This article is written by Pooja Arora from ILS Law College.

Introduction

The inequality among the two genders, man and woman, has been historically evident and is persistent ever since one could remember. They have surpassed the social lives of the people, from unequal job opportunities and political participation to legal inequalities. The legal arena like the social one had been mainly male-dominated for a long time where there were hardly any female lawyers or judges. It has been observed that the legislation merely inflicted a narrow sense of equality and justice among people although, in reality, the laws had also been part of man’s world all along. For a long time, women had been excluded from the legal enterprise due to their supposed tendency and behaviour of being sentimental and affectionate rather than rational like a man. It is a common perception that the man views everything with an eye of rationality, justice competition in contrast to women who are thought of being rather empathetic and approached them with ‘ethic of care’.

To fight the gender differences in the legal field, the feminist jurisprudence emerged in the 1960s to understand and intersect the social arena and elements such as gender, sexuality, power rights and the judicial system as a whole. It aims at establishing equality among the sexes and to understand the nature of law in the context of gender and the extent to which it is male-defined. The growth of feminist jurisprudence coincided with the entry of women into lawyering, law-making and judging professions. The laws have been patriarchal does not suggest that there have not been laws for women rather it had been viewed with a man’s eye, his understanding of women’s nature, capacities and experiences and his refracted definition of women but not the woman’s understanding. The feminist jurisprudence aims at reviewing the norms embedded in our legal system define the law. This philosophy of law has also paved a way for women to define their injuries in law. The terms ‘sexual harassment’ and domestic violence are mow used to define the women’s interpretation of their experiences.

A male-dominant society

The norms are the set standards for the society which everyone accepts and any deviation from these norms is seen as undesirable and the understanding of the concepts such as ‘equality and injury’ in the light of those norms. There often is a gendered nature of reasoning while delivering justice in the case where women are the either party. Feminist jurisprudence is not just about women, it is not about replacing the male values by female ones, but it is about being inclusive of women and all those people who differ from norms of law. The extent to which the laws are male-defined, the process of reasoning the case on male views i.e. with a biased eye is the main concern for feminist jurists. Many doctrinal areas of law are fundamentally structured around men.

The legal definition of rape is an example of male judicial perspective. It is the man’s views on whether the woman consented and actual happening of the intercourse which defines rape rather than the woman’s experience of sexualized violation and the violation of her rights. Even in the family law, the understanding of a family by the legislation is where the head is the male and the members are dependent on him. The personal laws are usually very problematic for women and very often fail to reflect the women’s needs and perspectives. Tort law defines injuries and compensation and it is in this where non-economic damages and suffering and emotional injuries which are essentially closely related to women are deemed dispensable. The criminal law inherently sees the man as a criminal and when the women are one, they are viewed as being deviant from the norms. Another example is the contract law which is essentially based on the notions of the male-dominated marketplace and does not consider the kinds of work women do or the injuries they suffer.

Feminist jurisprudence views these distinct methodologies, principles and achieving formal legal opportunity under the law. One of the recent examples of feminist jurisprudence is Ellison vs. Brandy case where the ‘reasonable woman’ test was applied to ascertain whether there was a hostile environment to constitute sexual harassment. In the case of negligence, the ‘reasonable man’ test is applied, and this is a very gender-biased term. The US court of appeal decided that the man’s behaviour towards the woman was not ‘trivial’ and she could have found it threatening. The court also decided that the ‘sex blind reasonable person standard tends to be male-biased and systematically ignore the experiences of women.’ How neutral and inclusive is this structure of legal reasoning?

Justice for women

Justice is nothing but giving a person what is due to him or her. Justice has been the central theme of all the civilizations in the world. It is the process rather than an act. Rendering justice is the way of compensating the injured party his or her losses and what is right and equitable to who is injured. It is an interpretative term as what may be neutral for one may be distortion for the other. A party against whom the decision was ruled may find it unjust for the mere reason that his interest was not met.

The legislation of India goes beyond the fundamental rights and the statues to ensure the actual justice to the people. The constitution of India provides the Supreme Court of India a plenary power in the form of Article 142 of the Constitution. Under this article, the Supreme Court in the exercise of its jurisdiction may pass such a decree or make such an order as is necessary for complete justice in any case or matter pending before it. The scope of complete justice goes beyond justice, it is beyond being just fair and ensuring there is no bias in the case of complete justice. The whole idea of complete justice presumes that there should be no collateral injustice. Article 142 of the Constitution of India enables this Court to pass such orders, which are necessary for doing complete justice in any cause or matter pending before it and, any order so made, shall be enforceable throughout the territory of India. The power to do complete justice under Article 142 is a corrective measure whereby equity is given preference over law to ensure that no injustice is caused.

This falls in the line of feminist thinking which is based on the same principles of obtaining “complete justice”. The feminist perspective of Article 142 would be as an instrument to achieve its objective in the domain of law through the principle’s equality regardless of gender. There is the relevance of feminist judgements of the judge for judging a case. If the Supreme Court deems it necessary to pass an order which impacts the position of the women as a whole or in a certain arena, it may do so. The underlying principle behind this would be to bring sensibilities to the decision-making process.

A feminist judge is more likely to make decisions within context; to consider detailed individual facts about a case, and to consider more broadly how the decision will impact women and other historically disadvantaged groups. Therefore, the Supreme Court has the right to pass a decree in the women-centred issues such as relating to the family laws and abortion. This judicial philosophy motivates the judges to depart from traditional precedents in favour of progressive and new policies. However, the Supreme Court cannot rule outside the law governing issues under Article 142. The decree of the apex court should not be supplanting but supplement the substantive laws. For example, In Laxmi Devi vs. Satyanarayan, the wife had filed a case against her husband for second marriage punishable under section 493 of the Indian Penal Code.

Though there were eyewitnesses the court ruled that there wasn’t enough evidence to prove that two essential ceremonies were performed to constitute a marriage under Hindu Marriage Act. Even when here the court ruled against the victim who was a woman, in this case, the court exercised its power under Article 142 of the constitution stating that the respondent was living with another respondent as husband and wife and merely because the appellant could not prove the second marriage does not mean she should be left in the lurch. Therefore, ordered the respondent to pay compensation to the appellant. Where some think this is a gender-driven judicial overreach, others think it is the way for achieving ‘complete justice.’ Equipped with such great discretionary powers, the Supreme Court has often taken up the task of ensuring that honest parties are not the ultimate sufferers and that the guilty or the wrong is ultimately punished.

Conclusion

Even with the endeavour of the constitution and the Supreme Court to ensure gender justice in the modern times, they are unable to meaningfully address the women-centred issues and stimulate the whole legal system towards the broader sense of equality for women and their protection. Because if the women are not being represented to their interests or are not being delivered justice due to the narrow sense of equality and justice as understood by some scholars, then we are on the wrong path to egalitarianism. The problem is not just the women-centred cases and the principles of equality, rights and justice but about the women’s experience in the legal field making it rather ironic that the profession which talks about equality and rights almost forgets the perspectives of one gender and drives through a man’s ways.

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