Author: Sameeksha Ashok Puthran
Institute Name : KES’ Shri Jayantilal H. Patel Law College
Introduction
The constitution of India provides certain fundamental rights to each of its citizens as well as non citizens.Amongst those rights one of the most significant and crucial for a development of a civil society is Article 14.
Article 14 clearly states that every individual, be it a citizen of India or not, is equal before the law and is also guaranteed equal protection from the law.
Article 14 in its very core abolishes any kind of discrimination present in the society but the very presence of this article in the constitution does not automatically erase the prejudices which have evolved from centuries on the basis of caste, creed,place of birth, gender and sexes.
Therefore there is a need for legislation that backs this Article and provides an equal approach for all.Though many legislations are passed in the name of women empowerment but are those really empowering women in its truest sense.
Equality is considered the very basis of feminism but the present situation is such that the representation of women in the parliament is only 14.7%. In a male dominated society like India where majority of the lawmakers are men, the law requires an equitable and unbiased approach towards every gender and sex.
Indian laws and culture provide equality to women in theory but the same are vulnerable in practice. These legislation needs measures that put an end to such bigotry and such changes are possible when law takes into account the perspective of the person for whom the laws are made and feminist jurisprudence advocates for the same.
Understanding Feminism
Feminism believes in advocating equal social, political and economic rights for women.People often think of feminist as those who favours females but feminism is rather an awareness of women’s oppression and exploitation faced not only in society but also at workplace and within the family, and feminists make a conscious effort to make the world a better place for women.
Thus, anyone who recognizes the presence of sexism, male dominance and patriarchy and takes action against it, irrespective of gender, is a feminist.
Meaning of Feminist Jurisprudence
The term jurisprudence came into existence from the latin word “Juris and prudentia” colloquially meaning “knowledge of law”. Thus it is considered a comprehensive study of legal theories, concepts and principles.
Harold Laski defined jurisprudence as “Jurisprudence as the eye of law.”It simply means studying jurisprudence will help to understand the general principles of law and interpret it effectively. It provides a perspective that helps lawmakers to dive into the deeper meaning of law and understand its purpose.
So likewise, feminist jurisprudence is nothing but understanding law through a female perspective.
Approaches of Feminist Jurisprudence
Feminist jurisprudence details a wide range of philosophies and theories on feminism being a subject of social science. It reflects the understanding shared among feminists that women had experienced oppression and abuse from the hands of men and significantly falls short of the oppression that men faced historically and that this oppression is not only unjust but also illegitimate.
Feminism consists of various approaches or schools of thoughts, including liberal, radical, cultural, marxist and postmodern perspectives.
Liberal Feminism
According to liberal feminists women will get equal status in society when there is improvement in social customs, institutions, laws and attitudes towards women. Liberal feminism is a form of feminist theory that recognises that women are capable and have the capacity to achieve equality through her own decisions and accomplishments.The primary focus of liberal feminism is to safeguard equal legal and political rights for women, attempting to challenge the false societal belief that women are inherently incapable than men in terms of intellect and physical abilities.
Liberal feminists contend that such biases lead to discriminatory treatment against women in various aspects,including academics, public discourse, and workplaces. They amplify that women’s subservience is conditioned in a combination of cultural norms, customs and legal restraint that restrict their access and success in the public domain.
One of the fundamental principles of liberal feminists is that women face social and legal barriers that hinder their participation in the public domain such as areas of politics and economics. They demand that liberal principles of universal human rights and equality be balanced, advocating for equal treatment of women and men. These theorists argue for a gender-blind approach to the law, dismissing any restrictions or preferential treatment on the basis of gender.
Radical Feminism
Radical feminism is of the opinion that society needs a radical transformation where male have dominance over females in every social and economic setting. According to radical feminists, society at its core is fundamentally structured in such a way where men are given power over women to control and suppress them. They want to disassemble the patriarchy thereby freeing everyone in the society from an unjust system, challenging existing social norms and institutions. This includes opposing the use of a woman as a commodity, raising social awareness about crimes such as sexual exploitation and violence against women, and questioning
conventional gender roles.
Radical feminists contend that the main cause of marginalization and oppression faced by women in society is due to patriarchy . They profess that men, as a class, take advantage of the exploitation of women in the name of societal norms and traditions.
