Need For Feminist Jurisprudence: A Critical Analysis Within Indian Borders

Introduction

A social theme like feminism has always been a very hot and controversial topic for discussions and debates on various forums across the globe. For a very long time, this topic has attracted significant attention from various philosophers, jurists, social activists, international organizations, and states. We, as a society, are grateful for the continuous struggle and effort made by feminists to ensure that women can establish their identity in society.

In the past few years, however, feminist ideology has come to be associated with a number of misconceived connotations, such as “male oppression” and the idea that western ideas about women’s empowerment change Indian traditions and culture. This trend takes us to a major debate about whether society should be feminist or not. Given below is a brief yet critical analysis highlighting the importance of feminist ideology with reference to Indian jurisprudence.

Overview

Constant efforts led by feminists like Raja Rammohan Roy, Savitribai Phule, Charan Sarkar, and Ishwarchand Vidyasagar paved the way towards the establishment of feminist jurisprudence in India. To protect women from sexual offences and domestic violence, the Indian government has enacted a number of laws, including the Vishakha Guidelines[1], which evolved into the Sexual Harassment of Women at Workplace Act 2013, the Dowry Prohibition Act 1961, the Domestic Violence Act 2005, the Protection of Children from Sexual Offenses 2012, and the Immoral Trafficking Prevention Act 1956.

After the Nirbhaya Case[2], the Criminal Law Amendment Act 2013 was passed, introducing new offences to the IPC like Sections 326A, B (Acid Attacks), 354C, D (voyeurism & stalking), 354 (sexual harassment), and 375 (aggravated definition of rape).

The Hindu Marriage & Succession Act of 1955 & 1956 forbids polygamy, recognises divorce grounds (like cruelty, adultery) and females’ right to property (Amendment of 2005) in Vineet Sharma v. Rakesh Sharma[3]. The Adoption & Maintenance Act, 1956, along with Sec 125 CrPC, provides provision for maintenance for females. In Articles 14, 15(3), 19, 21, and 51A, the Indian Constitution guarantees equal rights to women in terms of opportunities, employment, and education.

Factories Act provides special facilities to ensure women’s health and safety; Equal Remuneration Act 1976 provides equal pay in Randhir Singh v. Union of India[4] [Art. 39(d)], and Maternity Benefit Act 1961 (Article 42) provides paid parental leave. Recently, the Apex Court made some important decisions, like giving women the right to enter and worship in the Sabarimala temple[5] and making triple talaq[6]  illegal to protect Muslim women from being exploited.

Statistical Analysis

As per the National Crime Record Bureau, in 2021, country reported 4,28,000 cases of crime against women, 15% more than what was recorded in the preceding year. The number of incidents per million people rose from 56.5% in 2020 to 64.5% in 2021.[7] The majority of the cases were related to Sections 498A (cruelty), 354 (outraging modesty), 359 to 374 (kidnapping), and 376 (rape) of the IPC 1860, with percentages of 31.8%, 20.8%, 17.6%, and 7.4%, respectively.[8] In the preceding year, the state of UP was reported to have the maximum number of cases (more than 56,000), followed by other states like Rajasthan, Maharashtra, and West Bengal.

While talking about mega cities, Jaipur (194%) and Delhi (147.6%) report the maximum number of cases, followed by Mumbai, Bangalore, and Hyderabad. In the year 2021, the nation reported a total of 31,677 rape cases, with Rajasthan topping the list with a percentage of 16.4%, including sexual assaults on minors with approximately 1,500 cases. This year, more than 28,000 kidnapping cases were filed, most of them in UP (8,600) and Bihar (6,589).[9]

According to the census report of 2011, women’s literacy was found to be 65.46%, whereas for men it was 82.14%. With a rate of 93.91%, Kerala had the highest rate, and Bihar had the lowest rate, at 63.82%.[10] The nation saw a significant rise in women’s literacy rate for three consecutive years, with percentages amounting to 84.8%, 85.3%, and 87% in the years 2016, 2017, and 2018, respectively.[11] As usual, Kerala topped the list in terms of women’s literacy with 99.5% in 2018, 99.3% in 2017, and 99.2% in 2018, followed by Himachal Pradesh (98.8%) and Tamil Nadu (96.8%). States like Bihar, Jharkhand, and Rajasthan were ranked at the bottom with percentages of 23.5%, 22.6%, and 20%, respectively.[12]

According to the World Bank, the percentage of working women in India, which was 30% in 1992, declined from 26% to 19% between 2010 and 2020.[13] The percentage of women in the labour force was just 19% in 2021, whereas for males it was 70%.[14] This year, just 4.7% of chief executive officers and 7.7% of board seats were held by female, a little rise from 3.2% in 2014.[15] Almost 90% of working women lost their jobs due to the corona pandemic.[16]

Comparative Analysis

According to the World Bank Report assessing the progress of women’s representation, only 12 nations have succeeded in providing complete and adequate protection to women. This year, Yemen (26.9%) occupied the last position in the list, followed by Sudan (29.4%) and Qatar (29.1%). [17] The United States is reported to have a percentage of 91.3% due to poor wages and pension laws. The report accredited 79% to Japan and 85% to Korea due to poor representation of women in employment sectors in terms of wages and position.

