JURISPRUDENCE

FEMINIST JURISPRUDENCE

Submitted to : Submitted by :
Dr. Eqbal Hussain Ziaul Haq
B.A.LLB(Hons)1st Year

Faculty of Law
Jamia Milia Islamia
New Delhi

ACKNOWLEDGEMENT
[1]
I would like to acknowledge and extend my heartfelt gratitude to the following persons who have
made the completion of this assignment possible:

Prof. Dr. Eqbal Hussain, for the help and inspiration he extended and constant reminders and
much needed motivation.

Library assistant who helped me a lot and all other faculty members, Staff
for assisting in the collection of the topics for the chapters.

Most especially to God, who made all things possible.

INTRODUCTION TO FEMINIST JURISPRUDENCE

[2]
The word ‘Feminism’ seems to refer to an intense awareness of identity as a woman and interest
in feminine problems. The subjugation of woman is a central fact of history and it is the main
cause of all psychological disorders in society. According to Janet Richards, “The essence
ofFeminism has a strong fundamental case intended to mean only that there are excellent
reasons for thinking that woman suffer from systematic social injustice because of their sex, the
proposition is to be regarded as constituting feminism.”1

Feminist jurisprudence is a philosophy of law based on the political, economic, and social
equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It now
holds a significant place in U.S. law and legal thought and influences many debates on sexual
and domestic violence, inequality in the workplace, and gender based discrimination. Through
various approaches, feminists have identified gendered components and gendered implications of
seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights,
rape, domestic violence, and sexual harassment have all benefited from the analysis and insight
of feminist jurisprudence.

Woman did not write in the beginning as it now, the obvious reason as Virginia Woolf puts it,
“A woman must have money and room of her own if she is to write fiction.’’2. Money symbolizes
power and freedom and a room of her own is to have contemplative thinking Very often women
had enjoyed these things in the past so to develop their imaginative capabilities and personal
freedom.

Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories
and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and
critiques the law by examining the relationship between gender, sexuality, power, individual
rights, and the judicial system as a whole. As a field of legal scholarship and theory,
feminist Jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important
and vital part of the law, informing many debates on sexual and Domestic Violence, inequality in
the workplace, and gender-based discrimination at all levels of Indian society.

1
Richards Janet, ‘Women writer’s Talking, Cambridge, London, 1981. p.3
2
Woolf Virginia,’ A Room of One’s Own,’ Pen Craft, London, 1929,p126

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Feminist jurisprudence intersects with a number of other forms of critical theories, most notably
critical race theory and the study of intra and inter-racial relationships. Moreover, the form of
feminist thought that focuses on legal theory draws from feminism in other disciplines, including
sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps
thus do not focus exclusively upon purely legal aspects of feminism.3

Feminist activist were ardent supporters of women rights and reservations. They actively
challenged male superiority in the workplace. Their efforts paid off and female co-workers and
employees started getting better pays and positions.

Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated
legal doctrine defines and protects men, not women. By discounting gender differences, the
prevailing conceptions of law perpetuate patriarchal power. Because men have most of the
social, economic, and political power, they use the system to subordinate women in the public
spheres of politics and economics as well as in the private spheres of family and sex. The
language, logic, and structure of the law are male created, which reinforces male values. Most
troubling, these concepts and values are presented as and are widely perceived to be both neutral
and objective.4

In analyzing the workings of gender in the law, feminist scholars share certain common
commitments. Politically, they seek equality between men and women. Analytically, they make
gender a category by which to reconstitute legal practices that have excluded women's interests.
Methodologically, they use women's experiences to describe the world and to demonstrate the
need for change. They rely primarily on an experiential discourse for analyzing gender hierarchy,
sexual objectification, and social structures.
RISE OF FEMINIST JURISPRUDENCE

3
Nahal Chaman, ‘Feminism in English fiction-forms and Variants,’ in Feminism and Recent fiction in English,’ Ed.
Sushila Singh, Prestige books, New Delhi, 1991,p 17
4
Eisenstein, ‘Feminist Criticisms and Social Change: Class and Race in Literature and Culture’, Cambridge University
Press, London, 1963. p. 58

