FEMINIST JURISPRUDENCE

LAW & JUSTICE IN GLOBALIZING WORLD (M 201)

A project submitted to MSB Global Law Institute, MSB University in partial

fulfillments for the degree of Master of Laws

Maharaja Surajmal Brij University, Bharatpur

Under the supervision of Submitted by

Prof. Santosh Pratap Singh SONIYA SINGH

 DECLARATION

I Soniya Singh hereby declare that the project work entitled ‘Feminist
Jurisprudence’ submitted to the MSB global law institute – post graduation
centre, MSB University Bharatpur is a record of work done by me under the
guidance of “Prof. Santosh Pratap Singh” and this project work is submitted in
the partial fulfillment of the requirement for the award of the degree of Master of
Laws.

Date Soniya Singh

Place (LLM 2nd SEM)

 ACKNOWLEDGEMENT

My project was possible only due to the cooperation and united efforts of different
individuals along with several sources of material, knowledge and time. Pertaining
to this, I therefore take the opportunity express my deep sense of gratitude to my
respected professor Santosh Pratap Singh for providing me this golden
opportunity to learn about the project on the topic – ‘Feminist jurisprudence’.

Discipline and comfortable studying environment helped me in working more

effectively.

The moving spirit behind this project goes to my professor, family and friends,
without their constant, encouragement and support, this project could not have
been a successful outcome.

SONIYA SINGH
(LLM 2nd SEM)
Table of Content

Feminist Jurisprudence

1. Introduction
2. History of Feminist Jurisprudence
3. Four major schools
4. Gender Difference and Law
5. Feminist Jurisprudence and Indian laws
6. The Feminist Dilemma in India
7. Conclusion
8. References
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1. INTRODUCTION

Feminist jurisprudence is a philosophy of law based on the political, economic, and social
equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It
influences many debates on sexual and domestic violence, inequality in the workplace, and
gender-based discrimination. Through various approaches, feminists have identified
implications of seemingly neutral laws and practices. Laws affecting employment, divorce,
reproductive rights, rape, domestic violence, and sexual harassment have all benefited from
the analysis and insight of feminist jurisprudence.

The root of feminist jurisprudence is gender inequality. The state has adopted many measures
in the form of laws and government schemes for women empowerment. Yet, many women
seem to be dissatisfied (Ministry of Education and Social Welfare, Government of India,
1974). In fact, many scholars opine that gender justice is still a mirage. This paper arises out
of the need to reassess and explore the laws relating to women in India - to understand why
women welfare measurements are not yielding fruits. Preliminary investigation reveals that
the approach these laws adopt can be broadly classified as paternalistic that is, these laws
dictate what is good for women. They are also protectionist as they extend the support of the
state against attacks on a woman ‘s person and property. We understand that these laws regard
women as weak and vulnerable and hence adopt the protectionist and paternalistic approach.
Several feminists have attacked this underlying assumption. They have argued for the lack of
veracity of such claims and have often, through analysis, unravelled the role of social
construction in creating such an ideology (Jaisingh, 2004). Through the following sections,
this paper explores the laws relating to the protection of women and their empowerment. It
investigates the rationale behind these laws as interpreted by the judiciary in various
decisions. This paper draws from the arguments of feminists and evaluates them alongside
Rawls ‘theory of justice (Rawls, 2005). Rawlsian theory justifies the extension of support of
the law to the vulnerable, weak or to the disadvantaged group in order to bring them at par
with the well-off group. Additionally, this paper employs a Kantian account of reasoning to
scrutinise women empowerment laws to explain the social conditioning and the resultant
impediment to ensuring women empowerment, women autonomy, and gender justice.

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2. HISTORY
Feminists believe 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.
Deviation from the "norm" 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 on the basis of 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.
The first recorded use of the phrase "feminist jurisprudence" occurred in 1978 at a conference
celebrating the twenty-fifth anniversary of women graduates of the Harvard Law School.
Professor Ann Scales, then a Harvard student, moderated a panel of feminist lawyers, legal
educators, and judges. The question for debate was whether there was in fact, or should be,
such a thing as a feminist jurisprudence. It was understood it from Professor Scales, the
consensus was that there should not be. Professor Scales, unwilling to abide by the consensus,
entitled her first scholarly article Towards a Feminist Jurisprudence. She admitted that the risk
of calling her project "feminist jurisprudence" was that the work might be misunderstood as a
politically-motivated argument for special laws favouring women. Actually, she intended to
question, from a feminist perspective, the completeness of a jurisprudence that is not responsive
to specifically female concerns (e.g., pregnancy).' More recently, Professor Robin West has
claimed that "feminist jurisprudence is a conceptual anomaly. Existing jurisprudence is
masculine, according to West, because it is about the connection between patriarchal laws and
human beings, who are presumed by those laws to be male. Feminist jurisprudence cannot exist
until patriarchy is abolished.

