Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

JURISPRUDENCE

Project Topic:
Feminist Jurisprudence: An Evolution from Fixed Mindset to a Growing
Mindset

SUBMITTED TO - SUBMITTED BY - Utkarsh

Dr. SHAKUNTALA DEVI Enrollment No. 200101148
(Associate Professor) Semester: 5TH
Session: 2020-2025
 ACKNOWLEDGMENTS

I have put in effort in this project. However, it would not have been possible without the help of
various individuals. I would like to convey my sincere thanks to them. I am greatly indebted to
Dr.Shakuntala, my professor for Jurisprudence, for her guidance and constant supervision as well
as for providing information regarding the project and also for her support in completing the
project.

I would like to express my gratitude towards my parents and my friends for their cooperation and
encouragement that helped me in completing this project.

Thank you
 Feminist Jurisprudence: An Evolution from Fixed Mindset to a Growing
Mindset

Abstract

Feminist Jurisprudence includes the study of different strands of feminist theory and the themes
that have emerged and developed within feminist thought, as well as the application of theory to
issues that interest members of class. It is the law’s neutrality as the very mechanism that
perpetuates injustices against woman Feminists embrace a view that attempts to challenge the
existing legal status by focusing on what kind of institutions and laws would be necessary to
redress the imbalance against woman in society. It is the very core of our society that the
feminist jurists question. They argue that we must look at the norms embedded in our legal
system and rethink the law. What is "equality" or an "injury" in light of broader understandings
of those norms?

Introduction

Feminism is a set of movement seeking gender equality, a movement to change social, political
and economic rights such as equal wage and the right to access to health and education, and
equal political rights. In India some of the prevalent issues which are to be curbed by feminism
are issues related to employment, globalization, education, sex-select abortion etc. Despite its
efforts, feminism in India is criticized as the movement has special focus on women who are
already privileged and the needs of lower caste women are neglected.

Feminist Jurisprudence

Feminist Jurisprudence includes the study of different strands of feminist theory and the themes
that have emerged and developed within feminist thought, as well as the application of theory to
issues that interest members of class. It is the law’s neutrality as the very mechanism that
perpetuates injustices against woman.

Feminists embrace a view that attempts to challenge the existing legal status by focusing on what
kind of institutions and laws would be necessary to redress the imbalance against woman in
society. It is the very core of our society that the feminist jurists question. They argue that we
must look at the norms embedded in our legal system and rethink the law. What is "equality" or
an "injury" in light of broader understandings of those norms?1

Feminist Jurisprudence helps to points out that what is neutral or natural for one person is a
distortion for another person. Pregnancy, child rearing and other caregiving activities are still
treated in the workplace as peculiar occurrences, rather than what they are: commonplace
functions that serve the larger good. The pervasive influence of patriarchy on legal structures,
demonstrates its effects on the material condition of women and girls, and develops reforms to
correct gender injustice, exploitation, or restriction.

Promoting freedom and equality for women reflects a profound shift in basic assumptions about
the nature of women and their proper place in the world: a shift from inequality to equality of the
sexes, along with re-examination of what equality itself requires.

Origin and Historical Background of Feminism and Feminist Jurisprudence

In India, basically there were three phases of feminism. Unlike the western world, the feminist
movement in India was actually initiated by men. The efforts of the men lead to abolishment of
Sati practice in India. It was meant for the upliftment of women so that they can join forces with
others in the freedom struggle. Post-Independence as the Constitution of India guaranteed
Equality between sexes, there was not much of an uproar about equality as the roles, functions,
aims and desire of women were different. With the increase of globalization and the concept of
personal rights, feminism has taken a new shape in India. It is further explained as-

 1850-1915
The colonial venture into modernity brought concepts of democracy, equality and
individual rights. The rise of the concept of nationalism and introspection of
discriminatory practices brought about social reform movements related to caste and
gender relations. The first phase was able to uproot practices such as Sati and remarriage
of widows, forbid child marriage, reduce illiteracy etc.

1
Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's Perspectives" (1991). Faculty
Scholarship. Paper 111. http://open.wmitchell.edu/facsch/111
 However, efforts for improving the status of women in Indian society were somewhat
thwarted by the late nineteenth century, as nationalist movements emerged in India.
These movements resisted 'colonial interventions in gender relations' particularly in the
areas of family relations. In the mid to late nineteenth century, there was a national form
of resistance to any colonial efforts made to 'modernize' the Hindu family.

 1915-1947
The second stage nationalism became the pre-eminent cause. Gandhi legitimized and
expanded Indian women's public activities by initiating them into the nonviolent civil
disobedience movement against the British Raj. He exalted their feminine roles of caring,
self-abnegation, sacrifice and tolerance; and carved a niche for those in the public arena.
Also, national level organizations such as All India Women Conference (AIWC) and the
National Federation of Indian Women (NFIW) came up in the second phase. These
organizations aimed at issues relating to women’s political rights, leadership and roles in
parties etc.