[4]
Feminist jurisprudence represents the diversity of feminist philosophy and theory.
Notwithstanding differences in approaches, all feminists share the belief that "women are
oppressed or disadvantaged in comparison with men and that their oppression is in some way
illegitimate or unjustified. Under the umbrella of this general characterization there are, however,
many interpretations of women and their oppression, so that it is a mistake to think of feminism
as a single philosophical doctrine. Just as there are diverse images of liberation, so there are a
number of feminist philosophies, yoked together not so much by their particular claims or
prescriptions as by their interest in a common theme.5

Feminist activism has had a major impact, besides other fields, on many areas of law. Legal
feminism which originated as distinct category only in second half of this century now enjoys a
formidable presence in feminist movement worldwide.

The liberal feminism also labeled as first wave feminism was based on emancipatory theory and
sought to dismantle the positive legal barriers that had denied women equal opportunity with
men. This strand of thought supports the values of liberal jurisprudence as imputed to law, but
identified a discrepancy between those liberal values and legal practice, such that women are
accorded parity with men. The theory behind those goals was that the rights of individuals as
traditionally understood in a liberal society should transcend gender differences. If follows that
law must be persuaded to apply these standards more rigorously in case of women or that liberal
values must be revised to recognize gender as a source of social injustice. The main objective is
to give women genuine, as opposed to nominal, equal rights or, where their special social
situation demands it, special rights.6

After this theory emerged illiberal feminist legal theory, also known as "radical feminism", during
1980s. It urges women to renounce traditional notions of right and justice, now viewed as perpetuating
male dominance. Some of the radical feminists charge that the reforms achieved by "equality feminists"
have dismantled protections beneficial to women while doing nothing to eliminate their disadvantages.
They too note the discrepancy between the liberal values imputed to law and law's treatment of women

5
Miriam Shiner, Feminism: ‘The Essential writings’, Vintage Books,1994,p. xiv
6
Nayantara Uma, ‘Indian Women writer’s at the Cross Roads’, Pen crafts, New Delhi, 1996. p. 243.

[5]
but recognizes the limitations of attempting to close the gap between liberal jurisprudence and legal
practice either by making law apply legal principles more scrupulously in the area of gender or by
revising liberal principles.7

For radical feminists, the key concept is "patriarchy", the male dominated social structure. They
argue that liberal jurisprudence can make no impact on law's treatment of women so long as
categories, such as crime or family law, and legal concepts such as provocation or marriage,
embody male norms and accordingly fail to address women's experiences. It follows that such
legal categories and concepts must be transformed to address women's social position and
experiences. They attack the liberal principles as neutrality of law, equality and individual
autonomy for their "patriarchal" roots. Mackinon, a main protagonist of this stream asserts, "the
greater the prima facie neutrality of law, the more effectively 'neutrality' works as a key
mechanism for masking the male domination for example by requiring women to fit into an
economic system which denies them substantive equality." Law is seen as an instrument to
"change the distribution of power", which requires not equal treatment but "an asymmetrical
approach that adopts the perspective of the less powerful group with the specific goal of
equitable power sharing among diverse groups".

Thus the latest trend can be summarized as questioning the desirability of gender equality as a
feminist goals as well as capacity of law reform to achieve that goal.

Feminism has no theory of the state. It has a theory of power: sexuality is gendered as
gender is sexualized. Male and female are created through the erotization of dominance
and submission. The man/woman difference and the dominance/submission dynamic
define each other. This is the social meaning of sex and the distinctively feminist
account of gender inequality. Sexual objectification, the central process within this
dynamic, is at once epistemological and political. The feminist theory of knowledge is

7
Kapur Manju,’ a Married Woman,’ Penguin Pub., New Delhi, 2002, p23

[6]
inextricable from the feminist critique of power because the male point of view forces
itself upon the world as its way of apprehending it.8

Feminism criticizes this male totality without an account of our capacity to do so or to

imagine or realize a more whole truth. Feminism affirms women's point of view by
revealing, criticizing, and explaining its impossibility. This is not a dialectical paradox.
It is a methodological expression of women's situation, in which the struggle for
consciousness is a struggle for world: for sexuality, a history, a culture, a community, a
form of power, an experience of the sacred. If women had conscious¬ nests or world, sex
inequality would be harmless, or all women would be feminist. Yet we have something
of both, or there would be no such thing as feminism. Why can women know that
this—life as we have known it—is not all, not enough, not ours, not just? Now, why
don't all women?

