FEMINIST JURISPRUDENCE: GENDER AND THE LAW

By Kiranjeet Kaur


INTRODUCTION

It’s a sad reality that society has never considered women to be on an equal footing with men whether it be physically, economically, socially, politically, emotionally and intellectually and has always considered women to be inferior concerning men in every domain possible since time immemorial. It’s pretty satirical as in how human beings have taken upon this, self-designated positions, to define the role of men and women who are the same in all aspects, equally created by the almighty mostly for their self-served purposes and mainly claim it to be essential for the proper and peaceful functioning of the society.

From the earliest years of ancient times, women’s status was defined by their relationship with men. A woman has always been regarded as a second-class citizen with no rights over her own choices, preferences and life and to only be a childbearing machine who should limit herself within the four walls of a house is what makes the real definition of an ideal woman in a man’s eye. Since early historical times, women have been considered not only intellectually inferior to men but also a major source of temptation and evil.

Early Roman Law described women to be similar to children (mainly intellectually, to be immature as a kid), forever inferior to men. The "double standard" certainly involves more than biology; it is also a product of the historical domination of women by men. In ancient western civilizations, specifically talking about the Roman culture; the status of women was clearly defined as being inferior to men either through script law, or custom that was understood and obeyed by everyone in these cultures. Rome was founded as a patriarchal society where women were the property of their fathers and later to their husbands.In ancient Greece, women were not treated equally, where men were more important and the female was considered less than essential; where the males were destined to be the rulers and the females their subjects. The Greek word "gyne" (meaning woman in Greek) was also used by men to refer to their wives shows that no such differentiation was made between the two, which leads one to believe that, the Greeks assumed that a woman's main role was to be a wife.

The Greek laws make it pretty much intelligible that, the only role of a woman in the Greek society was her "obligation to bear children”, especially male children who would preserve the family lineage and would carry on with the male supremacy and strengthen the patriarchal foundation of the society. These instances are proof that the Greek society was highly male-dominated where women had very little said in their daily life and activities[1]. It would be no wrong to say that freedom (in any form political, social, economical, mental) acts as a necessity along with food, clothing and shelter which means that is equally important in an individual’s life without which a human being cannot function and live his life at it’s best. No creature doesn’t love freedom exists, as freedom is the birthright of every human being even including beasts and birds.

All lives thrive best when they are free. Freedom and responsibility bring out the best from the individual and the race and for this reason, women collectively have experienced a great deal of pain and suffering as their rights, freedom and liberty have always been subdued and had been taken for granted by the male-dominated society and just as suffering is often a trigger for awakening and transformation in an individual’s life, it is also triggering this shift in women collectivity. The universe is always organizing around coming back into balance. The awakening of women is about returning that balance that is so needed in this world. The need for wholeness where all human beings embrace and cultivate both their masculine and feminine qualities is what the world needs today desperately. Constant suppression of women’s rights, backwardness, exploitation and realization about the same in women are some of the dominant reasons that led to the development of an altogether different Feminist legal theory, popularly known as the “FEMINIST JURISPRUDENCE”.

Feminist Jurisprudence can be best defined as a philosophy of law based on the equality of sexes on the political, economic and social domains. Through various approaches, feminists have identified gendered components and gendered implications of seemingly neutral laws and practices[2]. Laws affecting employment, divorce, reproductive rights, rape, domestic violence and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence. The first known use of the term feminist jurisprudence was in the late 1970s by Ann Scales during the planning process for Celebration 25, a party and conference held in 1978 to celebrate the twenty-fifth anniversary of the first woman graduating from Harvard Law School. The term was first published in 1978 in the first issue of the Harvard Women's Law Journal. This feminist critique of American law was developed as a reaction to the fact that the legal system was too gender-prioritized and patriarchal. Feminists were of a strong view that history was written from a male point of view and does not reflect women’s role in making history and structuring society.

