FEMINIST JURISPRUDENCE IN INDIA

BY
SAYALI NAMDEV PAKHARE

LLM 2021
ROLL NO- 035
MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI.

ABSTRACT
In comparison to men, 'equality' and 'freedom' have eluded women throughout history. In
every nation or civilization around the world, women have always been treated as second-
class citizens with a merely functional purpose. This uneven condition of women, which was
repugnant to human dignity and human rights, led to the development of feminist
jurisprudence over time. This research paper reflects feminist jurisprudence's perspective on
women's freedom, its growth into other areas, and the State's / employer's responsibility to
protect and empower women. This research study focuses solely on the feminist
jurisprudence established by judicial decisions.
Hello sir,
The title of my project is feminist jurisprudence in India. The feminist jurisprudence
believes that equality and freedom have excluded women throughout History and law
has played a major role in treating women as Second class citizens. In this project, I
have elaborated the meaning, types, history and role of feminist jurisprudence with the
law.

INTRODUCTION
Feminist jurisprudence also referred to as feminine jurisprudence, is predicated on the
assumption that law is that the basis of female historical subordination. 1There are two
feminist method theory projects. First, feminist jurisprudence seeks to clarify how law
played a role within the early subordinate positions of the female gender. Second,
feminist law theory is dedicated to altering the importance of the female gender through
amendments to the law and its approach to gender. Feminist Jurisprudence may be
a philosophy that supported political, economic, and social equality between men and
women.2 Feminist law began as a discipline of law within the 1960s.3 It affects many debates
about sexual and force, workplace inequality, and gender bias. Through various approaches,
feminists have identified the results of seemingly impartial laws and practices. Laws that
affect employment, divorce, reproductive rights, rape, force, and harassment all have
the benefit of the analysis and knowledge of feminist law.
The intellectual actuation of the present women's movement is feminism, which has produced
special knowledge altogether areas like feminist sociology, feminist philosophy, and feminist
history, including feminist jurisdiction.
Feminist law could be a natural extension, namely law, and justice. Legal strategies have

1
Fineman, Martha Albertson (2005). "Feminist Legal Theory". Journal of Gender, Social Policy & the Law. 13 (1). SSRN 2132233

2
Pranav Raina, Shreya Solenkey, “Feminist Jurisprudence: An evolution from fixed mindset to growing
mindset”https://amity.edu/UserFiles/aibs/f5df2019%20AIJJS_29-36.pdf
3
Feminist legal Theory
played a vital role within the campaign of women's organizations for greater equality and
social justice

HISTORY OF FEMINIST JURISPRUDENCE

The first wave of feminism in India began in 1850-1920, and this stage uprooted ancient
Sati customs.4 Raja Ram Mohan Roy was the first speaker to oppose the submission of
women's rights, and he correctly rejected Sati's ideas. From 1818 he set out to shake
public opinion on this question. When an orthodox Hindu asks Congress to withhold consent
to Ventink's actions to eliminate the Sati ritual. Following this, Governor William Bentinck
adopted the Bengal Sati Ordinance on December 4, 1829. This was the biggest victory for the
movement at the time.
And suddenly a wave of feminism began, raising questions against the sacredness of the law
that prohibited the remarriage of widow through the Widow Remarriage Act of 1856. The
former widow was sentenced to a life of prayer, resentment, fasting, ignored parts of society,
considered unlucky, and was not included in any celebration. Pandit Vidyasagar is the man
who started the fight against the social evil of banning widows from remarriage.
It was then that the British and Indian governments passed the Widow Remarriage Act.
However, with this great development, there has been much criticism and national resistance
to all colonial efforts to "modernize" Hindu families.
The second wave of feminism in India can be traced back to around 1920- 1980,5 or
what we call the pre-independence era. The dominance of the Indian feminist movement
was in the hands of Indian women. As women's rights began to grow in popularity, women
became aware of their rights and began claiming their rights from male members of her
family. Mahatma Gandhi encouraged women to participate in a non-violent civil
disobedience movement against the British Raj. In 1925, Sarojini Naidu led the Indian
National Congress and became INC's first President of India. She was a pioneer in women's
rights. She traveled all over India to promote women's literacy and education in collaboration
with Annie Besant Women's Indian Association.
During this period, many women stood up and expressed their opinions during the
patriarchal and Indian movements to fight Britain. They asked other women to face them.
Among the lesser-known women who have spoken against patriarchy and colonialism are
Matangini Hazara, known as Gandhiburi, Bikaijikama, and Lakshmi Sagar, known as
Lakshmi Captain.
The third wave of feminism in India began with a victory in 1992 when Rebecca Walker
shouted "I am the third wave" in a magazine. This began by emphasizing the issue of
crossing and expressing their views on harassment. The establishment of the National
Women's Commission in 1992 was a major step in promoting and protecting women's rights.6