The practice of a politics of all women in the face of its theoretical impossibility is
creating a new process of theorizing and a new form of theory. Although feminism
emerges from women's particular experience, it is not subjective or partial, for no
interior ground and few if any aspects of life are free of male power. Nor is feminism
objective, abstract, or universal. It claims no external ground or unsexed sphere of
generalization or abstraction beyond male power, nor transcendence of the specificity
of each of its manifestations. How is it possible to have an engaged truth that does
not simply reiterate its determinations? Disengaged truth only reiterates its
determinations. Choice of method is choice of determinants—a choice which, for
women as such, has been unavailable because of the subordination of women. Feminism
does not begin with the premise that it is unpremised. It does not aspire to persuade an
unpremised audience because there is no such audience. Its project is to uncover and
claim as valid the experience of women, the major content of which is the revalidation
of women's experience.9

8
Roy Arundhati, ‘ An Ordinary Person’s Guide to Europe,’ Penguin, New Delhi, 2005 p43

9
Ibid.

[7]
Feminism has been widely thought to contain tendencies of liberal feminism, radical
feminism, and socialist feminism. But just as socialist feminism has often amounted to
marxism applied to women, liberal feminism has often amounted to liberalism applied
to women. Radical feminism is feminism. Radical feminism—after this,
feminism unmodified—is methodologically post-marxist.8 It moves to resolve the
marxist-feminist problematic on the level of method. Because its method emerges from
the concrete conditions of all women as a sex, it dissolves the individualist, naturalist,
idealist, moralist structure of liberalism, the politics of which science is the epistemology.
Where liberal feminism sees sexism primarily as an illusion or myth to be dispelled, an
inaccuracy to be corrected, true feminism sees the male point of view as fundamental to
the male power to create the world in its own image, the image of its desires, not just
as its delusory end product. Feminism distinctively as such comprehends that what
counts as truth is produced in the interest of those with power to shape reality, and that
this process is as pervasive as it is necessary as it is changeable. Unlike the scientific
strain in marxism or the Kantian imperative in liberalism, which in this context share
most salient features, feminism neither claims universality nor, failing that, reduces to
relativity. It does not seek a generality that subsumes its particulars or an abstract
theory or a science of sexism. It rejects the approach of control over nature
(including us) analogized to control over society (also including us) which has
grounded the "science of society" project as the paradigm for political knowledge since
(at least) Descartes. Both liberalism and marxism have been subversive on women's
behalf. Neither is enough. To grasp the inadequacies for women of liberalism on
one side and marxism on the other is to begin to comprehend the role of the liberal
state and liberal legalism within a post-marxist feminism of social transformation.10

The feminist posture toward the state has therefore been schizoid on issues central to
women's survival: rape, battery, pornography, prostitution, sexual harassment, sex
discrimination, abortion, the Equal Rights Amendment, to name a few. Attempts to
reform and enforce rape laws, for example, have tended to build on the model of the
deviant perpetrator and the violent act, as if the fact that rape is a crime means that the

10
Ibid.

[8]
society is against it, so law enforcement would reduce or de-
legitimize it. Initiatives are accordingly directed toward making the police more
sensitive, prosecutors more responsive, judges more receptive, and the law, in words,
less sexist. This may be progressive in the liberal or the left senses, but how is it
empowering in the feminist sense? Even if it were effective in jailing men who do little
different from what non-deviant men do regularly, how would such an approach alter
women's rapability? Uncomforted are why women are raped and the role of the state in
that. Similarly, applying laws against battery to husbands, although it can mean life
itself, has largely failed to address, as part of the strategy for state intervention, the
conditions that produce men who systematically express themselves violently toward
women, women whose resistance is disabled, and the role of the state in this dynamic.
Criminal enforcement in these areas, while suggesting that rape and battery are
deviant, punishes men for expressing the images of masculinity that mean their
identity, for which they are otherwise trained, elevated, venerated, and paid. These
men must be stopped. But how does that change them or reduce the chances that there
will be more like them? Liberal strategies entrust women to the state. Left theory
abandons us to the rapists and batterers. The question for feminism is not only
whether there is a meaningful difference between the two, but whether either is
adequate to the feminist critique of rape and battery as systemic and to the role of the
state and the law within that system.11

