Feminist Jurisprudence
THIS ARTICLE WAS WRITTEN BY SHUBHANGI GANDHI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB
C1- Introduction
While attempting to learn about “Feminist Jurisprudence”, it is extremely necessary to learn the meaning of “Feminism”.
While it might seem like an ordinary word to many, it is a word having a lot of sentiments attached to it. While for some it is a word they recognise with, for others it might be an emotion of hostility or would be a representation of everything they hate. While many characterise feminists as “man-hating”, there are also those who vouch on their existence for a better society. But none truly know the meaning of feminism.
Owing to biological factors, women in general can be less in physical strength than men. This has made many believe that women are “weaker” than men. feminism in its most basic sense stands up to fight off this argument. It aims to establish the fact that genders define matters such as physical appearance and reproductive ability not moral, social or psychological traits.
Some feminists also go on to say that “Genders are created socially not biologically”.
By definition-
“Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes.”[1]
It is important to note that the definition clearly states that such a theory believes in the equality of sexes and nowhere puts any gender in a position of supremacy. However, talking to any lay person today would give you a picture as to how feminism has come down to only a fight for the rights of women (one gender).
Events that led to the making of a patriarchal society especially here in India would be talked about in further sections.
Feminist Jurisprudence brings to attention the ridge created by our society in form of the difference fabricated of men and women. It is a subject that has come into light very recently but has been evolving for a long time taking a formal shape finally in the 1960s. [2]
The word Feminism is derived from the Latin word ‘femina’, which means ‘woman’. While feminist jurisprudence or legal theory aims to explain the ways in which the law has played a part in women being considered lower in the past, it also dedicates itself at changing such status by modifying laws and gender stereotypes.
Today, while feminists challenge both the blatant and subtle forms of violence and injustice that we see as inherent in many contemporary practices, others criticise what they take to be feminist proposals on the grounds that they are unnecessary, unrealistic, subversive, subversive, and/or immoral.[3]
C2- History
The very first wave of feminism in the world was from 1850-1940s. This first wave focused on attaining the voting as well as legal rights for women. In the year 1848, United States of America, feminism witnessed its first worldwide declaration- the Declaration of Sentiments, Grievances, and Resolution.
The famous French Revolution is denoted by many as the second wave of feminism which witnessed women breaking stereotypes, voicing their demands, talking about political representation as well as sexuality. Many say that the French revolution was a success only because women decided to participate in the revolt breaking many shackles of narrow-minded boxes.
However, the development of feminism and feminist theory in India have been very different from around the globe. India’s attitude towards women has been a mixed bag of fortunes. In each stage there were opportunities which came along with restrictions and difficulties, this is mainly due to the diverse nature of the country.[4]
Such a diverse nature of the country comes from the diverse variety of rulers who have come and ruled the land of the mighty.
Historically, the cave paintings are a proof that at the stage of hunting and gathering in India, women’s role was very significant. They, due to their ability to sustain human kind, were worshipped in tribes and given utmost respect. However, this drastically changed as soon as the Aryans gained control over majority tracts in India.
The Aryans believed them to be the superior most race throughout the world. They therefore, despised the ethnic tribes living in the Indian soil considering them way below them. They ended up killing most tribal men and enslaving the women of the tribe. History speaks that women were the first large group of people to be ever enslaved.
The Aryan women varied from the hunting-gathering women. They were already in control of their male counterparts paving the way for patriarchy into the Indian mindset.
Such a control for men and submission for women was passed down to the second urbanisation, i.e., the shift to an agricultural economy from pastoral economy. Here the brahmins were at the top of the ladder and it was impossible to break free from the caste and class stratification.
Manusmriti is called by many scholars the ancient most legal text of India and yet this text is the epitome of gender discrimination and biasness. This text gave the brahmins (superior most creed) to neglect women and their rights at every stage of their lives.
A text from the sacred book says- “A girl, a young woman, or even an old woman should not do anything independently, even in (her own) house. In childhood a woman should be under her father’s control, in youth under her husband’s, and when her husband is dead, under her sons.”[5]
This is how patriarchy prevailed and women gave up complete control of their mind, soul and body to the males of the house be it her father, husband, brother or son.