4
Gangoli (2007), pages 88-89
5
RevistaEstudosFeministas, “the History of Feminism and doing gender in India”

https://doi.org/10.1590/1806-9584-2018v26n358567
6
Growth of feminist jurisprudence in India https://blog.ipleaders.in/growth-feminist-jurisprudence-india/
SCHOOLS OF FEMINIST JURISPRUDENCE

Liberal
The origins of modern liberal feminism can be traced back to the 18th century. Individualism
was a key element of this ideology, which indicated that an individual had the right to do
anything he wants without interference from others. Liberal feminism is a manner of
feminist thought that emphasizes women's power to retain their equality via their
activities and decisions.
Its focus is on ensuring that women's legal and political rights are equal to men's. Liberal
feminists contend that society has the mistaken idea that women are, by nature, less
intellectually and physically capable than males, and as a result, women are differentiated
against in academia.
Liberal feminists believe that societal and legal regulations that prevent women from
participating in public politics and economics are to blame. Liberal feminists advocate that
liberal adhere to their ideas of universal human rights and equality and those men and woman
be treated equally, contending that women are fundamentally identical to men. These
theorists contend that laws should be gender-neutral, with no limits or particular support
based on gender.

Radical
It is also known as dominating feminism because it views gender equality as a matter of
male dominance over women rather than a matter of equality. Radical feminism is a
feminist viewpoint that advocates for a radical reorganization of society in which male
domination is abolished in all social and economic circumstances.
Radical feminists regard society as fundamentally a patriarchy in which males dominate and
oppress women, and they seek to eliminate patriarchy by disputing current social norms and
hierarchies to liberate everyone from an unfair society. This involves fighting the sexual
objectification of women and raising public awareness about topics like rape and sexual
assault.
According to radical feminists, patriarchy has caused women to be perceived as the "other" to
the male norm, and as a result, they have been systematically downtrodden and marginalized.
They also claim that men as a class benefit from women's oppression. Patriarchal ideology
isn't usually depicted as the concept that all men profit from all women's oppression. Rather,
it claims that patriarchy is primarily defined by a dominance relationship in which one side is
dominating and exploits the other for the benefit of the former. Radical feminists think that
men exploit social systems and other forms of control to oppress women.

Cultural
 Cultural feminism focuses on the mind. it's cantered on the disparities between men and
ladies. It argues that feminism's most vital task is to alter establishments to replicate and
include esteem that they see as women's nurturing virtues, like love, compassion, tolerance,
and concern, instead of incorporating ladies into patriarchate and prove that ladies square
measure almost like men and may perform like men and meet male norms. It's a feminist
theory a few women’s nature or essence that tries to revalidate what cultural feminists see as
neglected feminine characteristics. it is also a theory that celebrates the variations
between men and ladies. it's supported on associate degree essentialist understanding of
the distinction.
Post-Modern
Equality, according to post-modern feminism, is a social construct and a result of
patriarchy, and hence requires feminist reconstruction. The school promotes the process
of self-definition as well as the technique or raising awareness and giving voice to the
unknown in women's experiences. Both the liberal equality and disparity theory ideas that
women are inherently different from males are rejected by postmodern feminist legal
scholars.
This is due to their belief that truths are numerous and based on experience and viewpoint,
rather than isolated truths. Deconstruction is a tactic used by postmodern feminists to
examine laws to disclose hiatuses.7