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3.FOUR MAJOR SCHOOLS

Feminist jurisprudence represents the diversity of feminist philosophy and theory. All
feminists share the belief that women are oppressed or disadvantaged in comparison with men
and that their oppression is in some way illegitimate or unjustified. The intellectual guiding
force behind current women’s movement is feminism which produced special knowledge in
every field such as feminist sociology, feminist philosophy, feminist history, including
feminist jurisprudence. Feminist jurisprudence is a natural extension namely law and justice.
Law related strategies have played an important role in the campaigns of women’s
organizations to achieve greater equality and social justice.

Feminist belief that law in constructing, maintaining, reinforcing and perpetuating patriarchy
and it looks at ways in which this patriarchy can be undermined and ultimately eliminated.

The feminist inquiry into law concentrates on the following issues.

i) Examination of legal concepts, rules, doctrines and process with reference to women’s
experiences.

ii) Examination of the underlying assumptions of law based in male female and ostensibly
gender-neutral distinctions.

iii) Examination of mismatch, distortion or denial created by the deference between women’s
life experience and the laws assumption or imposed structures.

iv) Patriarchal interest served by the mismatch.

v) Reforms to be made in the law to eliminate patriarchal influences.

Though feminists share common commitments to equality between men and women, feminist
jurisprudence is not uniform. There are four major schools of thought within feminist
jurisprudence namely, liberal, radical, cultural and postmodern and the early theme and
pursuit of feminists about law was equality.

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Liberal Feminism

The historical origin of contemporary liberal feminism goes bac) to the 18th century” An
important principle of this philosophy was individualism by which was meant that an
individual possesses the freedom to do what he wishes without interference from others”.
Liberal feminism is an individualistic form of feminist theory, which focuses on women's
ability to maintain their equality through their own actions and choices. Its emphasis is on
making the legal and political rights of women equal to men. Liberal feminists argue that
society holds the false belief that women are, by nature, less intellectually and physically
capable than men; thus, it tends to discriminate against women in the academy, the forum,
and the marketplace. Liberal feminists believe that "female subordination is rooted in a set of
customary and legal constraints that blocks women's entrance to and success in the so-called
public world". They strive for sexual equality via political and legal reform.

General view of the liberal feminists is that women is caused by social and legal barriers that
bloc their access to public sphere of politics and economics". Liberal feminists demand that
liberals follow their own principles of universal human rights and equality and demand equal
treatment of women and men, insisting that women are fundamentally similar to men" These
theorists argue for law to be gender blind that there should be no restrictions or special
assistance on the grounds of gender.

Radical Feminism

Also known as dominant feminism, it does not see the issue of gender equality as an issue of
difference and sameness but rather as issues of domination of women by men" Radical
feminism is a perspective within feminism that calls for a radical reordering of society in
which male supremacy is eliminated in all social and economic contexts. Radical feminists
view society as fundamentally a patriarchy in which men dominate and oppress women, and
seek to abolish the patriarchy in order to liberate everyone from an unjust society by
challenging existing social norms and institutions. This includes opposing the sexual
objectification of women, raising public awareness about such issues as rape and violence
against women, and challenging the very notion of gender roles.

Radical feminists posit that, because of patriarchy, women have come to be viewed as the
"other" to the male norm, and as such have been systematically oppressed and marginalized.

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They further assert that men as a class benefit from the oppression of women. Patriarchal
theory is not generally defined as a belief that all men always benefit from the oppression of
all women. Rather, it maintains that the primary element of patriarchy is a relationship of
dominance, where one party is dominant and exploits the other for the benefit of the former.
Radical feminists believe that men (as a class) use social systems and other methods of control
to keep women (and non-dominant men) suppressed. Radical feminists seek to abolish
patriarchy by challenging existing social norms and institutions, and believe that eliminating
patriarchy will liberate everyone from an unjust society. Ti-Grace Atkinson maintained that
the need for power fuels the male class to continue oppressing the female class, arguing that
"the need men have for the role of oppressor is the source and foundation of all human
oppression

Cultural Feminist

Cultural feminism reverses the focus of liberal feminism. it is concerned with women’s
differences from men." It argues that important task for feminism is not to include women
into patriarchy, and prove that women are similar to men and can function like men and meet
male norms, but to change institutions to reflect and accommodate values that they see as
women’s nurturing virtues, such as love, empathy, patience and concern”. It is an ideology of
a "female nature" or "female essence" that attempts to revalidate what cultural feminists
consider undervalued female attributes. It is also a theory that commends the difference of
women from men. It is based on an essentialist view of the differences between women and
men and advocates independence and institution building.

