergency period was the
rise in sexual violence against women.

WOMEN WHO HELPED DRAFT THE INDIAN

CONSTITUTION
Out of 392 people that were appointed for the constitution drafting committee, only 15 were
women, which makes the representation of women less than 4%. While this is not ideal, it is
important to note the widespread illiteracy and subjugation, especially amongst women, and
caused from pre-existing societal prejudices and norms, had made it almost impossible for
women to claim a political space.

There were 15 women from diverse backgrounds - though and unsurprisingly so, the number
of Savarna (upper-caste) women was more than that of the Avarna women.43

1. Dakshayani Velayudhanhad her roots in the Pulaya community in Cochin, Kerala

and was among the first generation of women of her community to be both educated
and wear a ‘upper-cloth’. She was the first and only Dalit woman who was elected to
the Constituent Assembly. She, along with Dr. Ambedkar, brought many caste-related
issues to light in the Assembly debates. She also happened to be the youngest member
of the committee at 34 years of age.
2. Hansa Jivraj Mehta, elected from Bombay, was a member of the Fundamental
Rights Sub-committee, the Advisory Committee, and the Provincial Constitutional
Committee. A few minutes after midnight on Independence Day, Mehta, on behalf of
the “women of India", presented the national flag to the assembly—the first flag to fly
over independent India. She, along with Rajkumari Amrit Kaur, modelled the Indian
Women’s Charter of Rights and Duties, and fought for the Uniform Civil Code
(UCC). She recognised herself as a feminist and worked extensively in the women’s
movement that pushed for the abolition of child marriage (the Sarda Act), the

43
Devyani ?, 'Women of the Drafting Committee of the Indian Constitution' (Drishti, 12 September
2019) <https://www.drishtiias.com/blog/women-of-the-drafting-committee-of-the-indian-constitution> accessed
last accessed 08/02/21
 Devadasi system, for better educational opportunities for women, and personal law
reforms.
3. Ammu Swaminathan was elected from the Madras Constituency and was a firm
advocate for the abolishment of the archaic and oppressive caste system and sided
with Ambedkar for several caste-related issues. Being an upper-caste woman, Ammu
recognised the evil of caste and even criticised Jawahar Lal Nehru for responding to
Panditji which she saw a sign of superior class dominance.
4. Begum Aizaz Rasul was the only Muslim woman among the fifteen and was elected
from U.P. in the Constituent Committee of India. She was elected to the Rajya Sabha
in 1952.
5. Durgabai Deshmukh was the only female member of the Panel of Chairmen in the
Constituent Assembly. She played a significant role in the enactment of many social
welfare laws. She was also the one who proposed Hindustani (Hindi+Urdu) as the
national language of India.
6. Kamla Chaudhary had come from an affluent family in Lucknow but had struggled
to get an education. She was one of the most active women in the Civil Disobedience
Movement in 1930. The British government jailed her several times. In 1946, she was
made the Vice President at the 54th conference of the Congress held in Meerut. She
was a member of the Constituent Assembly from 1947 to 1952, and she was also a
prolific writer and wrote extensively on gender discrimination, exploitation of
peasants, and poor condition of widows in the society.
7. Leela Roy was a feminist who, time and again, had protested and fought for what was
right. From a young age, she threw herself into social work and education for girls,
supported vocational training and emphasised the need for girls to learn martial arts to
defend themselves.
8. Malati Choudhary was a socialist whose struggle for what is morally correct didn’t
stop at obtaining freedom for the country, she went to jail for protesting against Indira
Gandhi’s imposed Emergency.
9. Purnima Bannerjee was perhaps one of the most strong-headed women elected from
Allahabad (present-day Prayagraj), Uttar Pradesh and worked extensively towards
rural engagement.
10. Rajkumari Amrit Kaur came from the princely state of Punjab and founded AIIMS
(All India Institute of Medical Science) and argued for its autonomy. She firmly
supported women’s participation in sports, medicine, and health. She set up the
 Tuberculosis Association of India, the Central Leprosy and Research Institute, held
the vice-chair of the Board of Governors of the League of Red Cross Societies, and
also the Chair of the Executive Committee of St John’s Ambulance Society.
11. Renuka Ray hailed from West Bengal and was a strong advocate for gender equality.
Renuka argued for a UCC, stating how the position of Indian women was iniquitous. 

