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CONTOURS OF CHANGE: FEMINIST JURISPRUDENCE AND ITS INFLUENCE ON INDIAN LEGAL LANDSCAPE

By Shreya Lal


a pen with jurisprudence written on it

"In the grand theatre of Indian law, enter Feminist Jurisprudence, armed with the mighty pen of justice and a script that aims to rewrite the patriarchal plot. Picture this: the legal system draped in feminist flair, where statutes wear high heels, and courtrooms echo with the sound of shattering glass ceilings. In this groundbreaking performance, the scales of justice are not just balanced; they're accessorized with gender equality bling. No longer is Lady Justice blindfolded; she's now rocking a pair of feminist glasses, seeing through the gender biases that have lurked in the shadows for centuries.

But wait, there's more! The legal jargon has undergone a makeover too. Terms like 'spousal support' are so last season; now it's all about 'partnership parity.' Alimony is passé; we now have 'gender-neutral financial emancipation.' The courtroom drama unfolds with lawyers passionately arguing for the emancipation of legal lexicon, liberating it from the clutches of gendered stereotypes. Yet, in this utopian legal realm, some sceptics wonder if we've entered an alternate universe. Could it be that the fight for equality is just a clever ruse to distract from the real issues? Are we witnessing the birth of 'Jurisprudence Chic,' a fleeting trend that will soon be overshadowed by the next legal fad?

As the curtain falls on this satirical play, the audience is left pondering: is feminist jurisprudence the hero we need, or just a well-dressed distraction in the grand masquerade of legal reform?"

 

"Prelude: Feminist Jurisprudence Reshaping the Legal Landscape in India"

India has a rich history of women's rights activism, dating back to the early 1970s and even earlier, during the colonial struggle against British rule. However, some argue that women's involvement in these movements was often driven more by nationalist objectives than a specific focus on women's rights. The colonial-era social reform movements led by the middle class also aimed at safeguarding women's interests but were influenced by imperial motives. To grasp this transformation, it is essential to understand the concept of "gender" and its nuances. Cotterrell argues that studying legal change requires an exploration of both the doctrine and its social, economic, and political contexts. The study aims to analyse the changing situations for both men and women as citizens, considering their fundamental and legal rights in specific circumstances, necessitating a re-examination of the position of law and gender justice. India has shown international support for the broader theme of women empowerment, evident in its commitment within the G20 community. Efforts have been made to address gender disparities in labour markets, recognizing that such disparities are not just mechanical but deeply rooted in societal stereotypes and norms. Achieving gender equality requires holistic approaches at both national and international levels. The 2019 G20 summit highlighted two key themes: the role of women in achieving sustainable development growth and inclusive economic growth.

In July 2018, a significant feminist jurisprudence issue arose when twenty-year-old Sarita petitioned the Supreme Court of India for approval to terminate her pregnancy at twenty-five weeks. As a survivor of domestic violence and dealing with health complications from epilepsy, Sarita's case highlighted the challenges faced by women seeking reproductive autonomy. Despite citing the recent recognition of the right to privacy as a fundamental right in the Justice K.S. Puttaswamy (Retd.) v. Union of India case, Sarita's plea was denied with troubling remarks from the bench. This instance contrasts with progressive decisions in the past decade that acknowledged women's rights in reproductive matters. While various judgments recognized constitutional protections for women's reproductive health and autonomy, including abortion, the legal framework remains conditional. The Medical Termination of Pregnancy (MTP) Act, rooted in the colonial-era Indian Penal Code, imposes limitations on abortion, and the judiciary has refrained from challenging the criminalization of abortion itself. Despite the recognition of reproductive rights within the right to privacy, recent judgments like Navtej Johar v. Union of India and Joseph Shine v. Union of India emphasize the court's duty to strike down laws perpetuating discriminatory stereotypes and impeding women's sexual autonomy. This prompts a call for a revaluation of the conditional right approach under the MTP Act and challenges the continued criminalization of abortion in India. In the realm of feminist jurisprudence, these cases collectively advocate for a comprehensive review of gender stereotypes embedded in abortion laws, advocating for a more equitable and rights-based approach.

