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Feminist Analysis of Indian Constitution

INTRODUCTION

The feminist movement/women’s movement/feminism refers to an array of campaigns of the political nature for change in social evils and demand for bodily reproductive rights (pro-choice), removal of domestic violence in the society, maternity leave, equal pay, women’s suffrage, sexual harassment, and sexual violence, all of which fall within the ambit of feminism and the feminist movement.

    Our constitution has provided in article 14 read with article 12 that state should not refuse to anyone equality for all in the eyes of the legal system and equal protection of the law across India and no discrimination on grounds of religion, race, caste, sex or place of birth.

    In consonance with this, article 15(3) also provides the provision where nothing shall prevent the State from making any special provision for women and children.

    Feminism in India is an arrangement of maneuvers with the objective of providing definition, establishment, and defence of equality in political, economic, social rights of women in India. It is the pursuance of women’s rights under Indian society. In comparison with feminist movements in other countries, feminists in India want and believe in gender equality: the right to equal pay for equal work, the right to get good quality health and education, and equal political rights (eg. right to vote), etc.[1] Indian feminists also have fought against issues that are specific to cultural mindsets within India’s patriarchal society, e.g. inheritance laws and dowry. To Indian feminists, these are high-priority injustices which is worth fighting for.

    In Western countries, there has been criticism of feminist movements in India, as it is mostly first-world/mainstream feminism. Indian feminism in popular culture and media platforms tend to focus on already privileged/cis-gender women, neglecting the needs and representation of poorer or lower-caste/dalit/intersex/trans-women. Feminist organizations and movements have now been initiated especially for caste.[2] Though the legal system helps to curb gender discrimination and injustice, some patriarchal notions guiding the interpretation of legal provisions have compelled a feminist rethinking of law as a tool for gender justice, e.g. “enraging the modesty of a woman” in the IPC. It challenges the dichotomy of the man and woman and states that if men and women are fundamentally different as categories, then a single yardstick for measuring justice is wrong.

    HISTORY OF INDIAN FEMINISM

    The history of feminism in India can be separated into three stages:

    the first phase, beginning in the mid-19th century, started when reformists began to speak in favour of women rights by making reforms in education, customs involving women;[3]

    the second phase, from 1915 to Indian independence,when Gandhi incorporated women’s movements into the Quit India movement and independent women’s organisations had begun an uprising; and finally,

    the third phase, post-independence, which has focused on fair treatment of women at home after marriage, in the work force and right to political parity.

    Despite the Indian feminist gaining headway on certain issues, women living in modern India still face discriminatory behaviour, which shows we still have a long way to go.India’s patriarchal culture has made the process of getting right to property and access to education challenging for girls. Over a period of 20 years, sex-selective abortion has become an emerging trend. This is due to the fact that they believe the female child is a burden because of dowry to be paid when she attains a marriageable age, which shows that one social evil results in another in a vicious cycle.

    Feminists believe that history was written by men and for men, excluding women that have made inventions or added structure to the society, which has created a hole of information in the concepts of human nature, gender potential, and social arrangements. The language, logic, and structure of the law are created by men and reinforce toxic masculinity.[4]

    Male characteristics are considered as normal, and female characteristics are shown as deviation from the norm, so these prevailing conceptions of law reinforce and perpetuate patriarchal power. Feminists oppose the belief that the women are so different from men biologically, that it assigns generalized attributes to women as being too emotional. This shows feminism is also good for women as it enables men to be more vulnerable and move away from patriarchy. They believe gender is a social construct, and not determined biologically. Sex ascertains matters like physical appearance and reproductive capacity (based on science, e.g. secondary sex characteristics), but not psychological, moral, or social traits.



    PROTECTIONIST INTERPRETATION OF LAWS FOR WOMEN

    Despite the broad horizon provided by the Constitution, the interpretations of these provisions have echoed the patriarchal and conservative nature of the Indian society. Women are subjected to as subordinate to men when they are put under the status of the weaker sex. The constitution gave the tag of weaker sex keeping in mind the past discrimination that a woman has gone through. The economic and sociological prejudices in their past have made their progress rate slow and further, they need laws for the advancement.

  • The Constitution nowhere mentions that women are weak in comparison to the men according to nature.
  • Such patriarchal interpretations are prevalent for a long time.
Taking an example of the law of Adultery which is now unconstitutional, earlier in the case of W. Kalyani vs. State Tr. Insp. Of Police & Anr.[5], it was held that only men can be prosecuted for the offense of adultery and women cannot be prosecuted. The judgment was further criticized on the grounds for showing a strong gender bias making the position of a married woman almost as a property of her husband.

The women were seen as it was subordinate to men and in the jurisdiction of them.

  • It took almost 160 years for the court to understand that women are not a chattel and have certainly equal status that of men. After having the provisions of equality in article 14, the court continued to interpret the law basely.
  • In the recent judgment of section 497, the court held that there cannot be a patriarchal monarchy over the daughter or, for that matter, a husband’s monarchy over the wife. On top of all of that, there cannot be a community exposition of masculine dominance.
The judgment passed is a step towards gender neutrality but certainly, it is already become too late to know what all hardships a woman has faced. The absence in understanding the concept of gender neutrality by the courts after having the provisions laid down in the Constitution has resulted in the prima facie violation of women’s independence.
In Independent Thought v. Union of India, a division bench of the Supreme Court of India read “Exception 2” to Section 375, Indian Penal Code (hereinafter, IPC)[6], which now stands thus altered which stated that sexual intercourse by a man with his wife, the wife not being less than 18, is not rape. Before the provision stated that the age was to be 15 years instead of 18 years.
    Sexual violence apart from being a de-humanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is detrimental to her supreme “honour” (which is also backward, as women are not an object) and offends her self-esteem, well-being and dignity- it degrades and humiliates the victim where she is a helpless innocent child, it leaves behind a trauma she could very likely never recover from. The “traditional practice” being referred to in the case deals with child marriage and the rights secured to women.The IPC sanctified the practice by allowing the husband of a girl child to have sexual intercourse with her, regardless of her consent, provided she was not under the age of 15. The Court identified the harm that the right of the girl child to maintain her bodily integrity is destroyed when her husband is given the full control over her body, thereby reducing her to nothing more than his property. Thus, the basis of the violation of Article 21, as identified by the Court itself, is applicable equally, and in the same way, to adult married women, as it is to child brides.[7]
    This judgement stood strong on the grounds of equality and justice for women and throws out the patriarchal laws that were once prevalent in our country.

    References

    1. Ray, Raka. Fields of Protest: Women’s Movements in India (University of Minnesota Press, 1999), 13.
    2. Gangoli, Geetanjali, Indian Feminisms – Law, Patriarchies and Violence in India (Hampshire: Ashgate Publishing Limited, 2007), 10-12.
    3. Chaudhuri, Maitrayee. Feminism in India (Issues in Contemporary Indian Feminism) (New York: Zed, 2005.).
    4. [8] Nancy E. Dowd and Michelle S. Jacobs, Feminist Legal Theory: An Anti-Essentialist Reader (New York Univ. Press, 2003).
    5. W. Kalyani vs. State Tr. Insp. Of Police & Anr., Criminal Appeal No. 2232 of 2011.
    6. Independent Thought v. Union of India, 2017 10 SCC 800.
    7. Radha Kumar, The History of Doing (New Delhi: Kali for Women, 1993), 97.

    About author –

    This article is authored by Anjali Baskar, 2nd year BBA LLB student at School of Law, Christ University,Bengaluru.

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