Feminist legal theory, also known as feminist jurisprudence, is based on the
belief that the law has been fundamental in women's historical subordination.
The project of feminist legal theory is twofold. First, feminist jurisprudence
seeks to explain ways in which the law played a role in women's former
subordinate status. Second, feminist legal theory is dedicated to changing
women's status through a rework of the law and its approach to gender.
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.
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 behavior 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.
Three major schools
Though feminists share common commitments to equality between men and women,
feminist jurisprudence is not uniform. There are three major schools of thought
within feminist jurisprudence.
- Traditional, or liberal, feminism asserts that women are just as
rational as men and therefore should have equal opportunity to make their
- Another school of feminist legal thought, cultural feminists, focuses on
the differences between men and women and celebrates those differences; this
group of thinkers asserts that women emphasize the importance of
relationships, whereas men emphasize abstract principles of rights and
logic. The goal of this school is to give equal recognition to women's moral
voice of caring and communal values.
- Radical or dominant feminism focuses on inequality. It asserts that men,
as a class, have dominated women as a class, creating gender inequality. For
radical feminists gender is a question of power. Radical feminists urge us
to abandon traditional approaches that take maleness as their reference
point. They argue that sexual equality must be constructed on the basis of
woman's difference from man.
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:
- Examination of legal concepts, rules, doctrines and process with
reference to women’s experiences.
- Examination of the underlying assumptions of law based in male female
and ostensibly gender neutral distinctions.
- Examination of mismatch, distortion or denial created by the deference
between women’s life experience and the laws assumption or imposed
- Patriarchal interest served by the mismatch.
- Reforms to be made in the law to eliminate patriarchal influences.
Feminism into four schools, namely, liberal, radical, cultural and postmodern
and the early theme and pursuit of feminists about law was equality.
The historical origin of contemporary liberal feminism goes back to the 18
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
General view of the liberal feminists is that women are caused by social and
legal barriers that block 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.
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. 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 feminism reverses the focus of liberal feminism. it is concerned with
women 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
attempts to revalidate what cultural feminists considers 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 modern Feminism
Post - modem feminism sees 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. Postmodern feminist legal
theorists reject the liberal equality idea that women are like men as well as
the difference theory idea that women are inherently different from men.
This is because they do not believe in singular truths and instead see truths as
multiple and based on experience and perspective. Feminists from
the postmodern camp use a method known as deconstruction in which they look at
laws to find hidden biasses within them. Postmodern feminists use deconstruction
to demonstrate that laws should not be unchangeable since they are created by
people with biasses and may therefore contribute to female oppression.
Feminist legal theory produced a new idea of using hedonic jurisprudence to show
those women’s experiences of assault and rape was a product of laws that treated
them as less human and gave them fewer rights than men. With these feminist
legal theorists argued that given examples were not only a description of
possible scenarios but also a sign of events that have actually occurred,
relying on them to support statements that the law ignores the interests and
disrespects the existence of women.
Indian Perspective over Feminism
Our constitution has taken all the protective measures to protect the interest
of women in our constitution. Analysing the preamble of the constitution, in the
case of National legal service authority v. Union of India, it was held that the
concepts of justice social, economic and political, equality of status and of
opportunity and of assuring dignity of the individual incorporated in the
Preamble, clearly recognize the right of one and all amongst the citizens of
these basic essentials designed to flower the citizen’s personality to its
fullest. The concept of equality helps the citizens in reaching their highest
Social justice does not mean equality before the law in papers but to translate
the spirit of the Constitution, enshrined in the Preamble. The preamble is not
the source of power but it gives a direction to the constitution. The Preamble
again assures ‘dignity of individuals’ which includes the dignity of women. Our
compassionate Constitution, the Fountain Head of all laws, is gender-sensitive.
It certainly clears that the mind-set of the constitution framers was based on
the concept of equality and positioning women equal at every sphere.
Talking about equality, our constitution has provided us with certain rights and
provisions which protect the positivist equalism atmosphere. Article 14 and
Article 15 read with Article 12 reflects the thinking of our constitution-makers
and further prevent women against gender discrimination. The interpretation of
the Article 14 in the light of gender equality states that all persons including
women are equal in the eyes of the law and they are also entitled to enjoy equal
protection of laws within the territorial jurisdiction of India. Law and the
nation should treat men and women equally in similar circumstances.
Article 15 whereas protects the women from any kind of discrimination. Within
the article 15, clause 3 gives the power to the state to make any special
provision for women and children so that the concept of equal protection of law
remains stable in the cases where same treatment would have received but was
infringed. This provision is recognized keeping in mind the fact that the women
in India have been socially and economically handicapped for centuries and this
all led to less participation in the socio-economic activities of the nation on
a footing of equality. The core ideology behind the provision is to provide
women with a platform and to eliminate the socio-economic backwardness of women
and certainly empower them.
No doubt, democracy provides equal opportunities for all in the decision-making
process. Women as free citizens, and constituting almost half of the population,
are theoretically able to redress their grievances through democratic means. But
due to socio-economic reasons and cultural patterns, they are not effective
players of the game of democracy. The disadvantages of democratic process and
risks of parliamentary majoritarianism make it imperative that a pro-woman and
anti-subordination interpretation of Constitution and laws shall be made and
under the light of positive discrimination further this provision was created.
In the following case Bodhisattwa Gautama v. Subhra Chakraborty
court talked about the need for laws which shall curb the practices of dominance
analysis that is found in our patriarchal society. The court held that
Unfortunately, a woman, in our country, belongs to a class or group of society
who are in a disadvantageous position on account of several social barriers and
impediments and have, therefore, been the victim of tyranny at the hands of
men it was held that certain laws helps to soothe the position of women in the
society and further they are very much constitutional valid as they come under
the legitimate title of positive discrimination which is fundamentally the rule
of equal protection.
