This article is written by Sahajveer Baweja, pursuing a B.A.LL.B (Hons.) from Rajiv Gandhi National University of Law Patiala.
Feminist jurisprudence is a burgeoning school of legal thought that involves many theories and approaches to law and legal subjects. Constitutional feminism is an important topic which needs to be highlighted at this stage. A country’s constitution, even where it may appear neutral, impacts disparately or differently with respect to gender. Gender equality is a familiar concept to many. The architecture and design of the constitution should be that, it needs to give every citizen equal rights. Women due to a troubled history have been termed as disadvantageous sex as compared to men and further their rights should be protected.
Our constitution has provided in article 14 read with article 12 that ‘state shall not deny to any person “equality before the law or the equal protection of the laws within the territory of India” and further no discrimination on grounds of religion, race, caste, sex or place of birth’. With knowledge to this, article 15(3) also provides the provision where nothing shall prevent the State from making any special provision for women and children. These rights ensured to the women are the hope for equal representation. Constitutional design can never be settled with finality. A constitution will always be liable to alteration, either expressly or through shifts in interpretation that arise through changes in jurisprudential and methodological “fashion”. The recent judgements related to decriminalization of same-sex [section 377 (I.P.C)], the unconstitutionality of Adultery [Section 497 (I.P.C)] and entry of women to Sabrimala temple have won us the confidence in the feminist jurisprudence. Likewise, some of the past judgements have changed the dimensions of patriarchal society leading to a horizontal application of equality and dignified life to every citizen irrespective of discriminations.
Feminism in Constitution
Our constitution is a set of fundamental ideologies and written codes that is itself promoting equality between sexes. Equality means that men and women should be treated alike in all the circumstances unless an intelligible differentia with rational reasoning is proven. The different waves of feminism have endeavoured to change the vision of the society which carries a patriarchal ideology. Modern feminism has the set goal to eliminate gender distinctions and to promote absolute equality in all the areas. To ascertain their goal, our constitution has already embedded this philosophy.
B.R. Ambedkar, the draftsman of the constitution was the feminist before feminism who certainly ensured that women who were once deprived with power and were treated unfairly should be treated with the same pair of lenses in the post-independence period. The framers of the constitution of India were conscious of the discrimination and unequal treatment of women in every field of their lives and violence against them including domestic violence. In one of the speeches said by the Justice Chandrachud, he mentioned that our constitution is itself feminist because feminism is a lot about the disruption of social hierarchies and that is what the constitution intends to do. Our constitution agrees to the fact that women are weaker section and they should be provided with benefits so that their standards can be equally matched with that of men.
Where is the Problem?
The problem occurs at the time of interpretation. Constitution to its core has demanded equality but the interpreters have made it an arduous job. It is true that woman in today’s time is still falling under the realm of Moral slavery. Male dominance or the patriarchal structure of the society has turned out the societal vision and has given ‘women’ the status of subordinate gender. The vulnerable status of women is one of the issues that have not yet witnessed a radical change in the era of globalization and liberalization. The eternal truth of the constitutional morality is that no country can see the full swing of development in the field of the social or economic sector until the quandaries of women are addressed and are further mitigated. Let’s take an example; the constitution says that women are a weaker sex. The interpretation of this should be liberal and should state that women at one time were in a weak position and consequently need assistance to function as said equals. The wrong interpretation of the same is seeing the women as a weaker sex in today’s time just because the constitution has termed this. It all depends on how the society is interpreting the law.
Laws for Women in the Constitution of India
Laws for women exist from the commencement of the constitution when ‘We the people’ have agreed to the ideologies of equality, liberty, etc. The problem that is causing the undue delay in providing justice is that women are afraid to seek a remedy through law enforcing agencies. They are still living in the 3rd world where the stress of male domination manifests itself in the form of various cruelties. The Indian constitution was very much conscious about the interests of women and to provide them with the tag of equal to their counterparts. The efficiency factor is criticized on the grounds of the enforcement agency as it remains neglected. The Judiciary aided the process of equalization during the post-independent period. However, the most sacred object, “the constitutional mission of equalization” couldn’t be achieved due to ignorance of the law and the indifferent and hostile attitudes of law-enforcing agencies and also the lack of community support for women seeking against discrimination.
