Prof. Aakash Singh Rathore in his opening remarks Pointed out the anomaly in feminist theory and experiences in the Indian context. He does so by the fact that of the total supreme court Judges, only two are female, both upper-caste women. It illustrates that it is not inclusive of the demographic diversity of the country. The theory does not support this practical manifestation of feminism, which talks of the equality of the sexes. Even when the feminist theory first emerged in the 17th to 19th centuries, European white men would theorize about demographic identities they had nothing to do with and do not identify themselves with.
This is why feminism does not need to be merely articulated, rather embodied, and should not remain within the confines of enactments and activism, he says, Pointing out the material importance of the conversation around feminism.
The first speaker, Ms. Nabeela Siddiqui, discusses “Re-tracing Indian feminism”
Feminism can be understood using two different approaches, a dictionary-based or definitive approach and by an experience-based approach
Going by the definitive approach, feminism is defined as the advocacy of political, social, and economic equality of both sexes.
When talking of an experience-based approach, there are two broad notions or approaches to it,
Western notion and a third world country approach.
The western approach can be traced back to struggles for voting rights and reproductive rights for women. The western notion responded to the issue based on an actionary approach through judgments and policymaking.
In contrast, when the same movement developed in third world countries, it had an entirely different essence, such as the development of black feminism, Dalit feminism, and Islamic feminism. Taking about India specifically, as a result of the wave of liberalization, privatization, and globalization, homegrown literature was lost somewhere, consequentially when talking of the development of the feminist movement in India, often western sources are referred to. However, tracing the history of feminism, one would find the mention of Savitri Bai Phule, Hamida Habibullah, Ram Dayal Munda, and even Swami Vivekananda. In the contemporary context, Dr. Ambedkar’s idea of feminism finds relevance. Ambedkar, when speaking of caste, finds a link between caste and gender-based oppression, and the two being intrinsically linked together. The introduction of the Hindu code bill by him was an attempt at the recognition of women as equal citizens. However, Ambedkar’s approach was not limited to issues of caste and Hinduism only, rather it finds relevance in all religions and ideologies.
The idea of marriage has become a tool of female oppression along with the manifestation of oppression through the caste system. It is the first instrument of subjugation in the Indian context, manifested in issues such as lack of choice of partners, controlling female autonomy. She emphasizes the need for deliberation on such institutionalized oppression in the Indian context.
The second speaker, Ms. Flavia Agnes, speaks on “Rape laws and the Indian Judicial experience”
She identifies herself as an experiential feminist school, her works deal with making an attempt at bridging the gap between statutory law and the experiences of women. Feminism is often perceived as something borrowed from the west, but the development of the framework of the movement is Indian in nature and has been played out in the Indian context. The notion of patriarchy can be both Indian and western and has been imbibed by the judiciary, one needs to look at Indian values and ethos to counter that.
Among the numerous issues dealt with by the feminist movement, rape has been one of the central issues around which other issues evolved. For instance, the infamous Mathura rape case where judges were dealing with the issue of what constitutes consent or non-consent. This case became the catalyst for the entire feminist movement, a poor tribal illiterate young girl belonging to a small village was raped by some policemen and a case was registered in the same police station to which they belonged. The judges, to determine consent or non-consent, looked at the evidence of injury on the body, and when it was absent, it was construed to be consensual. The extreme gender bias by the Supreme Court came as a shock to women. This became essential to the Indian feminist movement – what does consent construe in a rape trial? This led to a whole movement in the ’80s, there were no well-defined theories, but there was a clear understanding that the courts were oblivious to the ground realities of women in India. The movement led to amendments in rape laws in 1983, it did change the notion of consent in rape cases, but it did not significantly contribute to resolving a vast majority of issues. Since then, there have been various similar movements, the most recent one being the Nirbhaya rape case. It depicts one of the most gruesome and extreme circumstances.
However, very often the victim is acquaintances with the rapist and knows them, prior to the incident. The theories evolved keeping in mind the stranger rapes cannot be applicable to rape by acquaintances. In these instances, the perpetrator is a friend, boyfriend, a doctor, a state functionary, and many times a relative such as a father, uncle, grandfather, etc. Often, most of these cases go unreported, and when they do come to light, there is a certain pressure to settle the matter by everyone involved in the judicial process, from family to police to the judges. There is also immense economic, emotional pressure which often leads to a victim and her mother, etc., to settle.
