Feminist Jurisprudence & India: Rights of Women In Theory But Not In Practice
By Byomakesha Kumar SIngh
Jurisprudence, in its literal sense, means “science of law”, which covers both criminal law and civil law under its ambit. The philosophical inception and the development of the concept of feminist jurisprudence started in the twentieth century.
Basically feminist jurisprudence was the outcome of a huge women’s movement which challenged issues like sexism, classism, and family. Personalities like Mac Kinnon, Olsen and many others participated in it. Initially, it was believed that these issues will be dealt by Critical Legal Studies where the logic behind framing of these patriarchal laws will be discussed and deliberated and the feminist thoughts will receive some weightage. Women believed that it is the stereotypical patriarchy which has shaped and influenced the laws. Unfortunately, in 1970s it was observed that the conferences of Critical Legal Studies have failed to looked at these issues and hence women felt ghettoized. This hindered women’s hope of addressing these issues both at private and public level.
During this time the writings of Simone De Beauvoir, Betty Friedman, Germaine Greer, Kate Millet, Eva Figes led to development of academic disciplines like “Feminist Sociology”, Feminist History”, “Feminist Philosophy” and “Feminist Jurisprudence”.
Feminist jurisprudence was the term which was coined by Ann Scales in 1978 during Celebration 25, an event which was to celebrate twenty five years since first women graduated from Harvard Law School and the word was first time published in the first issue of Harvard Women’s Law Journal in 1978.
Feminist Jurisprudence looks into women’s subjugation and into its “why’s” and “how’s”. It enquires into the relationship between politics and the patriarchal hegemony. The approach of feminist jurisprudence is elevating the attention, advocacy, and deconstructing and reconstructing women’s experiences. The feminist jurisprudents believed that the mainstream is “malestream”. Male written history, according to them has created a biasness in the gender potential.
Feminist jurisprudence in general starts with “asking how the regulation would be one-of-a-kind if it took women’s point of view and reviews into consideration, while interpreting legal concepts and the working of the law in the real world”.
In the starting stage, feminist jurisprudence was concerned with the issue of gender difference. This led to the “genesis of feminist jurisprudence.” The main objective of feminist jurisprudence was to discard every action which led to the biased treatment and provide women with equal opportunities like men. “Law has developed over time in the context of theories and institutions controlled by men and reflect their concerns. Historically law has been a public arena and its focus has been on those public concerns. Traditionally women belong to the private recesses of society, in families, in relationships controlled and defined by men, in silence”-wrote Robert W. Woodruff. Therefore the evolutionary nature of feminist jurisprudence, as it is seen today, concerns with women’s poverty, financial dependency, motherhood, sexual accessibility, healthcare and all other related issues. The thematic centerpiece of the philosophy is the dignified humane existence backed by law.
The concept of feminist jurisprudence in context of India is not different from the western concept of jurisprudence. In fact, the genesis of feminist jurisprudence can be traced in the constitution of India and its design. Various articles of the Indian constitution such as Article 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 second the concept of feminist jurisprudence.
Article 14 talks about equality before law. It is available to both citizens as well as non-citizens. It states that the state shall not deny any person equality before law and that the the laws should be equally protected within the territory of India. Article 14 is a gender neutral article, i.e., it does not discriminate between men and women. India’s jurisprudence of equality has exhibited inklings of formal equality's limits, undertows, intransigence, and backlash potential, and it displays a vigorous sense that a more substantive notion of equality is needed, observed Catherine A Mackinnon. She quoted Justice P. N. Bhagwati, joined by Justice Krishna Iyer, in Royappa, where it is observed of the so-called new doctrine that equality is “a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits.”
Article 15 of the Indian constitution recognizes that there is a differentiation and biasness on the basis of sex and hence it observed that it is violative of the principle of equality. Therefore, under article 15(3) of the Indian constitution, the state can make special provisions ‘for’ women and children and women and not ‘against’ them and nothing can prevent the state from doing so.
Article 39 (a) of the Indian Constitution provides for promotion of justice by providing legal aid on gender neutral basis, while Article 39(b & c) provides for gender neutral accesses to justice by affirmative state action. All the above, at least in theory, provides for the road map for development of Indian Feminist Jurisprudence.
Feminist jurisprudence, if we see, is not only about women. It is about inclusion of women and all the other people who differ from today’s norms.
Laws should first start with removing the constraints imposed on men and women by the society. It is necessary to tackle individual cases of injustices, instead of laying down homogenised rules for men and women. As depicted earlier, law reforms directed towards bringing women at par with men has not yielded much success. Individuals should be at the core of law reforms. Laws should enable the creation of social institutions and social conditions conducive for everyone to make autonomous choices. Raising the number of women members in parliament will help in reducing paternalistic laws and ensure autonomy to women in deciding for themselves. This will ensure women-friendly laws. Social engineering is required for the removal of social conditioning. Conscious measures need to be adopted to break free of social conditioning. Having gender neutral laws, promoting gender-neutral values and gender-neutral institutions will go a long way in getting rid of gendered roles for men and women alike.
There is a total absence of consensus and co-ordination among the various wings of the justice system- the police, the judiciary and the prosecutors, administrators, these kinds of issues make a contribution to the collapse of the device leading to harassment of the victims and denial of human rights to these women in problem and distress.
Several judgements, mainly those from the higher judiciary, had been instrumental in laying down path-breaking processes in managing women’s issues and establishing tremendous precedents in the jurisprudence of the country.
 The Second Sex (1949)
 The Feminine Mystique (1963)
 The Female Eunuch (1971)
 Sexual Politics (1970)
 Patriarchal Attitudes (1970)
 Article 14 of the Indian Constitution.
 Article 15 of the Indian Constitution.
Feminist Jurisprudence: Why Law Must Consider Women's Perspectives, Ann Juergens, Available at: https://open.mitchellhamline.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article=1111&context=facsch (Visited on 30 November 2018).
 Gender Justice in India: A Feminist Jurisprudential Perspective, Shampa Dev, Tattva-Journal of Philosophy 2018, Vol. 10, No. 1, 69-88.
 Gender and Law, Available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/96344/15/15_chapter%207.pdf (Visited on 1 December2018).