It is important to note that patriarchal theory does not claim that all men always benefit from the oppression of all women. Instead, it emphasizes the power dynamics and the relation which is ruled by supremacy or dominance, where one party exploits and has an authority over the other for the benefit and comfort of the former/dominant group.
The ultimate aim of radical feminists is to dismantle the system of patriarchy by questioning the existing societal norms and practices. They believe that by eradicating patriarchy from the very core of the society’s fundamentals, everyone will be liberated from an unfair society.
Marxist Feminism
According to this theory, capitalism is the reason behind injustice faced by women in society. Capitalism has molded all human relationships into marketable products. Thus human labour was seen as a means of production and human beings were seen as instruments.
Women in this arrangement become a machine of production and reproduction. It assured the supremacy of the man in the house and the women’s house work lost its significance compared with the men’s work in obtaining a livelihood.
According to the Marxist theorists, domestic labour is the main reason for oppression that is faced by women from the society. Women are often dehumanised as sex objects and subject to the approval or disapproval of men. They are still today fighting for autonomy over their own bodies and reproductive health.
Cultural Feminism
Cultural feminism takes a different approach compared to liberal feminism by shifting the focus towards the unique qualities and differences of women in comparison to men. It asserts that the primary goal of feminism should not be assimilating women into existing patriarchal structures, proving their similarity to men, and conforming to male norms.
Instead, cultural feminism attempts to reorganize these institutions to acknowledge and embrace the values that are traditionally imbibed in women, such as nurturing virtues, love, affection, compassion, kindness, empathy, patience, and concern.
Cultural feminism accepts the fact that there are inherent differences between women and men and proposes for women’s independence and creating supportive institutions that not only acknowledge but also celebrate these differences. This perspective is rooted in a basic understanding of gender differences and emphasizes the importance of giving recognition and validation to the unique contributions of women in society. It further supports that we need not to change a woman physically and emotionally, rather celebrate such differences and put them in use for better upbringing of our future generations.
Postmodern Feminism
Postmodern feminism emphasizes the need of self-definition and the exploration of women’s experiences to raise awareness and amplify voices that have been historically marginalized. Postmodern feminist legal theorists disapprove of both the liberal approach that assumes women are inherently equal to men and difference theory that details inherent differences between women and men.
Postmodern feminists employ a method called deconstruction, which involves examining laws to uncover hidden biases and assumptions. By reforms in laws, postmodern feminists specify the necessity for change and challenge the belief that laws are fixed and objective, as they are created by individuals with their own biased approach that can lead to the oppression of women.
Gender Equality under New Criminal Laws
A progressive step has been made towards making the laws gender neutral under Section 76 and Section 77 of the Bharatiya Nyaya Sanhita (BNS), 2023 to widen its scope to include the word ‘whoever’ for assault or making use of criminal force against a woman that intends ‘to disrobe her’ and also for Voyeurism. This section aligns with the tenets of radical feminism, which claims that gender inequality arises from societal issues like patriarchy.
Section 66 of new criminal procedure i.e. Bhartiya Nagarik Suraksha Sanhita now gives recognition to women as adult members of the family. Now they can also receive service of summons in place of the person who is summoned. The previous language, which referred specifically to ‘some adult male member’ has been amended to ‘some adult member’. This change ensures that both men and women are equally acknowledged and included in legal processes concerning the service of summons, reflecting a more inclusive and equitable approach.
Reproductive Rights and Indian Law: A Constitutional and Human Rights Approach
Section 63 of the Bhartiya Nyaya Sanhita, 2023 is regarding offence of rape and exception 2 of this section states that if sexual intercourse is between a man and his own wife, provided the wife should not under the age of 18, will not be considered an offence of rape.
Nonetheless, the continuation of exception 2 from the previous law concerning marital rape which still remains a notable legal anomaly. It is not a regular exception, it exempts marital rape from being criminalized under the current Criminal Act, continues to preserve archaic patriarchal and oppressive ideologies.The retention of this exception highlights the need for further legal reforms to ensure that all forms of sexual violence are unequivocally condemned and punished, irrespective of the marital status of the victim.
Conclusion
Although there has been significant progress in achieving gender equality through legislative and judicial proceedings, more work is still required to narrow existing gaps and ensure that these laws are enforced effectively.
By integrating feminist legal techniques into the process of lawmaking, while maintaining the established legal theories, will consequentially result into a legal system that recognises justice as fairness and promotes feminist jurisprudence.
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