12. Sarojini Naidu is possibly one of the most famous names from the drafting
committee. She is popularly called the ‘Nightingale of India’. She was the first Indian
woman to be president of the Indian National Congress and to be appointed as
Governor to a State. Besides her exemplary work in the field of women
empowerment, she was known for her literary prowess and was elected as a member
of the Royal Society of Literature.
13. Sucheta Kriplani  came from the present-day Haryana and is celebrated for her
pivotal role in the Quit India Movement in 1942. She was also responsible for
establishing the Women Wing in the INC in 1940. She was the first woman Chief
Minister of India when she took over the office from Chandra Bhanu Gupta (Uttar
Pradesh) in 1963. 
14. Vijaylakshmi Pandit, the sister of Jawahar Lal Nehru, was appointed as the first
woman and became the first Asian to be elected President of the U.N. General
Assembly in 1953. 
15. Anne Mascarene was one of the first women to join the Travancore State Congress
and became the first woman to be part of the Travancore State Congress Working
Committee. She was one of the leaders of the movement for independence and
integration with the Indian nation in the Travancore State.

Is 2020 Redefining Women Empowerment?

  Bilkis Dadi as Part of Time’s 100 Most Influential Person

The anti-CAA (Citizenship Amendment Act) protests of 2019-2020 shifted the center of
power in a nation that has been habitual of placing the power at the hands of a male political
center. The protests, dominated by women sitting in the chilly winters of Delhi’s Shaheen
Bagh became an image of Indian feminism that the world was in awe of. In September this
year, the movement was lauded by the inclusion of 82-year-old Bilkis Dadi in the Time’s list
of 100 of the World’s Most Influential People.

 Women breaking stereotypes in Defence Forces

2020 would be remembered in the year of Feminist Movements as a year that shattered all
stereotypes. The very beginning of this year witnessed a 26-year-old woman leading an all-
male contingent on Army Day and the Republic Day parade. Indian Army Captain Tania
Shergill became India’s 1st woman officer as Parade Adjutant at the Republic Day Parade
2020. The spectacle of a young and confident woman leading the contingent was a proud
moment for every Indian applauding the new dawn of feminism in India. 2020 was also a
year that stood witness to the implementation of a landmark Supreme Court judgement that
granted permanent commission to women in Indian Army.

By November this year, 450 women officers had gotten Permanent Commission as remarked

by Justice Chandrachud. Another moment that marked feminist pride was when Varanasi’s
Shivangi Singh was chosen to be the first woman pilot to fly Rafale. Rafale jets stayed in the
political conscience of the nation as a tug-of-war of military power. It made news
immediately when the young pilot was training in Ambala to soon join the “Golden Arrows”,
a squadron being prepared to fly Rafale jets.  

 Women in Farmers’ Protest

Farmers Protest in India is amongst the biggest protests ever documented worldwide. While
the history of protests has witnessed men holding down the fort as conscious pall bearers of
legal and political decision-making, India taught the world a contrasting image. Women in
Farmers protest have been vocal and active. They have stood out as they speak their minds
without any political fear and understand the economics of their home and land better than
their male counterparts.

Thousands of women have walked to Delhi and thousands other have occupied posts back in
Punjab and Haryana to keep the protests alive. Women have been breaking their ‘domestic’
image by eloquently explaining the innuendoes of the Farmer Laws forced on them. They sit
at the protest vocalising their demands and not just cooking or flipping rotis. The very
spectacle of thousands of women singing and protesting and interacting with the media has
changed the way the Urban Intellectual India perceived a farmer woman. Women have their
own union wings, and are the leaders and treasurers of many other.

Women have also flocked to demand justice for their husbands and sons who committed
suicide under immense financial pressure. Harinder Bindu, a young farmer from Bathinda
reached Delhi leading a convoy of over 10,000 women coming from 14 districts of Punjab.
She voices her demands sitting on the roads of Delhi clearly stating the legal innuendos of
them. She believes it’s important for women to fight for their rights because they would be
affected differently, as they already bear the worst of poverty. She says it will ultimately be
the women who will have to cut their meals to feed the family. Women at the protest are
riding a fourth-wave of feminism in India that will write the saga of a more equal decade to
come.

 The Problematic Transgender Persons (Protection of Rights)

Act, 2019

Transgender Persons (Protection of Rights) Act, 2019 was passed last year in the
parliament amidst Opposition’s uproar and criticism from the Trans community and
LGBTQIA+ activists because of several problematic clauses. Not only did the government
attempt to rush the draft rules by only giving a month’s time for feedback and suggestions, it
also violated NALSA’s verdict of the right to self-determination. Critiques maintained that
the Act would take away agency from transgender people rather than enabling them.

The Ministry of Social Justice and Empowerment issued the draft of the Transgender Persons
(Protection of Rights) Rules, 2020 in July this year and welcomed suggestions and
objections. The revised version of the Bill repealed the clause of medical examination by the
District Magistrate to affirm the identity of a transgender person. The lack of clarity within
the Act shows in how it has tried to club the different gender identities under the ambit of
‘transgender’ and thus, explicitly invisibilising intersex persons and non-binary persons and
the issues pertaining to them, such as the surgeries conducted on the bodies of babies to
‘rectify’ genitalia.