Post - modem feminism

They see equality as a social construct and a product of patriarchy, hence in need of feminist
reconstruction. The school emphasizes the process of self - definition and the method that
will raise consciousness and give voice to the unknown in women’s experience.

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4. GENDER DIFFERENCE AND LAW

It refer to the socially-structured relationship between women and men, men and men, women
and women, at different ages and stages of the life-cycle, which together help to transform
biologically different males and females into socially differentiated men and women, through
the acquisition of culturally defined attributes of masculinity and femininity as well as the
resources and responsibilities which are associated with these categories. It is often claimed
that Gender relations has to analysed from to be different prospective. Firstly, Gender Blind,
a perspective which often appears gender-neutral (i.e., does not specify and specific gender)
but which takes the life experiences, needs, interests and constraints of the male social actor
as the standard one and, therefore, representative of both genders. Secondly, Gender Aware,
a perspective which accepts that men and women, within the same class and even the same
household, may have some overlapping needs and interests but that their differing life
experiences and the unequal distribution of resources and responsibilities between them will
also give them gender-specific needs and interests which may conflict.

Early in childhood women and men are socialized with regard to temperament, role and status.
Women are socialized to be more sensitive and perceptive in their relationships with other
people; they are more dependent on these relationships and are passive. Men are socialized
into being aggressive, outgoing, more confident and are trained to control and manipulate the
external environment. This socialization of gender roles takes place within the family. Family
itself is looked upon as a natural institution arising out of biological necessity. There are many
kinds of families in our society at this point of time. Whatever the family structure, the
outstanding feature of these is that it is based on sexual inequality. It is the eldest male who
has control over the property, assets, management of family affairs. It is within this kind of
family structure that a woman is socialized to accept a role and status, which is inferior to the
male members.Her own identity is through the family as a daughter, wife and mother. The
society and religion reinforce this and it appears that the law coerces her to accept this status.
She is not recognized as a citizen with right to her own individuality. And she faces subtle
denigration in daily life to the extent that she despises herself and other women. It is nothing
but oppression of women. There are various theories of oppression, they are exploitation,
discrimination, situational womanise, treatment of women as separate class, patriarchy,
marginalisation, powerlessness, cultural domination. India is one of the world’s oppressive
societies, where women have been subjected to exploitation, oppression and discrimination.
The focus on women’s issues and the concern for their development have gained considerable

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importance in the past decade. Despite the central place assigned to women in national
policies and strategies of development, women still remain differentiated and discriminated
in every sense of the term - educationally, economically, politically and socially. Gender
inequality has proved to be primary, durable and far more stable than any other form of
inequality, i.e., economic, political, racial, cultural etc., which are secondary in nature. It is
highly paradoxical that the secondary contradictions had gained social recognition far earlier,
while inequality based on sex was marginalized and kept invisible for centuries.

5. FEMINIST JURISPRUDENCE AND INDIAN LAWS

Empowerment represents the granting of social, political or economic power to an individual

or group. Women empowerment aims to provide women equal opportunities as well. It is the
process of supporting women, to help them discover and provide them with the support to
assert their personal power. The laws are enacted to empower women by granting them
political power and by helping women achieve economic control and authority through
education and social upliftment. Women empowerment is essential for creating a stronger
economy and achieving internationally agreed goals for sustainable development. Laws
provide an essential foundation for fulfilling this purpose by creating a constructive
environment for growth, and for facilitating women empowerment. An analysis of these laws
can provide us a framework of how laws can be categorised. Within the purview of legal
analysis, laws can be broadly classified as protectionist or paternalistic. The following
paragraphs examine these approaches from a feminist perspective and explore how ideations
within legal philosophy could provide us a conceptual framework to address these issues.