 Post-Independence
Prior to independence the women in India did not question the societal status of women.
They did not question the various roles that were especially made for women. This
change was seen after independence with the increase of westernization. The
opportunities were demanded for both the genders. The state of Kerela in this regard is
much advanced as compared to other states. This state has the highest literacy rates and
traditionally, before amendment in the Hindu Law, it was a common practice to give
daughters and wives a portion of the property.

 French Revolution
It is one of the most important revolutions in the world. A unique feature of this
revolution is the influence of women. The position of woman within the context of the
French Revolution, and political liberalism, e.g., Divorce and Inheritance Laws2. Liberty.

2
Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's Perspectives" (1991). Faculty
Scholarship. Paper 111. http://open.wmitchell.edu/facsch/111
 One such example is the historical Women’s March on Versailles, on 5 October 1789
crowds of women began to assemble at Parisian markets. The women first marched to the
Hôtel de Ville, demanding that city officials address their concerns. The women were
responding to the harsh economic situations they faced, especially bread shortages. They
also demanded an end to royal efforts to block the National Assembly, and for the King
and his administration to move to Paris as a sign of good faith in addressing the
widespread poverty.

Feminist Jurisprudence and Other Disciplines

Feminist writers criticize the inherent methodological framework used by such legal positivists
as Austin, Hart and Kelsen. As such, traditional command theorist like John Austin, for example,
are questioned for their narrow framework of command, obedience, and sanction as the essence
of the law. Theory of Legal Positivism and Rule of Law is also criticized by feminist jurists.
Contemporary feminist philosophy of law also draws from diverse scholarly perspectives such as
international human rights theory, postcolonial theory, critical legal studies, critical race theory,
queer theory, and disability studies. The view of various jurists are taken into consideration.
Each of them have their argument against the current system, they are as under: -

1. Carole Pateman argue that, “traditional jurisprudence treats citizenship as patriarchal

constructed in the masculine image”. “The story of the original contract shows how
sexual difference gives rise to a patriarchal division of labour, not only in the conjugal
home between the (house) wife and her husband, but in the workplaces of civil society.”
(The Sexual Contract, Pateman, pg.340 Hilaire Barnett).3
2. Catherine MacKinnon sees maleness as the organizing form of what is accepted as
“normal.” MacKinnon is very critical of most forms of equality legislation for being
vehicles of making woman as men, rather than searching for true equality.
“Seeing sex equality questions as matters of reasonable or unreasonable classification is
part of the way male dominance is expressed in law. If you follow my shift in perspective
from gender as difference to gender as dominance, gender changes from a distinction that

3
Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's Perspectives" (1991). Faculty
Scholarship, Paper 111. http://open.wmitchell.edu/facsch/111
 is presumptively valid to a detriment that is presumptively suspect. The difference
approach tries to map reality; the dominance approach tries to challenge and change it. In
the dominance approach, sex discrimination stops being a question of morality and start
being a question of politics.”
MacKinnon's ideas have been influential. She is credited with developing the now
orthodox idea that sexual harassment in the workplace is a form of discrimination. Until
the latter half of the '70s, sexual harassment on the job was not considered an actionable
injury to women, and several national studies showed that it was very common.
3. Margot Stubbs, sees feminist jurisprudence as transcending the positivist conceptual
framework of both liberal legalism (e.g., the rule of law) and Marxist (e.g., law as
reflection of the bourgeoisie class that is the capitalist superstructure). Feminist
jurisprudence seeks to make the connection between Hilarie Barnett’s “woman question”
and “the law”.

Feminism and Feminist Jurisprudence in India

Feminism in India is a set of movements aimed at defining, establishing, and defending equal
political, economic, and social rights and equal opportunities for Indian women. It is the pursuit
of women's rights within the society of India. Feminism can also be understood by way of
religions.

 Hindu Feminism
In the Hindu religion, there has been partial success in terms of gender equality reform
laws and family law. While this is a major advancement relative to other religions in
India, it is still not a complete triumph in terms of feminism and relieving oppression.4
Due to various castes in the Hindu religion, the struggle for feminism has converted into
a struggle for equality of castes. It has been seen that women from a higher caste seen to
benefit more from feminism than the lower caste women.

 Islamic Feminism

4
Narain, Vrinda. Reclaiming the nation: Muslim women and the law in India. Toronto [Ont.]: University of
Toronto, 2008.
 A table turning event was witnessed as a win for feminism in the historical judgment of
Shah Banos’s case5. Shah Bano, a 73-year-old Muslim woman, was divorced by her
husband after forty-three years of marriage. According to the Sharia or Muslim Law, her
husband was not required to pay her alimony. Shah Bano challenged this decision in the
Supreme Court, which ultimately ruled in her favor and ordered her husband to pay her a
monthly maintenance allowance. This caused chaos amongst the Muslim clerics who
denounced the judgments and suggested that their religion, Islam was under attack in the
country.