EFFECT OF FEMINIST JURISPRUDENCE ON INDIA

With the passage of time and the impact of western society, there has been an increase
in feminist movements that have been welcomed with open arms. Various legislation has
been created for crime prevention and protection, some of which include The Immoral
Act. The Commission of Sati Act, 1987, and the Traffic Act, 1956,-
The Sexual Harassment of Women Act of 2005 protects women against domestic violence.
The Workplace Harassment (Prevention, Prohibition, and Redress) Act of 2013 was
enacted to address workplace harassment.
Many great women have conquered the globe, including Indira Gandhi and Kalpana Chawla.
With her talent and charm, she was able to break down preconceptions to a large extent.
women like them, they've become role models for others.
The Supreme Court's recent decisions have bolstered feminist legal theory. For
example, the Supreme Court's decision in the Sabarimala women's admittance case 8 can
be viewed as pro-feminist. The decision was handed down by the Supreme Court with a
4-1 vote, emphasizing that no one is above the law.

7
Growth of feminist jurisprudence in India https://blog.ipleaders.in/growth-feminist-jurisprudence-india/

8
Indian Young Lawyers Association vs The State of Kerala on 28 September, 2018 https://indiankanoon.org/doc/163639357/
Religious freedoms and activities outnumber constitutional and fundamental rights.
Another decision that altered the course was the repeal of Section 377, which was an
anti-trust law.
Attempt to integrate the underserved women's community into the mainstream of society.
The Supreme Court's decision in Triple Talak9 also demonstrates the court's pro-feminist
stance.
These Acts demonstrate that feminism existed in India, with several examples and revisions
enacted for the benefit of women. The 2005 Amendment to the Hindu Law of Inheritance for
Women modified the Hindu Law of Inheritance for Women. The apex court's decision has
now introduced another disqualification for women's inheritance rights.10
Until recently, they couldn't seek for a portion of the property that had been alienated or
partitioned before Bill's introduction on December 20, 2004.11
Because of this ruling, the father must have been alive when the amendment went into effect.
All that is necessary is that the girl and her father be alive on the effective date of the
change," it stated. The court also determined that any separation of customary property,
including its partition, that occurred before December 20, 2004, in agreement with the
legislation in effect at the time, would be unaffected by the 2005 change, and that those
partitions could no longer be reopened by daughters.
Aside from these changes, there may be a substantial influence on employment. In
agriculture, Indian women accounted for about 36% of overall employment.12

POLICIES ADOPTED BY INDIA

The National Commission for women (NCW) may be a legislative entity established on
the 31st of January, 1992, under the National Commission for ladies Act, 1990 to
safeguard, promote, and preserve the interests and rights of women. NCW has
been functioning on a women's rights
• In India, she has played a key role in defending and supporting women's rights.
• Women's Seats in Local Self-Government: The 73rd Constitutional Amendment
Acts, approved by Parliament in 1992, guarantee one-third of all seats all
told elected posts in local governments, whether rural or urban.
• The Girl Child National Plan of Action (1991-2000): The goal of the Action Plan is to
assure the feminine child's survival, protection, and growth, with the last word goal of
constructing a brighter future for her. The Prime Minister has revitalized it together with

9
Shahid Azad vs Union of India on 28 September, 2018 https://indiankanoon.org/doc/189753295/

10
Vineeta Sharma vs Rakesh Sharma on 11 August, 2020 https://indiankanoon.org/doc/67965481/?type=print

11
THE LEGISLATIVE, EXECUTIVE AND ADMINISTRATIVE SERVICE https://rajyasabha.nic.in/rsnew/annual_report/2004/billoffice.pdf