PROTECTIONIST APPROACH

Criminal laws majorly fall under the purview of this category. The Indian Penal Code declares
any form of interference with the body, dignity, honour and marriage, as an offence. The
Indian Evidence Act makes presumptions in favour of women whereas the Criminal
Procedure Code formulates safeguards in the interests of women, in cases of arrests.
Additionally, a slew of statutes protects the interests of women. In spite of all the protection
that the law accords to women, justice is still distant. A closer analysis reveals the paternalistic
contours. The provision relating to adulteries can be examined here. The courts have
interpreted this section, to mean that the woman involved in the adulterous relation does not
have any voice’ in this matter. This interpretation perhaps evokes the property valence of

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women, wherein, women as commodities can be exchanged and bartered as the property of
their husbands. Hence, if a third person interferes with the property, here, the woman and
wife, the law considers the husband, to be a victim and extends protection to him. The offense
is against the husband, whose wife was being enticed away by a third person. A careful
perusal of the provision also reveals that if the husband consents to the third party having
sexual intercourse with his wife, then no offense is committed. Such a provision has been the
matter of contention, with women vehemently opposing the provision of law (Jaisingh, 2004).
The law caters to the male and his concerns. This provision apart from treating the woman as
an object that belongs to a man also snatches away her autonomy. It ignores the fact that as a
person she is capable of having and asserting viewpoints. Insensitivity towards women‘s
rights can also be perceived in the decisions of the courts, wherein, in many verdicts, the court
held that a woman of easy virtue cannot complaint of rape, or that rape is just an outcome of
an uncontrollable lust (AIR, Raju vs State of Karnataka, 1995), that a man experienced which
was not in his control to restrain and hence, he should not be severely punished. Feminist
theories maintain that law emerges from patriarchal mindsets to reinforce patriarchal values.
The legal subordination of one sex to the other is wrong in itself, and one of the chief
hindrances in human development (Mill, 1869). Laws speak of the male experience and
portray male norms in the male voice while ignoring women ‘s experiences and voices. Some
features of the law may not only be non-neutral in the general sense but also male in the
specific sense (Bartlett, 1990) and thereby contributing to women's oppression. Combined
with this point about the effects of justice, is an equally cynical thesis about the language of
justice: namely that one important way in which the politically strong take advantage of the
weak is by manipulatively attaching a self-serving sense to this powerful term (Barney, 2017).
Callicles (Barney, 2017) argues that it is in the order of nature that the strong take advantage
of the weak. Finley (1989) argues that even the language used by the law is male legal
language, which plays a significant role in the way we comprehend the world around us. Since
men have had an overpowering voice in making the laws, defining it and shaping it reflects
significantly how they see the other. Even where they accommodate the other by making
equality provisions in the laws, they do it in their own light and understanding and hence
create a fundamentally flawed perspective as the basis of the laws (Finley, 1989), thereby
creating the gendered nature of legal reasoning and language of the law. Addressing the issue
of legislators’ bias tiptoeing into law, John Rawls (Rawls, 2005) offers a suggestion. He
suggests putting the lawmaker behind the veil of ignorance. In this original position, he is
ignorant of his standing in the society. He is accorded the knowledge about the society and

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the discriminatory practices therein and is required to choose principles of justice. In this
original position, Rawls argues, that liberty that cannot be absolute and has to be restricted in
the interest of liberties for the others (Rawls, 2005). The other principle of justice proposed
by Rawls is equality based on the Minimax principle. As much as the whole idea is fictional
or a mere thought experiment, nevertheless it highlights one important aspect. Social
conditioning, biological conditioning or private interests should be segregated from law-
making. This will ensure the provision of just laws that endorse liberty and equality.

PATERNALISTIC APPROACH

In the constitutional sphere, laws have adopted a paternalistic approach, using which they
dictate what is good for women and ensuring that they get their share. Two main techniques
for empowerment can be identified. One is women empowerment by way of affirmative
action and the other is enabling autonomous decisions by reserving seats and putting women
in decision making roles. There were only 15 women members as against 281 male members
in the Constituent Assembly. Two women members, Hansa Mehta and Rajkumari Amrit Kaur
were a part of the sub-committee on Fundamental Rights. The most crucial purpose of this
committee was to secure fundamental rights for men and women alike. The equality clause
was a step towards achieving the same. Furthermore, the Constitution provided the equality
of status and of opportunity for women in relation to men. Marriage, divorce, and inheritance
are subject matters that are generally governed by a person's respective religion. It is guided
by ritualised practices and is not based on rational argumentation. Within this purview,
therefore, what the Constitution offered, it took away as well. It gave the right to equality but
effectively diminished the same by granting the right to freedom of religion. Women faced
major discrimination in the domain of the personal law. All the personal laws were dictated
by religion. It thereby left laws relating to marriage, divorce, inheritance, and succession
vulnerable to religious dictates. Hansa Mehta and Rajkumari Amrit Kaur were sceptical on
the issue and suggested that the right to religion be confined to religious worship, but the
constituent assembly blinded by social conditioning refused to accept the suggestive measure.
It was widely accepted that personal laws are in the domain of religion and not a matter for
secular legislation. Dr. Babasaheb Ambedkar observed that the British had also refrained from
interfering in personal laws. Hence, substantive equality for women remained trapped in the
patriarchal notions of the state. Later, the courts also refused to read personal laws as laws
and held that they are not amenable to be judged by the touchstone of the right to equality
provided by the Constitution of India.

