Professional Documents
Culture Documents
OF LAW, PUNJAB
SUBMITTED BY SUBMITTED TO
RGNUL, Patiala
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ACKNOWLEDGEMENT
The final outcome of this project has been accompanied by a lot of support and guidance
from many people who stood next to me throughout the completion of this project. Their help
provided me with enough faith and confidence in myself that I was able to finish the project
on time and to the best of my knowledge. I would be failing in my duty if I do not extend my
heartfelt gratitude to all of them.
I would also like to thank my jurisprudence teacher Ms. Renuka Soni ma’am who has been of
immense help to me while I was doing this project. He not only guided me through this
project but also enlightened me about the relevance of the topic. He also gave me an insight
into this topic and provided me with the necessary information whenever required.
I am thankful to all those Teaching and non-teaching staffs at RGNUL for showering me with
their constant support, guidance, and blessings which led to the successful completion of the
project. I also would like to thank the staff at the IT lab who helped me with my research
work.
Anthony Damlianhau
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CONTENTS
ACKNOWLEDGEMENT .................................................................................................. 2
1. INTRODUCTION ........................................................................................................ 5
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6.3 Effect of judgment ................................................................................................. 14
7. CONCLUSION .......................................................................................................... 15
8. BIBLIOGRAPHY ...................................................................................................... 16
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1. INTRODUCTION
1.2 Objective
The objective of the project primarily includes analysing the growth of feminist
jurisprudence, especially in special reference to the Indian context through the recent
Sabarimala temple controversy and the verdict. It aims to scrutinize how the enactment of an
act or a judicial interference over time has progressed the rights of women in real grounds.
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1.5 Review of the Literature
It primarily included analyzing the scope and growth of feminist jurisprudence. There has
been a focus on analyzing the growth of feminist jurisprudence with special reference to the
Sabarimala temple and the changes that occurred after the verdict.
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2. INTRODUCTION TO FEMINIST JURISPRUDENCE
Feminism is derived from the Latin word ‘Femina,’ which means ‘woman’.Feminism is a set
of movements seeking gender equality, a movement for the betterment of all spheres like
social, political, and economic rights such as equal wage and the right to access health and
education, and equal political rights.1
Feminist Jurisprudence includes the study of different strands of feminist theory and the
themes that have emerged and developed within feminist thoughts, as well as the application
of theory to issues that interest members of the class. 2 It is also known as feminist legal
theory. The objectives of feminist jurisprudence are two-fold. Firstly, feminist jurisprudence
aims to question how the legal system contributed to women's historical subordination in
society.Secondly, it is utilized as a tool for reworking the law and its treatment of gender in
order to improve the situation of women. The pervasive influence of patriarchy on legal
structures demonstrates its effects on the material condition of women and girls and develops
3
reforms to correct gender injustice, exploitation, or restriction.
Feminist Jurisprudence helps to determine whether what is neutral or natural for one person is
a distortion for another person. Pregnancy, child-rearing, and other caregiving activities are
still treated in the workplace as peculiar occurrences, rather than what they are: commonplace
functions that serve the larger good.4 The foundation of feminist jurisprudence in today’s
time is so strong that it focuses not only on discrimination or inequality but also provides new
ways of life.
1
Brunell, Laura and Burkett, Elinor.feminism. Encyclopedia Britannica, (5thApril 2023, 4pm)
https://www.britannica.com/topic/feminism.
2
Feminist Jurisprudence (Law 815-001 A and B) Fall 2010.
3
Francis, Leslie and Smith, Patricia, Feminist Philosophy of Law, The Stanford Encyclopedia of Philosophy
(summer 2015 Edition), Edward N. Zalta (ed.),(31st March 30, 2022, 10pm)
https://plato.stanford.edu/entries/feminist-philosophy.
4
Juergens, Ann, Feminist Jurisprudence: Why Law Must Consider Women's Perspectives(5th April 2023, 10pm)
https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1111&context=facsch.