The prevailing notion of "biological determinism" has historically served as the predominant explanation for delineating the distinctions between human females and males. In common discourse, the terms "sex" and "gender" have often been treated interchangeably. However, within the realm of feminist jurisprudence in India, there has been a persistent challenge to this perspective. Many theorists argue that the biological factors, encompassing anatomical differences and physical characteristics, must be distinguished from sociological factors such as social roles, societal positions, behaviour, and personal identity. Early philosophical perspectives, exemplified by Geddes and Thompson (1889), contended that an individual's physical disposition played a pivotal role in shaping their social, psychological, and behavioural traits. For instance, women were frequently categorized as anabolic, associated with a passive and conservative nature, while men were labelled as katabolic, reflecting a passionate demeanour. This physiological differentiation not only impacted behavioural roles but also influenced social and political structures, as highlighted by the assertion, "What was decided among the prehistoric Protozoa cannot be annulled by Act of Parliament"

 

Gender and Jurisprudence-The two facets of the curtain

The understanding of "sex" and "gender" has undergone a transformation over time, especially within the context of feminist jurisprudence in India. The exploration of gender-related questions has progressively found its place in interdisciplinary studies, challenging traditional notions and fostering a more nuanced and rights-based approach. The landscape of socio-legal discussions concerning gender rights in India has undergone significant transformations in recent decades. While a notable shift is evident in contemporary women and law scholarship, this area has been explored not only by legal scholars but also by sociologists, historians, and political scientists who have played instrumental roles in reshaping the socio-legal analysis of women's issues.

According to current scholars, the progressive stance on matters related to marriage and intimate relationships does not involve organizing society based on a unilinear approach. Instead, it revolves around principles such as allowing every individual, especially women, to shape personal relationships through their individual freedom and choice. This approach goes beyond adhering strictly to what is prescribed by personal laws. It also emphasizes legal validation of these individual choices and advocates for a rights-based framework to safeguard the rights of women. Oxfam underscores the significance of gender justice as a human right, asserting that every woman and girl is entitled to live with dignity. The organization emphasizes that gender justice is not only essential for the development of society, poverty reduction, and human progress but is also integral to feminist jurisprudence. Within this legal framework, the focus is on recognizing and protecting the rights of women, ensuring that their choices in personal relationships are legally valid and that they can exercise their individual freedom without constraints imposed by traditional norms or legal constraints. The issue of marital rape and other crimes against women is deeply intertwined with the principles of feminist jurisprudence and international laws aimed at safeguarding women's rights. In the context of feminist jurisprudence, there is a concerted effort to challenge traditional norms that perpetuate gender-based violence within the institution of marriage. Marital rape, which historically has been overlooked or dismissed, is increasingly being recognized as a violation of women's bodily autonomy and a manifestation of gender inequality. International laws, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), emphasize the need to eliminate violence against women, including within marital relationships. The Istanbul Convention, specifically addressing violence against women and domestic violence, underscores the global commitment to combating gender-based crimes. These legal frameworks underscore the imperative to align national laws with international standards, emphasizing the right of women to live free from violence and discrimination, challenging patriarchal structures, and fostering an environment where women can seek justice and protection from all forms of violence.


To add salt to the Platter

In conclusion, the trajectory of feminist jurisprudence in India reflects a dynamic journey towards dismantling entrenched gender biases and reshaping legal frameworks to champion women's rights. As the nation grapples with evolving social dynamics, the impact of feminist legal thought is evident in landmark judgments recognizing women's autonomy and equality. In the words of Justice Ginsburg, "Women's rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy." The recognition of reproductive rights and the imperative to combat gender-based violence underscore a paradigm shift influenced by international standards. Yet, challenges persist, urging a continued revaluation of laws and societal norms through the lens of feminist jurisprudence.

 

"Feminist jurisprudence in India, akin to a steadfast beacon, illuminates the corridors of justice, unravelling the intricacies of gender bias woven into legal fabric. Its impact, a testament to the transformative power of equitable legal thought, resonates as a clarion call for a harmonious symphony where the scales of justice tip not merely in Favor of equality but dance gracefully to the rhythm of empowerment, dismantling antiquated norms. In this realm, the law becomes a powerful instrument sculpted by the ideals of fairness, challenging the status quo and nurturing a society where the echoes of gender justice reverberate with the harmonious melody of human rights and dignity."



The author of this article is Shreya Lal, a fourth-year BALLB student at University of Mumbai (KLE College of Law).

 

This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).


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