Feminist Jurisprudence.docx

JURISPRUDENCE

FEMINIST JURISPRUDENCE Submitted to : Dr. Eqbal Hussain

Submitted by : Ziaul Haq B.A.LLB(Hons)1st Year

Faculty of Law Jamia Milia Islamia New Delhi

ACKNOWLEDGEMENT [1]

I would like to acknowledge and extend my heartfelt gratitude to the following persons who have made the completion of this assignment possible:

Prof. Dr. Eqbal Hussain, for the help and inspiration he extended and constant reminders and much needed motivation.

Library assistant who helped me a lot and all other faculty members, Staff for assisting in the collection of the topics for the chapters.

Most especially to God, who made all things possible.

INTRODUCTION TO FEMINIST JURISPRUDENCE

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The word ‘Feminism’ seems to refer to an intense awareness of identity as a woman and interest in feminine problems. The subjugation of woman is a central fact of history and it is the main cause of all psychological disorders in society. According to Janet Richards, “The essence ofFeminism has a strong fundamental case intended to mean only that there are excellent reasons for thinking that woman suffer from systematic social injustice because of their sex, the proposition is to be regarded as constituting feminism.”1

Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It now holds a significant place in U.S. law and legal thought and influences many debates on sexual and domestic violence, inequality in the workplace, and gender based discrimination. Through various approaches, feminists have identified gendered components and gendered implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.

Woman did not write in the beginning as it now, the obvious reason as Virginia Woolf puts it, “A woman must have money and room of her own if she is to write fiction.’’2. Money symbolizes power and freedom and a room of her own is to have contemplative thinking Very often women had enjoyed these things in the past so to develop their imaginative capabilities and personal freedom.

Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and critiques the law by examining the relationship between gender, sexuality, power, individual rights, and the judicial system as a whole. As a field of legal scholarship and theory, feminist Jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important and vital part of the law, informing many debates on sexual and Domestic Violence, inequality in the workplace, and gender-based discrimination at all levels of Indian society.

1 2

Richards Janet, ‘Women writer’s Talking, Cambridge, London, 1981. p.3 Woolf Virginia,’ A Room of One’s Own,’ Pen Craft, London, 1929,p126 [3]

Feminist jurisprudence intersects with a number of other forms of critical theories, most notably critical race theory and the study of intra and inter-racial relationships. Moreover, the form of feminist thought that focuses on legal theory draws from feminism in other disciplines, including sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps thus do not focus exclusively upon purely legal aspects of feminism.3

Feminist activist were ardent supporters of women rights and reservations. They actively challenged male superiority in the workplace. Their efforts paid off and female co-workers and employees started getting better pays and positions.

Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated legal doctrine defines and protects men, not women. By discounting gender differences, the prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social, economic, and political power, they use the system to subordinate women in the public spheres of politics and economics as well as in the private spheres of family and sex. The language, logic, and structure of the law are male created, which reinforces male values. Most troubling, these concepts and values are presented as and are widely perceived to be both neutral and objective.4

In analyzing the workings of gender in the law, feminist scholars share certain common commitments. Politically, they seek equality between men and women. Analytically, they make gender a category by which to reconstitute legal practices that have excluded women's interests. Methodologically, they use women's experiences to describe the world and to demonstrate the need for change. They rely primarily on an experiential discourse for analyzing gender hierarchy, sexual objectification, and social structures.

RISE OF FEMINIST JURISPRUDENCE 3

Nahal Chaman, ‘Feminism in English fiction-forms and Variants,’ in Feminism and Recent fiction in English,’ Ed. Sushila Singh, Prestige books, New Delhi, 1991,p 17 4 Eisenstein, ‘Feminist Criticisms and Social Change: Class and Race in Literature and Culture’, Cambridge University Press, London, 1963. p. 58

