This article is written by Sonal Beniwal.

Introduction

Feminist jurisprudence highlights the different strands of philosophy and theory. It is a natural extension of the engagement of female reflections and speech to one more area of discourse, namely law and justice. Before we indulge into the concept of Feminist Jurisprudence, it is important to understand the term “Feminism”. The author aims to cover the subject holistically and provide a complete picture to the reader. This paper discusses the waves of feminism in India and their impact in the field. Following that, the paper sheds light upon the upcoming landmark amendment made to the Medical Termination Pregnancy Act of 1971, which is one of the subjects to understand development of feminist jurisprudence through the Indian perspective. Whether the amendment meets the demand of women of India, whether the amendment is devoid of patriarchal morals and values are some of the questions that this paper delves into. The paper also highlights instances where the traditional theory has surpassed feminist Jurisprudence. And finally before moving to the conclusion, the paper points out the obstacles and hurdles causing hindrance in the growth of feminist jurisprudence and goes into the changes which feminism and feminist jurisprudence has bought in India. 

Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. Feminists believe that the age- old law and practices are made from a law point of view of men and do not reflect women’s point of view and their role in history. There are three major schools of thought in feminist jurisprudence:

• Cultural feminism: This school of thought focuses on giving voice to the moral and ethical values of men and women. This school appreciates and celebrates the difference between men and women.
• Liberal Feminism: This school promotes freedom of individual, freedom from aged old belief of male authority and seeks to erase gender based distinction.
• Radical and Dominant feminism: This school is similar to the cultural feminism on some lines, they also stand against the inequality faced by women, they believe in abandoning the traditional practices which were made from a male’s point of view and consider men to be superior. 

Feminist try to question laws related to domestic violence, rape, divorce, maintenance, reproductive rights, and employment, they have significantly changed the gender discriminatory laws to gender neutral law. One such example is of the landmark judgment of Joseph Shine v. Union of India where it was held that Section 497 of Indian Penal Code considers women as chattel for the purpose of this provision and is discriminatory on the basis of sex and abrogate Article 14 and Article 15 (1) of the Indian Constitution and hence such provisions should not be pronounced at valid. 

The Indian Penal Code which was written in 1860 by Lord Maculay, has the colour of patriarchy and represents male-centric structure of society. The laws which enforced male centric values can be traced back to 5th Century C.E, where Manusmrtiti was developed which categorised the roles and responsibility of men and women. 

Feminist Jurisprudence highlights the vacuum created by our society, the difference of men and women. It is a subject that has come into light very recently but has been evolving for a long time. In this paper we aim to look at Feminist jurisprudence from Indian perspective. Understanding the history of Feminist revolution in India and how it has evolved, with history we can always understand the nature of working of the society. The very recent Sabarimala judgement, where there was a constant tussle between the women’s right to prayer and equality and one’s cultural and ethics is one of the examples cited in the paper. 

Feminism in India 

Feminism is derived from the Latin word ‘femina’, which means ‘woman’. The first wave of feminism in the world occurred during the period of 1850 to 1940. The very first declaration was held in the year 1848 at the United States of America, namely, Declaration of Sentiments, Grievances, and Resolution. The goal of the declaration was to achieve the “sacred right of franchise”. The first wave of feminism focused on legal rights of women, mainly the right to vote. Thereafter, the revolution took its pace and grew all over the United States, leading to the Women’s Revolution. The famous French Revolution also denotes characteristics of women’s revolution and women coming up to break the social barriers. The second wave of feminism talked about political representation, economic representation, sexuality etc. 

However, development of feminism in India is a bit different from development in other countries. In India, the development of feminism took place in three phases, and unlike other countries it was the men who started this movement.

The First Wave of Indian Feminism started in 1850 -1920, this phase uprooted the age old practice of Sati. Raja Ram Mohan Roy was the first who spoke against the subjugation of women’s rights, he out rightly opposed the idea of Sati. Beginning in 1818 he set out to rouse public opinion on the question. When the Orthodox Hindu petitioned parliament to withhold its approval of Bentinck action barring the rite of Sati. This was followed by passing of Bengal Sati Regulation on 4th December 1829, by Governor-General Lord William Bentinck. This came out to be the biggest victory for the movement during that era. 

And suddenly a wave of feminism started, questions were raised against the sanctity of laws which prohibited remarriage of widows by passing the Widow’s Remarriage Act 1856. Earlier widows were doomed to a life of prayer, drudgery and fasting, they were a neglected part of the society, and they were thought to be unlucky and were not included in any celebration. Pandit Vidyasagar was the one, who initiated the war against the social evil of prohibition of widow remarriage.  That is when the British-Indian Government passed the Widow Remarriage Act. However, with such great development, a lot of criticism drew in, there was a national form of resistance to any colonial efforts made to ‘modernise’ the Hindu family.