Male-written history has created a bias in the concepts of human nature, gender potential, and social arrangements. The language, logic, and structure of the law are male-created and reinforce male values. By presenting male characteristics as a "norm" and female characteristics as deviation from the "norm," the prevailing conceptions of law reinforce and perpetuate patriarchal power. Feminists challenge the belief that the biological make-up of men and women is so different that certain behaviour can be attributed based on sex. Gender, feminists say, is created socially, not biologically. Sex determines such matters as physical appearance and reproductive capacity, but not psychological, moral, or social traits debated the supporters of feminism.


LAWS AND CONTEMPORARY THEORIES THAT GAVE BIRTH TO FEMINIST JURISPRUDENCE (A HISTORICAL BACKGROUND)

The theory of Feminist Jurisprudence has got mainly two broad approaches- Firstly, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status; Secondly, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender.

The Feminist Movement also known as Women’s Movement, Women’s Liberation or Women’s Lib refers to a series of campaigns for reforms such as domestic violence, maternity leave, equal pay, women’s suffrage, sexual harassment, and sexual violence, all of which fall under the label of Feminism. The Movement began in the Western world in the late 19th century. The Feminist Movement in the United States, Canada and certain countries in Western Europe had gone through three waves. The first wave of feminism involved suffrage and political equality and the Second-wave feminism attempted to combat social and cultural inequalities whereas Third-wave feminism included a renewed campaign for women’s greater influence in politics. Writer Virginia Woolf was mainly associated with the ideas of the first wave of feminism. In her book A Room of One’s Own she had described that how men socially and psychically dominated women. The very first convention to discuss women’s rights was held in New York City in 1873.

Next it was under the guidance of Elizabeth Stanton that a convention was held in Seneca Falls, New York in August 1848 where Stanton had led the very demand of equal voting rights for women. In the United States, the first wave of feminism ended with the passage of the Nineteenth Amendment to the United States Constitution in 1920 granting women the right to vote. Another prominent name amongst the Feminist leaders was that of Betty Friedan who had, co-founded and had become the first elected President of the National Organization for Women or NOW that aimed at bringing women into the American mainstream society in fully equal partnership with men. During this time feminists had organized various campaigns to raise their voice against cultural and political inequalities. Similarly, another important movement called, the Women’s Health Movement, emerged in the 1960s and 1970s. The movement had exposed how the States Health Care system was failing women. Male control and dominance over the system was questioned which led women to enrol in medical schools, midwives becoming licensed, and women becoming more involved and most importantly the movement led to the successful passage of the Equal Employment Opportunity Act of 1972 (EEA).

During the Second World War, a large number of female workers took jobs in different factories, but the employers paid them low salaries than the male workers. Various feminist groups had earlier protested against this gender discrimination. Finally, American President J.F Kennedy decided to abolish this gender discrimination. In 1963 the US Congress passed the Equal Pay Act to prohibit discrimination on account of sex in the payment of wages by employers. The Congress passed Equal Pay Act of 1963 out of concern for the weaker bargaining position of women. Another Act, the Civil Rights Act of 1964 is significant as this Act was signed into law by President Lyndon B. Johnson on July 2, 1964. The Act outlawed discrimination based on sex, race, colour, religion or national origin. It ended unequal application of voter registration requirements and racial segregation in schools, at the workplaces and facilities that serve the general public. Before this became law, women were treated as less valuable employees in terms of their paycheques. A woman and a man could have worked at the same place, must have done the same amount of hard work and labour but it was always the woman who received less money for her efforts was something common.

Some of the contemporary theories such as that of J.S Mill an English philosopher, political economist and civil servant, his theory of Liberty is eye-catching as he has especially expressed his views on the Liberty of women and has laid stress upon them for the betterment of the society. He had advocated regarding the equal freedom of women as well as the liberty of the working classes. In one of his popular essays titled “Subjection of Women” which was published back in 1869, he said that the principle which regulates the existing social relations between the two sexes that is the legal subordination of one sex to the other is wrong in itself and forms one of the major hurdles to human empowerment and it needs to be replaced by a principle of perfect equality.