Feminism has descriptions of the state's treatment of the gender difference, but no
analysis of the state as gender hierarchy. We need to know. What, in gender terms, are
the state's norms of accountability, sources of power, real constituency? Is the state to
some degree autonomous of the interests of men or an integral expression of them? Does
the state embody and serve male interests in its form, dynamics, and relation to society,
and specific policies? Is the state constructed upon the subordination of women? If so,
how does male power become state power?

11
Deshpande Shashi, ‘Roots and Shadows- A Feminist Study,’ Ed. Amaranth Prasad, Swroop book, New Delhi, 2009,
p129

[9]
 RESPONDING TO LIBERALISM: QUESTIONS OF PERSPECTIVE

As a critical theory, feminist jurisprudence responds to the current dominant understanding of

legal thought, which is usually identified with the liberal Anglo-American tradition. (This
tradition is represented by such authors as Hart 1961 and Dworkin 1977, 1986.) Two major
branches of this tradition have been legal positivism, on the one hand, and natural law theory on
the other. Feminist jurisprudence responds to both these branches of the American legal tradition
by raising questions regarding their assumptions about the law, including: that law is properly
objective and thus must have recourse to objective rules or understandings at some level that law
is properly impartial, especially in that it is not to be tainted by the personal experience of any of
its practitioners, particularly judges that equality must function as a formal notion rather than a
substantive one, such that in the eyes of the law, difference must be shown to be “relevant” in
order to be admissible/visible that law, when working properly, should be certain, and that the
goal of lawmaking and legal decision-making is to gain certainty that justice can be understood
as a matter of procedures, such that a proper following of procedures can be understood as
sufficient to rendering justice. Each of these assumptions, although contested and debated, has
remained a significant feature of the liberal tradition of legal understanding.12

Feminist jurisprudence usually frames its responses to traditional legal thought in terms of
whether or not the critic is maintaining some commitment to the tradition or some particular
feature of it. This split in responses has been formulated in a number of different ways, according
to the particular concerns they emphasize. The two formulations found most frequently in
American feminist jurisprudence characterize the split either as the reformist/radical debate or as
the sameness/difference debate. Within the reformist/radical debate, reformist feminists argue
that the liberal tradition offers much that can be shaped to fit feminist hands and should be
retained for all that it offers. These feminists approach jurisprudence with an eye to what needs
to be changed within the system that already exists. Their work, then, is to gain entry into that
system and use its own tools to construct a legal system which prevents the inequities of
patriarchy from affecting justice.13

12
Deshpande Shashi interview with M Rati, Eve’s Weekly, June 1998,
13
Ibid.

[10]
Under the sameness/difference debate, the central concern for feminists is to understand the role
of difference and how women’s needs must be figured before the law. Sameness feminists argue
that to emphasize the differences between men and women is to weaken women’s abilities to
gain access to the rights and protections that men have enjoyed. Their concern is that it is
women’s difference that has been used to keep women from enjoying a legal status equal to
men’s. Consequently, they see difference as a concept that must be de-emphasized. Sameness
feminists work to highlight the ways in which women can be seen as the same as men, entitled to
the same rights, protections, and privileges.14

14
Shobha De, ‘ Selective Memory: stories of My Life,’Penguin, New Delhi, 1998,p21

[11]
 CENTRAL CONCERNS: QUESTIONS OF THEORY AND PRACTICE

In asking theoretical questions, feminists are concerned with how to understand the law itself, its
proper scope, legitimacy, and meaning. Many of these are the questions of traditional legal
theory, but asked in the context of the feminist project: What is the proper moral foundation of
the law, especially given that any answer depends on the moral principles of the dominant
structure of the society? What is the meaning of rule of law, especially given that obedience to
law has been an important part of the history of subjugation? What is the meaning of equality,
especially in a world of diversity? What is the meaning of harm, especially in a world in which
women, not men, are subjected by men to certain kinds of violence? How can adjudication of
conflict be properly and fairly achieved, especially when not all persons are able to come to the
adjudication process on a “level playing field”? What is the meaning of property, and how can
women avoid being categorized as property? Is law the best and most appropriate channel for the
resolution of conflict, especially given its traditional grounding in patriarchal goals and
structures?

