B.A.LL.B.

(HONS) /
B.A.LL.B. (HONS) / LL.B / BBA
Session-2019-2020

Name of the Student SOUMYA PATHAK.

Semester B.A.LL.B (6TH SEM) Enroll No. DL1700223

University Exam Roll No. 70440367

Status : Regular/ATKT REGULAR

Assignment Subject GENDER JUSTICE.

Assignment Topic An Evolution From Fixed Mindset To A
Growing Mindset.

Submitted to : ASST. PROF. Submitted by:Name

MS. NEHA PARVEEN
SOUMYA PATHAK
Date- 12/05/2020
Semester (6TH SEM)
Marks Obtained
 ACKNOWLEDGEMENT

I have put in efforts in this assignment. However, it would not

have been possible without the kind support and help of many
individuals and organizations. I would like extent my sincere
thank s to all of them.

I thank my God for providing me with everything that I required

in completing this assignment.

I am highly indebted to the Teacher in Charge ASST. PROF. MS. NEHA

PARVEEN for guidance and constant supervision as well as for
providing necessary information regarding the assignment and also
for her support in completing the assignment.

I would like to express my gratitude towards my parents for

their kind co-operation and encouragement which helped me in
the completion of this assignment.

My hearty thanks and appreciations go to my classmates in

developing the assignment and to the people who have willingly
helped me out with their abilities.

Student Name: SOUMYA PATHAK…………………………..

 CERTIFICATE OF AUTHENTICITY

This is to certify that SOUMYA PATHAK… student of

Indore insti tute of law…………… has successfully
completed the below mentioned assignment under the
guidance of ASST. PROF. MS. NEHA PARVEEN……… (subject
teacher) during the year 2019-2020.
Student Name- SOUMYA PATHAK.
 DECLARATION

I hereby declare that the research work entitled “AN

EVOLUTION FROM FIXED MINDSET TO A GROWING
MINDSET..” submitted to the Indore Institute of Law is my
original work and the project has not formed the basis for
the award of any degree, fellowship or any other similar
titles.

Name of the Student:- Soumya Pathak.

Signature of the Student:

Place: Indore Institute Of

Law.

Date : 12/05/2020
 INDEX

SR.NO. CONTENTS PAGE NO.

1. INTRODUCTION 6

2. FEMINIST JURISPRUDENCE 6-7

3. Origin and Historical 7-8

Background of Feminism and
Feminist Jurisprudence.

4. POST INDEPENDENCE 8
5. FRENCH REVELOUTION 8-9

6. Feminist Jurisprudence and 9-10

Other Disciplines

7. Feminism and Feminist 11

Jurisprudence in India

8. Obstacles Today Against 11-12

Feminist Jurisprudence

9. Changes Made by Feminist 13-14

Jurisprudence in India

10. CONCLUSION 14

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 RESEARCH PAPER ON:-

AN EVOLUTION FROM FIXED MINDSET TO A GROWING MINDSET

ABSTRACT

Feminist Jurisprudence includes the study of different strands of feminist theory and the themes
that have emerged and developed within feminist thought, as well as the application of theory to
issues that interest members of class. It is the law’s neutrality as the very mechanism that
perpetuates injustices against woman Feminists embrace a view that attempts to challenge the
existing legal status by focusing on what kind of institutions and laws would be necessary to
redress the imbalance against woman in society. It is the very core of our society that the
feminist jurists question. They argue that we must look at the norms embedded in our legal
system and rethink the law. What is "equality" or an "injury" in light of broader understandings
of those norms?

1. INTRODUCTION

Woman's rights is a lot of development looking for sex balance, a development to change social,
political and financial rights, for example, equivalent compensation and the option to access to
wellbeing and instruction, and equivalent political rights. In India a portion of the predominant
issues which are to be controlled by woman's rights are issues identified with business,
globalization, training, sex-select fetus removal and so on. Regardless of its endeavors, woman's
rights in India is reprimanded as the development has exceptional spotlight on ladies who are as
of now favored and the requirements of lower station ladies are disregarded.1

2. FEMINIST JURISPRUDENCE

Feminist Jurisprudence includes the study of different strands of feminist theory and the themes
that have emerged and developed within feminist thought, as well as the application of theory to
issues that interest members of class. It is the law’s neutrality as the very mechanism that

