Feminist Terrains in Legal Domains

7/28/2019 Feminist Terrains in Legal Domains

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Women, familial ideology and the constitution- challenging equality rights

By Brenda Crossman and Ratna Kapur

This essay looks at the concepts of equality and gender difference and how they are

imagined in Indian constitutional law, the judicial approaches used to deal with sex

discrimination and the challenges faced by feminists who engage with law in India.

I’ll begin by explaining these concepts and then move on to particular laws and

cases which deal with them.

Article 14, 15 and 16 all deal with equality in one way or the other and they also

include equality of sex.

Article 14 of the constitution of India guarantees equality before the law. (14.

Equality before law The State shall not deny to any person equality before the law or the

equal protection of the laws within the territory of India Prohibition of discrimination on

grounds of religion, race, caste, sex or place of birth)

Article 15 prohibits discrimination on the basis of race, caste, religion, sex or place

of birth

And there’s also Article 16 for the equality of opportunity.

There are different theoretical frameworks within which equality can be looked:

1. Formal vs. substantive equality

Formal equality is based on the principle of equal treatment for all those

who are same. In India this is based on the similarly situated test, which

means that individuals who are similarly situated are entitled to be treatedsimilarly and vice versa. This would require the court to define relevant

groups or classes and then subsequently decide how they can be treated.

Substantive equality is different from the formal in significant ways:

Its focus lies not on equal treatment by law but on the impact of law.

Its object is the elimination of the inequality of disadvantaged groups

And it takes into account the different social, educational, economic

backgrounds of people, on the basis of which it seeks to eliminate inequality

through positive measures.

For example- with respect to disability, the formal approach will mean that

because disabled people are different, they do not have to be treated

equally, but within a substantive model the focus would be on whether their



treatment in law contributed in their historic disadvantage. In the latter case

the idea of different is embraced in the concept of equality.

2. Gender difference

The competing models of equality lead one to look at how a model of equality

approaches gender difference in law.

There are three approaches- Protectionist, sameness and corrective

Protective: This approach is based on the assumption that not only are

women different from men, but they are weaker and in need of protection.

Differential treatment may be justified as protective and therefore

permissible for the benefit of women.

Equal treatment/ sameness approach: Women are understood to be the

same as men and therefore to be treated equally, withstanding certain

natural difference which in the words of S Jahwari “are to be treated as

normally irrelevant in law.”

Corrective: In this approach women are understood as a historically

disadvantaged group and therefore in need of compensatory treatment.

Gender difference in this approach is seen as relevant and in need of

recognition by law. Rules of differential treatment can be upheld if they are

made so as to improve the situation of women.

Some of the crucial issues stemming from these are as to whether legislation can

afford to be gender neutral in an unequal society. Is legislation that claims to be so,

actually neutral or is it a reflection of male standards and values.

And from the other perspective does the corrective approach actually serve to

improve the situation? Or does it perpetuate existing categories of inequality. This

kind of a conflict is very apparent in the debates surrounding the Mandal

commission as well.

And lastly, this sort of polarization of equality and difference or the either/or

framework of looking at things has also been critiqued. Joan Scott argues that this

binary pair needs to be deconstructed by looking at the power relations involved in

the opposition. Martha Minow argues that difference is only meaningful as a

comparison, and there is an assumed point of reference.



Within law, this becomes important when one tries to look at agency in a particular

legal procedure. A lot of times laws are challenged in the due course of some

personal agenda and they don’t necessarily have a political motive. One needs to

look at the grounds on which a law is being challenged. Even though the court may

rule in favour of a legislation that is beneficial to women, the grounds on which it

does so may be very sexist. Power as legitimacy- how certain groups claim this,where does agency lie, motivation behind person

Now I’ll discuss these debates and how they figure in cases with respect to laws on

Divorce, Adultery, Maintenance and the restitution of conjugal rights.

• Divorce: Section 10 of the Divorce Act (1869)… husband may divorce for

adultery alone but wife… for adultery coupled with cruelty, rape, bigamy,

desertion, incest… This has been challenged for violating article 14 and 15 of

the constitution, several times.

