Feminist Interpretations Of The Constitutional Law

Feminism helps to understand the extent of women’s subordination, the reasons for subordination, and ways to better their lives.[1] Constitution has granted various rights to the people of India. These have been granted to all, but since women have always been in a socially disadvantaged position, justice has always been denied to them. Promoting, rights of women reflects a significant change in the underlying assumptions about women’s nature and their place in this world.[2] It is necessary to provide the have-less, the rights that they have not been able to exercise.[3]  Pro women legal interpretations can help to promote justice for women in society. There are various ways of legal interpretation. One such way is dominance analysis as distinguished from difference analysis, wherein gender is seen as hierarchy[4]. Third such approach is purposive analysis, which focuses on the spirit behind constitutional law.[5]

There is no doubt that democracy provides equal opportunities for all. Theoretically, women can redress their grievances through democratic means. But the truth of the situation remains that due to societal norms and cultural aspects, women are not the effective players of a democracy. The disadvantages of the democratic process make it imperative that pro-woman approach towards interpretation of laws should take place. In a patriarchal society where freedom is dictated by power, women already stand at a disadvantaged position because of lack of power on their part.[6] Although there are several criticisms of how the law reflects patriarchal assumptions and how women face difficulty in attaining equal justice in the society,[7] rather than completely relying on democratic forces, an appropriate technique of legal interpretation should be seen as a way to empower women and ensure them freedom and justice.

An unconventional approach towards law relating to rape, dowry-related crimes, pornography, prostitution is required by constitutional feminism[8]. Basing their opinion on dominance analysis, the Supreme Court in the Bodhisattwa case held that rape is a crime against basic human rights and it violates the victims most cherished fundamental right, that is right to life under Article 21 of the Constitution. It clearly said, “The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many ways”[9].

A feminist vision towards interpreting such laws has helped in infusing values in accordance with the international human rights law.

Firstly, Bodhisattwa judgement has clearly avoided the rigidity of earlier law on consent and established that consent based on deception, a promise of marriage or fake marriage amount to no consent. Also, the absence of bodily injury or the fact of submission no longer imply consent[10].

Secondly, Feminist perception helped the court to dispense with a requirement that was unjustified but was still plaquing rape law for a long time, the requirement of corroborating the circumstantial evidence. As Justice C.K Jain said, “To insist on corroboration except in rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.”[11]

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Thirdly, the court has ultimately evolved a rule that the character or status of a woman is not a relevant factor to be considered while giving the sentence to a rapist[12]. Interpretations such as these have been made keeping in mind the dignity of womanhood.

Fourthly, an award of compensation, which is a discretionary power of the judges in criminal cases, has been made obligatory for rape victims. The effect of rape is a long term; it alters the behavioural values and puts the victim in deep emotional crisis. The compensation was rightly based on the right to life and personal liberty.

Thus, statutory changes to the law of rape based on feminist interpretations of the law have, in many ways, helped in bringing  justice to women.

In the matter of understanding the interests of the prostitute, Supreme Court made a dominance analyses of the position of prostitutes. It understood how prostitutes are never given the dignity of a person and, even if they try to relieve themselves of prostitution, they are meted out with harsh treatments and have to ultimately settle for prostitution. They have ordered for establishment of free government-run rehabilitation centres so as to wean them away from the suffocating surroundings and given maintenance, medical facilities and education. There is no denying that a lot more needs to be done to provide social justice to prostitutes yet the court in understanding the situation of these women and establishing the fact that they also have an equal right to privacy as guaranteed by the constitution, has adopted a pro-woman approach.

Analysing the procedural law from the side of female victims rather than from accused’s viewpoint enhances the societal confidence in the ability of the legal system to provide a life of liberty and dignity and equality to everyone irrespective of their gender. It provides a wider scope of interpretation rather than having a tunnel vision of the accused’s point of view. This procedural rule is emphasised upon by the courts to tone down the benefit of doubt in cases of dowry-related crimes since those occur within the four walls of the house.[13] Also, statutory changes related to burden of proof in the laws relating to dowry, rape, and other crimes involving women have added to the pro-feminism approach.

The courts have adopted an approach to provide equality to women with respect to work opportunities. Living in a society, everyone has an equal right to work. But there are certain regulations for women that act as an obstacle in their right to work. The Supreme Court rightly invalidated the regulation that required air hostesses to retire upon their first pregnancy and thus interfered with the personal choice of women.[14] It rejected the underlying intention of the regulation that air hostesses should look impressive as it reflects dominance- subordination approach.

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Women weren’t allowed to choose a profession of their choice. The judges have successfully established that just because certain work can be unsafe for women doesn’t mean they should not be allowed to do the same. Following this, women are now rightfully allowed to work in liquor associations[15]. If something is unsafe, it doesn’t mean an innocent person should be denied opportunity rather steps should be taken to make it safe. Safety concerns arising at employment avenues like these, need to be balanced with individual autonomy.