1
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perpetuates injustices against woman Feminists embrace a view that attempts to challenge the
existing legal status by focusing on what kind of institutions and laws would be necessary to
redress the imbalance against woman in society. It is the very core of our society that the
feminist jurists question. They argue that we must look at the norms embedded in our legal system
and rethink the law. What is "equality" or an "injury" in light of broader understandings of those norms?
Feminist Jurisprudence helps to points out that what is neutral or natural for one person is a distortion
for another person.2 Pregnancy, child rearing and other caregiving activities are still treated in the
workplace as peculiar occurrences, rather than what they are: commonplace functions that serve the
larger good. The pervasive influence of patriarchy on legal structures, demonstrates its effects on the
material condition of women and girls, and develops reforms to correct gender injustice, exploitation, or
restriction Promoting freedom and equality for women reflects a profound shift in basic assumptions
about the nature of women and their proper place in the world: a shift from inequality to equality of the
sexes, along with re-examination of what equality itself requires. 3

3. Origin and Historical Background of Feminism and Feminist

Jurisprudence.

In India, fundamentally there were three periods of woman's rights. In contrast to the western
world, the women's activist development in India was really started by men. The endeavors of
the men lead to abolishment of Sati practice in India. It was intended for the upliftment of ladies
so they can unite with others in the opportunity battle. Post independence as the Constitution of
India ensured Correspondence between genders, there was very little of a mayhem about
correspondence as the jobs, capacities, points and want of ladies were extraordinary. With the
expansion of globalization and the idea of individual rights, women's liberation has taken another
shape in India. It is additionally clarified:-

1850-1915

The colonial venture into modernity brought concepts of democracy, equality and individual
rights. The rise of the concept of nationalism and introspection of discriminatory practices
brought about social reform movements related to caste and gender relations. The first phase was
able to uproot practices such as Sati and remarriage of widows, forbid child marriage, reduce
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illiteracy etc. However, efforts for improving the status of women in Indian society were
somewhat thwarted by the late nineteenth century, as nationalist movements emerged in India.
These movements resisted 'colonial interventions in gender relations' particularly in the areas of
family relations. In the mid to late nineteenth century, there was a national form of resistance to
any colonial efforts made to 'modernize' the Hindu family.

1915-1947

The second stage nationalism became the pre-eminent cause. Gandhi legitimized and expanded
Indian women's public activities by initiating them into the nonviolent civil disobedience
movement against the British Raj. He exalted their feminine roles of caring, self-abnegation,
sacrifice and tolerance; and carved a niche for those in the public arena. Also, national level
organizations such as All India Women Conference (AIWC) and the National Federation of
Indian Women (NFIW) came up in the second phase. These organizations aimed at issues
relating to women’s political rights, leadership and roles in parties etc.

POST INDEPENDENCE

Prior to independence the women in India did not question the societal status of women. They
did not question the various roles that were especially made for women. This change was seen
after independence with the increase of westernization. The opportunities were demanded for
both the genders. The state of Kerela in this regard is much advanced as compared to other
states. This state has the highest literacy rates and traditionally, before amendment in the Hindu
Law, it was a common practice to give daughters and wives a portion of the property.4

FRENCH REVELOUTION

It is one of the most important revolutions in the world. A unique feature of this revolution is the
influence of women. The position of woman within the context of the French Revolution, and
political liberalism, e.g., Divorce and Inheritance Laws. Liberty. One such example is the
historical Women’s March on Versailles, on 5 October 1789 crowds of women began to
assemble at Parisian markets. The women first marched to the Hôtel de Ville, demanding that
city officials address their concerns. The women were responding to the harsh economic

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situations they faced, especially bread shortages. They also demanded an end to royal efforts to
block the National Assembly, and for the King and his administration to move to Paris as a sign
of good faith in addressing the widespread poverty.

4. Feminist Jurisprudence and Other Disciplines

Feminist writers criticize the inherent methodological framework used by such legal positivists
as Austin, Hart and Kelsen. As such, traditional command theorist like John Austin, for example,
are questioned for their narrow framework of command, obedience, and sanction as the essence
of the law. Theory of Legal Positivism and Rule of Law is also criticized by feminist jurists.
Contemporary feminist philosophy of law also draws from diverse scholarly perspectives such as
international human rights theory, postcolonial theory, critical legal studies, critical race theory,
queer theory, and disability studies.5 The view of various jurists are taken into consideration.
Each of them have their argument against the current system, they are as under: -