Although feminists have addressed all these questions and more, perhaps one issue stands out in
many feminists’ eyes as a matter of special importance, encompassing as it does some aspect of
many of the questions noted above. The issue that for many feminists is at the heart of concerns
is that of equality and rights. Two others that may be considered nearly as central are problems
of harm, and of the processes of adjudication.15

A. EQUALITY AND RIGHTS

Law works partly by drawing abstract guiding principles out of the specifics of the cases it
adjudicates. On this abstract level, theoretical questions arise for feminist jurisprudence
regarding equality and rights, including the following: what understanding of equality will make
it possible for women to have control over their lives, in both the private and public spheres?
What understanding of equality will provide an adequate grounding for the concept of rights,
such that women’s rights can protect both their individual liberty and their identity as women?

15
Neb N K,’ Writing of Shobha DE, ‘Prestige, New Delhi, 2006, p21

[12]
Examinations of equality are, therefore, often framed by particular substantive issues. For
example, much feminist jurisprudence regarding equality is framed in terms of concerns about
work. If women are equal, then how will this be expressed in workplace law and policy? One of
the key issues in this field has been how to treat pregnancy in the workplace: Is it fair for women
to have extended or paid leave for pregnancy and birthing? Under what circumstances, or
limitations? Are women being given “special” rights if they have a right to such leave? The
struggle over the proper understanding of pregnancy and work raises questions about whether
women should be treated in such law as individuals or as a class. As individuals, it has seemed
relatively easy for workplaces to claim that not all employees are given such leave, and thus that
women who do not are being treated “equally”. One feminist strategy has been to attempt to
revise such law to recognize the particular difference of women as a class. Herma Hill Kay, for
example, argues that pregnancy can be seen as an episode which affects women’s ability to take
advantage of opportunities in the workplace, and that pregnant workers must be protected against
loss of equal opportunity during episodes of pregnancy.16

B. UNDERSTANDING HARM

Perhaps the most difficult question for feminist jurisprudence regarding the issue of harm is that
of perspective: who defines and identifies harm in specific cases? Given that law has
traditionally worked from a patriarchal perspective, it is perhaps not surprising that identifying
harm to women has been problematic. A patriarchal system will benefit from a very stingy
recognition of harms against women. Feminist jurisprudence, therefore, must examine the basic
question, what is harm? It also must ask, what counts as harm in our legal system, and why?
What has been excluded from definitions of harm that women need included, and how can such
trends be overturned?17

16
Chitnis Suma ‘Alphabet of Lust’, Kenyan Review, Vol. VIII. 1951.
17
Ibid.

[13]
 C. THE PROCESSES OF ADJUDICATION

Many feminist jurists challenge the processes of adjudication by raising questions about the
neutrality or impartiality those processes are assumed to embody. Neutrality is believed to
function in the law in at least two ways. It is assumed to be built into the processes of the law,
and it is assumed to be produced by those processes. Feminist jurisprudence challenges the first
set of assumptions by raising questions about legal reasoning. It challenges the second by raising
questions about how a law created and applied by partial and biased persons can itself be neutral.
Thus feminist jurisprudence also raises the question of whether neutrality is a possible, or an
appropriate, goal of the law.18

18
Ibid.

[14]
 FEMINIST JURISPRUDENCE IN INDIA

Feminist Jurisprudence or legal feminism in India can be said to have emerged as a distinct
category of feminist movement in late seventies as a reaction towards some of the overtly biased
judicial decisions. Before that the origination of women's movement can be traced back to the
period of subservient status under colonial rule. Like elsewhere in world, movement had focused
on the reform of women's social position and in India it was especially aimed at eradicating some
of the traditional but evil practices like 'Sati', 'Devdasi' system, child marriage, seclusion of
widows etc.19

