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Feminist Philosophy Of Law

"Woman was the first human being that tasted bondage. Woman was a slave before slavery existed"- (Friedrich Engels in his classical writing "Origin of the Family, Private Property and the State)

The word "feminism" means belief in social, economic and political equality of the sexes. It has its origin in the West but feminism has been successful in manifesting itself all over the world, represented by various institutions and organizations and individuals who remain committed to struggle for women's rights and interests. Some of the early feminist thinkers include French philosopher Christine de Pisan who challenged the social restrictions on women and pushed for women's education and Mary Wollstonecraft in the 18th century England. She wrote a book called "A Vindication of the Rights of Woman" which gained immense popularity in the English-language feminist philosophy.

Feminist philosophy is an approach to philosophy from a feminist perspective. It came to be labelled as such during the second and third waves of feminism in 1960s and 1970s.

Feminists have tried to reinterpret every subject, including law. Feminist philosophy of law, also known as "Feminist Jurisprudence", ventures on analyzing the circumscribing influence of patriarchal ideals and notions that prevails in legal structures and demonstrates the effects of such legislations on girls, women and non-binary communities.

It is a conceptual revision of the position of women in the world, their innumerable years gone under oppression of the dominant males and their views and a shift towards equality through law. Some of the aspects of the life of women like political equality, immigration, and citizenship; marriage, reproductive rights, and commodification of the body; protection from violence; and economic rights have undergone changes only after prolonged struggle and activism.

Themes of Feminist philosophy of Law

The feminist legal theory varies considerably on the basis of methods, presumptions, approach models etc. At present, there are 5 models of approach to study feminist jurisprudence- the liberal equality model, the sexual difference model, the dominance model, the anti-essentialist model, and the postmodern model. In addition to these, there are radical, socialist, Marxist, transnational and cultural models as well.

In spite of the differences, some common grounds of belief exist among the feminist philosophers. The primary assumption of equal worth of all human beings and their claims to such entitlement of moral worth and equal treatment under the law, the dominance of patriarchal conditioning of minds, criticism of traditional views of legal reasoning, liberty, consent is found in all the approaches.

Feminism in India

India is a land of diversity. This is what comes to our mind when we think of our diverse culture, languages, differences and also, when we start looking at the obstacles faced by Indian women. Truly distinct, these roadblocks are not found in the West. Indian women negotiate survival through an array of oppressive patriarchal family structures: age, ordinal status, relationship to men through family of origin, marriage and procreation, and patriarchal attributes.

To name some notable early Indian feminists with exceptional contributions, we have had Ishwar Chandra Vidyasagar, Raja Rammohan Roy, Dwarkanath Ganguly, Dr. Kadambini Ganguly, Rabindranath Tagore, Mahatma Gandhi, Dr, B.R. Ambedkar, Jyotirao Phule, Savitribai Phule, and so forth.

Impact of Feminist Philosophy on the Indian Legal System

The first sign of feminism in the Indian legal system was noticed when the Age of Consent was proposed to be increased to 12 years of age for girls in 1891 by the British government. Finally, it was pegged to 18 years of age in 2013.

In terms of family laws, The Hindu Marriage Act of 1955 completely took a different course and fixed the dichotomies of age of marriage, divorce and maintenance for women, bringing them at par with men. The Hindu Adoptions and Maintenance Act of 1956 gave equal rights to a woman willing to adopt and also get maintenance for the family of the husband for life time as per the amendment. The Hindu Succession (Amendment) Act of 2005 was enacted to remove gender discriminatory provisions in the Hindu Succession Act, 1956. Under this amendment daughters got equal rights in their ancestral assets.

The Dowry Prohibition Act, 1961 (Amended in 1986) was enacted to prohibit the crime of asking for dowry from the wife's family and the harassment that follows. The Commission of Sati (Prevention) Act, 1987 stopped the practice of sati which compelled a widow burn to death in the same funeral pyre of her dead husband. Other important women centric legislations include the Immoral Traffic (Prevention) Act of 1956, the Indecent Representation of Women (Prohibition) Act of 1986 and the Protection of Women from Domestic Violence Act of 2005.

In India, the process of "constitutional feminism" has brought about constructive changes in the legislations in the last two decades. Several landmark cases have uplifted the condition of women. A few of such cases are listed below-

Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945: The Supreme Court delivered a judgment favoring maintenance given to an aggrieved divorced Muslim woman.

Shayara Bano v. Union of India (2017) 9 SCC 1: The Supreme Court helf the practice of unilateral irrevocable form of divorce, also known as Triple Talaq, to be unconstitutional and invalid. The Government of India has enacted a legislation to curb the menace.