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Feminist jurisprudence represents the diversity of feminist philosophy and theory. Notwithstanding differences in approaches, all feminists share the belief that "women are oppressed or disadvantaged in comparison with men and that their oppression is in some way illegitimate or unjustified. Under the umbrella of this general characterization there are, however, many interpretations of women and their oppression, so that it is a mistake to think of feminism as a single philosophical doctrine. Just as there are diverse images of liberation, so there are a number of feminist philosophies, yoked together not so much by their particular claims or prescriptions as by their interest in a common theme.5 Feminist activism has had a major impact, besides other fields, on many areas of law. Legal feminism which originated as distinct category only in second half of this century now enjoys a formidable presence in feminist movement worldwide. The liberal feminism also labeled as first wave feminism was based on emancipatory theory and sought to dismantle the positive legal barriers that had denied women equal opportunity with men. This strand of thought supports the values of liberal jurisprudence as imputed to law, but identified a discrepancy between those liberal values and legal practice, such that women are accorded parity with men. The theory behind those goals was that the rights of individuals as traditionally understood in a liberal society should transcend gender differences. If follows that law must be persuaded to apply these standards more rigorously in case of women or that liberal values must be revised to recognize gender as a source of social injustice. The main objective is to give women genuine, as opposed to nominal, equal rights or, where their special social situation demands it, special rights.6 After this theory emerged illiberal feminist legal theory, also known as "radical feminism", during 1980s. It urges women to renounce traditional notions of right and justice, now viewed as perpetuating male dominance. Some of the radical feminists charge that the reforms achieved by "equality feminists" have dismantled protections beneficial to women while doing nothing to eliminate their disadvantages. They too note the discrepancy between the liberal values imputed to law and law's treatment of women 5 6

Miriam Shiner, Feminism: ‘The Essential writings’, Vintage Books,1994,p. xiv Nayantara Uma, ‘Indian Women writer’s at the Cross Roads’, Pen crafts, New Delhi, 1996. p. 243.

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but recognizes the limitations of attempting to close the gap between liberal jurisprudence and legal practice either by making law apply legal principles more scrupulously in the area of gender or by revising liberal principles.7 For radical feminists, the key concept is "patriarchy", the male dominated social structure. They argue that liberal jurisprudence can make no impact on law's treatment of women so long as categories, such as crime or family law, and legal concepts such as provocation or marriage, embody male norms and accordingly fail to address women's experiences. It follows that such legal categories and concepts must be transformed to address women's social position and experiences. They attack the liberal principles as neutrality of law, equality and individual autonomy for their "patriarchal" roots. Mackinon, a main protagonist of this stream asserts, "the greater the prima facie neutrality of law, the more effectively 'neutrality' works as a key mechanism for masking the male domination for example by requiring women to fit into an economic system which denies them substantive equality." Law is seen as an instrument to "change the distribution of power", which requires not equal treatment but "an asymmetrical approach that adopts the perspective of the less powerful group with the specific goal of equitable power sharing among diverse groups". Thus the latest trend can be summarized as questioning the desirability of gender equality as a feminist goals as well as capacity of law reform to achieve that goal. Feminism has no theory of the state. It has a theory of power: sexuality is gendered as gender is sexualized. Male and female are created through the erotization of dominance and submission. The man/woman difference and the dominance/submission dynamic define each other. This is the social meaning of sex and the distinctively feminist account of gender inequality. Sexual objectification, the central process within this dynamic, is at once epistemological and political. The feminist theory of knowledge is