These reforms under colonial rule were sought through recourse to law since attempts were made
to root out the practices against conventional and deep rooted beliefs of the society. Next major
attempt for reforms came through immediately after independence, where in Government made
considerable and revolutionary reforms in laws relating to Hindus towards improving the status
of women although, these measures were required in the laws of every religious community. The
Hindu society was experiencing many social reformists which helped the government to modify
and reform Hindu law while due to many other considerations personal laws of minority
communities were left undisturbed. Thus in both instances Law, which is an important institution
in most contemporary societies was used as a tool for social reform. Now, more than five
decades after independence, at the turn of 21st century, when role and efficacy of law in
empowerment of women and in social change in general is questioned, law is still considered and
used as one of the important mechanisms to uphold and support the cause of women in India.20

The new feminist theory advocates for looking beyond goals of gender equality and related
rights. Feminist analyses of law usually take the form of pointing out those laws as enacted and
implemented by state agencies are biased against women and are in favour of men. It is also
claimed that the creation of a 'new corpus' of rights for women ignores the ideological power of
law to mask social reality and obstruct social change. In view of the demonstrated

19
Basu, Aparna, 1976, “Role of Women in the Freedom Movement”, in B.R.Nanda, ed, Indian Women From Purdah
to Modernity, Vikas, Delhi.

20
Chattopadhyaya, Kamaladevi, 1983, Indian Women’s Battle for Freedom, Abhinav Publications, New Delhi

[15]
ineffectiveness of legal rights in ending oppression of women, some western feminists and legal
scholars are now abandoning rights based claim altogether. There exists a considerable literature
documenting how law upholds the division between the public and private spheres and is thus
disadvantageous to women. The liberal feminist efforts to make the state responsible for welfare
services like child care and health care as means of ensuring substantive equality to women
attract the charge that this measure will strengthen the hold of the state on women. The
argument, briefly, is that formal legal intervention by the state in the personal life of people
weakens the family bonds and makes individuals more susceptible to state control.21

Considering all these contentions it can be said that there is no consensus about what needs to be
done. All the above kind of discussions tend to make the whole debate regarding women's
oppression very abstract and theoretical , taking it far away from reality, especially in Indian
context. Feminist objections to gender equality or negative role of law are not of much relevance
in India. Feminist authors who point to the drawbacks of law reforms all live in societies in
which women have already gained formal equality. Their concerns have shifted beyond law
reforms and legal rights only after they had virtually achieved legal equality with men. But the
first wave feminism had started everywhere demanding legal equality with men. Just as first
wave feminist could not contemplate kind of demands made by second wave feminist, so in
Indian context, women who do not even have a parity of rights regarding divorce, maintenance,
custody, guardianship, inheritance and like matters cannot realistically be expected to make
demands for the autonomy to control their sexuality or the right to the inviolability of their
bodies. This almost equal legal status of women in west permits them to focus on alternative
strategies for ending the oppression of women. They can afford to reject law reform if it no
longer yields sufficient gains.22

In India, however, even after five decades of independence, women still do not have equal legal
rights. Most women often do not have the option to step out of oppressive family situations and
therefore cannot afford to ignore law reform as one of the strategies in their struggle against

21
Forbes, Geraldine, 1998, Women in Modern India, Cambridge University Press, Cambridge.

22
Lerner, Gerda, 1981, The Majority Finds Its Past, Placing Women in History, Oxford University Press, London,
New York, Toronto, etc.

[16]
oppression. Performing their role, women do bear child but a large number of them have no
choice regarding how many and when. Concern for a women coming from modernized western
nation may be, "my son would grow up and perpetuate patriarchy" but for a woman in India,
concern is "what if she is not able to bear a male child" or " how can she keep her female child
alive?”23

Thus, still largely under first wave of feminism, legal equality is the major concern. Law cannot
be rejected as a tool of reform in spite of its limitations. Nevertheless it is important to note that
while reality for women in India is much different from that of west the demands like those made
by second wave feminists are not altogether absent. Demands for rejecting traditional norms of
femininity and sexuality, claims for inviolability of the body for every woman, change in legal
concepts and legal categories to deal with problems specific to women have also gained ground.
The fact that women are trying to eke out balance between the forces of modernization and
traditional values adds to the peculiarity of the situation, as India, especially the urban areas are
largely under the influence of both kinds of so called waves of feminisms, where law as a social
reformer can neither be accepted nor rejected in its totality.24