Our constitution has taken all the protective measures to protect the interest of women in our constitution. Analysing the preamble of the constitution, in the case of National legal service authority V. Union of India, it was held that the concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognize the right of one and all amongst the citizens of these basic essentials designed to flower the citizen’s personality to its fullest. The concept of equality helps the citizens in reaching their highest potential’ Social justice does not mean equality before the law in papers but to translate the spirit of the Constitution, enshrined in the Preamble. The preamble is not the source of power but it gives a direction to the constitution. The Preamble again assures ‘dignity of individuals’ which includes the dignity of women.
Our compassionate Constitution, the Fountain Head of all laws, is gender-sensitive. It certainly clears that the mind-set of the constitution framers was based on the concept of equality and positioning women equal at every sphere.
Talking about equality, our constitution has provided us with certain rights and provisions which protect the positivist equalism atmosphere. Article 14 and Article 15 read with Article 12 reflects the thinking of our constitution-makers and further prevent women against gender discrimination. The interpretation of the Article 14 in the light of gender equality states that all persons including women are equal in the eyes of the law and they are also entitled to enjoy equal protection of laws within the territorial jurisdiction of India. Law and the nation should treat men and women equally in similar circumstances. Article 15 whereas protects the women from any kind of discrimination. Within the article 15, clause 3 gives the power to the state to make any special provision for women and children so that the concept of equal protection of law remains stable in the cases where same treatment would have received but was infringed. This provision is recognized keeping in mind the fact that the women in India have been socially and economically handicapped for centuries and this all led to less participation in the socio-economic activities of the nation on a footing of equality. The core ideology behind the provision is to provide women with a platform and to eliminate the socio-economic backwardness of women and certainly empower them.
No doubt, democracy provides equal opportunities for all in the decision-making process. Women as free citizens, and constituting almost half of the population, are theoretically able to redress their grievances through democratic means. But due to socio-economic reasons and cultural patterns, they are not effective players of the game of democracy. The disadvantages of democratic process and risks of parliamentary majoritarianism make it imperative that a pro-woman and anti-subordination interpretation of Constitution and laws shall be made and under the light of positive discrimination further this provision was created.
In the following case Bodhisattwa Gautama v. Subhra Chakraborty, the court talked about the need for laws which shall curb the practices of dominance analysis that is found in our patriarchal society. The court held that’ Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantageous position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men’ it was held that certain laws helps to soothe the position of women in the society and further they are very much constitutional valid as they come under the legitimate title of positive discrimination which is fundamentally the rule of equal protection.
Directive Principles of State Policy
Article 39(a) and Article 39(d) of the Directive principle of state policy also talks about gender equality. The former article talks about having an equal right to men and women for an adequate means of livelihood whereas the latter supports equal pay for equal work for both men and women. Basically, the philosophy behind the Directive principle of state policy is based on maintaining a balance between individualism and socialism. The DPSP has taken all the measures to cover the aspect of women in the post-modernist era. The framers had the long-sighted vision which allowed them to think of the problems, a woman would have faced in the changing trends of the society. To support the fact, article 51(a) further talks about the provision which renounces practices derogatory to the dignity of women.
Seeing the laws cumulatively, there is no going back to the thought that the constitution has forgotten the position of women. Certainly, our constitution framers have tried to incorporate as many provisions as they could think of which would have caused prejudice if the certain provisions were not available.
Patriarchal Interpretation of Laws
Protectionist Interpretation of Laws for Women
The laws are already there in the constitution favouring equality but still, a woman is in a disadvantageous condition even in the 21st century. Our society is still static and views a woman through the spectacles of a patriarch. Despite the broad horizon provided by the Constitution, the interpretations of these provisions have echoed the patriarchal and conservative nature of the Indian society. The courts itself while interpreting the laws, makes it difficult for understanding to the society at large. Court as a mechanism for providing justice tends to play the role of a protectionist. The interpretation of separate laws on the ground that the women are weak and are different from men creates an imbalance in the society. A man with ordinary prudence after reading certain things would surely think that women are weak compared to men and further laws are made for them. When such ideology travels in the air, discrimination and patriarchy turn out to be the ground.
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.
Section 497 Judgement
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, 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 our 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 biasedly. 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. That apart, there cannot be a community exposition of masculine dominance.
The judgment passed is a step towards gender neutrality but certainly, it is already too late to identify the prejudices that a woman have gone through. 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.
Independent Thought v. Union of India Case
In Independent Thought v. Union of India, a division bench of the Supreme Court of India read down Exception 2 to Section 375, Indian Penal Code (hereinafter, IPC), which now stands thus altered,“ Sexual intercourse by a man with his wife, the wife not being less than 18 years of age, is not rape”. Earlier the provision had prescribed the age as 15 rather 18. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience.