Judges seem to have a clear mindset about work opportunities for women. They have also upheld a service rule that preferred recruitment of women for public employment to the extent of 30%, in Government of A.P v. P.B Vijay Kumar. Thus, interpretations have been made in a way to not only provide equality but justice to women who have been at a disadvantaged position in society for a long time.

The subordinate position of the Christian wife who was denied an equal right in the matter of divorce was interpreted by anti-subordination interpretation, thus quashing the impugned provisions of the law since they violated Art. 14,15 and 21 of the Constitution[16]. A woman can’t be forced to live a life as a wife without her will. Continuance of marriage can’t be forced upon her by societal pressures. It will be totally humiliating life, devoid of the right to a dignified life.

Interpretation of Guardianship law, in case of Gita Hariharan[17] helped to equate the position of mother to that of a father in case of guardianship. One drawback in the decision was that women could be guardians if “father was unable to”. Although the complete right to guardianship was not granted but, this interpretation of the court was in itself landmark as it has helped in bringing more respect and autonomy to women as individuals in the society.

Supreme Court has devised tactful remedies based on dominance analysis. For example, in case of interpreting the Chota Nagpur Tenancy Act 1908, which gave male heirs sole right of intestate succession over the property of deceased tribal, the court instead of pleading incompetency in declaring the personal law bad in view of gender discrimination, resorted to the superimposition of right to a dignified life and right to livelihood, upon the statutory provision. Females were allowed to stay on the land till they were dependent on it because otherwise, it would leave them destitute. This needs to be appreciated as a clever strategy on the part of the judges because the tribals were not ready to amend their personal laws and the courts understood that without general acceptance of social legislation, the reformatory effort would become futile.

The recent landmark judgements have shown how legal interpretations can help to protect the interests of the women. Sabarimala judgement has shown how women had for so long been denied justice by not being allowed to enter the temple because of biological reasons. Adultery judgement has shown that women can’t be treated as objects. Judges have adopted an approach which is helping in striking down those provisions of law which reflect the rule of men and not justice.

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The Directive Principles of State Policy under the constitution provide for various provisions to safeguard the interest of the women in society. These have significant contributions in promoting legal interpretations that are pro-woman.

We can conclude that law has been re-read to be more inclusive, to be more respectful of autonomy and dignity of women, to be more gender-inclusive and that legal interpretations have led to cure some part of inequality that exists in the society. Laws are being interpreted, keeping in mind that women are not denied justice. They cannot be denied the same since the constitution provides for equality, legal interpretations need to be made in a manner that not only is the woman question answered but also justice is ensured to them. Adopting a more pro-feminist approach, the courts are now interpreting the law in a manner that societal norms are being challenged and evolutionary judgements are being made. Such interpretations are going to be an important part of the legal discourse of our country.

 

[1] M.D.A. Freeman. 1996. Lloyd’s Introduction to Jurisprudence. London: Sweet & Maxwell.

[2] Francis, Leslie and Smith, Patricia, “Feminist Philosophy of Law”, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2017/entries/feminism-law/>.

[3] Austin G.,1999. Working a Democratic Constitution. New Delhi: Oxford University Press. Pg. 669.

[4] Mackinnon C., 1987. “Feminism Unmodified: Discourses on Life and Law.” Harvard University Press extracted in M.D.A. Freeman. 1996. Lloyd’s Introduction to Jurisprudence. London: Sweet & Maxwell.

[5] Dr P. Ishwara Bhat. 2001. “Constitutional Feminism: An Overview”, SCC (Jour) 2(1).

[6] Higgins T., 1997. “Democracy and Feminism.” Harvard Law Review 110:1676-1685.

[7] Smith P., 1993. Feminist Jurisprudence, New York: Oxford University Press.

[8] Dr P. Ishwara Bhat. 2001. “Constitutional Feminism: An Overview”, SCC (Jour) 2(1).

[9] Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 at 500.

[10] State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

[11] State of Maharashtra v. C.K. Jain, (1990) 1 SCC 550.

[12] State of Haryana v. Prem Chand, (1990) 1 SCC 249.

[13] Joint Women’s Programme v. State of Rajasthan, (1987) Supp SCC 707.

[14] Air India v. Nergesh Mirza, (1981) 4 SCC 335.

[15] Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.

[16] Ammini E.J. v. Union of India, AIR 1995 Ker 252.

[17] Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

 

 

Author: Sakshi Sharma,

Intern at lawportal,

Email: sakshisharma1399@gmail.com

Author: Sakshi Sharma,
NUJS(1st year)

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