Unit III:

Law, State, and Women

GE-9 – Women and Politics in India: Concepts and Debates
Aditi Gupta
Assistant Professor
Department of Political Science
Lakshmibai College
University of Delhi
 1. Ratna Kapur & Brenda Crossman (1999)
‘On Women, Equality and the Constitution:
Through the Looking Glass of Feminism’ in
Part 1: Law and Nivedita Menon (ed) Gender and Politics in
India, Oxford University Press.

Women
2. Catherine MacKinnon (2006) ‘Sex Equality
under the Constitution of India: Problems,
Prospects and Personal Laws’, International
Journal of Constitutional Law, Volume 4,
Core Readings Issue 2, 181-202.
3. Ved Kumari (1999). ‘Gender Analyses of
Indian Penal Code’ in Amita Dhanda,
Archana Parashar (eds). Engendering Law -
Essays in Honour of Lotika Sarkar, Eastern
Book Company, 139-160.
Sex equality under the Constitution of India: Problems,
prospects and “personal laws” by Catherine A. MacKinnon
Subject Matter:
1. Equality rights through family law to women of disadvantaged religious minorities under the
Constitution of India and international law
2. Criticism of the legal model of equality (predicated on sameness and difference, predominant
around the world)
3. Development of an alternative model, addressing dominance and subordination – ordinal
hierarchy
a. Illustrated through discussion of the Supreme Court of India’s jurisprudence
b. Identification of the failure to apply this model to family law
4. Proposal of a new solution to the difficult problem of guaranteeing sex equality rights to
Muslim women under India’s “personal laws”
Western Legal Model of Equality → Equality in Law
● Treating likes alike, unlikes unalike (Aristotle) → Sameness and Difference
○ Unreasonable and arbitrary to treat equal people unequally and unequal people equally
● Formal Equality → seeks to solve misclassification
○ Treating people the same who are accurately classified as similar
○ Treating people differently who are accurately classified as different
● Either explicitly or tacitly accepted as obvious content of equality
○ International law and European Union law
○ Guides the interpretation of the United STates Constitution’s equal protection clause
○ Defined the Supreme Court of India’s application of article 14 of the Constitution
● Useful in addressing inequality problems + producing social equality through legal
equality
● While formal equality posits that law reflects reality, Substantive equality may require
social change
Criticisms of the Western Legal Model of Equality
1. Makes it fair to not treat women as equal if one does not see women as full human equals
- Western model of equality was not solving women’s inequality to men → it was
imagining women as different, which translated into “inferior”
- Rationalization of systematic social inferiority by terming it difference
- Paradox: Image of women placed on a special pedestal or specially protected for their
differences + Reality of being widely violated and exploited with widespread impunity
2. Not predicated on understanding that women are men’s equal but kept pervasively unequal
by social orderings
- Most widespread social inequalities faced by women have been imagined as women’s
differences from men and hence not inequalities
- Social subordination (confinement to homes) → actual differences (lessened access) +
perception of differences (stereotyping and internalized oppression)
- Socially imposed inferiority
- Treating someone who has been deprived of educational advantages as less educated
Criticisms of the Western Legal Model of Equality
1. Being defined as different can (under the traditional equality model) result in being treated
worse, or as less (without that treatment being regarded as unequal)
- Violence against women seen as inevitable or criminal but not as unequal (unlikes are,
in Aristotle’s terms, simply being treated unalike)
- Different work of comparable value done by women is paid less than men’s
- Disadvantageous treatment attached to potentially/actually pregnant women
- Women can be subordinated to men, as consistent with equality rules, because the
treatment is seen as equal treatment for equal differences
- Domination and subordination – which form a hierarchy – can and do exist with sex equality rules
2. Formal equality can be a way to maintain unequal status
- rather than providing a means for ending hierarchical arrangements
- Ends are marginal
- 33% reservation for about 50% of population, 1 Ladies Compartment in Metros
Criticisms of the Western Legal Model of Equality
1. Not designed to work for those who have not escaped their status
- People who are already equal can most readily claim injury when treated an
unequal
- Not impossible to make the model work for some equal ends on the margins with sufficient
ingenuity + benevolent determination + smart lawyering
- Just as possible to use this theory to entrench existing social inequalities,
especially where the vision and will to produce equality are lacking
- If an equality doctrine can go either way, is it really an equality doctrine? If it depends on the
goodwill and commitment to work, it will be able to fail
- When is the equality paradigm going to dismantle large group-based inequalities?