7

Kapur Manju,’ a Married Woman,’ Penguin Pub., New Delhi, 2002, p23

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inextricable from the feminist critique of power because the male point of view forces itself upon the world as its way of apprehending it.8 Feminism criticizes this male totality without an account of our capacity to do so or to imagine or realize a more whole truth. Feminism affirms women's point of view by revealing, criticizing, and explaining its impossibility. This is not a dialectical paradox. It is a methodological expression of women's situation, in which the struggle for consciousness is a struggle for world: for sexuality, a history, a culture, a community, a form of power, an experience of the sacred. If women had conscious¬ nests or world, sex inequality would be harmless, or all women would be feminist. Yet we have something of both, or there would be no such thing as feminism. Why can women know that this—life as we have known it—is not all, not enough, not ours, not just? Now, why don't all women? The practice of a politics of all women in the face of its theoretical impossibility is creating a new process of theorizing and a new form of theory. Although feminism emerges from women's particular experience, it is not subjective or partial, for no interior ground and few if any aspects of life are free of male power. Nor is feminism objective, abstract, or universal. It claims no external ground or unsexed sphere of generalization or abstraction beyond male power, nor transcendence of the specificity of each of its manifestations. How is it possible to have an engaged truth that does not simply reiterate its determinations? Disengaged truth only reiterates its determinations. Choice of method is choice of determinants—a choice which, for women as such, has been unavailable because of the subordination of women. Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience because there is no such audience. Its project is to uncover and claim as valid the experience of women, the major content of which is the revalidation of women's experience.9

8

Roy Arundhati, ‘ An Ordinary Person’s Guide to Europe,’ Penguin, New Delhi, 2005 p43

9

Ibid. [7]

Feminism has been widely thought to contain tendencies of liberal feminism, radical feminism, and socialist feminism. But just as socialist feminism has often amounted to marxism applied to women, liberal feminism has often amounted to liberalism applied to women. Radical feminism is feminism. Radical feminism—after this, feminism unmodified—is methodologically post-marxist.8 It moves to resolve the marxist-feminist problematic on the level of method. Because its method emerges from the concrete conditions of all women as a sex, it dissolves the individualist, naturalist, idealist, moralist structure of liberalism, the politics of which science is the epistemology. Where liberal feminism sees sexism primarily as an illusion or myth to be dispelled, an inaccuracy to be corrected, true feminism sees the male point of view as fundamental to the male power to create the world in its own image, the image of its desires, not just as its delusory end product. Feminism distinctively as such comprehends that what counts as truth is produced in the interest of those with power to shape reality, and that this process is as pervasive as it is necessary as it is changeable. Unlike the scientific strain in marxism or the Kantian imperative in liberalism, which in this context share most salient features, feminism neither claims universality nor, failing that, reduces to relativity. It does not seek a generality that subsumes its particulars or an abstract theory or a science of sexism. It rejects the approach of control over nature (including us) analogized to control over society (also including us) which has grounded the "science of society" project as the paradigm for political knowledge since (at least) Descartes. Both liberalism and marxism have been subversive on women's behalf. Neither is enough. To grasp the inadequacies for women of liberalism on one side and marxism on the other is to begin to comprehend the role of the liberal state and liberal legalism within a post-marxist feminism of social transformation.10

The feminist posture toward the state has therefore been schizoid on issues central to women's survival: rape, battery, pornography, prostitution, sexual harassment, sex discrimination, abortion, the Equal Rights Amendment, to name a few. Attempts to reform and enforce rape laws, for example, have tended to build on the model of the deviant perpetrator and the violent act, as if the fact that rape is a crime means that the 10

Ibid. [8]

society

is

against

it,

so

law

enforcement

would

reduce

or

de-

legitimize it. Initiatives are accordingly directed toward making the police more sensitive, prosecutors more responsive, judges more receptive, and the law, in words, less sexist. This may be progressive in the liberal or the left senses, but how is it empowering in the feminist sense? Even if it were effective in jailing men who do little different from what non-deviant men do regularly, how would such an approach alter women's rapability? Uncomforted are why women are raped and the role of the state in that. Similarly, applying laws against battery to husbands, although it can mean life itself, has largely failed to address, as part of the strategy for state intervention, the conditions that produce men who systematically express themselves violently toward women, women whose resistance is disabled, and the role of the state in this dynamic. Criminal enforcement in these areas, while suggesting that rape and battery are deviant, punishes men for expressing the images of masculinity that mean their identity, for which they are otherwise trained, elevated, venerated, and paid. These men must be stopped. But how does that change them or reduce the chances that there will be more like them? Liberal strategies entrust women to the state. Left theory abandons us to the rapists and batterers. The question for feminism is not only whether there is a meaningful difference between the two, but whether either is adequate to the feminist critique of rape and battery as systemic and to the role of the state and the law within that system.11

Feminism has descriptions of the state's treatment of the gender difference, but no analysis of the state as gender hierarchy. We need to know. What, in gender terms, are the state's norms of accountability, sources of power, real constituency? Is the state to some degree autonomous of the interests of men or an integral expression of them? Does the state embody and serve male interests in its form, dynamics, and relation to society, and specific policies? Is the state constructed upon the subordination of women? If so, how does male power become state power?