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3. THEORIES OF FEMINIST LEGAL THEORY
According to radical feminists, men (as a group) use social structures and other forms of
power to oppress women (and non-dominant men). To put society in an equal position,
something must be changed. Radical feminists believe that by challenging existing social
structures and conventions, patriarchy may be eliminated, freeing everyone from an unjust
society.
Liberal feminists assert that society thinks women are physically and mentally less capable
than males by nature. As a result, practically all women experience prejudice in the job, in
public settings, and in the marketplace. Liberal feminists believe that social and legal
restrictions that prevent women from accessing and succeeding in the so-called public sphere
are the root cause of female subordination. They pursue gender equality through
governmental and judicial changes.
Liberal feminists hold that the sufferings of women, in general, can be attributed to societal
and legal barriers that prohibit women from participating in public politics and the economy.
5
Camille Cottais,Radical feminism, (4th April 2023, 4 pm)https://igg-geo.org/wp-
content/uploads/2021/04/Technical-Sheet-Radical-feminism.pdf.
6
Jone Johnson Lewis, What Is Liberal Feminism?,THOUGHTCO,(4th April 2023, 4
pm)www.thoughtco.com/liberal-feminism-3529177.
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The state can rebuild a balance by recognizing the civic areas where women are not included
and shifting the focus by making the system inclusive and changing them to add women’s
necessities in the law is the only way to enable women’s autonomy. 7Liberal feminists assert
that because men and women are fundamentally the same, liberals should uphold their beliefs
in equality, universal human rights, and treating men and women equally. According to these
theories, regulations should not impose restrictions or provide special treatment based on
gender.
It is based on an essentialist interpretation of the distinctions between men and women and
encourages independence and the development of institutions. They acknowledge the
distinctions between men and women and the need for equality. However, they contend that
in order to achieve this equality, the inherent virtues that women possess from birth must
remain unaltered.The disparities between men and women are a concern for these feminists.
According to this school instead of including women in the patriarchy and proving that they
are similar to men, can function like men, and meet male norms, feminism's most important
task is to change institutions in order to reflect and accommodate values that they see as
women's nurturing virtues, such as love, empathy, patience, and concern.
7
Friedan. B. (1963) The Feminine Mystique, Vol. I, W.W. Norton and Company, USA, page 169.
8
John Johnson Lewis,Cultural Feminism: What Is the Essence of Being a Woman?THOUGHTCO,(4th April
2023) www.thoughtco.com/cultural-feminism-definition-3528996.
9
Charlotte Nickerson, Postmodern Feminism (Postmodern Feminism), SIMPLY SOCIOLOGY, (4th April 2023)
<https://simplysociology.com/postmodern-feminism.html>
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political marginalization.They perceive facts as numerous, based on experience and
perspective, and do not hold a belief in a single, absolute reality. Deconstruction is a
technique used by feminists in the postmodern movement to uncover hidden biases in-laws.
Deconstruction is a tool used by postmodern feminists to argue that laws shouldn't be
immutable because they are made by biased individuals and may thus contribute to the
oppression of women.
The evolution of Indian law has been significantly influenced by feminist jurisprudence.
Feminist legal scholars and activists have been trying to confront and transform India's long-
standing patriarchal norms and gender inequalities through legal reform.Feminist legal theory
has been applied in India to examine and criticise legislation concerning, among other things,
property rights, violence against women, divorce, and marriage. Female infanticide, dowry,
and female genital mutilation are just a few examples of discriminatory behaviours that have
been the target of this strategy.
The first phase was in the early stage of independence where social reformers like Raja Ram
Mohan Roy, Ishwar Chandra Vidyasagar, and many others fought for the nation's female
population's fundamental human rights. 10 Women carried out movements fighting against
patriarchal domination in certain parts. The efforts of women in the reforms proved to be
successful in the abolition of certain social evil practices like the banning of Sati, the widow
remarriage act, etc. through the enactmentof the act.