Mill’s reference to the legal subordination of women was the 19th century English Law about the marriage contracts for example- married English women could hold no property, in their name and even if their parents gifted them any property it would ultimately come under her husband’s possession and not to them and more surprisingly, even if the wife had lined away from her husband, her earnings would still belong to her husband. Society was of the strong view that it was solely the father and not the mother who was the guardian of their children. Women’s situation was worst than slaves, with marital rapes often ignored and no laws were made to improve the situation of such women being victims of abusive marriages and forcible sex in the name of marriage, their inequality was seen as a fact of nature. The reason why such subjection against women was never opposed by the society was that all men had their interests served in women’s subordination, the society which was mainly male-dominated would never let women be in power with them as long as it served their selfish purposes.

Similarly, Ambedkar’s criticism of Manu Smriti (an ancient legal text and constitution among the many Dharma Shastras of Hinduism) and Hindu Shastras attracts our attention as Ambedkar had pointed out at the miserable condition of women as mentioned in the Hindu Shastras that “women are the bondslaves of their fathers when young, to her husband when at a middle age and then to her son as a mother”. The women in India have remained a matter of joy and source of amusement, often used and misused by men. According to Ambedkar, in India, Hindu women are treated as bonded labourers till their death. Education was denied to them under Manu Smriti’s set-up of social order which had caused both an insult and injury to the women in India, argues Ambedkar.

No doubt such contemporary theories and laws made to restrict the freedom and liberty of women became the very basis of birth and growth of the Feminist legal theory or “Feminist Jurisprudence” as we see today, as it gave immense power to the women all across the globe to raise their voice against gender inequality and injustice and create an environment where there could be both feminine and masculine qualities at balance.


FEMINIST JURISPRUDENCE IN NEXUS WITH LAW

Feminist philosophers of law judge the status quo thus enforced as patriarchal, reflecting ancient and almost universal presumptions of gender inequality. This is not a conceptual necessity; law need not be patriarchal. Law does, however, reflect power relationships within societies. Throughout history, and in virtually every society, men and women have been viewed not only as different but also as unequal in status and power. Women have typically been cast as opposites to men within an overarching set of dichotomies: men considered rational, aggressive, competitive, political, dominating leaders; and women seen as emotional, passive, nurturing, domestic, subordinate followers. Versions of this set of assumptions have been widely and pervasively incorporated in long-standing institutions from politics and economic arrangements to educational and religious institutions to aesthetic standards and personal relation, and law is no exception to this[3].

A constant struggle of women against domestic violence, maternity leave, equal pay, women’s suffrage, sexual harassment, and sexual violence naturally called for more stringent, women-specific laws that could thwart any such possibility of future violations based on gender injustice and inequality and had compelled women to fight for their rights and enforce laws contributing to their betterment in the society. The passage of various acts such as that of The Immoral Traffic Prevention Act, 1956, The Dowry Prohibition Act, 1961, The indecent Representation of Women Prohibition Act, 1986, The Commission of Sati Act,1987, Protection of Women from Domestic Violence Act, 2005, The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013, The Criminal Law (Amendment Act 2013) are some of the prominent examples of the initiatives taken to improve the status of women in India[4].

Similarly, the concept of ‘Mahila Courts’ the ‘women's court’ (mahila adalat or mahila mandal) is a fairly recent but increasingly prevalent phenomenon in contemporary India. A particular kind of alternative dispute-resolution forum specifically designed to address women's marital and related family problems aims at providing a safe and unthreatening environment wherein women can air their grievances, work out satisfactory settlements with husbands and in-laws, or find ways to escape their difficult situations altogether. It encourages women to resolve domestic disputes informally, rather than by resort to the state's judicatory institutions which are not affordable or within the reach of many women in India. Most women's courts are run by women's NGOs, often with financial support from foreign donor agencies or, in some cases, from governmental or semi-governmental agencies such as State Women's Commissions or Legal Aid Societies[5]. The set-up of Crime Against Women Cell mostly referred to as CAW Cell, also known as Mahila Thana or Parivar Pramarsh Kender in various States in India aims to bring about reconciliation between the warning couples. Mostly nowadays in Dowry Harassment cases also known as 498A cases or Domestic Violence Cases, CAW Cells are trying to bring about reconciliation between the parties. The first CAW Cell was established in 1983 in Delhi at Nanakpura Under Section 19 of the Delhi Police Act, 1978[6].