12
https://en.wikipedia.org/wiki/Women_in_agriculture_in_India#:~:text=Women%20make%20up%20about%2033,food%20production
%20in%20the%20country.
 his "Beti Bachao Andolan."
• 2001 National Policy for Women's Empowerment: within the year 2001, the Ministry
of Human Resource Development's Department of Women & Child Development drafted
a "National Policy for the Empowerment of ladies." The policy's purpose is to
push women's growth, development, and empowerment."

CASE LAWS

1. Vishaka vs the State of Rajasthan

The Supreme Court recognized the growing threat of sexual harassment at work and
elsewhere in Vishakha v. State of Rajasthan.13 The ruling states that it is the employer's or
other responsible people's responsibility to curb or discourage the conduct of acts of sexual
harassment and to create a system for the resolution settlement, or prosecution of acts of
sexual harassment by taking all necessary protocols. The delays in such instances should be
dealt with as quickly as possible because the proverb "justice delayed is justice denied"
applies even more to cases involving violations of women's rights. When justice is delayed,
individuals lose trust in the system and begin to take matters into their own hands, such as
mob justice, family fines, property destruction, and other tactics that do not serve the cause.
In a democratic democracy like ours, crimes should never be prosecuted criminally or
illegally; instead, they should always be prosecuted lawfully.
2. Air India v. Nargesh Mirza
The Supreme Court overturned the discriminatory Rules of Indian Airlines in Air India
v. Nargesh Mirza.14 An Indian Airline stewardess disputed several elements of their service
rules, claiming that they were unfair and unlawful because a stewardess may fit until she was
35 years old, but maybe fired if she married within four years of her recruitment or had her
first child. consistent with the Supreme Court, this restriction forced the hostess to not have
children, which is against attribute. The Supreme Court also maintained the power of Air
Hostesses to figure until they're 45 years old, instead of 35, if they're otherwise qualified.
However, the veracity of the claim is debatable.

3. Bodhisattwa Gautama v. Subhra Chakraborty

13
Vishaka & Ors vs State of Rajasthan & Ors on 13 August, 1997 https://indiankanoon.org/doc/1031794/

14
Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981 https://indiankanoon.org/doc/1903603/
In Bodhisattwa Gautama v. Subhra Chakraborty,15 the court discussed the necessity for
regulations to limit the dominance analysis methods that are prevalent in our patriarchal
culture. According to the court, Unfortunately, a woman in our nation pertains to a category
or group of society that is in a disadvantageous stance as an outcome of several social barriers
and obstacles has, as a result, been the victim of tyranny at the hands of men. It was held
that certain statutes help to reassure the position of women in community and are also
constitutionally valid because they fall under the legitimate title of positive
discrimination, which is fundamentally the rule of law. constitutionally valid because
they fall under the legitimate title of positive discrimination, which is fundamentally the
rule of law.