In the Dwaraka bai v professor N. Mathews case (1953) the court’s view wasthat, this difference in treatment should be upheld because a husband may

commit adultery somewhere but he does not bear a child or have to make it

a legitimate child and his wife is not bound to maintain that child, but if it

happens the other way around, and his wife commits adultery, the husband

will have to accept and maintain that child.

In 1983 in another case, the high court considered this section “open to

constitutional challenge.” The court’s view in response to the previous

statement given by the court in the dwaraka bai case was that because

discrimination between husband and wife is being made “only on the ground

of sex” it is a violation of article 15.

It is argued that these judgments are located within a discourse of formal

equality. Women are seen as different from men and therefore do not qualify

for equal treatment. And it ignored the ways in which the difference between

men and women has been socially constructed to make it impossible to

imagine men as caregivers, capable of maintaining a child. Law tends to

operate within the dominant familial ideology in society. The ideology works

here to naturalise a particular kind of relationship between a man and

woman.

• Adultery

The adultery makes only adultery commited by a man an offence



Only the husband of “the adultress” can prosecute the man who she

committed adultery with. (The wife of that man cannot prosecute him)

This too has been challenged in different cases:

To the contention that, it is a violation of article 14 and 15, the court

responded that differential treatment was based not on sex but on the social

position of women in India.

And in another case, when the section was challenged for not taking into

account situations where the husband had sexual relations with an unmarried

women, the court’s view was that “it’s commonly accepted that it is the man

who is the seducer and not the woman.”

So, here one can see that there is a positive measure being taken, it is at the

same time protectionist. At one level there is an obvious benefit to women,

but at the same time one is assuming that women are necessarily the victim

and are passive while men are the aggressors.

Also, the law is also dated because it looks at adultery as a violation of a

husband’s property rights over his wife and their child as heir to his property.

And it stands at a disjunct with existing property laws, since women are now

free to hold and inherit property.

The problem lies in the way these differences that are indeed very real in the

lives of men and women, are given a natural aura and not socially grounded.

• Restitution of conjugal rights

Section 9 of the Hindu marriage act has been challenged as unconstitutional

and a violation of Article 14. In the sareeta v venkata subbaiah case, the

court notes that although at the face of it the right to conjugal restitution

didn’t discriminate between husband and wife because it is equally available

to both, it is in fact unconstitutional because- (quote pg 82)



In this one the hand one can see that the court moves beyond a formal to a

substantive equality approach and recognises the impact of child rearing on

women. But at the same time it presents the social differences between men

and women as inevitable because of the biological difference of reproduction.

4

Case of rakamabai in Maharashtra

• Maintenance

The maintenance provisions of several laws have been challenged. Section

36 of the Special Marriage act that grants alimony to a wife, has been

challenged as a violation of Article 15. The court holds that this is not a

violation of Article 15 because it is not “only on the ground of sex” but it’salso because the wife has no independent income to support herself.

The court thereby separates economic dependency within the family from

sex. This approach has been criticized for drawing an artificial line between

sex and socially constructed gender differences. It requires that economic

dependency be seen as something other than difference based on sex. A

substantive approach in contrast would look at whether the rule contributes

to disadvantage for women and a corrective approach would try to

compensate women for past disadvantage.

The familial ideology therefore may not work against women’s immediate

interests but may in the short run protect it. How does social context enter

into the domain of law. Gender is not coterminous with biology. Fits in with

CLS because its talking about the relevance of the social context. A good

example of this is free speech and the laws on censorship.

To conclude, even though there are problems and dilemmas in the equality rights

discourse within the domain of law, they do not suggest that feminist engagement

with the law should be abandoned, instead it should continually strive to recognise

the complexity and contradictions within law.

Free speech and censorship.

How does law relate to the constitution. In favour of substantive law but looking at

the dilemmas within the smbit of substantive legislation. What does it do for

identity, for the sedimentation of difference.



Law constantly being made through amendments to the constitution, building in

substantive equality.

Strategic use of particular argument, the problem lies in the enactment of the law

Law has own conception of life and violation to that life.

Documents

Feminist Terrains in Legal Domains