2. Equality theory is structured to reward sameness with a dominant standard as its
approach to promoting equality
- Logical application → deepest widespread inequalities inflict the greatest
damage + most socially institutionalized
Substantive Equality as an Alternative Conception
● Opposite of equality is not difference but hierarchy
○ Equality requires promoting equality of status for historically subordinated groups → dismantling group
hierarchy
● Alternative contextual notion as standard for measuring the constitutional equality
○ Neither premised on sameness nor negated by difference, either punishing difference nor privileging
sameness, but targeting concrete, historical, social hierarchy
● Problem = members of socially subordinated groups often are not “similarly
situated”, often precisely because of their inequality
○ When inequality is socially institutionalized, it creates distinctions among people that can themselves
serve as reasons for treating people worse not only will appear to be, but indeed will be, reasonable and
not arbitrary at all
● Solution = the law promotes equality for subordinated groups by ending
subordinating practcies that promote group-based disadvantage
Substantive Equality as an Alternative Conception
● Courts are well-suited to apply this approach because it is precisely concrete
historical reality that comes to courts through the facts of cases they adjudicate
○ Requires courts to look at the reality of social hierarchy, not away from it
● Sexual harassment law
○ Being in a subordinated position was not a sex difference that justified sexual abuse but was rather a
violation of sex equality rights
○ Is sexual harassment sex discrimination?
■ Sexual harassment is a practice of subordinate social status → act of unequal treatment
India’s equality jurisprudence
● Substantive notion of equality = producing equality in substance at its point of arrival
○ Classification theory cannot be the end-all of equality
○ Equality is a “dynamic concept with many aspects and dimensions…”
● Prominent cases on caste
○ Indra Sawhney + EV Chinnaiah → Our constitution permits application of equality clause by grant of
additional protection to the disadvantaged class so as to bring them on equal platform with other
advantaged class of people
● Cases on women’s rights
○ Taking the social context of sex-based disadvantage into account
○ Jurisprudence upholding sex reservations in employment and discrimination favourable to women
○ Sexual harassment rulings in Vishakha and Chopra drawing on international law
○ Decisions on equal pay and comparable worth
○ One case that recognizes that prostitution is anathema to sex equality
Indian Constitutional Equality: Alternative to Western equality Law
● India’s constitutional text holds great potential for ameliorating the subordination of
women to men
○ Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them
(2) No citizen shall, on grounds of religion, race, caste, sex, place of birth or any of them, be subject to
any disability, liability, restriction, or condition with regard to access to public places
(3) Nothing in this article shall prevent the State from making any special provision for women and
children
■ recognizes that sex has been made into a social disadvantage for women, in violation of the
equality principle
■ Substantive recognition of women’s unequal social status by permitting special provisions to
rectify their inequality
■ Steps to end the hierarchy of men over women are not case as violations of an equality rule
Personal Laws as Exception to India’s Equality Doctrine
Real potential for furthering women’s social equality through law → resolving the difficult
political and legal questions presented by India’s “personal laws”
● Concern = judicial reluctance to apply sex equality principles to the personal laws
○ Courts often permit sex-based distinctions to women’s disadvantage in the family area
■ Court has invalidated a rule that required a woman, but not a man, serving in the IFS to obtain permission
to marry from the government
● Even when legal decisions in the family area favour women’s equality in their outcomes
(Shah Bano, Daniel Latifi) courts resist predicating the results on sex equality grounds
○ Shah Bano Case 1985 – divorced Muslim woman’s right to maintenance
○ Sarla Mudgal case 1995 – court voided the second marriage of a former Hindu man who converted to Islam on a
statutory ground
○ Danial Latifi case 2001 – situation in which divorced women are unable to maintain themselves – “ reasonable
and fair provision and maintenance within the period of iddat by her former husband”
Personal Laws as Exception to India’s Equality Doctrine
● Hindu Succession Act, 1996 – property partition provisions – sons can block division
of property on sale of a dwelling by living in it
● (Githa Hariharan’s case) Hindu Minority and Guardianship Act – father as natural
guardian, mother only “after”
○ Mother was the child’s guardian only in lieu of the father, not in her own right
● Christian personal laws – different grounds for divorce for men and women
○ Men being permitted to divorce on a single ground, while women were required to have more than one
● Muslim Personal Laws
○ Women required to be monogamous, while a husband can have up to four wives
○ Allow husbands but not wives to divorce unilaterally without fault
○ Institutionalise dower arrangements that arguably amount to selling women in marriage
○ Grant male heirs twice the share of female heirs
○ Do not allow mothers to be guardians of minor children