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 popularly known as POSH is India’s first law against prevention, prohibition, and redressal of sexual harassment for women at the workplace. It was when, The Companies Act 2013 superseded the Companies Act 1956, there came a change in the much-needed sphere of sexual harassment at the workplace. The Landmark judgment was made in Vishaka & Others vs. the State of Rajasthan the Act, along with its rules, is collectively called the POSH law. The act came into being when Bhanwari Devi, a social worker in Rajasthan, was brutally gang-raped in 1992 when she tried stopping a child marriage in the village where she was working. Her case was taken up by Vishaka, a women’s organization, ultimately resulting in the Vishaka judgement. Devi’s subsequent efforts for justice in the ‘Vishaka and others vs State of Rajasthan’ case became a watershed moment for women’s rights in India. The subsequent POSH Act of 2013 builds upon the Vishaka guidelines laid out in 1997 by the Supreme Court of India[7].

The very recent case of M.J Akbar Vs. Priya Ramani is a perfect example of how men enjoying a privileged class, status and mostly a dominant position employing money, muscle power and highly designated positions when accused of sexual harassment or assault can shut the victim’s mouth by taking cognizance of section 499 of IPC i.e the “Criminal Defamation” is the most common defence mechanism used by assaulters against the women who had dared to speak about their morally and ethically wrong deeds. It was held in this case that sexually harassing someone not only utilizing touching somebody inappropriately but also using unpleasant or discomforting words making a woman uncomfortable and conscious about her surroundings and the people present around her is the biggest attack on a women’s dignity and modesty and the court was also of the view in this case that the women have a right to speak about their experiences on any platform, even decades later, as in maximum of the cases related to sexual harassment, the women are always scared to disclose such things, so keeping in mind the societal factors there should be no such time limitation or restriction where women could speak about the wrong done to her held a High Court in Delhi.

Similarly, the Supreme Court of India had recently set aside the much-debated, practice of talaq-e-bidat, which allowed certain Muslim men to divorce their wives instantaneously and irrevocably, on the basis that it violated the Constitution of India. The case itself does not primarily focus on gender justice but has strong positive implications on advancing women’s rights and gender equality in India. The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practise had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation to save it”, this arbitrariness violates Article 14.

The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam. All such above-mentioned instances are an example of how women have made efforts to make a sphere for themselves in this male-dominated society.[8]


CONCLUSION

Our Indian society’s patriarchal interpretation has made females a victim of social and psycho flows. Her shelter is the books of law. She relies on the legal fraternity to take her out of the abyss and she does so in the hope that she would be taken out from the darkness to light. The woman has torn apart between the repulsive forces of ambition and patriarchal society. She ignites the lamp of the law so that she could come out of the disturbed condition. The constitution and certainly the laws are already in the ambit of gender neutrality. The interpretative issue that leads to the birth of laid-back philosophy causing uncalculated harm to the women fraternity should be dealt with utmost importance.

[1] Christina Villegas, True Feminism and the Constitution Are Compatible, The Daily Signal, available at www.dailysignal.com/2016/08/26/true-feminism-and-the-constitution-have-always-been-compatible/ ( last seen at 21st September 2019. [2] https://www.legalserviceindia.com (Feminist Jurisprudence and its Impact in India) [3] https://plato.stanford.edu (Feminist Philosophy of Law) [4] http://ncw.nic.in/important-links/List-of-Laws-Related-to-Women (Laws related to Women, National Commission for women) [5] https://www.tandfonline.com/doi/full/10.1080/07329113.2013.774836 (The women’s court in India, alternative dispute resolution) [6]https://www.hellocounsel.com/caw-cell-functions-procedures/ (CAW cells in India-Functions and procedures) [7] https://in.style.yahoo.com/all-you-need-to-know-about-the-posh-act-2013-030011356.html (All you need to know about the POSH Act) [8]https://www.escr-net.org/caselaw/2018/shayara-bano-and-others-v-union-india-and-others-writ-petition-c-no-118-2016 (Shayara Bano and others Vs. Union of India and others)


Author- Kiranjeet Kaur

B.A. -LL..B (H), (3rd semester)

College - Xavier Law School, XIM University, Bhubaneswar

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