The Second Wave of Indian Feminism can be traced around 1920 -1980 or what we call the Pre- Independence Era. The reign of Indian Feminist movement was in the hands of the women of India. Popularity of women’s rights started to grow, women were getting aware of their rights and came in front to demand their rights from the male members of their family. Mahatma Gandhi drove women participation during the non-violent civil disobedience movement against the British Raj. In 1925, Sarojini Naidu took command of the Indian National Congress and became INC s first Indian female President, she was a pioneer of women’s rights. She collaborated with Annie Besant Women’s India Association and travelled throughout India to propagate women’s literacy and education. 

This era has witnessed many women coming up during the Indian movement and voicing their opinion to fight against the patriarchy and the British. They urged other women to come up and stand against them. Some of the less celebrated women who spoke against patriarchy and the colonial system are Matangini Hazra, famously known as Gandhi Buri, Bhikaiji Cama, Lakshmi Sahgal famously known as Captain Laxmi and many more. 

Article 14 of the Indian Constitution which states that there should be equality among every citizen of the country, also imparts the right to vote to women. Unlike in other countries where women fought to get these rights. 

The Third Wave of Indian Feminism began with a triumph when Rebecca Walker out loudly said “I am the Third Wave” for a magazine in the year 1992. This started by highlighting the issue of intersectionality and voicing their opinions against harassment. The setting up of the National Commission for Women in the year 1992 was a big step to promote and protect rights of women.  

Sexual Harassment at workplace was considered as important issue to be discussed. The Honorable Supreme Court of India in Vishaka v. State of Rajasthan introduced Prevention of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.In the said case, Bhanwari Devi a social activist was brutally gang raped by five men of the village where she worked in association with Women’s Development Project and was acting in due course of her employment to educate people to stop child marriage.  Initially the session court dismissed the case and acquitted the five accused. The Hon’ble Supreme Court analysed the case from the lens of gender equality and Right to Life and Liberty, the court referred to the International Convention on Elimination of all forms of Discrimination against Women and decided to adopt regulation to protect the safety of women at the workplace. 

Similarly we have Shah Bano Begum, she laid the ground for thousands of women to make legitimate claims which were denied to them earlier. The Indian Judiciary declared the practice of talaq-e-bidat and talaq-e-mughallazah as unconstitutional. These practices raised some serious questions on gender rights and equality. The Indian Judiciary trumpeted the law of equality over personal law in the landmark Shah Bano Case. The amendment was welcomed by women of all religions. 

It also embraced Trans Rights and made it an essential part of its journey. It accepted all types of ideas, aesthetics, race, and language. So much so that they started owning to terms which were earlier regarded as derogatory, the famous example can be the Slut Walk. The focus of the movement was on intersectionality, transfeminism, sex positivity and postmodern feminism etc. 

We are currently currently in the Fourth wave of Indian Feminism and it is a journey worthwhile. We have seen the MeToo movement getting its pace and fighting through the dark side of society. India has witnessed a long journey of feminist movement and we have been ardent advocates of Feminist Jurisprudence since the beginning. We have ensured that the voice of the voiceless and the discrimination and pain rendered by women are heard. For instance we had demonstrations, protest during the Nirbhaya Gang Rape Case which pressurised the authorities in filing the charge-sheet in the case as early as possible, there were demonstrations when Dr. Priyanka Reddy was brutally gang raped and murdered, which led to hue and cry and the government and police of Hyderabad were on their toes to work on the case. All these examples are proof that the feminist movement never lost its spark.

The fourth wave is not monolith, it means different things for different people. While some were infuriated by the judicial system in India and asked for better trials, the other segment was working to have equal pay, while the other part of the community raised concerns for LGBTQIA+. 

The feminist movement in India is growing tremendously and it is always important for us to remember the history of the social activists who took part in the movement who helped us in achieving this Incredible India which we have right now. 

This paper analysis the Medical Termination of Pregnancy (Amendment) Bill 2020, where the government is planning to exceed the limit for abortion from twenty weeks to twenty-four weeks. We shall analyse this landmark in depth and bring out the importance in the relevant scenario.

Amendment to the abortion laws in India 

The quote “Men shouldn’t be making laws about women’s bodies” recently became the fore front of a protest against the legislative attitude of the US Congress regarding the abortion laws in their country. United States is one of the countries with strict abortion law. India has taken a big step in liberalizing their Abortion Law policy. The decision to abort a fetus should be the sole decision of women and the doctors consulting the women and any infringement on her decision should be considered as a violation of her right.