These are immensely complex cases, especially due to the involvement of institutions of family and marriage. Rape is seen as a terrible crime because it renders a woman unfit for marriage, and often when such cases come to light, there is pressure to marry a girl off as soon as possible. There is a link between the judicial process and the institution of marriage. The issue would not be resolved until marriage as an institution is kept as the focal point and a means of subjugation of women. The issues of domestic abuse, child sexual abuse, and issues relating to sexual orientation and gender identities are all interlinked to the institutions of marriage and family in India, which is different from the feminist movement and women-centric issues in the west. She emphasizes how each of them deals differently with patriarchy and how the judicial discourse must evolve, taking into account different theories.
The third speaker, Ms. Ranu Bhogal, speaks on “The economics of gender Inequality”
There are three spaces where gender inequality is institutionalized in India.
Firstly, within the institution of family, marriage is seen as social security for women. Specific gender roles are ascribed to men and women in a marriage, and the traditional roles ascribed to women fall outside the confines of the GDP. The work done by women is not calculated as a part of the national income. She emphasizes that what is not measured, is not valued.
Secondly, inheritance and property, despite the fact that women now have the right to claim property, it is understood that it would lead to the ruin of familial relations if the right is claimed and a woman should relinquish her rights in the property to maintain healthy relationships.
Thirdly, in the capitalist market system, a woman’s labor is subsidized. Women’s unpaid labor goes unrecognized. For example, People pay for Zomato but never pay a mother for the food she prepares. The COVID-19 situation has thrown it in their faces where all the housework falls in the lap of the female members of a family, whether she is engaged in other employment or not.
Most women are working in the informal sector where they don’t have benefits such as maternity leave. In formal sectors, corporates avoid hiring newly-wed women or pregnant women as they are considered a liability. Working women have to work both at their workplace and home, which amounts to double the work that men do. Women are held back because of family responsibilities. She alluded to the drawbacks of the Wage code bill and the fact that it does not address issues related to women.
UP has come up to 2nd position in the ease of doing business at the cost of removing relaxations which ultimately will make more women quit their jobs because of the increase in work.
The fourth speaker of the session, Prof. Jhuma sen, speaks on “ challenges and prospects of feminist judgment writing project in India”
She also alludes to the fact that even the constitution is also a feminist document, referring to the provisions providing for the equality of the sexes.
The feminist Judgments project is about writing alternate judgments which may have been written differently using a feminist perspective. It takes into account the intersectionality of identities and re-imagines judgment writing. It is aimed at bridging the gap between feminist theory and practice by re-thinking and re-imagining a judge’s thought process from a feminist perspective while remaining true to the constitutional ethos and within the bounds of legal as well as constitutional limitations. The essence of the project is to engage in a feminist activist critique to judicial decisions.
She often comes across the question that can a judge identify themselves as a feminist when there is the conception that judges should be neutral and unbiased. She counters that the idea of neutrality and objectivity in the adjudicatory process is a mere assumption and is a myth. It is clear that at one point or the other, judges use their values, perspectives, and ideological inclinations to deliver judgments, especially in instances where the existing rules have no clear answers. One’s ideologies influence the thought process and ultimately the judicial process. Therefore, a judge can identify themselves as a feminist. A feminist judge would also be considerate of facially neutral laws and rethink the reasonable man standards within the existing rules and the legal practice. The feminist method of decision-making would entail judges asking the women-centric questions, notice gender implications of apparently gender-neutral rules, and making individualized as opposed to categorized decisions. Her speech also finds mentions how the constitution itself is a feminist document, in the sense that it imagines the creation of an egalitarian society and has provisions for substantive equality. In Navtej Singh Johar judgment, Chandrachud J. has tried to bring feminist consciousness in judgment writing.
The project has over 75 judgments being re-written using intersectionality and feminist perspective to be considerate of substantive equality, caste differences, consent and sexual autonomy etc. including Mathura rape case, shyra bano case, Vishakha v. state of Rajasthan, to name a few. The project had various challenges such as creating a space for various disciplines to work together, lack of proposals for judgments that were facially gender neutral, and lack of crucial facts in appellate judgments. If feminist judgment writing is included as part of classroom teaching and judicial training then it has tremendous potential so that it does not remain to be a type academic activism and contributes towards a cultural shift.
By Vidhi Gupta & Pankaj Mehta