11

Deshpande Shashi, ‘Roots and Shadows- A Feminist Study,’ Ed. Amaranth Prasad, Swroop book, New Delhi, 2009, p129

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RESPONDING TO LIBERALISM: QUESTIONS OF PERSPECTIVE As a critical theory, feminist jurisprudence responds to the current dominant understanding of legal thought, which is usually identified with the liberal Anglo-American tradition. (This tradition is represented by such authors as Hart 1961 and Dworkin 1977, 1986.) Two major branches of this tradition have been legal positivism, on the one hand, and natural law theory on the other. Feminist jurisprudence responds to both these branches of the American legal tradition by raising questions regarding their assumptions about the law, including: that law is properly objective and thus must have recourse to objective rules or understandings at some level that law is properly impartial, especially in that it is not to be tainted by the personal experience of any of its practitioners, particularly judges that equality must function as a formal notion rather than a substantive one, such that in the eyes of the law, difference must be shown to be “relevant” in order to be admissible/visible that law, when working properly, should be certain, and that the goal of lawmaking and legal decision-making is to gain certainty that justice can be understood as a matter of procedures, such that a proper following of procedures can be understood as sufficient to rendering justice. Each of these assumptions, although contested and debated, has remained a significant feature of the liberal tradition of legal understanding.12

Feminist jurisprudence usually frames its responses to traditional legal thought in terms of whether or not the critic is maintaining some commitment to the tradition or some particular feature of it. This split in responses has been formulated in a number of different ways, according to the particular concerns they emphasize. The two formulations found most frequently in American feminist jurisprudence characterize the split either as the reformist/radical debate or as the sameness/difference debate. Within the reformist/radical debate, reformist feminists argue that the liberal tradition offers much that can be shaped to fit feminist hands and should be retained for all that it offers. These feminists approach jurisprudence with an eye to what needs to be changed within the system that already exists. Their work, then, is to gain entry into that system and use its own tools to construct a legal system which prevents the inequities of patriarchy from affecting justice.13 12 13

Deshpande Shashi interview with M Rati, Eve’s Weekly, June 1998, Ibid. [10]

Under the sameness/difference debate, the central concern for feminists is to understand the role of difference and how women’s needs must be figured before the law. Sameness feminists argue that to emphasize the differences between men and women is to weaken women’s abilities to gain access to the rights and protections that men have enjoyed. Their concern is that it is women’s difference that has been used to keep women from enjoying a legal status equal to men’s. Consequently, they see difference as a concept that must be de-emphasized. Sameness feminists work to highlight the ways in which women can be seen as the same as men, entitled to the same rights, protections, and privileges.14

14

Shobha De, ‘ Selective Memory: stories of My Life,’Penguin, New Delhi, 1998,p21

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CENTRAL CONCERNS: QUESTIONS OF THEORY AND PRACTICE In asking theoretical questions, feminists are concerned with how to understand the law itself, its proper scope, legitimacy, and meaning. Many of these are the questions of traditional legal theory, but asked in the context of the feminist project: What is the proper moral foundation of the law, especially given that any answer depends on the moral principles of the dominant structure of the society? What is the meaning of rule of law, especially given that obedience to law has been an important part of the history of subjugation? What is the meaning of equality, especially in a world of diversity? What is the meaning of harm, especially in a world in which women, not men, are subjected by men to certain kinds of violence? How can adjudication of conflict be properly and fairly achieved, especially when not all persons are able to come to the adjudication process on a “level playing field”? What is the meaning of property, and how can women avoid being categorized as property? Is law the best and most appropriate channel for the resolution of conflict, especially given its traditional grounding in patriarchal goals and structures?

