Feminist Legal Theory: An Indian outlook

Authored By: Ankita Jha, Law Student, Xavier Law School

The author has written this article while pursuing our 10 Days Workshop on Legal Research and Writing

Introduction

Michelle Obama in her memoir “Becoming” writes, “I tried not to feel intimidated when classroom conversation was dominated by male students, which it often was. Hearing them, I realized that they weren’t all smarter than the rest of us. They were simply emboldened, floating on an ancient tide of superiority, buoyed by the fact that history had never told them anything different”.

A utopian world is said to be an idyllic place in all circumstances be it law, lifestyle, government or social conditions and in the real world people strive to reach that level of peace through methods of trial and error. This piece is an attempt to shine the spotlight on one of the theories which have helped society advance in many aspects, be it legal, social or economic: Feminist Jurisprudence. It can be explained as an idea which says that the system which governs society has primarily been the root cause of women’s subjection. This is so because many believe that history and laws are written by the men, for the men.

Examining the concept

The concept of feminist legal theory can also be referred to as feminist jurisprudence. Oxford dictionary defines jurisprudence as the scientific study of law. Charles Fourier, a French philosopher, is accredited with having formed the word “féminisme” in 1837. As noted by historian Linda Gordon, feminism is “an analysis of women’s subordination for the purpose of figuring out how to change it.”[1]

When we combine the abovementioned words together we come up with the phrase ‘feminist jurisprudence’, which can be understood as a philosophy of law based on the political, economic, and social equality of the sexes. One important characteristic of feminism is that it represents the integration of practice and theory and following the same pattern, feminist legal theory also studies the systematic devaluation of women that takes place in our society and proceeds in a way so as to fathom how to correct the inequity and inequality buried deep into the roots of law.

Developments

Feminism has rightly been defined as the struggle for equal rights. Now if we are talking about equal rights why is there often a misconception that all it advocates for are the women? This can be explained with a simple example: A town is hit with a devastating flood resulting in many families losing everything materialistic they owned, ranging from their house to their money. However, in the same town there are the upper class citizens who are safe in their homes built in posh localities with abundant sewage systems and other facilities. A neighboring town offers to extend a helping hand regarding food and shelter. Now, considering the present scenario, who are the people who will need the assistance first and foremost? The group of people who are safe and sound or the ones who aren’t? I say, and likewise hope that this is your response too, the group of people who aren’t safe and sound, who do not have the basic amenities available to them right now, they’re the ones who should be offered the help initially.

Similarly, since the inception of time men have made the rules for men and women have been treated as second class citizens, thus feminism focuses majorly on getting the rights of women on the same level as men. Equality must be a substantive concept which can actually make changes in the power structure and the relative power positions of men and women generally.[2]

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 women 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[3].

Parity in the Indian society

In cases of endeavoring for equality the key goals remain the same but the difference comes in when we take in consideration the geographical and cultural changes.

The Indian constitution has been amended one hundred and five (105) times since its inception in the year of 1950. This statement strives to establish how the ultimate goal of our welfare society has always been to move forward, adapt to the changing times and be better. We constantly aim to be better; everybody’s perception might always differ and who is to say which viewpoint is correct and which isn’t, but if we look at things from a social standpoint which excludes all questions of traditions but includes the issue of morality there has been its own share of good and bad amendments.

The constitution of India acts as the supreme law of the country and it has, for the most part, tried to place rights of all people on the same level; after all until everyone begins their race from the same starting line as their counterparts we can’t say equality has been achieved.

The presence of inequity and inequality in Indian law

Global Health Europe, a platform for European engagement in global health, states that inequity and inequality are terms that might be confusing but certainly aren’t interchangeable. Inequity refers to unfair, avoidable differences arising from poor governance, corruption or cultural exclusion while inequality simply refers to the uneven distribution of health or health resources as a result of genetic or other factors or the lack of resources.

The literacy rate for women in India is around 70% while the literacy rate for men in India is 84.7%[4]. The Equal Remuneration Act, 1976 states that both men and women workers have to be awarded equal payment according to their work, yet according to the Monster Salary Index, published in March 2019, women in the country earn 19% less than men.[5]

Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will or without her consent.[6] However, marital rape isn’t included in this definition yet. So if a husband violates his wife’s personal space, is that not supposed to be punishable according to the Indian law?

The World Economic Forum released an index titled Global Gender Gap report, 2021. The report is a measure of gender gap on four parameters: economic participation and opportunity, educational attainment, health and survival, and political empowerment. The index has benchmarked 156 nations across the globe in 2021.[7] If we talk about India specifically, it has ranked 140th which gives a clear view of how pitifully wide the gender gap is presently, this is the case because of low participation of women in labour force and technical roles.

So, on the basis of all the data given above I ask a simple question, for the inequality present in our country today, do we blame the laws or the implementation of laws?

Conclusion

Empowerment is defined as the act of giving somebody more control over their life or the situation they are in. Thus it can be understood that if there arises a need for empowerment, there is a scarcity of equality.

If the society is said to be built on the fixtures of a patriarchal outline then to demand a complete remodel of roles is something many would have once considered to be quite far-fetched, but that did happen, numerous young women have been given the chance to aim higher and be better than their previous generation was; the credit goes to every person who stood up for equality and to all the women who set in motion a revolution and fought day and night to prove their worth when they shouldn’t have had to in the first place. The law is subjective, people’s rights shouldn’t be.

The people who live without any complaints against society are oftentimes the ones whom the societal structure suits. Women make up 49.5% of the world’s population. That is an enormous percentage. If every single one of them got the chance to participate and showcase their talent, the world could procure such massive benefits.


[1] Martha Albertson Fineman, Feminist Legal Theory, 2 (2005), https://poseidon01.ssrn.com/delivery.php?ID=324008102071126086125123001098089092127013047085066030022006029120125103111115114108121034058014030047028084099026081081081067058066022051042120003094122078071092065081006052016122026092000021095115096027065117067086094013121022091028086120107016094091&EXT=pdf&INDEX=TRUE

[2] Melissa Burchard, Feminist Jurisprudence, Internet Encyclopedia of Philosophy, https://iep.utm.edu/jurisfem/#SH2a

[3] Wikipedia, https://en.wikipedia.org/wiki/Feminist_legal_theory (last visited 13 September, 2021)

[4] Philip Tang, The Gender wage gap in India, The Borgen Project (13 September 2021, 10:23 PM), https://borgenproject.org/gender-wage-gap-in-india/ 

[5] Nilanjana Chakraborty, What is gender pay gap and why is it so wide in India?, Live Mint (03 December 2019, 02:20 PM), https://www.livemint.com/money/personal-finance/what-is-gender-pay-gap-and-why-is-it-so-wide-in-india-11575356633900.html

[6] Soibam Rocky Singh, Explained: The laws on rape and sexual crimes, The Hindu (08 December 2019, 00:02 AM), https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece

[7] Jagadish Shettigar, Pooja Misra, How India fared in the global gender gap report 2021, Live Mint (07 Apr 2021, 07:08 AM), https://www.livemint.com/news/india/how-india-fared-in-global-gender-gap-report-2021-11617726598143.html

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