Directive Principles of State Policy
Article 39(a) and Article 39(d) of the Directive principle of state policy also
talks about gender equality. The former article talks about having an equal
right to men and women for an adequate means of livelihood whereas the latter
supports equal pay for equal work for both men and women. Basically, the
philosophy behind the Directive principle of state policy is based on
maintaining a balance between individualism and socialism. The DPSP has taken
all the measures to cover the aspect of women in the post-modernist era.
The framers had the long-sighted vision which allowed them to think of the
problems, a woman would have faced in the changing trends of the society. To
support the fact, article 51(a) further talks about the provision which
renounces practices derogatory to the dignity of women.
Seeing the laws cumulatively, there is no going back to the thought that the
constitution has forgotten the position of women. Certainly, our constitution
framers have tried to incorporate as many provisions as they could think of
which would have caused prejudice if the certain provisions were not available.
Protectionist Interpretation of Laws for Women
The laws are already there in the constitution favouring equality but still, a
woman is in a disadvantageous condition even in the 21st century. Our society is
still static and views a woman through the spectacles of a patriarch. Despite
the broad horizon provided by the Constitution, the interpretations of these
provisions have echoed the patriarchal and conservative nature of the Indian
The courts itself while interpreting the laws, makes it difficult for
understanding to the society at large. Court as a mechanism for providing
justice tends to play the role of a protectionist. The interpretation of
separate laws on the ground that the women are weak and are different from men
creates an imbalance in the society. A man with ordinary prudence after reading
certain things would surely think that women are weak compared to men and
further laws are made for them. When such ideology travels in the air,
discrimination and patriarchy turn out to be the ground.
Women are subjected to as subordinate to men when they are put under the status
of the weaker sex. The constitution gave the tag of weaker sex keeping in mind
the past discrimination that a woman has gone through. The economic and
sociological prejudices in their past have made their progress rate slow and
further, they need laws for the advancement. The Constitution nowhere mentions
that women are weak in comparison to the men according to nature. Such
patriarchal interpretations are prevalent for a long time.
Taking an example of the law of Adultery which is now unconstitutional, earlier
in the case of W.Kalyani v./s State Tr.Insp.Of Police & Anr
, it was held
that only men can be prosecuted for the offense of adultery and women cannot be
prosecuted. The judgment was further criticized on the grounds for showing a
strong gender bias making the position of a married woman almost as a property
of her husband.
The women were seen as it was subordinate to men and in the jurisdiction of
them. It took almost 160 years for the court to understand that women are not a
chattel and have certainly equal status that of men. After having the provisions
of equality in article 14, the court continued to interpret the law basely. In
the recent judgment of section 497, the court held that there cannot be a
patriarchal monarchy over the daughter or, for that matter, a husband’s monarchy
over the wife. That apart, there cannot be a community exposition of masculine
The judgment passed is a step towards gender neutrality but certainly, it is
already too late to identify the prejudices that a woman have gone through. The
absence in understanding the concept of gender neutrality by the courts after
having the provisions laid down in the Constitution has resulted in the prima
facie violation of women’s independence.
In Independent Thought v. Union of India, a division bench of the Supreme Court
of India read down Exception 2 to Section 375, Indian Penal Code (hereinafter,
IPC), which now stands thus altered, Sexual intercourse by a man with his
wife, the wife not being less than 18 years of age, is not rape
Earlier the provision had prescribed the age as 15 rather 18. Sexual violence
apart from being a dehumanising act is an unlawful intrusion of the right to
privacy and sanctity of a female. It is a serious blow to her supreme honour and
offends her self-esteem and dignity- it degrades and humiliates the victim and
where the victim is a helpless innocent child, it leaves behind a traumatic
The “traditional practice” being referred to in the case deals with child
marriage and the rights secured to women. The IPC sanctified the practice by
allowing the husband of a girl child to have sexual intercourse with her,
regardless of her consent, provided she was not under the age of 15. The Court
identified the harm that the right of the girl child to maintain her bodily
integrity is destroyed when her husband is given the full control over her body,
thereby reducing her to nothing more than his property.
By denying a whole category of women the right to refuse consent to sexual
intercourse with their husbands, merely by virtue of being married, the IPC
similarly destroys the right of this category of adult women to their bodily
integrity. Thus, the basis of the violation of Article 21, as identified by the
Court itself, is applicable equally, and in the same way, to adult married
women, as it is to child brides.
The need for the alteration was necessary because it was giving the undue
advantage to the men who were protected from the ambit of rape. Law says that
having sexual intercourse with women below 18 years is an offence, this law
before alteration stands contradictory to it.
It was submitted that to this extent Exception 2 to Section 375 of the IPC is
not only arbitrary but is also discriminatory and contrary to the beneficial
intent of Article 15(3) of the Constitution which enables Parliament to make
special provision for women and children. In fact, by enacting Exception 2
to Section 375 of the IPC in the statute book, the girl child is placed at a
great disadvantage, contrary to the visionary and beneficent philosophy
propounded by Article 15(3) of the Constitution.
Protection of women has been always the mind-set of the constitution but the
problem as stated in the interpretation. With the time, the ambit is getting
bigger and the offences are being highlighted with more sincerity. In this case,
only, the interpretation of the rape was given maturely and has been termed as
one of the most heinous crime. In the judgement, Justice Madan B Lokur stated
Rape is one of the most heinous crimes committed against a woman. It insults
womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs
her personality and reduces her confidence level. It violates her right to life
guaranteed under Article 21 of the Constitution of India.
This judgement stood strong on the grounds of equality and justice for women
and throws out the patriarchal laws that were once prevalent in our country.
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