Although feminists have addressed all these questions and more, perhaps one issue stands out in many feminists’ eyes as a matter of special importance, encompassing as it does some aspect of many of the questions noted above. The issue that for many feminists is at the heart of concerns is that of equality and rights. Two others that may be considered nearly as central are problems of harm, and of the processes of adjudication.15

A. EQUALITY AND RIGHTS

Law works partly by drawing abstract guiding principles out of the specifics of the cases it adjudicates. On this abstract level, theoretical questions arise for feminist jurisprudence regarding equality and rights, including the following: what understanding of equality will make it possible for women to have control over their lives, in both the private and public spheres? What understanding of equality will provide an adequate grounding for the concept of rights, such that women’s rights can protect both their individual liberty and their identity as women? 15

Neb N K,’ Writing of Shobha DE, ‘Prestige, New Delhi, 2006, p21 [12]

Examinations of equality are, therefore, often framed by particular substantive issues. For example, much feminist jurisprudence regarding equality is framed in terms of concerns about work. If women are equal, then how will this be expressed in workplace law and policy? One of the key issues in this field has been how to treat pregnancy in the workplace: Is it fair for women to have extended or paid leave for pregnancy and birthing? Under what circumstances, or limitations? Are women being given “special” rights if they have a right to such leave? The struggle over the proper understanding of pregnancy and work raises questions about whether women should be treated in such law as individuals or as a class. As individuals, it has seemed relatively easy for workplaces to claim that not all employees are given such leave, and thus that women who do not are being treated “equally”. One feminist strategy has been to attempt to revise such law to recognize the particular difference of women as a class. Herma Hill Kay, for example, argues that pregnancy can be seen as an episode which affects women’s ability to take advantage of opportunities in the workplace, and that pregnant workers must be protected against loss of equal opportunity during episodes of pregnancy.16

B. UNDERSTANDING HARM

Perhaps the most difficult question for feminist jurisprudence regarding the issue of harm is that of perspective: who defines and identifies harm in specific cases? Given that law has traditionally worked from a patriarchal perspective, it is perhaps not surprising that identifying harm to women has been problematic. A patriarchal system will benefit from a very stingy recognition of harms against women. Feminist jurisprudence, therefore, must examine the basic question, what is harm? It also must ask, what counts as harm in our legal system, and why? What has been excluded from definitions of harm that women need included, and how can such trends be overturned?17

16 17

Chitnis Suma ‘Alphabet of Lust’, Kenyan Review, Vol. VIII. 1951. Ibid. [13]

C. THE PROCESSES OF ADJUDICATION

Many feminist jurists challenge the processes of adjudication by raising questions about the neutrality or impartiality those processes are assumed to embody. Neutrality is believed to function in the law in at least two ways. It is assumed to be built into the processes of the law, and it is assumed to be produced by those processes. Feminist jurisprudence challenges the first set of assumptions by raising questions about legal reasoning. It challenges the second by raising questions about how a law created and applied by partial and biased persons can itself be neutral. Thus feminist jurisprudence also raises the question of whether neutrality is a possible, or an appropriate, goal of the law.18

18

Ibid. [14]