1. Carole Pateman argue that, “traditional jurisprudence treats citizenship as patriarchal

constructed in the masculine image”. “The story of the original contract shows how
sexual difference gives rise to a patriarchal division of labour, not only in the conjugal
home between the (house) wife and her husband, but in the workplaces of civil society.”
(The Sexual Contract, Pateman, pg.340 Hilaire Barnett).6
2. Catherine MacKinnon sees maleness as the organizing form of what is accepted as
“normal.” MacKinnon is very critical of most forms of equality legislation for being
vehicles of making woman as men, rather than searching for true equality. “Seeing sex
equality questions as matters of reasonable or unreasonable classification is part of the
way male dominance is expressed in law. If you follow my shift in perspective from
gender as difference to gender as dominance, gender changes from a distinction that is
presumptively valid to a detriment that is presumptively suspect. The difference approach
tries to map reality; the dominance approach tries to challenge and change it. In the
dominance approach, sex discrimination stops being a question of morality and start
being a question of politics.”MacKinnon's ideas have been influential. She is credited

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 with developing the now orthodox idea that sexual harassment in the workplace is a form
of discrimination. Until the latter half of the '70s, sexual harassment on the job was not
considered an actionable injury to women, and several national studies showed that it was
very common.
3. Carol Gilligan, a social scientist who sparked much of the thinking that we refer to as
Feminist Jurisprudence. Gilligan wondered why girls and women consistently scored
lower than boys and men on tests for moral development. She found that the scales for
measuring moral development were developed by men researchers using male subjects.
4. Margot Stubbs, sees feminist jurisprudence as transcending the positivist conceptual
framework of both liberal legalism (e.g., the rule of law) and Marxist (e.g., law as
reflection of the bourgeoisie class that is the capitalist superstructure). Feminist
jurisprudence seeks to make the connection between Hilarie Barnett’s “woman question”
and “the law”.
5. John Rawl’s “Theory of Justice,” in 1972. Essentially, Rawl’s postulates abstraction to
‘pure reason’ in man’s original state, where participants are ignorant of their self-interest,
desires, etc. Rawls calls this a “veil of ignorance”. Only by stripping people of their
individuality, according to Hilare Barnett (“On Feminist Jurisprudence”), does Rawls
consider the principles on which society and laws should be based. Yet writers such as
Mari Matuda criticize Rawls for avoiding real earthly issues.7
6. The Father, the Son and the Holy Ghost” are completely in the image of man. Perhaps
there is hope yet, since the ghost may yet be a woman! Recent writings such as “Woman
in the Bible”, “Who wrote the Gospels” and others, have argued that the Catholic
Church’s attempt to completely dishonor and discredit Mary Madeline as not only Jesus’
Wife, but as a woman with extraordinary intellect and commercial savvy. It was Mary,
not the other disciples, who first saw Jesus upon his resurrection. The male dominated
church has done everything in its power to remove Mary from their religious texts and
condemn her as a whore to scorn into eternity.

5. Feminism and Feminist Jurisprudence in India

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 Feminism in India is a set of movements aimed at defining, establishing, and defending
equal political, economic, and social rights and equal opportunities for Indian women. It
is the pursuit of women's rights within the society of India. Feminism can also be
understood by way of religions.
HINDU FEMINISM
In the Hindu religion, there has been partial success in terms of gender equality reform
laws and family law. While this is a major advancement relative to other religions in
India, it is still not a complete triumph in terms of feminism and relieving oppression.
Due to various castes in the Hindu religion, the struggle for feminism has converted into
a struggle for equality of castes. It has been seen that women from a higher caste seen to
benefit more from feminism than the lower caste women.8
ISLAMIC FEMINISM
A table turning event was witnessed as a win for feminism in the historical judgment of
Shah Banos’s case. Shah Bano, a 73-year-old Muslim woman, was divorced by her
husband after forty-three years of marriage. According to the Sharia or Muslim Law, her
husband was not required to pay her alimony. Shah Bano challenged this decision in the
Supreme Court, which ultimately ruled in her favor and ordered her husband to pay her a
monthly maintenance allowance. This caused chaos amongst the Muslim clerics who
denounced the judgments and suggested that their religion, Islam was under attack in the
country

6.Obstacles Today Against Feminist Jurisprudence

There are still many obstacles that are to be dealt with by feminist jurisprudence. Some of
them are discussed further.

Traditional Jurisprudence

Recurring dichotomies that affect women: public/private, agent/victim,

motherhood/sexuality, production/reproduction, nurture/work. In short, is not so much that
woman have been in a “radically different” relation to the law compared to men, but rather,
feminist jurisprudence concentrates on the inherent inequities fostered by the methodology of

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 traditional jurisprudence, in particular, legal positivism. Feminists see the law as the prime
source for perpetuating pre-existing gender based inequities, especially within the framework
of capitalism.86 Traditional jurisprudence thus emphasizes the “rule of law”, not of men.
Men are arbitrary and inconsistent, whilst the “rule of law” could be viewed as a universal, a
contextual standard that could be blindly applied to all society in whatever setting. Law’s
neutrality as the very mechanism that perpetuates injustices against woman Feminist writers
criticize the inherent methodological framework used by such legal positivists as Austin,
Hart and Kelsen. As such, traditional command theorist like John Austin, for example, are
questioned for their narrow framework of command, obedience, and sanction as the essence
of the law. Feminist writers are also critical of legal positivism for its reliance on discovering
law’s nature as the key to understanding law.