This moment from 2020 is historically significant in how the law and policy-makers of the
country framing guidelines that would deeply affect the lives of marginalised communities
showed an utter lack of knowledge and understanding of the communities that would be
affected.

 The successful administration of COVID-19 by female world

leaders
When ‘Coronavirus’ had brought the entire world to a complete standstill during the months
of March-June, women leaders of the world—Angela Merkel of Germany, and Jacinda
Ardern of New Zealand and in India, K K Shailaja, politician and current Minister of Health
and Social Welfare of Kerala state, came forth only to show how better equipped women are
with the qualities of leadership, intelligence and courage.

Thus, female world leaders have successfully smashed gender prejudices, taboos and decided
to be the custodian not only of their lives but also of their State and the world at large. 

 Intersectional Cyberfeminism
The virtual nature of the Internet and its interconnectedness allows people to
participate in ongoing dialogues on various issues, from patriarchy and gender politics
to personal experiences. With cyberfeminism becoming the norm, it is increasingly
important to consider who controls the discourse and how it relates to race, class and
other social structures. Transnational and postcolonial feminists, such as Chandra
Talapade Mohanty, recognise that western forms of feminism tend to homogenise and
universalise the experiences of all women, no matter where they are. Mohanty writes,
“Western feminists appropriate and “colonise” the fundamental complexities and
conflicts which characterise the lives of women of different classes, religions,
cultures, races and castes in these countries. It is in the process of homogenisation and
systemisation of the oppression of women in the third world that power is exercised in
much of recent Western feminist discourse and this power needs to be defined and
named. 44 ”
Even in India, several feminist scholars provided the intellectual representation but
held on to Western ideas 45 . They failed to address the needs of the minority. For
instance, with the Shah Bano case , which sought to discuss the controversial
maintenance of aggrieved divorced Muslim women, despite having a strong
intellectual representation, women’s groups failed to garner unanimous support on the
issue because they were unable to envisage the predicament and limitations of Indian
Muslim women. The issue turned political instead of remaining one of women’s
rights, and several women’s groups held polarising views, further fragmenting the
support for it.Consequently, the passing of The Muslim Women (Protection of Rights
on Divorce) Act, 1986, represented the massive failure of the Indian government to
enforce equal rights for Muslim women. It also showcased the inability of women’s
groups to mass mobilise and arrive at a consensus on the cause.
Digitisation, to a certain extent, allows for wider feminist discussions to occur,
overcoming spatial limitations and redefining what activism and social movements can
look like. It provides an outlet for new opportunities for the empowerment of other
marginalised women. For instance, in 2013, acid attack survivor Laxmi Agarwal
gathered 27,000 signatures through an online petition, ‘StopAcidSale’, to curb the
sales of acid and took the issue to the Supreme Court. The campaign gained
nationwide attention and allowed several other acid attack survivors to voice their
support for the ban on acid sale. In 2013, the Supreme Court ruled in favour of the
plea and introduced restrictions on the sale of acid, and recognised it as a crime under
Section 326 of the Indian Penal Code, which categorises acts voluntarily causing
grievous hurt by dangerous weapons or means 46 .
Another study of women’s movements on social media by Sujatha Subramanium, who
interviewed a Dalit feminist activist, noted, “In Kerala, the voices of subaltern groups
are very prominent on social media, especially sexual minorities and Dalit groups. On
44
Chandra Talpade Mohanty, “Feminism without Borders: Decolonizing Theory, Practicing
Solidarity, ” Duke University Press (Februrary 2003): 499-535.
45
M Chaudhuri, “ Feminism in India : The Tale and its Telling,” Revue Tiers Monde 209(1)
(2012 ): 19-36.
46
“Campaign Against Acid Attack “, Human Rights Law Network (HRLN).
social media, all of us are publishers. Only some communities get the space to get
published in mainstream media. Social media allows marginalised voices the
possibility of being heard in the public discourse.”
On the internet, the option of anonymity enables women to construct their identity on
their own terms. They can discuss issues that are otherwise considered too ‘sensitive’
for the public domain. For women of colour, the online political organising of African
American women globally reflects how cyberfeminism can transcend nations, states
and economic classes. For instance, #SolidarityIsForWhiteWomen was initiated by
digital feminists to counter the discrimination present in online feminist debates,
which highlight issues only related to middle-class white women. The hashtag went
viral and gave women of colour an opportunity to reclaim their narratives online.  For
many, the Internet is a “safe space” to vent against a repressive gender regime in the
offline world 47 . The rise in global awareness and opposition to the repressive Taliban
regime by the Revolutionary Association of Women of Afghanistan is another
example of the successful use of the Internet by a global feminist organisation.
However, cyberfeminism has created a rift between the ideologies of the older and
younger generation of feminists. In India, the divide mainly emerged due to the
structural difference of power between feminist groups. A Facebook page managed by
Dalit women (Dalit Women Fight) states the importance of recognising the unequal
caste structure that exists in feminist discourses and academia 48 . It stresses that there
are linkages between caste and patriarchy, and that the ‘Me Too’ movement will not
be relevant for Dalit women unless intersectional marginalities are acknowledged. [44]

