By Supriya Yadav
The current essay is an attempt to analyse whether by incorporating feminist jurisprudence, as a separate and compulsory subject in law schools would lead to internalization of a gender just society. With the introduction of study of feminist jurisprudence in the curriculum an active change can be foreseen in a society, which has traditionally been characterized by stagnancy in its principles. The role of law can be considered as thematic as far as nation building and social reconstruction is concerned.
From time immemorial such issues of societal welfare have inevitably included the social, economic and political conditions and rights of women. Law students can play best the role of a middleman between the society and the rights of women. Promotion of gender justice through the law schools of nation should be perceived as a touchstone towards a greater movement for the cause of women.
Perhaps it would give birth to a fourth wave of feminism with India marching ahead from rest of the world.
An all encompassing concept of feminist movement and jurisprudence
Many scholars have attempted to define “feminist” in relation to law, particularly as it is used in the terms “feminist” legal theory and “feminist” jurisprudence. For many, feminism is understood as a political concept, which tries to explain why and how women are oppressed.
Further, it is construed as a vision of a society in which women are liberated and sex role stereotypes are obliterated, and is also characterised by a conviction thatthe oppression of women is a primary contradiction in society.
But the feminist movement have been type-cast into dealing with certain substantive commitments like equal pay, the end of sexual harassment in the workplace, protection for victims of domestic violence, a woman’s right to choose an abortion, and equality in family life. But the movement stands for a lot more apart from what has been mentioned. Feminism is a movement that professes the desirability of social change.
Surely a movement committed to social change is not indifferent to the substance of that change. The role of law comes into light at three stages, that is, judicial, law-making and at the time of empowerment at the grass-root level-root level. The Supreme Court of India tended to prefer a classificatory approach to equality as more and more challenges to state action were brought under the equality clause. The emergent doctrine was one of ‘reasonable classification”.
If the classification was based on “intelligible differentia” and if it had a “rational nexus” with the object of the state action, the Court would negative any challenge founded on the equality clause. In the late 1970s, the Apex Court gave a new look to this doctrine. Arbitrariness, the new doctrine propounded, offended equality. Anything that was arbitrary was antithetical to the constitutional guarantee of equality.
All such clauses have been raised before the court to protect the integrity and dignity of women. The Apex Court has drawn from this integrationist-model to sustain reservations for women made under such clause.
Although the Constitution of India has granted equality to women and further empowered the State to make positive discrimination in favour of women for neutralizing the cumulative socio-economic, educational and political disadvantages faced by them, there are still some areas where rights of women are not fully secured by laws and there are laws which are either discriminatory against women or provide a weak enforcement and punishment mechanism which do not deter the recurrence of crimes against women.
Self-help groups of women have been found to be very effective grassroots institutions in facilitating access for women to means of development, be it information, financial and material resources or services. The ‘self-help group’ mode should be encouraged, so that the groups become dynamic change-agents in bringing about empowerment and socio-economic development of women. These feminist movements have come up as foremost step for reformation in the society.
Though the major area where all the feminist movement tries to hit is reforms in law but the other main area where they aspire to achieve success is by striking at the mindset of people. For any transformation to be brought about at the societal level it is as imperative to review the law of the country as to bring about an alteration in the general perception of the people regarding the change.
Law schools with a mission of multicultural social engineering
Students from various parts of the country qualify in the entrance exams for the established and upcoming law schools. They cross the boundaries of various regions, caste, class, religion and sex to come together to study the tools and mechanisms of providing justice to the members of a society. When any differentiation on the basis of sex is prohibited then why not consider the gender issues.
A gender issue is different from sex as the term gender carries with itself the disadvantages of belonging to a particular sex. Thus such omission on the part of lawmaker can only be rectified if the legal advisor is sufficiently aware of such differences. The duty to fill the gap between a society and its social objectives can be best done by the law schools.
The various seminars, workshops and diploma courses can strategically canvass the attention of people from all walks of life and especially legal field to the persisting social issues. Presence of one legal aid cell and a gender justice committee is a common feature of almost all the law schools.
Such initiative combined with the special knowledge imparted to students under feminist jurisprudence would engineer a society with more tolerance towards the fellow human being who is differentiated singularly on the basis of their sex. The current scientific and methodical study of law can easily internalize the concept of equality as enshrined under Article 14 of the Constitution of India.
Perhaps, if certain measure is taken to ensure a developed teaching approach and faculty then the subject can be made more interesting for students. A student’s enthusiasm should also be aroused through the dynamic mode of teaching and also field work. Field work would give the students an opportunity to apply their knowledge to real life situation. Such opportunities for application of law during the course of their study can easily be seen in any of the law schools.
Conditions Making Feminist Jurisprudence a Prerequisite in Law Schools for a Non-Ambivalent, Well-Defined and Positive Step Towards the Hallmark of Equality
Women were the ‘other sex, relegated to the control and sovereignty of the husband. Thus, men were the subjects of law, women invisible. The invisibility of women marked the absence of women’s rights. The law only became alert to the problem of domestic violence in the 1970s, which proves the invisibility. Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at very low ebb.