Vishakha v. State of Rajasthan AIR 1997 SC 314: The Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of working women in place of their work until legislation is enacted for this purpose. The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013 was enacted afterwards.

Geeta Hariharan v. Reserve Bank of India AIR 1999 SC 1149: In this case, the Supreme Court held that the mother can act as a natural guardian for their children.

Bodhisatwa Gautam v. Miss Subhra Chakraborty 1996 SC 490: The complainant was a victim of rape, misrepresentation, fraud and forced abortion, all of which was perpetrated by a man. The Supreme Court awarded interim compensation to the victim until the trial ends and also directed the National Commission for Women to evolve such a scheme so as to remove the sorrows and pains of all such victims.

In 2012, we got gender-neutral legislation for the protection of children against sexual offences. POCSO fixed the age of consent for both boys as well as girls at 18.

The Criminal Law Amendment Act, 2013 amended as well as inserted new sections in the Indian Penal Code with regard to sexual offences. Some of the new offences recognized by the Criminal Law Amendment Act are acid attacks, voyeurism, stalking, intentional disrobing of women and sexual harassment.

The list of amended legislations goes on including the Maternity Benefit (Amendment) Act of 2017, the decriminalization of adultery (section 497 of the IPC) and the Maternal Termination of Pregnancy Act of 1971.

The provisions in Directive Principles about equal entitlement to livelihood, equal pay for equal work, protection against moral and material abandonment, maternity leave, nutrition, equitable distribution of material resources of production and respect for international conventions have significant value in expanding the horizon of constitutional feminism.

LGBTQIA+ and the feminist philosophy of law.

At the inception, we cleared the fact that the traditional laws which disregarded women's perspective had cascading effects on girls, women and non-binary communities. In fact, the women's movement and the LGBT were allied from a very long time. The common grounds were specific- equality of the sexes and the right to digress from supposedly natural role models, both externally and in sexual preferences. The homosexuals formed the alliance with feminists with the hope of fighting against the marginalization of an entire community with the support of a broader movement for equality like feminism. The right to be different, denouncing the heterosexual norms and same sex love became a political weapon against patriarchy. Thus, new identity struggles and pluralism in the feminist philosophy came to be known as "queer feminism". In India, homosexuality was decriminalized in the case of Navtej Singh Johar v. Union of India in 2018.

Conclusion
According to Cynthia Bowman, professor of feminist jurisprudence at Cornell Law School, in law school, most of the time we have to read appellate cases, search for the rule. An appellate case is a distilled version of the dispute which started out much broader and got narrowed down. A feminist scholar will ask for the context, the parties and the facts to think about the legal questions. It is not always about the dichotomy, "Who wins?". Many subjects are being included in the legal curriculum, thanks to the feminist philosophy. The struggle for the emancipation of the sexes through reform of law will not be over until the goal of equality is achieved.

References:
  1. Francis, Leslie and Patricia Smith, "Feminist Philosophy of Law", The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.). https://plato.stanford.edu/entries/feminism-law/.
  2. Brunell, L. and Burkett, Elinor. "Feminism." Encyclopedia Britannica, September 23, 2020. https://www.britannica.com/topic/feminism.
  3. Bowman, Cynthia, and Vicki Quade. "Redefining Notions: Feminist Legal Theory Pushes into the Mainstream." Human Rights 20, no. 4 (1993): 8-11. Accessed March 5, 2021. http://www.jstor.org/stable/27879789.
  4. Dr P. Ishwara Bhat, "Constitutional Feminism: An Overview" (2001) 2 SCC (Jour) 1
  5. Hemanth More, "Changes brought about by the Hindu Marriage Act, 1955" 22 Aug, 2019.https://thefactfactor.com/facts/law/civil_law/family_laws/hindu-laws/hindu-marriage-act/2762/.
  6. Ashima Obhan and Vrinda Patodia, "Women Centric Changes In Indian Law" 05 April 2019. https://www.mondaq.com/india/human-rights/795312/women-centric-changes-in-indian-law.
  7. Mohd. Aqib Aslam, "Feminist Jurisprudence and Its Impact In India: An Overview" http://www.legalserviceindia.com/legal/article-1859-feminist-jurisprudence-and-its-impact-in-india-an-overview.html#:~:text=Feminist%20jurisprudence%20is%20a%20philosophy,workplace%2C%20and%20gender%20based%20discrimination.
  8. Miriam Gebhardt, "The Right To be Different". https://www.goethe.de/en/kul/ges/20876203.html
  9. Feminist Legal Theory: https://en.wikipedia.org/wiki/Feminist_legal_theory.

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