Digital Divide
Cyberfeminism cannot be viewed as the panacea for a universal claim of gender
equality. The issue of a ‘digital-divide’ continues to be a concern for cyberfeminism.
The gap between those with and without digital access, including digital devices and
47
Sujatha Subramaniam, “From the Streets to the Web: Looking at Feminist Activism on
Social Media,” The Economic and Political Weekly 50 (71) (2015).
48
Srila Roy, “#Metoo Is A Crucial Moment To Revisit The History Of Indian
Feminism “, EPW Engage, October 20, 2018.
internet, creates a schism in the idea of a ‘universal’ cyberfeminist movement. The
poorest and most marginalised are least likely to have internet access; until 2018, only
30 percent of women had access to the internet, of which only about 12 percent were
from rural areas. [47]  Hence, India still has a long way to go for democratic online
feminism to function independent of offline activism.
To realise the full potential of digital activism, it is necessary to recognise the
importance of accessible and affordable information and communication technologies.
The focus needs to be on creating educational programmes to teach underrepresented
groups how to access and use these technologies. To reach the women who are not yet
online, it is also necessary to forge a connection between online activism and offline
on-ground initiatives. In ‘Gender and the Politics of Possibilities: Rethinking
Globalization,’ Manisha Desai demonstrates how women use the internet to network
horizontally and vertically to organise into their own networks and communicate with
transnational agencies. [48]  Desai also illustrates how online activism is closely
intertwined with on-ground resistance movements. For instance, Mexican activists
“repackage” cyber information into radio and print information to make it available to
women who lack access to the internet. [49]
In 2014, following the kidnapping of 276 schoolgirls by Boko Haram in Chibok,
Nigeria, an international campaign (#BringBackOurGirls) was launched to pressurise
the authorities to do more. The campaign was embraced by former US First Lady
Michelle Obama and gained tremendous international media coverage. [50]  The
movement not only helped rehabilitate some students after their rescue, but also grew
to highlight some of Nigeria’s most important issues—corruption, invisibility of the
poor, and lack of security. [51]  This women-led social movement then extended its focus
to include the demand for good governance—the safety of citizens, better healthcare,
better infrastructure and a better economy. [52]  Traditional feminist movements and
online activism have a symbiotic relationship. The #BringBackOurGirls campaign
illustrates how online networks can enable large-scale offline decentralised
movements with participation of different communities, identities and voices.

Online Misogyny  
The rise in the number of women on the internet has been accompanied by a similar
growth in online hate and attacks against them. About 41 percent of women in the US
have been sexually harassed online. [53]  Studies also indicate that those who face such
backlash suffer a range of psychological, professional and financial impacts. [54]  Across
all countries, 61 percent of those who said they had faced online abuse or harassment
also said they had experienced loss of self-confidence or lower self-esteem as a result.
[55]
 Digital misogyny in the form of hate speech, physical threats and obscene language
have a deep impact on women’s voices online, that results in self-censoring, assuming
an anonymous identity or a pseudonym, or withdrawing from online domains
altogether. [56]
Online abuse is also linked to domestic violence against women. According to
research by Women’s Aid, 48 percent of women in the UK who had experienced
violence at the hands of a partner also reported experiencing online abuse once they
had left the relationship. The study also revealed that 38 percent of women had been
stalked online after they had left their partners. [57]  Such data indicates that the internet
not only allows violent ex-partners to use it as another tool to abuse women, but also
to incite others to join in their attacks. Technology, thus, enables the continuation of
assault beyond the scope of physical space.
According to research conducted by UK think tank Demos, women in the public eye
received the most abuse on Twitter. [58]  The research also found that, surprisingly,
much of the online abuse is perpetrated by women themselves. About 55 percent of
the propagators were found to be women and were almost as likely to use the same
derogatory language as had been used by their male counterparts against them. [59]
The digital space enables one to assemble country-specific resources and data that can
help victims and survivors of domestic violence to empower themselves. Several
survivor forums and groups have enabled women to seek support, help and advice on
domestic and gender-based violence. [60]  Online technologies are key in terms of
disseminating information. Online forums often play a crucial part for many women to
realise that their relationship may be abusive. Access to the internet helps the victim
to find the right information regarding the legal system, financial support and refuges.
It also enables them to reintegrate into society, share their knowledge, offer peer
support, and raise awareness about domestic violence. In this way, women traverse
through public and private boundaries that are mostly local and community-based but
also, increasingly, transnational.
Although online misogyny may be a new phenomenon, it resonates with patriarchal
attempts to limit women’s public presence and stifle their voices, viewing them as
inferior. Patriarchal systems also warn that women who overstep their mark will be
punished. Cyberfeminism is in many ways a direct response to the toxic offline and
online space, and perhaps a way through which the cycle can be broken. Speaking
publicly about these issues offers women the benefits of catharsis, as well as a sense
of solidarity. The presence of online misogyny could be symptomatic of the
widespread gender disparity, that is being replicated in the cybersphere, making it a
profoundly inequitable space. Cyberfeminism still follows the patterns of third-wave
feminism, wherein individual action and emancipation are highlighted. The ‘call-out’
culture focuses on micro-rebellions and shifts the onus for change onto the individual
instead of society. Highly individualised forms of feminism encourage intersectional
differences and varied voices to emerge. Yet, it can also make the potential of a wider
and more united transformation difficult to achieve.