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• AFFIRMATIVE ACTION

Additionally, the law ensured a protective discrimination in favour of women, to ameliorate

their social, economic and political condition and to ensure social justice. Apart from the
various laws enacted for the benefit of women, the Ministry of Women and Child
Development has adopted many schemes for the empowerment, socio-economic
development, and equality of women. Though the affirmative action is justified, as it helps in
the development of women, yet the very idea rests on the belief that women are weak and
require upliftment. In the domain of labour laws, women are still trapped under the pre-
defined gender roles. An example of such a law is the Factories Act of 1948viii. It
accommodates interests of women by providing for their welfare in the form of availability
of crèches at the office. It overlooks that men might also be similarly in need of welfare
measures. It is laudable that the laws are sensitive to the needs of women. But in doing so,
the law endorses the patriarchal notion and dictates that women are to take care of children
and men are absolved from such responsibility. It ignores the fact that men can be caring or
that they may be burdened with a similar task of taking care of children. This facility of the
crèche is not available for the male members working in the factory. Radical feminists raise
serious objections to this and argue that the root cause of women’s oppression is in these pre-
defined gender roles. These pre-defined gendered roles may have arisen out of the job
allocation between male and female members of the society. Since women gave birth to
children and had to nurture the child, they were more closely associated with nature. Her
bodily processes identified her and characterised her as closely associated with nurturing and
caring (Pattanaik,2013). Since women were more engaged in caring and nurturing the child,
she was expected to stay back at home, attuned to her nature to the various activities cantered
on the home. Consequently, men had to be the providers. While women are expected to take
care of kids and other members of the family including the male members and tend to their
needs, men had a role of a hunter-gatherer who is expected to provide for the family.
Eventually, men came to be considered strong, determined and aggressive as against the
woman who was seen as humble, docile and physically weak. Job allocation may have arisen
out of necessity, but eventually, it got crystallised and became endorsed by the cultural
practices of the society. It was the most efficient, economic and a viable solution. It led to the
optimal use of resources. Later, women like qualities were valued in women and male-like
qualities were valued for men. This led to social conditioning and crystallising of gender-
specific roles. Keeping the social roles intact was in the interest of the society and hence any

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deviation was reprimanded. Both the sexes were expected to fit in their respective defined
zones. This only further augmented the strict identities, which came to be observed and
perpetuated through generations. Failure to conform led to reprimanding and any deviation
was viewed with contempt. Such gendered roles got embedded in the social institutions and
structures. This could be seen through the presence of ―maternity leave‖ in most societies,
while ―paternity leave‖ was still a rarity even among the most liberal of nations. What this
highlight is the societies notions of gender roles are being reinforced by the systems of the
society and perpetuated through it. Women experienced oppression in this power play in
terms of male domination and women subordination. Feminists militate against patriarchy
and male supremacy and argue that a significant overhauling of the societal mindsets was
required to rectify this. They view laws as an endorsement of the age-old practice of
oppression. They believe laws aren’t really fair or provide equal treatment. Hence feminist
legal theories are primarily aimed at understanding and exploring the female experience,
figuring out if law and institutions oppose females, and figuring out what changes can be
committed to‖ (Claire, 1992).

• RESERVATIONS IN DECISION-MAKING ROLES

The paternalistic approach of the law also culminated into reserving seats for women in
decision-making roles i.e. in municipalities and panchayats. The governing criterion was to
ensure equality and to bring women at par with men, which the law simply assumed. This
brings to mind another question. Should women be judged according to male standards? If
yes, then can equality be achieved when women are brought on equal status with men? It was
believed that since men are in decision-making roles, true equality could be achieved when
women are also put in decision-making roles. This binary conception of justice demanded
parity between members of the society as the true end of justice. It is contended that this is
the fundamental flaw. The application of a binary conception of justice, to bring gender
justice, fails as such an argument assumes 1) that this society can be divided into two power
opposites, i.e. men and women, 2) that man is at the higher end of the power equation and
women are at the lower end, thereby meaning men dominate the women, 3) that the standard
of judging the person at the lower end is the eyes of the person at the higher end of the power
equation, and, 4) that gender justice can be achieved only by uplifting the person at the lower
end up to the person at the higher end. This raises another issue - Is this Man-Woman
dichotomy justified? Are men and women fundamentally different from each other? Studies
(Watts, 1991) have persistently explained how men and women differ in their nature. They