THE RULE OF LAW

Many common theories of the importance of the statute claim that the objective of the law is
to produce a collection of presumptively coherent and permanent facts, and that legislation
assumes and reflects this worldview. Legal systems include comprehensive and typically
long-standing conceptual frameworks, whether this goal is characterized as "the rule of law,"
"interior morality of law," "the soundest theory of established law," or other comparable
phrases. Any legal system's coherence can be questioned at any time, yet on this perspective,
coherence is an aim of all legal systems. And consistency standards, such as obeying
precedent and dealing with liars with respect, help to sustain the impression or perception of
coherence. Any legal system's coherence can be questioned at any time, yet on this
perspective, coherence is an aim of all legal systems. And (at the very least), consistency
criteria, such as respecting precedent, treating similar cases similarly, and securing judicial
neutrality, keep the feeling or sense of coherence alive.
Feminist oppositions assert that comprehending about the rule of law in of coherence
and consistency serves to perpetuate and legitimize the status quo and power structures.
Indeed, one of the conventional objectives of the statute is to protect stability and order
by motivating abidance to prevailing norms, which are depicted not just like the official
values of a community, but also as universal, natural, and unavoidable. As a result, the
law is perceived as establishing an official criterion for what is normal and acceptable—
what is essential, forbidden, preserved, enabled, or tolerated.
As a result, it is portrayed as an objective—for example, as dictated by precedent rather than
merely a course of opinion. By definition, violations, wrongs, injustices, damages, or
infractions are violations of the law, as well as departures from the status quo. The status quo
is the law's unspoken default standard. Feminist legal philosophers have argued that the law
renders systemic prejudice invisible, commonplace, and entrenched, making it difficult to
recognize and combat. Such systematic prejudice may be accepted not only by legal actors
such as judges but also by victims and beneficiaries of the legal system. Using approaches
such as genealogical analysis, conceptual analysis, and normative critique, feminist
philosophy of law aims to identify prejudice wherever it exists in the legal system.

15
Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995 https://indiankanoon.org/doc/642436/
The status quo thus bolstered is deemed patriarchal by feminist legal theorists,
reflecting old and nearly universal gender inequality presumptions. This is not a
philosophical need; patriarchal law is not required. Law, on the other hand, reflects
power dynamics in civilizations. Men and women have been perceived as not just
different, but also unequal in position and power throughout history and in practically
every civilization. Men were generally portrayed as practical, hostile, competitive, political,
and dominating leaders, while women were portrayed as emotional, docile, nurturing,
familial, and passive followers under an overarching set of contradictions. This set of
assumptions has been widely and pervasively comprehended into long-standing institutions,
ranging from political and economic arrangements to educational and religious institutions,
aesthetic standards, and personal relationships—and law is no exception.16

CONCLUSION
Law promotes societal stability, but it also has the potential to cement oppressive
practices. Law may also be an important tool for reform. Law may be a relic of the past
or a propeller of the future. Each purpose has a specific purpose. Feminist legal philosophy is
an attempt to investigate and reformulate legal theory to defeat the past's ingrained bias and
assessed inequality as it constructs human notions and institutions for the future. Female
feticide, domestic violence, maternity leaves, sexual harassment, sexual assault, and
equal pay for equal labor are some of the issues that require our attention in India.
Though much remains to be done, and there are several obstacles in the way of making
this reality a reality for a large number of women, the women's movement has pushed
women's concerns to the forefront and made them more visible, greatly assisting women
in their fight for equality.

16
Stanford philosophy of Law https://plato.stanford.edu/entries/feminism-law/
References
 Stanford Law Review by Deborah L. Rhode Vol. 42, No.3(Feb, 1990)
 Harvard Law Review by Kathrine T. Bartlett Vol. 103 (February 1990)
 Constitutional Feminism: An Overview by P. IshwaraBhat
 Pranav Raina, Shreya Solenkey, “Feminist Jurisprudence: An evolution from fixed mindset to
growing
 Feminist Legal Theory: An Anti-Essentialist Reader, ed. by Nancy E. Dowd and Michelle S.
Jacobs, New York Univ. Press, 2003.
 https://en.wikipedia.org/wiki/feminist_legal_theory
 Vishaka & Ors vs State of Rajasthan & Ors on 13 August, 1997
 Air India v. Nargesh Mirza, AIR 1981 SC 1929
 Bodhisattwa Gautama v. Subhra Chakraborty
 Fineman, Martha Albertson (2005). "Feminist Legal Theory". Journal of Gender, Social Policy & the Law. 13 (1). SSRN
2132233
 Growth of feminist jurisprudence in India https://blog.ipleaders.in/growth-feminist-jurisprudence-india/
 https://plato.stanford.edu/entries/feminism-law/