Sabarimala is one of the largest Hindu pilgrimage centres. Situated on a hill, it is a temple
dedicated to Lord Ayyappa, the Hindu god of growth. It is proclaimed to be one of the few
‘equalising’ temples, where devotees of all castes and classes are treated equally and are
required to dress in uniformity of black. However, the old customs and traditions of their
treatment of women are quite regressive.

INDIAN YOUNG LAWYER ASSOCIATION & ORS. VS. STATE OF

KERALA & ORS.

What is the Sabarimala issue?

Since 1991, the Kerala High Court has been upholding the law which bans women between
the ages of 10-50 years from entering the temple premises. This is enforced under the Rule
3(b) of the Kerala Hindu Places of Public Worship Rules 1965 which dictates that in
religious areas where women are not allowed to enter “by custom”, this custom shall be
maintained. It is to be noted that this prohibition is not against all women, but only those of
menstruating ages.

Mythology: Why are women prohibited?

This ban on women is stemming from an ancient custom based on the belief that Lord
Ayyappa was a Naisthik Brahmachari (celibate). According to the puranas (sacred texts),
Ayyappa was created to destroy a demon that had taken over a beautiful woman’s body. Once
the demon was defeated, the woman asked Lord Ayyappa to take her hand in marriage.
However, Ayyappa was committed to his mission to go to Sabarimala and dedicate his life to
his devotees. He promised that he would marry her the day kann-swamis (new devotees)
would stop coming to his temple. Devotees believe that even today she sits waiting for him
next to the shrine, and is worshipped as Malikapurathamma

Certain believers claim the reason women do not enter the temple, is in sympathy with
Malikapurathamma and to ensure that Lord Ayyappa fulfils his duty in answering the prayers
of his devotees without feminine distractions.49

Taboo of Menstruation

Another reason women between these particular ages are prohibited from entering the
compound is due to the immense taboo around menstruation. Many strongly believe that a
menstruating woman is an impure person, thus making it impossible for her to complete the
41 days of vratham (purification period). In fact, being near menstruating women may ‘ruin’
the vratham of the male devotees, who have spent these 41 days in complete austerity and
celibacy50.

To this, the Supreme Court as well as the Constitutional bench has repeatedly demanded to
the defence lawyers whether a biological function could be discriminated against. “Is
menstruation a tool to measure the purity of women? How will you measure the purity of
men?”, asks the Supreme Court. Senior advocate Indira Jaising says that such a
discrimination based on claims of ‘impurity’ is a violation of Article 17 of the Indian
Constitution which forbids untouchability.

Untouchability is the practice based on the idea of social humiliation and the belief that the
presence of a certain person by itself can be ‘defiling’. In his 1917 essay ‘Castes in
India’ B.R. Ambedkar illustrates the misogynistic basis of the caste system. Women are
banned, especially menstruating women, because orthodox Hindu texts explain the various
ways in which the menstrual cycle and child birth pollute upper caste environments.

49
https://www.theguardian.com/commentisfree/2019/jan/03/gender-activism-india-womens-wall-
sabarimala-temple-kerala
50
https://feminisminindia.com/2018/07/26/sabarimala-women-entry-supreme-court-judgement/
Extensions of this can be seen in our daily lives, such as the exclusion of upper caste women
from religious rituals on the days of their cycl51e.