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. By denying a whole category of women the right to refuse consent to sexual intercourse with their husbands, merely by virtue of being married, the IPC similarly destroys the right of this category of adult women to their bodily integrity. 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.
The need for the alteration was necessary because it was giving the undue advantage to the men who were protected from the ambit of rape. Law says that having sexual intercourse with women below 18 years is an offence, this law before alteration stands contradictory to it. It was submitted that to this extent Exception 2 to Section 375 of the IPC is not only arbitrary but is also discriminatory and contrary to the beneficial intent of Article 15(3) of the Constitution which enables Parliament to make special provision for women and children. In fact, by enacting Exception 2 to Section 375 of the IPC in the statute book, the girl child is placed at a great disadvantage, contrary to the visionary and beneficent philosophy propounded by Article 15(3) of the Constitution.
Protection of women has been always the mind-set of the constitution but the problem as stated in the interpretation. With the time, the ambit is getting bigger and the offences are being highlighted with more sincerity. In this case, only, the interpretation of the rape was given maturely and has been termed as one of the most heinous crime. In the judgement, Justice Madan B Lokur stated that “Rape is one of the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India” 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.
Patriarchal Mind-Set of the Society
Different waves of gender equality including support of feminists have tried to formally remove institutionalized discrimination. Certainly, the core masculine mindset and the attitude carved in the subconscious have not been erased. Women’s dignity is still at an equal amount of danger and is open to different kinds of indignity and prejudice. The malady sometimes pounces with tight-fisted monstrosity giving a free play to the inferior legacies of nature in a man thereby creating the whole concept a mockery, threatening the entire edifice.
The traditional beliefs that the male member of the family should be held responsible for the arrangement of the livelihood and women’s business should only deal with household things needs to be attacked. Society needs to move with time and has to accept the changing trends.
Less Representation of Women
Somewhere the lack of a gender-neutral interpretation and ideology is shaped and influenced by the persons who occupy them or practice them. To overcome such dominance and to exhale the wave of equality, it is important to place women in positions of power. Today the power itself is male-dominated as mostly men hold the important seats. Seeing the legislative assembly or the judiciary, power is in the hands of the majority. There is no second thought to the fact that judges do decide the issue by having personal assumptions in it. It is impossible to be totally objective because subjectivity comes inevitably. The core has to be gender-neutral so that the definition of justice itself is a dictum of equality.
Our Indian society’s patriarchal interpretation has made female a victim of social and psycho flows. Her shelter is the books of law. She relies on the legal fraternity to take her out of the abyss and she does so in the hope that she would be taken out from the darkness to light. The woman is torn apart between the repulsive forces of ambition and patriarchal society. She ignites the lamp of the law so that she could come out of the disturbed condition. The constitution and certainly the laws are already in the ambit of gender neutrality. The interpretative issue that leads to the birth of laid-back philosophy causing uncalculated harm to the women fraternity should be dealt with utmost importance.
Reinterpretation of Constitution with Changing Time
The constitution needs to be reinterpreted with time. The design of the constitution cannot be static and cannot be settled with finality. It is always liable to alterations and is always open to new an interpretation either expressly or through shifts that arise out of a change in methodological fashion or in response to social and technological development. Gender auditing will be essential that needs to be continued, even if the aims of equity and agency have thoroughly guided the original procedure of framing. Constitutional interpretation, tailored to the purpose of promoting and protecting gender equity, will involve a continuous commitment to bringing together purpose and current context.
Women have to be an Active Participant
Enforcement of gender neutrality cannot totally rely on the judicial process. Women itself has to be aware of the rights and laws under which they are protected from discrimination. They have to fight against the practices which are against the constitutional morality. The judicial biasedness towards men that results from the effect of a male-dominated patriarchal society create an impact on the court. Though some decisions are remarkably enlightened and can be seen as positive laws. The recent judgments of the Sabarimala temple, triple talaq and section 497 of I.P.C. are certainly some of the examples in which the court has accepted the notions of gender neutrality and moreover tried to incorporate in their exhaustive judgments. Still there are many judgments, however, in which courts are interpreting the legislation only on the basis of orthodox concepts and fail to give effect to the underlying social purpose of the Convention or legislation and such practices are need to be stopped so as to safeguard the position of women in the constitution as well as in the society.
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- Constitution Itself Is Feminist Justice Chandrachud on Transformative Constitution & Feminism, Live Law, available at www.livelaw.in/constitution-itself-is-feminist-justice-chandrachud-on-transformative-constitution-feminism/, last seen on 13th March 2019.
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