Obstacles Today Against Feminist Jurisprudence

There are still many obstacles that are to be dealt with by feminist jurisprudence. Some of them
are discussed further.

 Traditional Jurisprudence
Recurring dichotomies that affect women: public/private, agent/victim,
motherhood/sexuality, production/reproduction, nurture/work85. In short, is not so much
that woman have been in a “radically different” relation to the law compared to men, but
rather, feminist jurisprudence concentrates on the inherent inequities fostered by the
methodology of traditional jurisprudence, in particular, legal positivism. Feminists see
the law as the prime source for perpetuating pre-existing gender based inequities,
especially within the framework of capitalism.86 Traditional jurisprudence thus
emphasizes the “rule of law”, not of men. Men are arbitrary and inconsistent, whilst the
“rule of law” could be viewed as a universal, a contextual standard that could be blindly
applied to all society in whatever setting.87 Law’s neutrality as the very mechanism that
perpetuates injustices against woman88 Feminist writers criticize the inherent
methodological framework used by such legal positivists as Austin, Hart and Kelsen. As
such, traditional command theorist like John Austin, for example, are questioned for their
narrow framework of command, obedience, and sanction as the essence of the law.
Feminist writers are also critical of legal positivism for its reliance on discovering law’s
nature as the key to understanding law.

5
1985 SCR (3) 844
  Legal Positivism
Legal positivism is fundamental to the constitution of legal thought. It is a key reason
why lawyers come to accept the official version of law as legal theory, why lawyers tend
not to question the nature and purpose of law but take it as a given. It also helps to
explain why the law comes to assume the status of objectivity and why judges become
the seekers of truth.89 Understand that simply asking for “equality” of rights is not
necessary the answer, and actually perpetuates a legal system that is already embedded
with male dominated assumptions to find solutions for woman.”90

Changes Made by Feminist Jurisprudence in India

Due to increase in the feminist movement and growing knowledge about feminism various Acts
are specially made for women rights such as The Immoral Traffic (Prevention) Act, 1956, The
Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986), The Indecent Representation of
Women (Prohibition) Act, 1986, The Commission of Sati (Prevention) Act, 1987 (3 of 1988),
Protection of Women from Domestic Violence Act, 2005, The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.

These Acts are significant proof that feminism exists in India and there are several instances and
amendments made for benefit of women. Hindu Law of Inheritance for women have been
changed in 2005 Amendment. The apex court judgment has now added another disqualification
for women regarding their right of inheritance. Until now, they could not ask for a share if the
property had been alienated or partitioned before December 20, 2004, the date the Bill was
introduced. Thisjudgment makes it imperative for the father to have been alive when the
amendment came into force.91

All that is required is that the daughter should be alive and her father should also be alive on the
date of the amendment,” it said. The court also held that alienation of ancestral property,
including its partition, which may have taken place before December 20, 2004, in accordance
with the law applicable at that time, would remain unaffected by the 2005 amendment, and those
partitions can no longer be reopened by daughters. 92
Besides these changes there can be a significant impact seen on employment. Indian women
were contributing nearly 36 percent of total employment in agriculture and related activities,
nearly 19 percent in the service sector, and nearly 12.5 in the industry sector as of the year 2000.
There has been a significant change in the participation of women at schools, this shows an
increase in the number of women who are getting educated.

Conclusion

Feminist Jurisprudence is a fight against traditional law which are mostly patriarchal in nature.
One wonders what changes could have possibly occurred had the feminine view was taken in
framing of laws. This project compared the concept of Feminist Jurisprudence with other
disciplines as it cannot be understood in isolation. It aims at celebrating some milestones
achieved by a change in law due to Feminist Jurisprudence globally and in India. This project
aims to study the radical change in mindset of people due to feminism and whether they are
accepting this change.

The various stages of development of feminism in India is seen from 1915 to Independence and
after. There has been a major change in the ideas and role of women in the society. Earlier,
women did not question their roles in society but with the increase in influence by women in
various areas, the revolution has given food for thought, for women to question the ways and
methods of society and why they are the way they are, and to find out a possibility of their
change. Various obstacles for feminist jurisprudence or growth of feminism are also mentioned
and the impact of whatever effort has been made post-independence is also highlighted.
References

1. Supreme Court sets 2005 cut-off on women rights to ancestral property, Utkarsh Anand,
The Indian Express, Nov 2, 2015< http://indianexpress.com/article/india/india-news-
india/supreme-courtsets-2005-cut-off-on-women-right-to-ancestralproperty/
#sthash.Gyd1AEsu.dpuf>
2. Juergens, Ann, "Feminist Jurisprudence: Why Law Must Consider Women's
Perspectives" (1991). Faculty Scholarship. Paper. http://open.wmitchell.edu/facsch/111
3. Feminist Jurisprudence (Law 815-001 A and B) Fall 2010 Professor Ann Shalleck