The East Asian and Pacific regions have been lauded for enacting gender equality legislation, such as the Cambodian law, which provides equal pension provisions for men and women, and the Vietnamese law, which lifts the ban on female workers.[18] Among European countries, Ukraine has a similar provision; along with Armenia and Georgia, they have equal paid parental leave laws. Even Colombian law provides paid leave for women (parental).

In Arab countries, the law doesn’t provide much liberty and adequate representation for women. However, a few countries have evolved, like Bahrain law, which provides equal wages and opportunities for women; Egypt has passed laws criminalizing domestic violence; Kuwait and Lebanon promote gender equality in the workplace by criminalizing sexual harassment in order to protect women. In our continent, Pakistan eliminated all restrictions on women working late.

African countries have performed better in promoting women’s participation in public spheres, especially Sudan and Mauritius.[19] In Gabon, the law allows women to enjoy equal privileges granted to men in terms of marriage, property, employment opportunities, adequate protection through women-centric laws, and financial and administrative powers. Other countries, such as Angola, have passed anti-harassment legislation; Benin and Togo are promoting equal employment opportunities; and Burundi provides equal pay to women.[20]

Suggestions & Conclusion

Suggestive Measures

While visiting a convocation, the upcoming chief justice of India, J. D. Y. Chandrachud, revealed data from the union government noting the regrettable underrepresentation of women in the legal area, which was only 15%. He further noted that current legislation designed to strengthen the capacity and liberty of women is insufficient and restricted.[21] The ideals set by the makers of the constitution advocate inclusion and welfare for the underrepresented. Timely introspection is needed to ensure adequate representation of women. The most important recommendation is to ensure access to social and legal aid. A few successful models like Canada, Greece, Ireland, and Denmark could be taken into consideration while devising laws for women. Timely judicial pronouncements, revised regulations, amendments, continuous campaigns raising awareness about women’s empowerment and education, discussions, debates, and affirmative action by the state are strongly suggested by the author.

Conclusive Remarks

With the growing agitation against feminism due to misconceived notions and misinterpretations, there is an urgent need to enlighten the youth with the true meaning of feminism, which is nothing but “gender equality”. This could be achieved by subjecting students to discussions, debates, and research through such article writing competitions.

 “Gods reside where women are respected. Where women are disrespected, all actions come to naught.”[22]

[1] Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

[2] Mukesh & Anr. v. NCT Delhi, (2017) 6 SCC 1.

[3] Civil Appeal 32601/2018.

[4] 1982 AIR 879.

[5] Indian Young Lawyers Association v. State of Kerala, WP 373/2006.

[6] Shayara Bano v. Union of India, AIR 2017 9 SCC 1.

[7]  FINANCIAL EXPRESS, https://www.financialexpress.com/india-news/how-safe-are-women-in-india-ncrb-data-shows-over-15-rise-in-crime-against-women-in-2021/2649298/ (last visited Aug. 30, 2022).

[8] Ibid.

[9] Ibid.

[10] KNOW INDIA, https://knowindia.india.gov.in/ (last visited Sept. 05, 2022).

[11] THE INDIAN EXPRESS, https://www.newindianexpress.com/nation/2020/jul/03/female-literacy-rate-goes-up-for-third-consecutive-year-in-india-2164719.html (last visited Sept. 02, 2022).

[12] Ibid.

[13] THE ECONOMIC TIMES, https://economictimes.indiatimes.com/news/india/trillions-at-stake-in-india-as-women-disappear-from-workforce/articleshow/91951655.cms (last visited Sept. 10, 2022).

[14] STATISTA, https://www.statista.com/statistics/983020/female-labor-force-participation-rate-india/ (last visited Sept. 10, 2022).

[15] DELOITTE, https://www2.deloitte.com/us/en/insights/topics/leadership/women-in-the-boardroom.html (last visited Sept. 05, 2022).

[16] BLOOMBERG, https://www.bloomberg.com/news/features/2022-06-02/covid-cut-india-s-women-out-of-the-job-market-now-90-aren-t-in-the-workforce (last visited Sept. 05, 2022).

[17] STATISTA, https://www.statista.com/chart/17290/countries-with-most-equal-rights-for-women/ (last visited Sept. 10, 2022).

[18] WORLD BANK, https://www.worldbank.org/en/news/press-release/2022/03/01/nearly-2-4-billion-women-globally-don-t-have-same-economic-rights-as-men (last visited Sept 10, 2022).

[19] Ibid.

[20] Ibid.

[21] INDIA TODAY, https://www.indiatoday.in/law/story/justice-dy-chandrachud-says-women-grossly-underrepresented-in-field-of-law-1985976-2022-08 10#:~:text=Supreme%20Court%20Justice%20DY%20Chandrachud,all%20lawyers%20in%20the%20country (last visited Sept. 02, 2022).

[22] Verse 3.56, Manusmriti.

By: Shruti Kukreti, a student at Fairfield Institute of Management and Technology.