THE ROLE OF FEMINIST JURISPRUDENCE IN INDIA

INTRODUCTION

Feminist jurisprudence is essentially a legal philosophy based on gender equality in politics, economics, and society[1]. legal theory as a field of legal knowledge began in the 1960s. The main factor influencing the development of this discipline is feminists’ belief that long-standing laws and practices are made from the perspective of men, with no consideration for women’s perspectives. Thus, the feminists developed a legal theory that seeks to explain women’s historical subordination and an idea that could change women’s status. There are three different schools of thought in feminist jurisprudence, which are generally called cultural feminism, liberal feminism, and radical feminism.

FEMINISM IN INDIA

Feminism refers to a collection of movements aimed at achieving gender equality in the areas of education, health, rights, and wages. Men initiated feminism in India, as evidenced by efforts to eradicate the practice of Sati, which was followed by the passage of the Widow Remarriage Act, among other things. During the pre-independence era, around 1920–1980, the popularity of women’s rights began to grow. Also, this era witnessed many women appearing on the front lines of the Indian national movement and voicing their opinions. Later, during post-independence, the Indian constitution has taken various protective measures to safeguard the interests of women.

FEMINIST JURISPRUDENCE IN INDIA

In terms of religion, language, and so on, India is a country of great diversity, and feminist jurisprudence in India has also been subject to religious differences, particularly concerning Hinduism and Islam. For instance, concerning the Hindu religion and feminist jurisprudence, the Hindu personal laws have been quite successful in bringing gender equality. Feminist jurisprudence has helped in the reconstruction of existing laws, thus aiding the concept of gender neutrality to flourish in society. It emerged as a fight against the traditional patriarchal nature of the legal system. The Indian constitutional laws are furnished with several provisions to prevent and protect women against any kind of discrimination. The Fundamental Rights are an integral part of ensuring this, along with other endowments like the Directive Principle of State Policy, the provision of equal pay for equal work, etc. There are various articles in this regard to eliminate the socio-economic backwardness of women and contribute to empowering them.

The feminist legal theory paved the way for acts specifically designed to protect women’s rights, such as the Immoral Traffic Act (Prevention) 1956, the Protection of Women from Domestic Violence Act 2005, and the Sexual Harassment of Women at Work (Prevention, Prohibition, and Redressal) Act 2013[2]. It has also brought revolutionary changes in Indian society, such as embracing Trans Rights. The advocates of feminist jurisprudence have backed the voiceless and worked towards eradicating the discrimination and pain of Indian women. When examining the influence of feminist jurisprudence in India, we can find several case laws like Joseph Shine v. Union of India[3], where it was held that Section 497 of the Indian Penal Code considers women as chattel, i.e., personal possession, and is thus discriminatory and against human dignity. Then, in Vishaka v. State of Rajasthan[4], the judgment guaranteed protection at workplaces. Also, the Shah Bano case laid the groundwork for hundreds of women to make legitimate claims that were earlier denied to them. Thus, feminist jurisprudence and the growth of its knowledge have led to the examination of legal concepts and rules concerning women’s experiences. It has also promoted gender-neutral distinctions and sex-positivity.

THE IMPORTANCE OF FEMINIST JURISPRUDENCE IN INDIA

In recent times, India has witnessed a long journey of feminist jurisprudence in the legislative framework. It has stimulated several debates on the various forms of violence; inequality in the workplace; and gender-based discrimination at all levels of society. This legal theory has also influenced the efforts of women to change the laws and make them gender-neutral, which has led to the change and protection of all genders’ rights. Feminism jurisprudence played a significant role in highlighting areas where the law justifies oppression and assisting in the repeal of laws that promote treating men and women differently. It seeks to enlighten and elucidate the unjust practices and attitudes toward women those traditional perspectives have ignored or failed to address. This legal theory assisted in recognizing and curbing the significant issue of domestic violence faced by women in Indian households by promoting effective legislation. It also challenged the very structure of legal thought that did not give any importance to the interests or views of women. It contributed to the transformation of the traditional perspective on women as the weaker sex by functioning to provide opportunities, facilitating the upliftment of women, and thus working towards the betterment of their lives.

CHALLENGES FACED BY FEMINIST JURISPRUDENCE IN INDIA

There are various obstacles confronted by feminist jurisprudence in India. This includes the traditional laws, which are predominantly based on patriarchal beliefs, such as the dowry system. The legal positivism theory, which is a philosophy that emphasizes social norms to be considered as a law, also adds to the challenge, along with the gender roles notion of Indian society. Sexual harassment at work, even if it is by the means of unequal pay for equal work or favoring men for higher positions, is still common. Other than these, men are still given more importance when it comes to political representation, which also further hinders the empowerment of women in India.

CONCLUSION

Feminist jurisprudence has advanced at a faster pace in India, with the lawmakers and judiciary demonstrating an inclination to eliminate gender bias. As a result, to combat the disadvantages that women face in a stereotypical society, India has enacted many gender-neutral laws favoring positive discrimination. The courts in India have been proactive from the perspective of feminist jurisprudence and have considerably contributed to the uplift of women in the country. Although the problem of prejudice based on gender is so long-standing that it is very difficult to entirely dig out of society, attempts and active participation from the side of various government and non-government organizations will have a huge impact.

Author’s Name: Ajmi S (Ramaiah College of Law, Bengaluru)

References:

[1] Cornell Law School, “Feminist Jurisprudence” (2022) https://www.law.cornell.edu/wex/feminist_jurisprudence#:~:text=Feminist%20jurisprudence%20is%20a%20philosophy,feminist%20jurisprudence%20began%20in%201960s last accessed on 03 June 2022

[2] National Portal of India ‘Acts’ https://www.india.gov.in/my-government/acts last accessed on 03 June 2022

[3] Joseph Shine v. Union of India [2018] SC 1676

[4] Vishaka & Ors v. State of Rajasthan & Ors [1997] 6 SCC 241