Pervasive Reluctance to recognize Equality Rights in the Family
● Courts leave determinations of family life to religion than constitutional sex equality
○ Madhu Kishwar case– invalidating existing law “would bring about a chaos in the existing state of law”
■ If existing law is unequal, requiring it to be equal will no doubt be unsettling
● Reason behind the reluctance to apply sex equality principles to personal laws
○ Sex equality is a Western and hegemonic idea that shows insufficient respect for cultural diversity
○ Distorts and insults the indigenous movements of women for equality everywhere
● Underlying reason for reluctance to invalidate sex-biased family laws = these laws
involve the family → “personal” sphere
○ Family = site of violence against women = sphere of sex inequality under law exempt from intervention
■ Family is publicly regulated to women’s disadvantage
○ States are far from uninvolved in this so-called personal sphere
○ Once entered, the state has to enter on a sex-equal basis
Reluctance shared by Patriarchal Cultures
● Most cultures are male dominant
● Courts seem not to wish to recognize that the family is a sphere of sex inequality under law, sex inequality
within it and on dissolution has been effectively exempt from legal sex equality intervention
○ Family as an institution of male dominance is preserved by the law as another institution of male
dominance
○ Personal laws often serve to legalise this dominance of men over women in forms particular to each
religion
■ Unilateral divorce by men in some
■ Inadequate maintenance after divorce in another
■ Inheritance by men only in another
■ Sex-biased ownership and control of property
■ Succession rules in others
■ Multiple marriages only for men
■ Custody of children to men only on dissolution in another
● Male dominance, that is sex inequality, in culturally specific and religiously rationalized form sustains
Construction of “Personal” Laws
● Sexual harassment was long regarded as personal in that when a man sexually harassed a woman, it
was treated as simply between him and her
○ Because it is sexual, it is private, intimate, and individual → unsuited to legal regulation, which
is public, institutional, and categorical
● When law and treatment are based on sex, there is nothing properly personal about them
○ What is denominated the personal is often precisely where sex inequality of women to men is
crucially enacted
○ Once it is recognized that the family is a terrain of sex inequality, calling the law of that arena
personal is revealed as little more than a way of precluding women’s assertion of equality there
● Personal laws are legislated. The state may or may not be the ultimate source of their authority, but
it has made them legally and socially authoritative and has given its authority to them.
○ If authoritativeness of the personal laws were other than legal, there would be no need to
legislate them. Instead, the so-called personal laws are defined as off-limits to judicial
intervention when challenged by those they hurt and are otherwise officially and judicially
enforced like any other law.
Relationship between Law and Sex and Gender Inequality
The Law working with “Personal” laws are code for
Law
masculinist assumptions and exemption – an exemption deal
perpetuating men made with one another –
excluding women from
accessing structures of power inequality that some men will allow other
men to relate to women on their
own terms in exchange for those
other men’s allowing the others
Law’s contact to have the same relation to their
women on their own terms –
with Sex and
commonality among men as
Gender supreme relative to women
inequality

Law The Law working against

preventing masculinist assumptions and
inequality including women within the
structures of power
Difficulty of substantive anti-hierarchical theory of equality
● Substantive equality
○ Highlights who is doing what to whom, who benefits, and at whose expense
○ Rectifying subordination at its point of origination
● Women subordinated within subordinated communities → when the claim is made that the
subordinated community would be denied self-determination, sovereignty, or equality by
intervention in its cultural forms of subordinating women
○ Colonialism – white man’s burden of bringing civilizational conduct to the colonies
■ Because you treat your women in a savage way, you do not deserve freedom
■ Protecting the virtue of white women was the pretext for instituting draconian measures
against indigenous populations in several parts of the Empire. In Papua, New Guinea, a law
was passed – called the White Women’s Protection Ordinance – which made any ‘native’
convicted of rape or even attempted rape of a European female liable to the death penalty.
○ Discourses on the prohibition of widow burning in 1829
■ Lata Mani argues that the women who were burned were marginal to the debate and that the
controversy was over definitions of Hindu tradition, the place of ritual in religious worship, the
civilizing missions of colonialism and evangelism, and the proper role of the colonial state.
Charge against White Feminism
● Western feminism functions to justify attack on minority religions to support the superiority of the
West and to legitimize its intrusion
○ French ban on “face covering” – alleged forcing of women to cover their faces is sexist and Muslims who continue this
practice should be forced to assimilate into traditional French social norms – choice of women to decide whether to dress
according to standards of modesty?
