"Woman was the first human being that tasted bondage. Woman was a slave
before slavery existed"- (Friedrich Engels in his classical writing "Origin of
the Family, Private Property and the State)
The word "feminism
" means belief in social, economic and political
equality of the sexes. It has its origin in the West but feminism has been
successful in manifesting itself all over the world, represented by various
institutions and organizations and individuals who remain committed to struggle
for women's rights and interests. Some of the early feminist thinkers include
French philosopher Christine de Pisan who challenged the social restrictions on
women and pushed for women's education and Mary Wollstonecraft in the 18th
century England. She wrote a book called "A Vindication of the Rights of
" which gained immense popularity in the English-language feminist
Feminist philosophy is an approach to philosophy from a feminist perspective. It
came to be labelled as such during the second and third waves of feminism in
1960s and 1970s.
Feminists have tried to reinterpret every subject, including law. Feminist
philosophy of law, also known as "Feminist Jurisprudence", ventures on analyzing
the circumscribing influence of patriarchal ideals and notions that prevails in
legal structures and demonstrates the effects of such legislations on girls,
women and non-binary communities.
It is a conceptual revision of the position of women in the world, their
innumerable years gone under oppression of the dominant males and their views
and a shift towards equality through law. Some of the aspects of the life of
women like political equality, immigration, and citizenship; marriage,
reproductive rights, and commodification of the body; protection from violence;
and economic rights have undergone changes only after prolonged struggle and
Themes of Feminist philosophy of Law
The feminist legal theory varies considerably on the basis of methods,
presumptions, approach models etc. At present, there are 5 models of approach to
study feminist jurisprudence- the liberal equality model, the sexual difference
model, the dominance model, the anti-essentialist model, and the postmodern
model. In addition to these, there are radical, socialist, Marxist,
transnational and cultural models as well.
In spite of the differences, some common grounds of belief exist among the
feminist philosophers. The primary assumption of equal worth of all human beings
and their claims to such entitlement of moral worth and equal treatment under
the law, the dominance of patriarchal conditioning of minds, criticism of
traditional views of legal reasoning, liberty, consent is found in all the
Feminism in India
India is a land of diversity. This is what comes to our mind when we think of
our diverse culture, languages, differences and also, when we start looking at
the obstacles faced by Indian women. Truly distinct, these roadblocks are not
found in the West. Indian women negotiate survival through an array of
oppressive patriarchal family structures: age, ordinal status, relationship to
men through family of origin, marriage and procreation, and patriarchal
To name some notable early Indian feminists with exceptional contributions, we
have had Ishwar Chandra Vidyasagar, Raja Rammohan Roy, Dwarkanath Ganguly, Dr.
Kadambini Ganguly, Rabindranath Tagore, Mahatma Gandhi, Dr, B.R. Ambedkar,
Jyotirao Phule, Savitribai Phule, and so forth.
Impact of Feminist Philosophy on the Indian Legal System
The first sign of feminism in the Indian legal system was noticed when the Age
of Consent was proposed to be increased to 12 years of age for girls in 1891 by
the British government. Finally, it was pegged to 18 years of age in 2013.
In terms of family laws, The Hindu Marriage Act of 1955 completely took a
different course and fixed the dichotomies of age of marriage, divorce and
maintenance for women, bringing them at par with men. The Hindu Adoptions and
Maintenance Act of 1956 gave equal rights to a woman willing to adopt and also
get maintenance for the family of the husband for life time as per the
amendment. The Hindu Succession (Amendment) Act of 2005 was enacted to remove
gender discriminatory provisions in the Hindu Succession Act, 1956. Under this
amendment daughters got equal rights in their ancestral assets.
The Dowry Prohibition Act, 1961 (Amended in 1986) was enacted to prohibit the
crime of asking for dowry from the wife's family and the harassment that
follows. The Commission of Sati (Prevention) Act, 1987 stopped the practice of
sati which compelled a widow burn to death in the same funeral pyre of her dead
husband. Other important women centric legislations include the Immoral Traffic
(Prevention) Act of 1956, the Indecent Representation of Women (Prohibition) Act
of 1986 and the Protection of Women from Domestic Violence Act of 2005.
In India, the process of "constitutional feminism
" has brought about
constructive changes in the legislations in the last two decades. Several
landmark cases have uplifted the condition of women. A few of such cases are
Mohd. Ahmed Khan v. Shah Bano Begum
AIR 1985 SC 945: The Supreme Court
delivered a judgment favoring maintenance given to an aggrieved divorced Muslim
Shayara Bano v. Union of India
(2017) 9 SCC 1: The Supreme Court helf the
practice of unilateral irrevocable form of divorce, also known as Triple Talaq,
to be unconstitutional and invalid. The Government of India has enacted a
legislation to curb the menace.
