This Essay is submitted by – Samyuktha Banusekar, B.Com., LL.B., (Hons.), School of Law, SASTRA Deemed to be University.
Introduction-The Gradualism of Feminism:
“A feminist is anyone who recognizes the equality and full humanity of women and men.”
-Gloria Steinem
Over time, the interpretations of the concept of feminism have rapidly oscillated and this has led to a poor reflection on the stand of people. In the process of attainment of the various whims and fancies of feminists, a blatant delusion has soared in the minds of people as to the essence of feminism. It is ironic how there is an absolute aberrationfrom the purpose of feminism, which is the establishment of equity among genders.
Retracing the history of India, a trilogy of phases is observed, all of which have contributed to the embodiment of the concept of feminism. The First Phase, which lasted from 1850 to 1915, was instigated due to the rise of Modernism and aimed at the denouement of social evils such as Sati. In the Second Phase, which extended from 1915 to 1945, women stood up to issues confining to political participation. Organisations such as the National Federation of Indian Women(NFIW) were established. The participation of women in more civil disobedience movements made them more conscious of the significance of their equal stand in society. The movement of feminism strengthened after independence and reflected evidently in the Third Phase where issues in various power structures such as caste, class and employment opportunities were resolved.[1]
The radical ideological changes were essentially kindled only after the election of Indira Gandhi as the first female Prime Minister of India in 1966. She continued in the post for three and a half years until her assassination.[2] This was a driving force for women in India to fight for their levitation and rights with fortitude.
Transformative Constitutionalism- A Metamorphosis:
As new aspects are explored, there is a need to address the transformation in society. The gravity of transformation of the society is scrutinized through the wide interpretations of the Constitution and its provisions. The concept of Transformative Constitutionalism, which largely constituted the South African jurisprudence[3], was popularized in India only after the case of Navtej Singh Johar v. Union of India[4] where Justice Chandrachud stated that “Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of time.”[5] Even though the abstraction of Transformative Constitutionalism cannot be construed, its evolutionism in India can be observed through a myriad of cases.
A string of cases was seen to adopt a Feminist Jurisprudential[6] approach. To impede sexual harassment of working women, the Court laid down certain exhaustive guidelines in Vishaka v. State of Rajasthan[7]and it all only went uphill from that point. After the ruling of cases in favour of the surge of women in society related to different genera of societal and legal problems such as inheritance of property[8], marriage[9], child custody[10], the sale of acid and acid attacks[11], guardianship[12] and foeticides[13], even personal laws[14] were subjected to a Feminist Jurisprudential approach.
However, in recent judgements such as the Sabarimala judgement[15], a flagrant divergence can be noticed with regard to the fundamental comprehension of feminism in itself.Through the popularization of movements like the #MeToo Movement in which the accusations may or not be authentic[16], the Judiciary is misusing the concept of Feminist Jurisprudence in itself to gain legal popularity. In the path of making women feel empowered and giving them autonomy, society is moving toward dichotomy, which is tyranny in disguise and is prone to curtail attainment of gender justice.
The 21st Century Feminism- A Pandora Box:
Earlier, there was an overshadowing of women by men in India and now what is sought is the overshadowing of men by women. This pattern of repetition in the domination of one sex over another shows the need for a feeling of being in command.
First and foremost, a lacuna in Indian law needs to be addressed. In the IPC, rape[17] is defined in an inadequate manner with a narrow scope as something that only a man can do to a woman and that a man can only be sodomised. However, according to a recent amendment, rape is now inclusive of oral sex and anal sex as well[18]. Moreover, since Section 377 of the Indian Penal Code has been partially decriminalized in the Navtej[19]case, men are more prone to rape. Hence it can no longer be stated that women cannot rape men. Other crimes that provide relief only to women in India are stalking[20], sexual harassment[21], voyeurism[22] and outraging of modesty[23]. The existence of discrimination in these sections violates Constitutional provisions of Article 14 and Article 15. According to the maxim ‘ubi jus ibi remedium’, where there is a right, there is a remedy. Considering this aspect, as the right to equality and equal protection under the law is denied to men, a remedy must be provided for the same.
Some usual reasons cited for not making these crimes gender neutral are that a woman lacks the power to rape a man and that it would worsen the state of women in the country as it encourages counter-complaints. Ironically, the reasons are in itself massively discriminatory in nature as it leads to the portrayal of domination of men through victimisation of women. Recently, a petition had been filed by the Criminal Justice Society of Indiabased on landmark judgements such as Navtej Singh Johar v. Union of India[24], K.S. Puttaswamy v. Union of India[25] and National Legal Services Authority v. Union of India[26] to make rape gender-neutral but it was dismissed by the Hon’ble Supreme Court stating that actions are being taken for such an amendment.[27] The point that is being neglected is that these actions must have started years ago.
Even though any person under 18 years of age is protected against sexual offences under the law[28], an adult male victim is provided with no remedy and the perpetrator is not punished for the offence. The definition of rape and other crimes being patriarchal in nature ignorantly oversees that a crime cannot be subject to extremes like sexual orientation, gender or caste. While it seems like women are being protected, feminism is moving toward an establishment of domination in the process of feeling empowered. Every human being is subject to such monstrosities and must have protection under the law for the same and that is how gender justice can be truly achieved.