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attribute individualistic, confident and aggressive attitudes to men while attributing passive,
caring, and submissive attitudes to women. Radical feminists assert that the man-woman
dichotomy exists in terms of male domination and woman subordination. This is the root
cause of the contentions. On the other hand, cultural feminists are of the opinion that men and
women have different characteristics and these characteristics should determine the role they
play in the society. Cultural feminism, though originally evolved from radical feminism,
departs from radical feminism in asserting that women are governed by the ethics of care.
They would like the essence of being a woman preserved, as well as given due credit,
regardless of whether this nurturing trait in the woman is biologically determined or socially
conditioned. They assert that women give more importance to co-operation and value
relationships and peace. Hence cultural feminists (Harding, 2004) conclude that women ‘s
actions should not be judged by the male standards. Instead, women be respected for the class
of values that they represent. They should be put in such roles where these values find
expression and enhancement. These values in the woman could be better utilised by placing
her in leadership roles. They would allow them to secure all these values in the society thereby
contributing to a better world. They speak of women being put into roles they are best suited
to. Carroll Gilligan (1988) explains masculine voice as ‗logical and individualistic ‘and
feminine voice as caring. The masculine voice focuses on the justice elements and protection
of rights whereas the feminine voice emphasises on interpersonal relationships and taking
care of other people. The feminine voice focuses on the care perspective. She argued for the
integration of the masculine and feminine traits for the realisation of the full potential of
humans. Reverting to the questions at hand - if men and women are fundamentally different
from each other then there can be no common yardstick for measuring equality. Men are
different in their own domain, and women similarly are different in their own domain.
Therefore, it is argued that bringing unequal’s at par with each other is not a real measure of
equality. It is a fundamental principle of equality that categories being compared or evaluated
in relation to one another be of commensurate nature and not contrasting. Essentially, men
with their own characteristics of being individualistic and strong will grow in their own way
whereas women, with their caring and nurturing traits, will grow in their own way. Trying to
bring women at par with men would be a flawed attempt at ensuring equality.

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6. THE FEMINIST DILEMMA IN INDIA

Legal reforms have been at the centre of the agenda for strategizing gender justice in India.
This has been so, right from the time to nineteenth century social reforms movements, through
the period of nationalist struggles, down to the contemporary women’s movement. In more
recent times, this reliance on the efficacy of law and legal reforms to initiate changes in the
social order towards a gender just and egalitarian society gets voiced in what might be termed
the first comprehensive document marking the contemporary feminist movement in India.
Namely the Report of the Committee on the Status of Women in India. The Committee
viewed legislation as one of the; major instruments for ushering in changes in the social order
in the post - colonial state. Legislation, it was felt, can “act directly as a norm setter, or
indirectly, providing institutions which accelerate social change by making in more
acceptable” Building a gender just society was perceived as part of the task of nation building,
of development and social reconstruction. The role of law in the whole process is perceived
as non-ambivalent, well- defined and positive. Two decades and many struggles later, the
answers are no longer so clear - cut, in spite of the fact that the contemporary women’s
movement in India in fact coalesced into a movement by mobilizing public opinion around
the need for legal reforms for redressing individual cases of atrocities against women. The
Mathura rape case of 1979, and the Bhanwari rape case in 1994 are landmarks that in many
ways determined the course and content of the contemporary feminist movement in India.
The Mathura rape case had ushered in a wave of public outcry and was instrumental in
bringing about wide - ranging changes in rape laws in the country. However, even under the
changed legal regime, hardly any substantive improvements seem to have taken place in the
ground conditions. Although punishments have become more stringent, the rate of conviction
has dropped significantly in the post - reform years. The insensitivity of the justice delivery
mechanism and the trauma of the rape victim under an unsympathetic system continues
unabated. The contemporary women’s movement is at the crossroad now. In the light of the
experience of the last twenty years, the question that keeps recurring is whether legal reforms
are capable of bringing about gender justice in society. Has law been instrumental in ushering
in any change in the gender balance? Law has in fact been often used to reinforce the social
subjugation of women. Some believe that given the patriarchal nature of the state, and given
the reflection of such bias in the framing and dispensation of justice by the judiciary and its
functionaries, it is not sensible to expect that law can ever be a potent force for change in the
existing social structure; that the hope of ensuring gender justice using law as an instrument