FEMINIST JURISPRUDENCE IN INDIA Feminist Jurisprudence or legal feminism in India can be said to have emerged as a distinct category of feminist movement in late seventies as a reaction towards some of the overtly biased judicial decisions. Before that the origination of women's movement can be traced back to the period of subservient status under colonial rule. Like elsewhere in world, movement had focused on the reform of women's social position and in India it was especially aimed at eradicating some of the traditional but evil practices like 'Sati', 'Devdasi' system, child marriage, seclusion of widows etc.19 These reforms under colonial rule were sought through recourse to law since attempts were made to root out the practices against conventional and deep rooted beliefs of the society. Next major attempt for reforms came through immediately after independence, where in Government made considerable and revolutionary reforms in laws relating to Hindus towards improving the status of women although, these measures were required in the laws of every religious community. The Hindu society was experiencing many social reformists which helped the government to modify and reform Hindu law while due to many other considerations personal laws of minority communities were left undisturbed. Thus in both instances Law, which is an important institution in most contemporary societies was used as a tool for social reform. Now, more than five decades after independence, at the turn of 21st century, when role and efficacy of law in empowerment of women and in social change in general is questioned, law is still considered and used as one of the important mechanisms to uphold and support the cause of women in India.20 The new feminist theory advocates for looking beyond goals of gender equality and related rights. Feminist analyses of law usually take the form of pointing out those laws as enacted and implemented by state agencies are biased against women and are in favour of men. It is also claimed that the creation of a 'new corpus' of rights for women ignores the ideological power of law to mask social reality and obstruct social change. In view of the demonstrated 19

Basu, Aparna, 1976, “Role of Women in the Freedom Movement”, in B.R.Nanda, ed, Indian Women From Purdah to Modernity, Vikas, Delhi. 20

Chattopadhyaya, Kamaladevi, 1983, Indian Women’s Battle for Freedom, Abhinav Publications, New Delhi

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ineffectiveness of legal rights in ending oppression of women, some western feminists and legal scholars are now abandoning rights based claim altogether. There exists a considerable literature documenting how law upholds the division between the public and private spheres and is thus disadvantageous to women. The liberal feminist efforts to make the state responsible for welfare services like child care and health care as means of ensuring substantive equality to women attract the charge that this measure will strengthen the hold of the state on women. The argument, briefly, is that formal legal intervention by the state in the personal life of people weakens the family bonds and makes individuals more susceptible to state control.21 Considering all these contentions it can be said that there is no consensus about what needs to be done. All the above kind of discussions tend to make the whole debate regarding women's oppression very abstract and theoretical , taking it far away from reality, especially in Indian context. Feminist objections to gender equality or negative role of law are not of much relevance in India. Feminist authors who point to the drawbacks of law reforms all live in societies in which women have already gained formal equality. Their concerns have shifted beyond law reforms and legal rights only after they had virtually achieved legal equality with men. But the first wave feminism had started everywhere demanding legal equality with men. Just as first wave feminist could not contemplate kind of demands made by second wave feminist, so in Indian context, women who do not even have a parity of rights regarding divorce, maintenance, custody, guardianship, inheritance and like matters cannot realistically be expected to make demands for the autonomy to control their sexuality or the right to the inviolability of their bodies. This almost equal legal status of women in west permits them to focus on alternative strategies for ending the oppression of women. They can afford to reject law reform if it no longer yields sufficient gains.22 In India, however, even after five decades of independence, women still do not have equal legal rights. Most women often do not have the option to step out of oppressive family situations and therefore cannot afford to ignore law reform as one of the strategies in their struggle against 21

Forbes, Geraldine, 1998, Women in Modern India, Cambridge University Press, Cambridge.

22

Lerner, Gerda, 1981, The Majority Finds Its Past, Placing Women in History, Oxford University Press, London, New York, Toronto, etc.

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oppression. Performing their role, women do bear child but a large number of them have no choice regarding how many and when. Concern for a women coming from modernized western nation may be, "my son would grow up and perpetuate patriarchy" but for a woman in India, concern is "what if she is not able to bear a male child" or " how can she keep her female child alive?”23 Thus, still largely under first wave of feminism, legal equality is the major concern. Law cannot be rejected as a tool of reform in spite of its limitations. Nevertheless it is important to note that while reality for women in India is much different from that of west the demands like those made by second wave feminists are not altogether absent. Demands for rejecting traditional norms of femininity and sexuality, claims for inviolability of the body for every woman, change in legal concepts and legal categories to deal with problems specific to women have also gained ground. The fact that women are trying to eke out balance between the forces of modernization and traditional values adds to the peculiarity of the situation, as India, especially the urban areas are largely under the influence of both kinds of so called waves of feminisms, where law as a social reformer can neither be accepted nor rejected in its totality.24