Judges on the three-judge panel has proclaimed that such discrimination based on biological
factors violates the very core of the constitution, Articles 14, 15, and 17, which prohibit
discrimination against citizens. While it does consider the culture of people, every practice of
culture or faith must pass the test of the Constitution of India. It is a cultural document in the
sense that within its intentions, principles, pronouncements and guidelines lies the fibre of the
people who make up this land. Hence its limitations are also our own social, cultural and
political wrinkles. But the makers of the Constitution wished and hoped that the fundamental
rights would represent an ideal of India. They were, and we are, yearning for an India where
all forms of discrimination and segregation cease to be practiced. The Constitution is not a
heartless, emotionless document; it is a passionate seeking for human upliftment. . Justice
D.Y. Chandrachud put it succinctly when he said, “Religion cannot be cover to deny women
the right to worship.”

1.Equal rights of daughters in coparcenary property

In the landmark judgment of Vineeta Sharma v. Rakesh Sharma (2020) the Supreme Court
held that daughters have equal coparcenary rights in Hindu Undivided Family (HUF)
property. The court held that this right arises by taking birth. So when a daughter is born, she
also steps into the coparcenary as that of a son. However, a daughter born before can claim
these rights only with effect from the date of the amendment, i.e., September 9, 2005, with
saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).
Further, the court also clarified that since the right in coparcenary is by birth, father
coparcener doesn’t need to be living as on 9.9.2005.

2. Breaking the glass ceiling in Indian Army

The Supreme Court in The Secretary, Ministry of Defense v. Babita Puniya and Ors,
ushered for transformative constitutionalism by breaking gender stereotypes in Indian Army.
The court said that all women army officers are eligible to be appointed in commanding roles
and are also entitled to permanent commissions. The Court further said the submissions made
51
https://feminisminindia.com/2018/07/26/sabarimala-women-entry-supreme-court-judgement/
by the Ministry of Defense, “are based on sex stereotypes premised on assumptions about
socially ascribed roles of gender which discriminate against women. Underlying the
statement that it is a “greater challenge” for women officers to meet the hazards of service
“owing to their prolonged absence during pregnancy, motherhood and domestic obligations
towards their children and families” is a strong stereotype which assumes that domestic
obligations rest solely on women.” The Court held that such notions are flawed and are in
clear violation of Article 14 of the Constitution of India. This judgment shall always be
celebrated which paved the way for gender equality in defence services.

3. Reproductive Choice of Woman Is a Fundamental Right

In State Of Rajasthan vs S a minor girl was sexually assaulted whereby, she unfortunately
conceived. She made a petition seeking permission for termination of pregnancy. The
medical board was of the opinion that there was no serious threat to the mother if the
pregnancy is terminated. However, the Single Judge Bench of the High Court (Rajasthan)
held that the fetus in the womb has right to life as enrished under Article 21 of the
Constitution of India. When the matter was appealed to the division bench, the bench set
aside the impugned judgment and held that, “There is no doubt that a woman’s right to make
reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21
of the Constitution of India. It is important to recognise that reproductive choices can be
exercised to procreate as well as to abstain from procreating. The crucial consideration is
that a woman’s right to privacy, dignity and bodily integrity should be respected. This means
that there should be no restriction whatsoever on the exercise of reproductive choices such
as a woman’s right to refuse participation in sexual activity or alternatively the insistence on
the use of contraceptive methods.”

4. Two Finger Test violates victim’s right to privacy, dignity and

integrity

While the Gujurat High Court was adjudicating an acquittal appeal in State of Gujarat v.
Rameshchandra Rambhai Panchal, the court observed that the two-finger test conducted
during the course of medical examination is unconstitutional. The court observed that the
two-finger test (also called ‘PV’ – Per Vaginal) in which the doctor puts two fingers inside a
woman’s vagina to examine whether the victim was sexually active or not is one of the most
unscientific and intrusive methods of physical examination. Two-finger test has no forensic
value in the context of sexual assault. The court further held that “Whether a survivor is
habituated to sexual intercourse before the assault has absolutely no bearing on whether she
consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a
rape victim’s credibility to be compromised on the ground that she is “of generally immoral
character. The two finger test is unconstitutional. It violates the right of the victim to privacy,
physical and mental integrity and dignity. Thus, this test, even if the report is affirmative,
cannot ipso facto, give rise to a presumption of consent.”

5. Sexual Harassment At Workplace Is An Affront to Women’s Fundamental

Rights

In Punjab and Sind Bank & Ors v Mrs Durgesh Kuwar, the apex court while rescinding a
transfer order of a woman bank employee who had alleged sexual harassment by a senior
colleague held that, “sexual harassment at work violates women’s fundamental right to
equality, their right to live with dignity and to practise any profession.”