The second period involves the stage of nationalism wherein under the leadership ofMahatma
Gandhi women ‘s efforts were recognized in movements and organizations like the All-India
Women Conference(AIWC) came into being. 11
The third phase includes post-independence. The constitution of India aims towards equality
of all sexes under the enshrined preamble and Article14.12 The constitutional protections
10
Pranav Raina and Shreya Solenkey, Feminist Jurisprudence: An Evolution from Fixed Mindset to A Growing
Mindset, ( 4th April 2023, 5pm),https://amity.edu/UserFiles/aibs/f5df2019%20AIJJS_29-36.pdf.
11
Ghosal, Sarbani Guha, Major Trends Of Feminism In India,THE INDIAN JOURNAL OF POLITICAL
SCIENCE, vol. 66, no. 4, 2005, pp. 793–812. JSTOR, http://www.jstor.org/stable/41856169. Accessed 7 Apr.
2023.
12
IND CONSTI, Art. 14
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provided by Articles 14, 15, 15(3), 16, 39(a), 39(b), and 42 of the Indian Constitution are the
foundation of feminist law in India. 13 Various other legislations were made for the same.
Various laws were made that guarantee the protection of Indian women's rights regarding
their means of subsistence, employment, marriage, family, financial dependence, maternity,
accessibility to sexual activity, healthcare, and any other relevant matters.Some of them are
as below:
13
supra 9.
14
National Commission for Women, The Protection of Women From Domestic Violence Act 2005,(4th April
2023, 5:30 pm)http://ncw.nic.in/sites/default/files/Chapter04.pdf
15
Ministry of Women and Child Development, Dowry Prohibition Act, 1961, (4th April 2023, 5:30
pm),https://wcd.nic.in/act/dowry-prohibition-act
1961#:~:text=Penalty%20for%20giving%20or%20taking%20dowry.%2D&text=Provided%20that%20the%20C
ourt%20may,of%20less%20than%20five%20years.
16
Sharmila Lodhia, Dowry Prohibition Act : Description and History, ENCYCLOPEDIA BRITANNICA, (4th
April 2023, 5:30 pm)www.britannica.com/event/Dowry-Prohibition-DAct. Accessed 9 Oct. 2022.
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5.3 The Medical Termination of Pregnancy Act, 1971
The act provides for the termination of certain pregnancies by registered medical practitioners
on humanitarian and medical grounds. 17The amendment of Medical Termination of
Pregnancy (Amendment) Act 2021 expands access to safe and legal abortion services on
therapeutic, eugenic, humanitarian, and social grounds to ensure universal access to
comprehensive care.18It was amended in 2021 to include unmarried women in the ambit of
the act. Furthermore, in the landmark case of X v. The Principal Secretary, Health and
Family Welfare Department, Govt. of NCT of Delhi &Anr.19 ,Supreme Court held that all
women whether they are married or unmarried are entitled to seek abortion of their pregnancy
in the term of 20-14 weeks, even if the pregnancy arises out of a consensual relationship.
17
Ministry of Health and Family Welfare, GOIMTP ACT, 4 Nov. 2016,http://main.mohfw.gov.in/acts-rules-
and-standards-health-sector/acts/mtp-
act1971#:~:text=The%20Medical%20Termination%20of%20Pregnancy%20Act%2C%201971&text=An%20A
ct%20to%20provide%20for,connected%20therewith%20or%20incidental%20thereto.
18
Diksha Munjal Explained | What Do Indian Laws Say About Abortion?, THE HINDU,26 June 2022,
www.thehindu.com/news/national/explained-what-are-indias-laws-abortions-amid-roe-v-
wade/article65567494.ece.
19
X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi &Anr. , Civil
Appeal No. 502 of 2022 (Arising out of SLP (C) No. 12612 of 2022).
20
Centre for Civil Society, Equal Remuneration Act , 20 July 2013, https://ccs.in/equal-
remunerationact#:~:text=The%20Equal%20Remuneration%20Act%20in,workers%20on%20grounds%20of%20
gender.