Before understanding the Medical Termination of Pregnancy (Amendment) Bill 2020, we need to appreciate and understand the mindset of the Indian society when we talk about abortion. 

Before 1971, Abortion was illegal in India, it was only after the Medical Termination of Pregnancy Act, 1971, that it became legal. After 1971 the Parliament enacted Medical Termination of (Amendment) Act, 2002 and amended rules and regulation in the year 2003. The amended rule and regulation decentralised the regulation of abortion facilities from state to district committees that are empowered to approve and regulate abortion facilities. It also provided imprisonment of two to seven years for an individual or owner of facilities who conduct an abortion and are not approved to do so. 

The Ministry of Health and Family Welfare collects and publishes statistics on the number of abortion procedures provided by certified facilities. The number of procedures recorded through this data collection system was 7,23,000 in 2001 and 6,42,000 in 2008. Provisional government figures estimate that 6,21,748 abortions were performed in 2011–2012, and the number increased slightly to 6,36,306 in 2012–2013, indicating an annual rate of about two abortions per 1,000 women aged between fifteen and forty-nine years, in 2013. These statistics do not tell the exact picture of situation of abortions in our country, it excludes abortions done by private physician who do not get certified facilities, also abortion by intake of pills sold without any prescription at pharmacies. Despite stricter rules in relation to abortion and prohibiting Abortion after twentieth week, has done no good to our society. Imposition of stricter rules will not lead to less number of Abortion. But this law having its archaic characteristics is putting at risk the life of women who will be seeking another recourse by either non prescribed medicines or getting abortion by untrained professionals, etc.  

There are the two sides of the argument when it comes to legality of abortion. The critics of Abortion often consider it to be a murder whereas the supporters highlight the stigma which a women has to face while rearing the fetus in her womb. 

Another argument which is placed on the table is that easy access to abortion will lead to female feticide. Which is a valid argument, the more leeway to abortion the more cases of female feticide.  In India, families prefer a boy in their family to continue the lineage of their family, girls are considered to be a burden. We can find it if we go deep inside the states and villages. We find that female feticide is still prevalent in the twenty-first century. However, Ipsa Development Foundation, an NGO has given a study where it was held that 90% of the abortion cases happen during the first trimester, during which the sex of the fetus is not established. The chances of female feticide are very less.  And since when the inability of government to curtail this evil of female feticide from society, becomes the argument to not impose a progressive law, providing leeway on Medical Termination of Pregnancy via abortion which will safeguard the women. The government should buckle up and work towards the female feticide but not when the health and safety of women are at cost. 

The Medical Termination of Pregnancy (Amendment) Bill 2020 has been approved by the Union Cabinet in the month of January 2020 and will be open to discussion soon this year. This bill proposed to extend the upper limit of gestation week from twenty weeks to twenty-four weeks with the permission of two doctors, one government doctor and other being a private practitioner. However the opportunity to get abortion after twenty-fourth week of pregnancy is not available to all women, it includes only rape survivors, victims of incest, differently-abled women and minor. This move by the government went unappreciated, but these provisions require further amendments and it is important for us to highlight the basic fallacy in the law itself. 

The law is having its liberal characteristics but it still prohibits women from economically poor section to abort, ones who do not have access to basic resources and requirements to fulfill the nutrition of her and her family, she will forced to bear the pain of another liability for 9 months and then again struggle her entire life to feed another life which she did not wish to take responsibility for. It prohibits every woman who is not capable of burdening herself from the responsibilities of a mother and bearing the pain of a child she did not wish for.  

Obstacles faced by feminist jurisprudence in India 

In this never-ending fight to gain equal rights, the Indian women have faced and still face more than their fair share of hurdles. Breaking the age old patriarchy and misogyny which prevails in our society there are chances of getting harassed by the society at large. 

The feminist jurisprudence, focuses on the inherent inequality fostered by the Traditional jurisprudence. Feminists see the law as the prime source for perpetuating pre-existing gender based inequities, especially within the framework of capitalism. 

Traditional laws

The Traditional law of Manusmriti which was published in 5th Century C.E, has defined the social structure of our society. It was considered to be an ultimate guide to live a moral life, it has explained the role and responsibility of all the four varnas, the Brahamans, the Kshtriye, the Vaishyas, and the Shudras. Manusmriti has told the roles and responsibilities of women as a dependent and one who requires constant protection and guidance throughout her life. It has highlighted the characteristics of “a good women”, it forbade widow remarriage, promoted child marriage and dowry system in society. We can hardly find any discourse for unmarried menstrual women, because earlier they were considered as a threat to the social equilibrium. Manusmriti is the one text which has affected the social strata of women in society and women are still burdened with the age-old patriarchal beliefs. It is one of the major obstacles and the most difficult to tackle. Because Patriarchy is so much ingrained in our society since the beginning that it becomes very difficult to change it. 