6. Excluding Married Daughter From Seeking Benefit Of

Compassionate Appointment Is Unconstitutional

In the matter of Bhuvaneshwari V. Puranik, the deceased government employee had a son
and a daughter. The son denied the appointment and the claim made by the daughter was
rejected on the grounds that she was married. The Karnataka High Court held that such rules
which create division based on gender by permitting a married son but denying a married
daughter are discriminatory and unconstitutional. The court held that, “Marriage does not
determine the continuance of the relationship of a child with the parent, whether son or a
daughter. Son continues to be a son both before and after marriage and a daughter also
should continue to be a daughter both before and after marriage. This relationship does not
get affected because of marriage.” 
7. Prostitution is not an offence; Adult woman has right to choose
her vocation

In Kajal Mukesh v. The State of Maharashtra, the Bombay High Court held that
prostitution is not an offence under Immoral Traffic (Prevention) Act, 1956. As per the Act
what is punishable is the sexual exploitation or abuse of a person for commercial purpose.
The court held that an adult woman has the right to choose their vocation while setting free
three sex workers who were detained from a women’s hostel in Uttar Pradesh.

8. Person Cannot Be Denied A Legitimate Right Only Because They are A

Transgender Person

In Hina Haneefa v. Union of India a trans woman, challenged Section 6 of the National
Cadet Corps Act which considers only males and females to be eligible for enrollment. The
Kerela High Court observed that this is discriminatory and against the state’s transgender
policy and said that “a person cannot be denied a legitimate right only because she is a
transgender (person).” The court has asked the NCC unit of the University College in
Thiruvananthapuram to keep the seat vacant until the matter is finally disposed of. 

CONCLUSION
In post-independence era, although much has been done for liberation and betterment of
women, yet it cannot be said that they are fully free from the clutches of male domination. In
practice, there is no equality between man and woman. It is true that establishment delivers
equivalent chances for women indirectly as they are appropriate to all individuals regardless
of their gender, but the court realize that respective article reproduce only equivalence
towards women. They also have not considered to speed up de facto impartiality to the
amount of Constitution proposed. Replicating this in Dimple Singla v. Union of India 52, the
Delhi High Court uttered its nervousness that except, elimination and attitudes, change of
judgment in contradiction of women cannot be attained. There is also a significant space
between rights of Constitutional as well as its use in everyday lives of maximum women.
Accordingly, it is also truthful that the females are employed in jobs which are previously
entirely majority of male domains, and they should free from sexual harassment at their
workplaces.53They should be able to work in a healthy and safe work environment, without
having to resort to “quid pro quo” to get ahead/grow in their career. Hence, there are
consisting occurrences which reveal absence of self-assurance and confidence in their
competence and productivity. There remnants an extensive and persistent doubt concerning
their capabilities to fulfil the challenges of the assigned job. These obstacles disturb the self-
respect of those women who are working. A point to be added is that feminism should be
intersectional, and across all class and sections of society. While women should not be forced
to have sex, they should be free to adopt a sexually liberated lifestyle without facing
condemnation from the society, whether married or not. The author believes that even though
the constitution has inherently feminist principles, application is not there in real life. Few
regressive terms in the law like “honour” and “modesty” contribute to male-dominance.
There needs to be progressive realisation of rights beyond interpretation of women needing to
be protected.

REFERENCES
[1] Uzair Ahmed Khan, 'Feminist Jurisprudence in the Indian Constitution' (iPleaders, 14
October2019) <https://blog.ipleaders.in/feminist-jurisprudence-indian-constitution/> last acces
sed 08/02/21
[2] Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford
University Press, 1999).
[3] K. T. Bartlett, Feminist legal methods (Harvard Law Review, 1990).