○ Power of race in interracial intimate relations between white women and black men
■ black-on-white rape in the South – accounts of lynching or manifestly unfair trial proceedings
■ white southerners invariably responded with extralegal violence and sham trials when white women accused
black men of assault
○ American interventionism in western Asian Islamic republics
■ leaders enlisted their wives, Laura Bush and Cherie Blair, in the propaganda war to “lift the
veil” on the Taliban
■ support of the war to secure a “brighter future for women’s rights”
■ Orientalist civilising rationale to manipulate a war-averse public into supporting military
escalation in Central Asia
■ fantasy of “rescuing” veiled women from their repressive captors, from the wrath of the “bearded
terrorists”, as it “liberates America” from their terrorism
■ Unclothing the muslim women as the white woman’s burden
Concern for the Principle of Cultural Particularity
● Cultural insensitivity instead of Cultural Relativism
○ Cultural relativity (sometimes called cultural relativism) is a position, developed by early
anthropologists, that states we must understand individuals in the context of their own culture.
In other words, we can't judge what others do based on the standards of our culture, but on the
standards found in their culture.
● Charge against Colonialist Cultural Intervention or cultural imperialism
○ Can sometimes wrong people have the right idea, even if they express it in appalling ways
■ 11 year old Phulmani Bai, 1891 – died from sexual intercourse with her husband →
parliamentary initiative to raise the age of marriage from 10 to 12 → opposed by many
who favoured it because it was seen as British interference into the religious affairs
● Question is of disentangling male dominance from cultural survival, so that cultures can freely
flourish and women can too
○ Diverse standards for diverse communities are not the problem; standards that subordinate women to men are
Nature of Implementation of the Uniform Civil Code
● Reform has to come from within rather than being imposed from without
○ “Judicially enforcing on [each religion or culture] the principles of personal laws applicable to others,
on an elitist approach or on equality principle, by judicial activism, is a difficulty and mind-boggling
effort”
○ assumes that equality means uniformity when it should be understood to mean non-subordination
○ Women of each religion who decide must of of their cultures ← no cultural imperialism
● Enactment of UCC pursuant to DPSP 44 that provides for sex equality in all respects
○ With its use optional at a woman’s discretion, including as relief for proven sex inequality in a
community’s personal law
● Any woman who chose to could be governed by the code provision instead of the
religious one, in order to promote sex equality
○ Women who wanted to be governed by the personal laws of their communities would be
○ Any woman, of whatever community, who wanted to choose sex equality could
○ They would simply decide for themselves while legal regime to elect
Religion as an intersection - India’s Family Law/Personal Laws
● India’s reservation to CEDAW (Convention on the Elimination of All Forms of
Discrimination Against Women)
○ That family laws not be imposed on minority communities except at their initiative and not
without their consent
● Sex-equal family law to be available to all religious communities – at the
initiative and with the consent of the women of those communities
● Promoting a change from within → equality in substance
○ No application of sex-discriminatory legislation as if it were consistent with sex-equality
guarantees
○ Avoids the statutory interpretations that rationalise laws that discriminate on the basis of sex and
religion combined
○ Secular judicial bodies would no longer offend religious communities by construing the meaning
of their rules
Religion as an intersection - India’s Family Law/Personal Laws
● Limitations of the proposal = burden of claiming and exercising the rights is on
women individually
○ social coercion
○ community costs
● Risk to each woman in electing her sex equality rights, but she would not be alone; on
the assumption that many women would so elect
○ Results would not be group-based in their grounding but also in their results
● Women know well what to do with choices, even those with risks, so long as the
choices are materially real
○ Preconditions for the realistic exercise of the choice
○ Men of each religious culture no longer doing all the speaking for the culture as a whole, what is
cultural and what is male in each culture would quickly become visible
Catherine MacKinnon’s
conceptualization of Sex
Equality has to do with how law
treats sex discrimination’s
intersection with race, class,
sexual orientation, age, and
ethnicity.
Other important resources
● The Swaddle’ In Perspective podcast episodes relevant for thinking about the
relationship between Indian Women and the Law-State paraphernalia
○ Humane Approaches to Imprisonment, Invisibilizing Women Prisoners in India, and more with Dr.
Mahua Bandyopadhyay
○ The Fear of Women Filing ‘False Cases’, Child Sexual Abuse Laws, and More with Priti Jha
○ The Mumbai Bar Dancer Ban, Rethinking Sex Work, and more with Dr. Chaitanya Lakkimsetti
○ Naga Feminist Narratives, How Militarisation Impacts Women, and more with Prof. Rosemary
Dzuvichu
○ How Torture is used to Exercise State Power, Thangjam Manorama’s Murder, and more with Dr. Jinee
Lokaneeta
○ Decolonising Data Privacy, Digital Leisure, and more with Dr. Payal Arora
● The Concept Talk Show with Dr. Vikas Divyakirti
○ Uniform Civil Code: Meaning, History and the Hindu Code Bill: Part 1
○ Muslim Personal Law, Minority & Tribal Laws and Uniform Civil Code: Part 2
Other important resources