Legal positivism 

Legal Positivism is a philosophy as law which emphasises on the conventional nature of law that is the social construct. According to legal positivism, law is very much synonymous with positive norms, which are made by legislators or considered as common law. Law enforcement and effectiveness are sufficient for social norms to be considered a law. Legal positivism does not base law on divine commandments, reason, or human rights.  

Legal Positivism does not specifically imply an ethical justification for the content of law nor does it imply a decision for or against the obedience to law. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law.

Anti – Social elements

The recent failure of #The MeToo movement led further the name-shame of feminism in India. Some of the posts and stories shared by women were not authentic which led change in course of the #MeToo movement and instead of raising your voice against the injustice meted out to you , it became a platform for some women to put false allegations against innocent men. These Anti –Social elements are one of the biggest hurdles faced by true feminists in achieving their goals. After these cases, society looks down at feminism and becomes a force which pulls down their objective to achieve a better society.

Gender roles

Women are generally considered to be the spine of their whole family household. In fact in urban India, where women are moving out of their houses and having a status of an independent woman, they are also compelled to compromise their jobs for their family. There is always a choice in one’s life to choose between passion and responsibility, and it becomes far more difficult for a woman to pursue her passion. Due to the water tight compartment of gender roles and women’s duty to take care of her family, small business enterprises do not prefer to hire women as their employee, because having a female employee they have to provide maternal healthcare leave, child care leave which will not be profitable for their business.

Movies have always played a huge role in depicting and influencing the society at large with their huge outreach and viewership by the general public. Bollywood movies have depicted women as housewives and subject to the patriarchal behavior of their spouses. Thanks to Bollywood Drama Ki & Ka, which was the first Bollywood movie to break gender roles and make us realise that we are knowingly or unknowingly following these rules. We need more movies like Ki and Ka to break the gender roles prescribed by the patriarchal society. 

Conclusion 

Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. India has witnessed representation of women at all social fronts for instance in political scenarios, after enactment of Article 243 D one third offices of Panchayat Raj are reserved for women.  We have empowered women economically our judiciary ensured that women should not bear discrimination at workplace in the case of Air India vs Nergesh Meerza & Ors., Vishakha v. State etc. There are schemes to guide and empower women socially for example the UJJAWALA, a comprehensive scheme A Comprehensive Scheme for Prevention of Trafficking and Rescue, Rehabilitation and Reintegration of Victims of Trafficking for Commercial Sexual Exploitation, SWADHAR scheme (A Scheme for Women in Difficult Circumstances). 

The waves of feminism which India has witnessed is a long drawn journey which celebrates the struggle of every woman who fought against the misogyny and patriarchal behaviour of society. They have overcome barriers by promoting communication about women subjugation.  These struggles have borne some great fruits few of which as listed below:

1. The Immoral Traffic (Prevention) Act, 1956,
2. The Dowry Prohibition Act, 1961, (Amended in 1986), 
3. The Indecent Representation of Women (Prohibition) Act, 1986, 
4. The Commission of Sati (Prevention) Act,
5.  Protection of Women from Domestic Violence Act, 2005,
6.  The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 

These are some Acts which can be considered as milestones in the journey of feminist jurisprudence. The Hindu Succession (Amendment) Act, 2005 which was introduced to remove the discriminatory provisions and allow the right of inheritance of property to women. Prior to this amendment women were alienated from their right to inherit a property. The Criminal (Amendment) Act 2013 ,popularly known as Anti – Rape Act of 2013, was amended after the Nirbhaya Gang rape case , the nationwide outrage over the brutal gang rape and subsequent death of physiotherapy intern in Delhi was the driving force to implement the amendment. This amendment seeks to provide quicker trial and enhanced punishment for accused who have committed sexual offences against a woman. All these milestones are a proof that feminism in India exist and is in due process to change the society for better and have a society without any gender discrimination. 

Feminist jurisprudence has developed at its own pace in our country. But there are still some gaps which need to be filled, some bridges to cover the distance between the government and the underprivileged. The feminist movement in India needs more push, there are many more amendments which require our attention, many laws which are discriminatory in nature, the gender pay gap which still persist, the safety of women is still not ensured, promoting of rape culture via movies, songs and jokes need to be curtailed.

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