Conclusion- The Spaghettification of Feminism:
There needs to be an dogmatic change regarding feminism for it to actually be effective in society. Political parties are drifting away from ideological politics and succumbing to vote bank politics merely for obtaining votes from the ardent supporters of the conception of feminism. For instance, the recent Congress Manifesto[29]provided for reservation of 33% of seats for women in the Lok Sabha and State Legislative Assemblies along with equal remuneration and prevention of sexual harassment in workplaces. There is a paradox here as in the name of eradication of discrimination, there is an unintended promotion of discrimination by sectionalising women merely to obtain more votes.
The Rawlsian Theory[30] supports the extension of justice to the weaker sections of society in order to raise them to the elevation with the others and establish a sense of parity. Contrary to the ancient times, women have actually reached a point where they can stand up for themselves and are treated with dignity in society. At this point, it is an aberration to consider women as a weaker section of the society and if they are, that would be a way of discrimination in itself. Even though women are physiologically and mentally different from men and are vested with some special privileges under Article 15(3) of the Constitution of India, feminists must not intrude into personal laws and try to gain ascendancy and seem superior before the law.
Analogous to Spaghettification, a process through which a person or a thing would be stretched indefinitely and torn apart by gravitational forces on falling into a black hole, the concept of feminism too has been inflated way beyond its purview. Eventually, the soul of feminism which is the establishment of gender equity will be defeated. Before such an extremity, there needs to be a precise comprehension of the notion instead of dwelling on the perceptions of feminists and pseudo-feminists, both of whom have placed their faith in vastly different things. As Lady Justice stands firm, society needs to observe the significance of her blindfold and realize that there can be no prejudice in the process of rendering justice.
[1] Radha Kumar, The History of Doing: An Illustrated Account of Movements for Women’s Rights and Feminism in India 1800-1990 (1997).
[2]The Editors of Encyclopaedia Britannica, Indira Gandhi (Apr. 3, 2019, 10:46 PM), https://www.britannica.com/biography/Indira-Gandhi.
[3]Road Accident Fund v. Mdeyide, (CCT 10/10) ZACC 18 (S.A. 2010);
Bato Star Fishing (PTY) Ltd v. Minister of Environmental Affairs, (CCT 27/03) ZACC 15 (S.A. 2004);
President of the Republic of South Africa v. Hugo, 6 BCLR 708 (S.A. 1997);
Investigating Directorate: Serious Economic Offences v. Hyundai Motor Distributors (Pty) Ltd;
In re: Hyundai Motor Distributors (Pty) Ltd v. Smit NO, (CCT 1/00) ZACC 12 (S.A. 2000).
[4] Navtej Singh Johar v. Union of India, 10 SCC 1 (2018).
[5] Id.
[6] Bryan A. Garner, Black’s Law Dictionary 985 (10).
[7]Vishaka v. State of Rajasthan, 6 SCC 241 (1997);
See also Delhi Domestic Working Women’s Forum v. Union of India, 1 SCC 14 (1995).
[8] Mary Roy v. State of Kerala, 1 SCR 371 (1986).
[9] Lata Singh v. State of Uttar Pradesh, 5 SCC 475 (2006).
[10] Roxann Sharma v. Arun Sharma, 8 SCC 318 (2015).
[11] Laxmi v. Union of India, 4 SCC 427 (2014).
[12] Githa Hariharan v. Reserve Bank of India, 2 SCC 228 (1999).
[13] Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India, 8 SCC 398 (2003).
[14] Mohd. Ahmed Khan v. Shah Bano Begum, 2 SCC 556 (1985);
See also Shamima Farooqui v. Shahid Khan, 5 SCC 705 (2015).
[15] India Young Lawyers Association v. State of Kerala, SCC OnLine SC 1690 (2018);
See also S. Mahendran v. Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR Ker 42 (1993).
[16]Vidhi Doshi, After a deluge of #MeToo allegations, Indian men claim they are the ones under attack (Apr. 6, 2019, 1:44 PM), https://www.washingtonpost.com/world/asia_pacific/after-a-deluge-of-metoo-allegations-indian-men-claim-they-are-the-ones-under-attack/2018/10/15/5db5a776-d06e-11e8-a275-81c671a50422_story.html?utm_term=.9c981ede1f62.
[17] Ind. Penal Code §375 & §376.
[18] The Criminal Law (Amendment) Act, 2013 §375.
[19] Navtej Singh Johar v. Union of India, 10 SCC 1 (2018).
[20] Ind. Penal Code §354D.
[21] Ind. Penal Code §354A.
[22] Ind. Penal Code §354C.
[23] Ind. Penal Code § 354.
[24] Navtej Singh Johar v. Union of India, 10 SCC 1 (2018).
[25] K.S. Puttaswamy v. Union of India, 10 SCC 1 (2017).
[26] National Legal Services Authority v. Union of India, 5 SCC 438 (2014).
[27]Live Law News Network, Plea To Make Rape Law [Section 375IPC] Gender Neutral: SC Refuses To Interfere (Apr. 6, 2019, 1:53 PM), https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-375ipc-gender-neutral/.
[28] Protection of Children from Sexual Offenses Act (2012).
[29]The Hindu Net Desk, Congress manifesto: highlights (Apr. 5, 2019, 4:15 PM),
https://www.thehindu.com/elections/lok-sabha-2019/congress-manifesto-highlights/article26710254.ece.
[30] John Rawls, A Theory of Justice (1971/2005).