But with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restrictive to any particular country but world over with variation in degree only. Women will not demand, and will not achieve, substantive equality unless and until the substantive and procedural legal disabilities under which women have laboured since time immemorial are understood.
Consciousness raising is a process whereby women become aware, through discussion and debate of their own and others’ situations and the disabilities, which are imposed by the society and law. Such deliberations can be conducted by the law students from different colleges in various parts of the country. When the solutions to the setback faced by women, from different walk of life, would be combated by law and logic the net result would soon prove to be a dynamic one. In Sharron A. Frontiero v. Elliot L.
In Sharron A. Frontiero v. Elliot L. Richardson, Richardson, the following annotations were made which exhibits the dependence of present day women on the rationality and reasonability of law: “Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility.” Disadvantages and inequalities supported by law do not exist in a cultural vacuum.
From time immemorial, woman’s reproductive and nurturing role has resulted in women being viewed as ‘the other of the male, that is, they are projected to be different and unequal. This difference has given birth to such a situation where she is considered as helpless, thus clearly portraying the fact that ‘gender based violence is one phenomenon that is considered universal’.
Feminist consciousness raising creates knowledge by explaining common experiences and pattern that emerged from shared telling of life events. What was experienced as personal hurts individually suffered reveal themselves as a collective experience of oppression. Development efforts should not only aim to advance equality between women and men as an outcome, but should also advance equality throughout by applying gender analysis in planning, consultations, design, implementation and assessment.
The law students of today would become judges in the days to come. The current of the much-discussed subject could be understood by the assertion that “a socially sensitized judge is better statutory armour against gender outrage than long clauses of a complex section with the entire protections writ into it”.
An apt example to illustrate such a situation where justice was denied even though intricate provision to protect the rights of a woman are stated is the Mathura rape case where in Mathura, a sixteen-year- old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. Her relatives, who had come to register acomplaint, were patiently waiting outside when the heinous act was being committed in the police station.
When her relatives and the assembled crowd threatened to burn down the police station, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. When the case came for hearing in the session’s court, the judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary and consequently only sexual intercourse could be proved and not rape.
On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse. However, the Supreme Court again acquitted the accused policemen.
The Supreme Court held that Mathura had raised no alarm and also that there were no visible marks of injury on her person thereby negating the struggle by her. The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent.
However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section 114 (A) of the Evidence Act, which states that if the victim girl says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent.
Education And Awareness Is The First Step Towards Empowerment
Another example can be of Shah Bano case, where issue was the right of a divorced Muslim woman to claim maintenance from her former husband under section 125 of the Criminal Procedure Code (‘Cr.P.C”). In reply to her claim, her husband squarely stated that to compel him to pay maintenance would be in conflict with his personal laws. The Supreme Court was presented with an opportunity to discuss the Recognition Clause and decide the issue as an “equality” issue. It failed to do so.
Instead, it launched into a debate on the content of the Koran and was at pains to explain that the Code was not in conflict with the Koran. The Supreme Court went to great lengths to avoid the constitutional question, namely, would a personal law, which discriminated against women, be recognised after the coming into force of the Constitution.
In the aftermath of the protest by the conservative sections of the community, the Parliament enacted the Muslim Women’ (Protection of Rights on Divorce) Act 1986, which basically disabled Muslim women from availing of the provisions of Section 125 of the Cr.P.C. and effectively denied them maintenance after divorce.
The protest over the Shah Bano Case thus ended up being a protest over the authority of the Court to pronounce on the interpretation of the Koran, rather than a straightforward protest over the right of women to equality. This avoidance of the constitutional function has been evident not only in the realm of Muslim Personal Law, but also in the realm of Christian law and Hindu law.
There are numerous such examples where justice has been denied to women but on the other hand, one must not lose sight of cases like Vishaka v. State of Rajasthan, where landmark judgment was given with regard to sexual harassment at work places. Institutions and work places all over India follow the guidelines laid down in the Vishaka case.
Thus, there is an urgent need to uphold what has been rightly pronounced by the court in favour of gender justice and discard what is wrong and is against the principle of gender Justice. All this is possible only when the person person sitting at the apex is sensitized enough to handle such issues. Thus, the role of law schools is made clear at every Juncture.
One can finally conclude that Viewed from the point of contemporary world, law can easily be construed as a tool with which women endeavour to win the war declared against the bigotry of the society. Though the war has seen a number of climatic changes but it would be long before a victory can be declared. Introduction of feminist jurisprudence as a compulsory subject in all law schools would be instrumental in sensitizing the society to predicament of women.
The planning process for the development of women has evolved through ‘welfare’ to ‘development’ to ‘empowerment’ to ‘participation’. Despite the dynamism of the approach, the constitutional and legal provisions for affirmative action, the institutional build up and attendant step up in investments, gender discrimination continues to be a daunting challenge. Significant gains have, however, been made in the life expectancy of women, literacy and representation in the local self- governing institutions.
An active and grassroots level leadership is emerging from among women. If properly harnessed this can be a very effective and catalytic agent for transforming the social conditions of women in the country. Law schools can be effective in bringing about a change in the society by targeting the mindset of the people and making them aware about the laws for the development of women. Thus, a fresh evolution of feminist jurisprudence would start.
– Supriya Yadav