C3- Waves and Growth in India
WAVE I
Unlike the rest of the world, Feminist movements in India were started by men, Raja Ram Mohan Roy being the torch bearer for the same in 1820s. He was the first person to speak against “Sati”- the practice where a woman had to give her live at the death of her husband by burning in the same fire as his body. He was finally able to gain success after much hinderances on December 4th, 1829 when Bengal Sati Regulation was passed by Governor-General Lord William Bentinck. This fire of feminism spread like wild fire. It is what challenged the sanctity of many laws and ways women were treated. It resulted in the passing of Widow’s Remarriage Act 1856 under the guidance of Pandit Vidyasagar.
WAVE II
This wave happened when there were two wars going on in India- one against the British Raj and the other against gender oppressors. Second wave of feminism in India was seen through the pre-independence era. Sarojini Naidu was the face of the movement here. Where on one hand Mahatma Gandhi was driving women to join the civil disobedience movement, Sarojini Naidu with Annie Besant was opening Women’s India Association on the other. Naidu also went on to become INC’s first woman president.
This was the era of Rani Lakshmibai, Bhikaiji Cama and many others who unknown to them weren’t just fighting off the British but also the narrow-minded patriarchs to truly free the mother land.
It became the wave which got voting rights for women and right to equality which later took shape of the Universal adult franchise and Article 14 of the Indian constitution.
WAVE III
Throughout the world, the 3rd wave of feminist ideologies spread through Rebecca Walker who brought into account intersectionality as a huge issue in 1992. Intersectionality was when there were several factors of discrimination for a person. For e.g. A gay black woman would be marginalised on the basis that she is gay, black as well as a woman.
In India the National Commission for Women (NCW) was set up in 1992 to embark the start of something new and big.
The Indian laws saw some major reforms and a shift can be seen in the mindset of people. India was at last trying to fight for a change. For example, the case of Mohd. Ahmed Khan v. Shah Bano Begum which led to the declaration of talaq-e-bidat and talaq-e-mughallazah as unconstitutional on grounds of gender equality. We also have the case of Vishaka v. State of Rajasthan which led to the introduction of Prevention of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The case of Sabarimala Temple can also be included in the ambit of the third wave following the issues and principles questioned then.
WAVE IV
Many scholars believe that the India we live in today might be seeing the 4th wave of feminist movements. Many have considered movements like that of MeToo to be the onset of this wave. The inclusion of online platforms has been the major development of this wave. It has made easier to spread the movement and for others to join in.
The demonstrations during Nirbhaya Rape case or when Dr. Priyanka Reddy was brutally gang raped and murdered are all examples of the fact that feminist movements never lose spark.
India has witnessed a long journey of feminist movement and we have been ardent advocates of Feminist Jurisprudence since the beginning.[6]
C4- Issues of inequality at Workplace
Stemmed from the third wave was the issue of discrimination at workplace for women. The third wave focused on equal rights for women. While it fought to prevent sexual harassment at workplaces it also fought for maternity leaves for women and a comfortable working environment both physically and mentally.
It is owing to the ideals of feminist jurisprudence and all the waves that Articles 14-18 of the Indian constitution talk about equality. These ideals were enshrined in the basic fundamental rights of our constitution by the framers so that they could never be abridged or taken away. Fundamental rights are such which can be amended but their basic nature shall be maintained.
Talking specifically about equality at any public workplace is Article 16 of the Indian Constitution.
It says-
“(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.”[7]
Article 16 clearly points out the factors on the basis of which discrimination can be done. Among these factors is also listed SEX of a person. It clearly bans any such discrimination for public employment opportunities. While 16(1) says that there shall equal opportunity given to every citizen (including both genders) for employment or appointment; 16(2) says that factors such as the gender of a person would not be a valid ground to make a person ineligible for appointment in any public office.
However, even after these articles and all such laws, there exists no guarantee that a woman would be treated equally in her workplace. There still exists scenarios where promotions to a female colleague are stopped and their male subordinates raised to higher positions. In many cases women are not deemed fit for leading projects or being bosses in certain situations. Any law of the land can confirm her the equal opportunity to be eligible for work, but no law can get her equal opportunities to compete and rise with their male subordinates. Such things can only be given through an open mind and respectful heart.