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of social engineering is an altogether impossible dream. In a way this ambivalence about law
and legal reforms in matters of securing gender justice is nothing new in the history of
women’s movement in India. Back in the nineteenth century, when social reformers like Raja
Rammohan Roy and nationalists like Bal Gangadhar Tilak were concerned with oppressive
social practices like ‘sati’ or child marriage, the tensions between the indigenous scriptural
dicta and the colonial heritage of the British legal system always lurked in the background.
While Rammohun’s denunciation of the practice of sati had been based primarily on his
reading of the scriptural text, Tilak’s refusal to address social issues through legal instruments
laid down by the foreign rulers was based on the perceived illegitimacy of the colonial
hegemony in all its ramifications. The social history of the period is replete with the tensions
between the liberalist strain of thinking of the pre- independence era which was geared to
adopt and adopt from Western liberalist traditions on the one hand and the nationalist
revivalist movements which aimed at social reforms working from within indigenous
traditions on the other. Much of this tension can be attributed to the dominant political climate
of the era. In the context of the contemporary women’s movement, the ambivalence that
marks feminist engagements with law as an instrument of ensuring gender justice has a
somewhat different character. While demand for legal reforms has been one of the major foci
for mobilizing popular support, and specific cases of atrocities on women have been used to
further the aims of the movement, the disenchantment with the potential of law as an
instrument of social transformation has been triggered by two simultaneous developments.
On the one hand, last twenty years’ experience of the effect of legal reforms has been
perceived to be not altogether positive. Flavia Agnes work has been an important contribution
to development of more complexes and nuanced analyses of feminist engagement with law.
Throughout her work, Agnes interrogates the impact of law reforms on women, and questions
whether laws intended for women’s benefit have lived up to their promise. Her work on
violence against women, for example, has addressed the failure of law to adequately address
the reality of violence. It has been argued that the law has failed in effectively addressing the
problems of violence against women. Through a detailed examination of laws addressing
rape, dowry, domestic violence, prostitution, indecent representation of women, sati, and sex
determination tests, it has been shown that law was not successful in bringing about desired
social change. Further it was contented that, Dowry laws, for example, failed both to
challenge attitudes about women and marriage including parental pressure to ‘marry off their
daughters and to link the problem of dowry with women’s property rights in the parents’
homes. Further attempt was also made to the fact that, the Indian state has been all too willing

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to pass new criminal laws to address these multiple forms of violence against women and
raises questions about the wisdom of conferring such powers on the state. Agnes is highly
sceptical of this concentration of criminal law power in the state in the name of protecting
women. Her scepticism is heightened by the fact that some of the laws “which purpose to
protect women from violence actually penalize the woman. As she observes, instead of
empowering women, the laws strengthen the state. The second development can be traced to
the growing engagement of feminist research with the post - modernist wave of the Western
academic thinking and its deconstructionist implications for a monolithic, linear strategy for
women’s empowerment and reflects some of the analytical complexities that arise in the
context of cross cutting discourses in the field of law for gender justice. It is observed that,
the undercurrent of tension between conflicting compulsions of contemporary research in
feminist jurisprudence and feminist practice and activism in the legal arena. The arena of law
is seen as a site for discursive struggles, where the dominant notions of gender, tradition and
culture are challenged from a multiplicity of perspectives, including the feminist perspective.
The extent to which law is made to serve as an instrument of gender justice depends to a large
extent on an informed understanding of the strength and the potential weaknesses of the
dominant ideology of gender and the ability to engage with tenacity and wisdom, to explore
the moral and substantive weaknesses of the familial ideology in the legal arena. Lastly, a
relatively new area of legal discourse in the context of gender is social rights of women, such
as the right to health. The current status of law on women’s health. What it does not explore
in depth is the whole range of issues that are linked with women’s reproductive rights and
their legal ramifications. The Indian Penal Code does not admit of the notion of marital rape,
thereby signifying a negation of a major dimension of such rights to women. The link between
this negation and the role of the dominant familial ideology that shapes the contours of
women’s substantive legal rights in the country is fairly obvious. The rights discourse does
open up new dimensions of analysis and investigation. Social movements which aim at
fighting exploitative practices may utilize the moral strength of individual dignity to
strategize the fight for gender justice.