21
Kaunain Sheriff M, Explained: What Is POSH, the Law Against Sexual Harassment in India? , THE INDIAN
EXPRESS, 18 Mar. 2022, http://indianexpress.com/article/explained/everyday-explainers/explained-posh-law-
against-sexual-harassment-in-india-7825733.
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5.6 Commission of Sati (Prevention) Act,1987
The actprovides for more effective prevention of the commission of sati and its glorification
of women. Sati was abolished by the enactment of the BengalSati Regulation Actby
Governor-general William Bentinck in 1829.
In 1991, Kerala High Court ruled in favor of the restriction by mentioning that the restriction
was in place throughout history and was not discriminatory to the constitution. The ban was
challenged in 2006 by the Indian Young Lawyers Association. The Kerala government
contended that beliefs and customs cannot be altered using a judicial process and the priest’s
opinion is final. Therefore, the Supreme Court referred the matter to the larger constitutional
bench.
6.2 Verdict
The Supreme Court in the case of Young Indian Lawyers Association v. Union of India23in
2018 lifted the ban on entering women into the temple by a 4-1 majority. The Supreme Court
condemned the prohibition as a "hegemonic patriarchy.” It ruled that it was unconstitutional
to exclude women based only on their biological and physiological characteristics, such as
menstruation. It amounted to prejudice based solely on a biological characteristic unique to
22
Sabarimala Temple: India’s Top Court Revokes Ban on Women - BBC News.” BBC News,
www.bbc.com/news/world-asia-india-45652182. Accessed 25 March 2023.
23
Young Indian Lawyers Association v. Union of India.,(2019) 11 SCC 1.
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gender. It violated women's rights to equality and dignity. It was argued that prohibition was
a type of untouchability since it was based on the idea that menstruation women were
"polluted and impure," and that the ideas of purity and pollution humiliated women. The
Constitution and its goal of upholding the sanctity of human dignity, freedom, and equality
cannot be overruled by traditions or usages, and both personal law and custom have a huge
impact on how people are treated in society.Justice Indu Malhotra in her dissenting opinion
stated that courts cannot use concepts of rationality in cases involving religion.
The social and legal changes won by social reform movements in Kerala did not go the whole
way in respect of gender rights.29The protest for the right to worship in the temples instilled
confidence in women to fight against the patriarchal norms of society and establish equal
rights.30 The patriarchal norms have deeply penetrated the minds of women therefore the
women of Kerala did not oppose it openly due to fear of alienation in the society. The protest
resulted in women’s self-awareness about their rights. The campaign for the women’s wall
extended from the top to grassroots organizations like panchayats.
24
Kai Schultz, An Indian Court Ordered a Temple to Admit Women. So Far, it Hasn’t.THE N.Y. TIMES(Oct.
18, 2018) https://www.nytimes.com/2018/10/23/world/asia/india-sabarimala-temple-
women.html?module=inline.
25
Kai Schultz and Ayesha Venkataraman,Indian Women Enter Sabarimala Temple, Setting Off Protests Near
Hindu Shrine, THE N.Y. TIMES, (Jan. 2, 2019)https://www.nytimes.com/2019/01/02/world/asia/india-women-
wall-sabarimala.html.
26
Ibid.
27
Suhasini Raj and Kai Schultz, Religion and Women’s Rights Clash, Violently, at a Shrine in India,THE N.Y.
TIMES(Oct 18, 2018).
28
Ibid.
29
Menon, Parvathi, Sabarimala and Women’s Identity in Kerala, SOCIAL SCIENTIST,vol. 48, no. 3/6 (562-
565), 2020, pp. 3–24. JSTOR, https://www.jstor.org/stable/26979095. Accessed 28 March 2023.
30
Ibid.