23
Nanda, Reena, 2002, Kamaladevi Chattopahdhyaya, Oxford University Press, Delhi
24
Ibid.

[17]
 CONCLUSION

Throughout the study it has emerged that somehow this status continues and various laws
contribute to this paradox. Every time the law, which is very often alleged to be an oppressor has
come to the rescue of women, was seen to be favoring them it has done so half heartedly. The
state, the governing bodies, the polity have extensively used the inherent flexibility of legal
system in their vested interests. Women empowerment has always been professed as an objective
of government during various modifications and amendments in law, but given the deeply
entrenched patriarchal system, they could never be achieved up to the desirable levels. The law
reformers had to tread a fine line in giving women better rights but not seeming to take away any
of the privileges of men. In Indian context this patriarchy is further shaped by an additional but
the most important element, Religion.

Religion, which defines the lives of people in India, and is supposed to give meaningful ways of
life, has been used since a long as an instrument to oppress women. In this study, the
dichotomous behavior of state is well exemplified by analysis of the laws relating to marriage,
divorce, adoption, guardianship inheritance and maintenance. In each of these laws, not only
women are disadvantaged again men, but there exists extreme discrimination between women of
different communities, and again it is religion and respect of religious freedom which are used as
insidious excuses for tolerating such discrepancies. It is true that every state is composed of
hierarchy of interests and every time while giving priority to one, other interests have to be
subordinated. Probably, that can be accepted as valid justification by a state in post partition
independent India for extending equality, though only partial, to Hindu women, and deciding to
do nothing for women of minority communities, but the disturbing realization is that in a long
period of more than fifty years after independence, women could never assume priority in
hierarchy of interests.

This gives rise to an important question if the government regulated by political and religious
considerations can be relied upon for further positive action. Inspire of all the negative points in
Indian situation, State and law are the most important sites for struggle. This is further
substantiated by the fact that even in case of reforms for Hindu women, besides the state's own
zeal to appear progressive; it had to concede to the pressure of reformers, activists and women's

[18]
movements. This intensifying crusade for women’s because has also been successful in extorting
out some more important concessions from the state for empowerment of women. Inclusion of
special categories of crime against women likes 'dowry deaths' and 'custodial rape' is some of the
encouraging example. On the same lines are 73rd and 74th amendments in the constitution,
which have set a unique example by providing governance rights to women at local level both in
rural and urban area. Furthermore, it is to be remembered that every society is composed of
hierarchy of normative values and in this there are people (though miniscule) at the top of
hierarchy, at some stage, who transcend their times and are critically aware of oppressiveness of
certain values, which their society professes, adores and suffers in. Such people themselves being
conscientising agents can act as conscientizing multiplier to generate sensitivity in the society. It
is heartening to realize that Indian society is not completely devoid of such agents. Indian
judiciary presents a strong example of the same. Series of decisions in case of 'Pratibha Rani,'
'Sarla Mudgal,' 'Geeta Hariharan', 'Vishaka', 'Shah Bano', 'Mary Zaharias' which have been cited
in this study are only a very few examples exhibiting the sagacity and sensitivity of the judiciary,
which gives the women all the reasons to keep the optimism and struggle thriving.

It may thus be concluded that isolated but numerous efforts have been effective in shaping
feminist jurisprudence in India. It has gained a foothold in the country and is passing through a
transitional phase. It is zealously combating retrogressive fundamentalist forces with its inner
strength supported by international community. There is courage of conviction and immense
potential which is finding increasing support at all levels. The time is not very far when the
discipline will be institutionalized not only in the educational system but also in the political,
social and economic systems of the country and the world may see India emerge as a major force
in the global community to support the cause of feminist jurisprudence.

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 BIBLIOGRAPHY
 N.K. Chakraborti : Principles of Legislation & Legislative Drafting ; 2nd Edition , 2002.
 Dias, Jurisprudence ( Indian Re print ) , Aditya Books.
 Freidmann W., Legal Theory (1999) Universal, Delhi.
 Salmond on Jurisprudence (1999) Tripathi, Bombay.

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