There have been various studies which have proved that women are better suited for leadership, that a woman can run a retail chain better than a man or even that young women today are starting their career being more educated than men. However even after such studies women are continued to be looked down upon and not given a slightest chance to prove the society wrong. Sociology professor at Harvard University, Dr. Mary Brinton explains that the way women have been associated with maternity roles hinder their development at the work front. She says “The problem arises when young adults try to balance work and family, and women end up carrying nearly all of the caregiving responsibilities.” As soon as women are expected to achieve an unrealistic goal in household activities, they are buried under roles that make them unavailable to achieve their professional commitments. There have also been instances where women are discriminated against for employment opportunities because they were at a child bearing age.
All such issues that prevail in India are the reasons that many people resort to solutions such as female foeticide or child marriage. Issues like poverty, unemployment, over population are all intertwined with gender discrimination and its sustenance in India.
C5- Issues of wage gap
Discrimination for women do not end at lesser job opportunities or delayed promotions. Even if she manages to step up the ladder and make a place for herself, she won’t be rewarded equivalent to the men doing the same amount of work.
India is a strange country. Remuneration for a person here seems to be decided on the basis of their gender rather than their qualifications or the amount of work they do.
In order to prevent this from happening Equal Remuneration Act, 1976 was enacted by the Ministry of Labour and Employment.
This Act required employers to pay equal remuneration to workers for same work or work of a similar nature without any discrimination on the basis of sex.[8]
However, in 2019 Equal Remuneration Act was repealed and brought under the ambit of The Wage Code along with 3 other labour acts namely- the Payment of Wages Act 1936, the Minimum Wages Act 1948 and the Payment of Bonus Act 1965.
This was done to simplify and consolidate all these laws under one roof.
The Wage Code also prohibits gender discrimination in matters related to wages and recruitment of employees for the same work or work of similar nature. Work of similar nature is defined as work for which the skill, effort, experience, and responsibility required are the same.[9]
Additionally, this act expands not limiting to man v. woman but to all the employees regardless of their gender. It is also to be noted that the employers are directed to not reduce the wages of any employers based on grounds of sex. The wage code not only includes employees of organised sector under its purview but also takes care of all the employees working in the unorganised sector.
While all these are big steps to provide an equal pedestal to all genders to thrive and shine, there still exist many practical hinderances pulling only certain personas down. It is still needed to identify their need for support and provide them positive discrimination to at least lift them up to a similar status as other privileged groups.
C6- Conclusion
Article 14,16, the remuneration act or the wage code are all fruits of the long-standing theologies of feminist jurisprudence. The basic principle behind this branch of jurisprudence is equality. It does not believe in the superiority of any sexes or genders but only tries to bring both at an equal pedestal.
Nowadays many feminists have been also fighting for a paternity leave not just a maternity one. We have been seeing “men cry too” slogans all over social media. The basic gist of the theory is to break the stereotypical roles created by the society for each gender be it the fact that men have to hide their emotions and act tough or women are not fit for leadership roles and should only take up household responsibilities.
India has come a long way from abolishing Sati to accepting gay relationships. The big role that feminist jurisprudence has played in all such mindful growth can not be overlooked. It is always said that the slow and steady wins the race but no one ever gives any credit to those who kept cheerleading the person to stay steady and not give up. Similar is the case here. Feminist ideologies are the cheerleaders for India to slowly and steadily achieve what it has today be it repeal of 377 or banning of triple talaq.
[1] Patricia Smith, Feminist Philosophy of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Oct. 24, 2017), https://plato.stanford.edu/entries/feminism-law/ .
[2] Diganth Raj Sehgal, Growth of Feminist Jurisprudence in India, IPLEADERS (August 9, 2020), https://blog.ipleaders.in/growth-feminist-jurisprudence-india/.
[3] ALISON M JAGGAR, LIVING WITH CONTRADICTIONS 1-2 (Routledge, 2018).
[4] Mary Becker, Patriarchy and Inequality: Towards a Substantive Feminism, 1 UNI. OF CHI. L.F. 21, 39-40 (1999).
[5] Manusmirit: The Laws of Manu, Ch-9, Verse 3, (1500 BC).
[6] Supra 2.
[7] IND. CONST. art. 16 cl. 1-2.
[8] Equal Remuneration Act, 1976, No. 25, Acts of Parliament, 1976 (India).
[9] Id.
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