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7. CONCLUSION

Admitted laws alone cannot make justice available to citizens in a society. Seeking equality
in an unequal society is a task demanding concerted action on the part of the individuals, the
community, government and the judiciary on a continuing basis. This is what women as a
class must realize in their struggle for equal justice in the democratic republic of India. Gender
justice is a concept understood differently in different cultures and at different periods in
history. However, with the adoption of universal standards against inequality and
discrimination and the evolution of a rights-based approach in the empowerment of women,
the concept is today susceptible to judicial evaluation and judicial determination. With the
support of the liberal provision of the Constitution, with the aid of a series of pro - women
international human rights instruments and an increasingly assertive women’s movement
within and outside the country. The complaint seems to be that more could have been done if
the judges were so inclined. Furthermore, it is argued that the judicial system as a whole dd
not change enough to absorb the emerging standards of equity and equality vis-e-vis women
with the result the bulk of women approaching the subordinate courts neither receive equal
treatment nor are able to access the full benefit of the principle of equal justice under law.
There are possibly many in which the performance of the judiciary in relation to gender justice
can be assessed. First, of course, is a review of gender-related decisions of courts on issues
of family relations, criminal justice administration, labour and employment matters etc.
Unfortunately, in this regard the vast body of decisional law of the subordinate courts where
the bulk of women ordinarily seek justice are not available for review. Though in a precedent
bound system, one can expect the decisions of superior courts to be the applicable law, it is
common knowledge that approaches and attitudes towards facts and evidence of individual
judges can make a lot of difference in the outcome of the case despite the law being common
to all. In other words, evaluation of judicial decisions on gender justice can only give a partial
not necessarily the true picture of judicial performance in this regard. A second yardstick for
assessment of judicial performance in gender justice is the manner in which judges treat
women in court whether they appear before them as litigants, witness, victims, lawyers or
subordinate staff. This is where women experience discrimination and develop perceptions
of justice/ injustice in the system which build or erode their confidence in the system.
Therefore, it is a critical input in the assessment of the system in respect of gender justice.
There are some studies now available in this respect of gender justice not comforting to the
judiciary.

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Feminist jurisprudence has proved to be a highly contentious area of legal studies;

nonetheless, its rapid evolution, and legal enhancement within society makes it one with
considerable weight. Feminists such as MacKinnon have incessantly argued that men have
more power than women do and consequently, male power perpetuates male dominance.
Although contemporary society may not embrace the changes Mackinnon has proposed, and
her critics have deemed her theories as excessively radical, her underlying claims are still
worthwhile. She was deliberately provocative in proving that the American male power
structure dominates women and must be changed. Establishing sexual equity in this power
structure would be a key step in the struggle for gender equality within society. Bartlett’s
feminist methodologies can be employed as a measuring rod to illustrate how, and the extent
to which, the law favours males and excludes women, and in this respect, his work offers
great assistance to feminists striving for gender-based legal equality. Irrespective of such
debates and competing arguments, feminist jurisprudence has made enormous strides over
the years. It has succeeded in pushing the boundaries of law and legal language, to the extent
where the law now recognises that women were previously in a radically different social
relation to the law than men. It essentially highlighted that women’s experiences and
expectations were not adequately acknowledged by the definitions of law which traditional
jurisprudence offered, and thus, it is reasonable to argue that feminism has offered a highly
distinctive and coherent approach to legal theory.

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8. REFERENCES

1. The Emergence of Feminist Jurisprudence: An Essay, Ann C. Scales 1986, Volume 95

Issue 7 Yale Law Journal
2. Feminist Jurisprudence: Grounding the Theories Patricia A. Cain, December 1989,
Berkeley Journal of Gender, Law & Justice
3. Gender Justice in India: A Feminist Jurisprudential Perspective Shampa Dev Tattva-
Journal of Philosophy 2018, Vol. 10, No. 1, 69-88 ISSN 0975-
332X│https://doi.org/10.12726/tjp.19.5
4. Feminist Jurisprudence and Gender Injustice in India, Dr. Gyandra Sharma
5. Feminist Legal Theory, Ruth Fletcher, An Introduction to Law and Social Theory,
Edition: First, Publisher: Hart, Editors: Reza Banakar and Max Travers, pp.135-154
6. C. McGlynn, “Ideologies of Motherhood in European Community Sex Equality Law”
(2000) 6(1) European Law Journal 29-4

Websites:

1.https://www.ukessays.com/essays/sociology/examining-the-concept-of-feminist
jurisprudence-sociology-essay.php

2.https://www.lawteacher.net/free-law-essays/jurisprudence/the-emerged-of-feminist-
jurisprudence.php

Law & Justice in Globalizing World Soniya Singh