23 24

Nanda, Reena, 2002, Kamaladevi Chattopahdhyaya, Oxford University Press, Delhi Ibid. [17]

CONCLUSION Throughout the study it has emerged that somehow this status continues and various laws contribute to this paradox. Every time the law, which is very often alleged to be an oppressor has come to the rescue of women, was seen to be favoring them it has done so half heartedly. The state, the governing bodies, the polity have extensively used the inherent flexibility of legal system in their vested interests. Women empowerment has always been professed as an objective of government during various modifications and amendments in law, but given the deeply entrenched patriarchal system, they could never be achieved up to the desirable levels. The law reformers had to tread a fine line in giving women better rights but not seeming to take away any of the privileges of men. In Indian context this patriarchy is further shaped by an additional but the most important element, Religion. Religion, which defines the lives of people in India, and is supposed to give meaningful ways of life, has been used since a long as an instrument to oppress women. In this study, the dichotomous behavior of state is well exemplified by analysis of the laws relating to marriage, divorce, adoption, guardianship inheritance and maintenance. In each of these laws, not only women are disadvantaged again men, but there exists extreme discrimination between women of different communities, and again it is religion and respect of religious freedom which are used as insidious excuses for tolerating such discrepancies. It is true that every state is composed of hierarchy of interests and every time while giving priority to one, other interests have to be subordinated. Probably, that can be accepted as valid justification by a state in post partition independent India for extending equality, though only partial, to Hindu women, and deciding to do nothing for women of minority communities, but the disturbing realization is that in a long period of more than fifty years after independence, women could never assume priority in hierarchy of interests. This gives rise to an important question if the government regulated by political and religious considerations can be relied upon for further positive action. Inspire of all the negative points in Indian situation, State and law are the most important sites for struggle. This is further substantiated by the fact that even in case of reforms for Hindu women, besides the state's own zeal to appear progressive; it had to concede to the pressure of reformers, activists and women's [18]

movements. This intensifying crusade for women’s because has also been successful in extorting out some more important concessions from the state for empowerment of women. Inclusion of special categories of crime against women likes 'dowry deaths' and 'custodial rape' is some of the encouraging example. On the same lines are 73rd and 74th amendments in the constitution, which have set a unique example by providing governance rights to women at local level both in rural and urban area. Furthermore, it is to be remembered that every society is composed of hierarchy of normative values and in this there are people (though miniscule) at the top of hierarchy, at some stage, who transcend their times and are critically aware of oppressiveness of certain values, which their society professes, adores and suffers in. Such people themselves being conscientising agents can act as conscientizing multiplier to generate sensitivity in the society. It is heartening to realize that Indian society is not completely devoid of such agents. Indian judiciary presents a strong example of the same. Series of decisions in case of 'Pratibha Rani,' 'Sarla Mudgal,' 'Geeta Hariharan', 'Vishaka', 'Shah Bano', 'Mary Zaharias' which have been cited in this study are only a very few examples exhibiting the sagacity and sensitivity of the judiciary, which gives the women all the reasons to keep the optimism and struggle thriving. It may thus be concluded that isolated but numerous efforts have been effective in shaping feminist jurisprudence in India. It has gained a foothold in the country and is passing through a transitional phase. It is zealously combating retrogressive fundamentalist forces with its inner strength supported by international community. There is courage of conviction and immense potential which is finding increasing support at all levels. The time is not very far when the discipline will be institutionalized not only in the educational system but also in the political, social and economic systems of the country and the world may see India emerge as a major force in the global community to support the cause of feminist jurisprudence.

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BIBLIOGRAPHY  N.K. Chakraborti : Principles of Legislation & Legislative Drafting ; 2nd Edition , 2002.  Dias, Jurisprudence ( Indian Re print ) , Aditya Books.  Freidmann W., Legal Theory (1999) Universal, Delhi.  Salmond on Jurisprudence (1999) Tripathi, Bombay.

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