52
Dimple Singla v. Union of India, 20022 AISLJ 161.
53
Vishakha v. State of Rajasthan, 1997 6 SCC 241.
[4] Shampa Dev, 'Gender Justice in India: A Feminist Jurisprudential
Perspective' [2018] 10(1) Tattva-Journal of
Philosophy <https://doi.org/10.12726/tjp.19.5> accessed 15 May 2020
[5] Ray, Raka. Fields of Protest: Women's Movements in India (University of Minnesota
Press, 1999), 13.
[6] Gangoli, Geetanjali, Indian Feminisms – Law, Patriarchies and Violence in
India (Hampshire: Ashgate Publishing Limited, 2007)
[7] Chaudhuri, Maitrayee. Feminism in India (Issues in Contemporary Indian
Feminism) (New York: Zed, 2005.)
[8]Nancy E. Dowd and Michelle S. Jacobs, Feminist Legal Theory: An Anti-Essentialist
Reader (New York Univ. Press, 2003)
[9] Prem Pratap Singh Chauhan and Tathagat Sharma, 'Feminism and Indian
Constitution' [2019] 1(1) Academic Journal of Law and Judiciary <?> accessed 15 May 2020.
[10]Dr. S.P. Dwivedi, Jurisprudence and Legal Theory(5th Ed. 2012), 433-34.
[11]Ankita Chakraborty, Gender Justice Under Indian Constitution, International Journal of
Legal Developments and Allied Issues (2012).
[12] Mohd. Aqim Aslam, 'Legal Service India' (Feminist Jurisprudence and Its Impact In
India-An Overview, ?) <http://www.legalserviceindia.com/legal/article-1859-feminist-
jurisprudence-and-its-impact-in-india-an-overview.html> last accessed 08/02/21
[13] Richards, David A. J., Women, Gays, and the Constitution: The Grounds for Feminism
and Gay Rights in Culture and Law(1998).
[14] Versha Sharma, Constitutional Provisions Relating to Women and International
Instruments on Rights (2002).
[15]National Legal Services Authority v. Union of India, W.P. (Civil) No. 400 of 2012.
[16] Matsuda, M., When The First Quail Calls(Routledge, London c2009).
[17]Mehal Jain, ''Constitution Itself Is Feminist', Justice Chandrachud On Transformative
Constitution & Feminism https://wwwlivelawin/constitution-itself-is-feminist-justice-
chandrachud-on-transformative-constitution-feminism/' (LiveLaw, 7 Oct
2018) <www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-
transformative-constitution-feminism/> last accessed 08/02/21
[18] D.D. Basu, The Shorter Constitution of India, 36.
[19] David Oppenheimer, The Ubiquity of Positive Measures for Addressing Systemic
Discrimination and Inequality (Koninklijke Brill LV, Leiden, The Netherlands c2019) 32.
[20]? ?, 'Constitution, Law and Some Issues of Gender
Justice' (Shodhganga, ?) <https://shodhganga.inflibnet.ac.in/bitstream/10603/72176/8/08_cha
pter%204.pdf> accessed 15 May 2020.
[21] D. D. Basu, The Shorter Constitution of India, 81.
[22] Anjani Kant, Women and the Law (APH Publishing Corporation, New Delhi 1997) 133-
135.
[23] Rama Kapur and Brenda Cossman, On Women, Equality and the Constitution, 213.
[24]Mahendra P. Singh, V. N. Shukla’s Constitution of India,164.
[25]Flavia Agnes, The Anti-Rape Campaign, 130.
[26] Ratna Kapur and Brenda Cossman, Subversive Sites, pp. 180-3. Also refer Kapur and
Cossman, On Women, Equality and the Constitution, 216-219.
[27] Anjani Kant, Women and the Law (APH Publishing Corporation, New Delhi 1997) 144-
148.
[28] MP Jain, Indian Constitutional Law with Constitutional Documents(6th Edn., 2010).
[29]Bodhisattwa Gautama v. Subhra Chakraborty, 1996 AIR 922.
[30]Flavia Agnes, State,Gender and the Rhetoric of Law Reform, 14; Agnes, The Anti-Rape
Campaign, 125-126.
[31] Nargesh Meerza v. Air India, 1981 AIR 1829.
[32]Supra note 9.
[33] C. Rajakumari v. Commissioner of Police, 1998 (1) ALD Cri 298.
[34] W. Kalyani vs. State Tr. Insp. Of Police & Anr., Criminal Appeal No. 2232 of 2011.
[35]Independent Thought v. Union of India, 2017 10 SCC 800.
[36] Radha Kumar, The History of Doing (New Delhi: Kali for Women, 1993), p. 97.
[37]? ?, 'CHAPTER IV- CONTEMPORARY INDIAN
WOMEN' (Shodhganga, ?) <https://shodhganga.inflibnet.ac.in/bitstream/10603/226/8/08_cha
pter4.pdf> accessed 15 May 2020.
[38]Nandita Gandhi and Nandita Shah, The Issues At Stake (New Delhi: Kali for Women,
1992), 18.
[39]Supra note 20.
[40]Adriana Cavarero, Equality and Sexual Difference: Amnesia in Political Thought,
(London: Routledge, 1992), 45.
[41] Geraldine Forbes, Women in Modern India (Cambridge University Press, 2000), 226.
[42] Ilina Sen, Women’s Politics in India, (Delhi: Oxford University Press, 1996), 448.
[43] Devyani ?, 'Women of the Drafting Committee of the Indian Constitution' (Drishti, 12
September 2019) <https://www.drishtiias.com/blog/women-of-the-drafting-committee-of-
the-indian-constitution> last accessed 08/02/21
[44] Dimple Singla v. Union of India,20022 AISLJ 161.
[45] Vishakha v. State of Rajasthan, 19976 SCC 241.