Legal Positivism

Legal positivism is fundamental to the constitution of legal thought. It is a key reason why
lawyers come to accept the official version of law as legal theory, why lawyers tend not to
question the nature and purpose of law but take it as a given. It also helps to explain why the
law comes to assume the status of objectivity and why judges become the seekers of truth.
Understand that simply asking for “equality” of rights is not necessary the answer, and
actually perpetuates a legal system that is already embedded with male dominated
assumptions to find solutions for woman.”9

Marriage

In Indian culture, most of the average Indian woman's life is spent in marriage; many women
are still married before the legal age of 18, and the incidence of nonmarriage is low in India.
Childbearing and raising children are the priorities of early adulthood for Indian women.
Thus, if they enter the workforce at all, it is far later than Indian men. Urban Indian men
reach the peak of their labor force participation between the ages of 25 and 29, while urban
Indian women do so between the ages of 40 and 44. This discourages women to acquire any
sort of skills and earn for themselves.

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7.Changes Made by Feminist Jurisprudence in India

Due to increase in the feminist movement and growing knowledge about feminism various
Acts are specially made for women rights such as The Immoral Traffic (Prevention) Act,
1956, The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986), The Indecent
Representation of Women (Prohibition) Act, 1986, The Commission of Sati (Prevention)
Act, 1987 (3 of 1988), Protection of Women from Domestic Violence Act, 2005, The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
These Acts are significant proof that feminism exists in India and there are several instances
and amendments made for benefit of women. Hindu Law of Inheritance for women have
been changed in 2005 Amendment. The apex court judgment has now added another
disqualification for women regarding their right of inheritance. Until now, they could not ask
for a share if the property had been alienated or partitioned before December 20, 2004, the
date the Bill was introduced. This judgment makes it imperative for the father to have been
alive when the amendment came into force. 10All that is required is that the daughter should
be alive and her father should also be alive on the date of the amendment,” it said. The court
also held that alienation of ancestral property, including its partition, which may have taken
place before December 20, 2004, in accordance with the law applicable at that time, would
remain unaffected by the 2005 amendment, and those partitions can no longer be reopened
by daughters. Besides these changes there can be a significant impact seen on employment.
Indian women were contributing nearly 36 percent of total employment in agriculture and
related activities, nearly 19 percent in the service sector, and nearly 12.5 in the industry
sector as of the year 2000. There has been a significant change in the participation of women
at schools, this shows an increase in the number of women who are getting educated. Certain
western judgments empowering women such as In Ellison v. Brady the U.S. Court of
Appeals for the Ninth Circuit reversed a ruling that a man's behavior toward a woman co-
worker was "trivial" and found that women could have found the behavior frightening.
General Electric Co. v. Gilbert the Supreme Court reasoned that excluding pregnant women
from medical benefits' was a gender neutral practice, because non pregnant women were not
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affected. McCourtney v. Imprimis Technology, Inc. 97 the court acknowledged that it may
not always be possible to keep care-giving responsibilities at home separate from the
workplace. The judges decided that a woman who was fired for missing too much work to
care for a chronically sick baby had not shown a lack of concern for her job and was eligible
for unemployment insurance.

CONCLUSION

Feminist Jurisprudence is a fight against traditional law which are mostly patriarchal in
nature. One wonders what changes could have possibly occurred had the feminine view was
taken in framing of laws. This project compared the concept of Feminist Jurisprudence with
other disciplines as it cannot be understood in isolation. It aims at celebrating some
milestones achieved by a change in law due to Feminist Jurisprudence globally and in India.
This project aims to study the radical change in mindset of people due to feminism and
whether they are accepting this change. The various stages of development of feminism in
India is seen from 1915 to Independence and after. There has been a major change in the
ideas and role of women in the society. Earlier, women did not question their roles in society
but with the increase in influence by women in various areas, the revolution has given food
for thought, for women to question the ways and methods of society and why they are the
way they are, and to find out a possibility of their change. Various obstacles for feminist
jurisprudence or growth of feminism are also mentioned and the impact of whatever effort
has been made post-independence is also highlighted.

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