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7. CONCLUSION
The Sabarimala judgment challenged many established notions concerning the progress of
the women’s movement and the establishment of a democratic, secular, and scientific
consciousness among women. In earlier times, menstruation was considered taboo thus
women were discriminated against. The court held that discrimination on the physiological
condition of the human body does not stand aground. However, the judgment delves to
distinguish between tradition and constitutional rights. It widened the scope of the
constitutional rights of women thus ensuring the vision of the preamble is to achieve equality.
No clear regulations or decisions guarantee women can visit the temple premises safely.
Women's admittance into temples is still a pipe dream because they are only allowed in on a
paper that negates the entire purpose of the decision. However, the self-realization of the
rights of women and the process of evolvement havestrengthened feminist jurisprudence.
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8. BIBLIOGRAPHY
News Report
1. Kai Schultz,’ An Indian Court Ordered a Temple to Admit Women. So Far, it Hasn’t.’
The N.Y. Times (Oct. 18, 2018)
https://www.nytimes.com/2018/10/23/world/asia/india-sabarimala-temple-
women.html?module=inline
2. Kai Schultz and Ayesha Venkataraman,‘Indian Women Enter Sabarimala Temple,
Setting Off Protests Near Hindu Shrine’ The N.Y. Times, (Jan. 2, 2019)
https://www.nytimes.com/2019/01/02/world/asia/india-women-wall-sabarimala.html
3. Suhasini Raj and Kai Schultz, ‘Religion and Women’s Rights Clash, Violently, at a
Shrine in India’ The N.Y. Times (Oct 18, 2018)
4. “Sabarimala Temple: India’s Top Court Revokes Ban on Women - BBC News.” BBC
News, www.bbc.com/news/world-asia-india-45652182. Accessed 9 Oct. 2022.
5. “Equal Remuneration Act | Centre for Civil Society.” Centre for Civil Society, 20 July
2013,https://ccs.in/equal-
remunerationact#:~:text=The%20Equal%20Remuneration%20Act%20in,workers%20
on%20grounds%20of%20gender.
6. “Explained: What Is POSH, the Law Against Sexual Harassment in India? |
Explained News,the Indian Express.” The Indian Express, 18 Mar. 2022,
https://indianexpress.com/article/explained/everyday-explainers/explained-posh-law-
against-sexual-harassment-in-india-7825733.
7. “The Abolished ‘Sati Pratha’: Lesser-known Facts on the Banned Practice - India
Today.” India Today, 4 Dec. 2015, www.indiatoday.in/education-today/gk-&-current-
affairs/story/sati-pratha-facts-275586-2015-12-04
Websites
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1. Feminist Jurisprudence (Law 815-001 A and B) Fall 2010Francis, Leslie and Smith,
Patricia, "Feminist Philosophy of Law", The Stanford Encyclopedia of Philosophy
(summer 2015 Edition), Edward N. Zalta (ed.), URL = Francis and others, “Feminist
Philosophy (Stanford Encyclopedia of Philosophy)” (Feminist Philosophy (Stanford
Encyclopedia of Philosophy)) <https://plato.stanford.edu/entries/feminist-
philosophy/> accessed September 30, 2022
2. Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's
Perspectives" (1991) http://open.wmitchell.edu/facsch/111
3. Feminist Jurisprudence: An Evolution from Fixed Mindset to A Growing Mindset
‘PranavRaina and Shreya
Solenkeyhttps://amity.edu/UserFiles/aibs/f5df2019%20AIJJS_29-36.pdf
Research Paper
1. Menon, Parvathi. “Sabarimala and Women’s Identity in Kerala.” Social Scientist, vol.
48, no. 3/6 (562-565), 2020, pp. 3–24. JSTOR, https://www.jstor.org/stable/26979095.
Accessed 28 Sep. 2022.
Cases
Statutes
1. Dowry Prohibition Act, 1961
2. The Medical Termination of Pregnancy Act, 1971
3. Prevention of Sexual Harassment Policy at Workplace, 2013
4. Domestic Violence Act, 2005
5. The Equal Remuneration Act, 1976
6. Commission of Sati (Prevention) Act, 1987
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