Vishakha v. State of Rajasthan
AIR 1997 SC 314: The Supreme Court has
laid down exhaustive guidelines to prevent sexual harassment of working women in
place of their work until legislation is enacted for this purpose. The Sexual
Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act,
2013 was enacted afterwards.
Geeta Hariharan v. Reserve Bank of India
AIR 1999 SC 1149: In this case,
the Supreme Court held that the mother can act as a natural guardian for their
Bodhisatwa Gautam v. Miss Subhra Chakraborty
1996 SC 490: The complainant
was a victim of rape, misrepresentation, fraud and forced abortion, all of which
was perpetrated by a man. The Supreme Court awarded interim compensation to the
victim until the trial ends and also directed the National Commission for Women
to evolve such a scheme so as to remove the sorrows and pains of all such
In 2012, we got gender-neutral legislation for the protection of children
against sexual offences. POCSO fixed the age of consent for both boys as well as
girls at 18.
The Criminal Law Amendment Act, 2013 amended as well as inserted new sections in
the Indian Penal Code with regard to sexual offences. Some of the new offences
recognized by the Criminal Law Amendment Act are acid attacks, voyeurism,
stalking, intentional disrobing of women and sexual harassment.
The list of amended legislations goes on including the Maternity Benefit
(Amendment) Act of 2017, the decriminalization of adultery (section 497 of the
IPC) and the Maternal Termination of Pregnancy Act of 1971.
The provisions in Directive Principles about equal entitlement to livelihood,
equal pay for equal work, protection against moral and material abandonment,
maternity leave, nutrition, equitable distribution of material resources of
production and respect for international conventions have significant value in
expanding the horizon of constitutional feminism.
LGBTQIA+ and the feminist philosophy of law.
At the inception, we cleared the fact that the traditional laws which
disregarded women's perspective had cascading effects on girls, women and
non-binary communities. In fact, the women's movement and the LGBT were allied
from a very long time. The common grounds were specific- equality of the sexes
and the right to digress from supposedly natural role models, both externally
and in sexual preferences. The homosexuals formed the alliance with feminists
with the hope of fighting against the marginalization of an entire community
with the support of a broader movement for equality like feminism. The right to
be different, denouncing the heterosexual norms and same sex love became a
political weapon against patriarchy. Thus, new identity struggles and pluralism
in the feminist philosophy came to be known as "queer feminism". In India,
homosexuality was decriminalized in the case of Navtej Singh Johar v. Union
of India in 2018.
According to Cynthia Bowman, professor of feminist jurisprudence at Cornell Law
School, in law school, most of the time we have to read appellate cases, search
for the rule. An appellate case is a distilled version of the dispute which
started out much broader and got narrowed down. A feminist scholar will ask for
the context, the parties and the facts to think about the legal questions. It is
not always about the dichotomy, "Who wins?". Many subjects are being included in
the legal curriculum, thanks to the feminist philosophy. The struggle for the
emancipation of the sexes through reform of law will not be over until the goal
of equality is achieved.
- Francis, Leslie and Patricia Smith, "Feminist Philosophy of Law", The
Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta
- Brunell, L. and Burkett, Elinor. "Feminism." Encyclopedia Britannica,
September 23, 2020. https://www.britannica.com/topic/feminism.
- Bowman, Cynthia, and Vicki Quade. "Redefining Notions: Feminist Legal
Theory Pushes into the Mainstream." Human Rights 20, no. 4 (1993): 8-11.
Accessed March 5, 2021. http://www.jstor.org/stable/27879789.
- Dr P. Ishwara Bhat, "Constitutional Feminism: An Overview" (2001) 2 SCC
- Hemanth More, "Changes brought about by the Hindu Marriage Act, 1955" 22
- Ashima Obhan and Vrinda Patodia, "Women Centric Changes In Indian Law"
05 April 2019. https://www.mondaq.com/india/human-rights/795312/women-centric-changes-in-indian-law.
- Mohd. Aqib Aslam, "Feminist Jurisprudence and Its Impact In India: An
- Miriam Gebhardt, "The Right To be Different".
- Feminist Legal Theory: https://en.wikipedia.org/wiki/Feminist_legal_theory.