You Feministic Jurisprudence in a capsule
The word “Feminism” is derived from the Latin word “Femina” meaning “Women”. It means promotion of Women’s rights which in the process will remove restrictions that discriminate against Women. Women’s life experiences are generally not taken into account by Positivist Epistemology.
Observation and verification experience Patriarchal domination. This type of Epistemology that tends to privilege men’s experiences is not going to help at all. We need to take up the feministic challenge. It touches the lives of many women so one needs to see it critically. It is part of the Critical Legal Studies movement.
In Ancient India, Laws preferred male ideology. These laws created differences and this further gave birth to ranking. (Example- Only son had the right over “Coparcenary Property” before the Amendment of the Hindu Succession Act, 2005).
3 Enquiries by Tlair Dalton that has to be made regarding the Feminist Project
The 1st Enquiry asks us to find out, i.e. explore Women Subordination. (To determine the scope and nature of Subordination).
The Second Enquiry says that the processes and institutions of Subordination needs to be enquired and found out whether Women Subordination has occurred through Ecological, Religious or Social Processes.
For Example, Movies and Dramas play an important role in creating consciousness in society. They should carefully choose their content and their content should be strictly enquired and supervised.
This Enquiry talks about revision and checking of existing Laws. We need to deconstruct the existing legal Order, doctrines and institutions which are male dominated. This deconstruction is looking beneath the form of law. Law may be gender-neutral but underneath it there might be preference for male ideology.
Deconstruction is followed by Reconstruction. This Reconstruction should be more open. Women should have authorship of their destiny. Women ought to have authorship of Laws and participate in policy making processes.
A lot of changes have already occurred but still it is not enough. For Example, now in villages, a woman can become the Sarpanch, they can represent in Gram Panchayats but in the Parliament the Bill is still pending.
The idea of single universal perception of women is a debatable topic. Some Scholars believe that the plurality of Scholars should be recognized. On the other hand, to same Scholars, this idea is unacceptable. They argue that problems faced by different classes of Women are different from each other. The problem faced by an Urban woman is completely different to that of a rural woman. The idea is that one woman cannot represent all women.
Equality Approach of Patricia Kane
According to Scholars, women has two choices. First, to argue that they were equal to man and therefore all those laws should be abolished which promote inequality. The Second approach says that women should accept that they are a weaker section and thus accept special protection.
Patricia Kane believes that we should have faith in sameness approach. She says that Men and Women are same therefore laws should be modified by rectifying the inequalities that are perpetrated by treating women as unequal. Therefore, on all those areas where Law has treated women unequally, the Laws has to be amended to reflect sameness with Men.
Difference Theory of Littleton
The Biggest Criticism of the Equality Approach has come from Anatomical Science. Anatomy treats male body as a human body whereas women body is a specialist subject. In fact, there is a debate here as to whether women are human at all as that Men subjectifies women.
Littleton pointed out to the difficulty faced by the Equality Approach of Kane. She said that when one is seeking equality with men, then the benchmark is men. She said this further reinforces Patriarchy. According to her man should not set the parameters of Equality. Littleton argues tameness Approach reinforces patriarchy.
Littleton believes in difference Approach. According to her, women should accept inequality and accept Special protection. She follows it by saying that in all those areas women were denied jobs, Government should come out with compensatory packages for them. In Military, if women is denied jobs, they should be compensated.
(Example- If a women cooks at home, whatever equivalent pay is supposed to be given to a worker who cooks at other’s household should be paid to her).
Prof. Mackinnon criticises the male dominated theory. According to her, women should focus on difference as difference creates domination. Prof. Mackinnon believes that affirmative has to be adopted to abolish inequality.
The Difference Theory has been criticised by some Scholars. They say that it reinforces the concept of Patriarchy as this highlights that women are unfit for some jobs and therefore, they should be compensated.
Has Feminism brought changes in Indian Judiciary?
In India, after 1980, Feminism has gained popularity because of feminists like Nandita Haksar. The Indian Judiciary has gone through a change after that.
They won the victory by changing the Indian Evidence Act.
The offence of dowry murder has been added to Criminal Law.
Article 498 has been added to IPC.
Vishaka and others V. State of Rajasthan and others. (AIR 1997 SUPREME COURT 3011)
In Vishaka’s case, the Court has recognized sexual harassment against women in work places.
Air India v Nergesh Meerza & Ors 1981 AIR 1829
In this case, Air India gave its Air Hostesses a choice, i.e. either one can marry or she can continue working. Air Hostesses were not getting equal Service conditions as to that of male Stewards. The challenge based upon sameness approach was rejected by the Supreme Court. The Supreme Court struck down Air India’s that particular provision on the ground that it was violative of Article 14 of the Constitution.
C.B. Muthamma vs Union of India, AIR 1979 SC 1868
In this case, women were denied equal Service condition. Indian Foreign Service said that no promotion will be given to women on the ground that if promotion is given to women, it will lead to their transfer as a result of which their household will be disturbed. It was challenged by C.B. Muthamma.
Justice V.R. Krishna Iyer instructed to drop that particular provision, which was adhered to by Indian Foreign Service.
Author: DISHANI BAKSHI,
1st Year, MNLU, Nagpur.