CONSTITUTIONAL LAW

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Constitutional Feminism : An Overview
by Dr P. Ishwara Bhat*

Cite as : (2001) 2 SCC (Jour) 1

The role of constitutions in ensuring gender justice is being recognised in modern times. It is most appropriate that the supreme law of the land should meaningfully address the woman question and respond to the challenges by stimulating the whole legal system towards a greater concern for, and protection of women.

Feminism is a range of committed inquiry and activity dedicated to (i) understand the extent of women's subordination, (ii) know the reasons therefor, and (iii) plan and implement means of change for their better life.1 Constitutional feminism means employing the constitutional powers and provisions for ameliorating the conditions of women. All the wings and layers of government - legislature, executive and judiciary at central, state and local levels - have the responsibility towards empowerment of women in the light of Article 15(3) read with Article 12 of the Constitution. Although Article 15(3) is an enabling provision that authorises the state to make special provision for women, the discretion conferred thereunder shall be exercised without fail, and be exercised reasonably.2 It is also fundamental duty of every citizen to renounce the practices derogatory to the dignity of women.3 Thus social and individual responsibilities for feminist cause are contemplated in addition to democratic solutions.

No doubt, democracy provides equal opportunities for all in the decision making process. Women as free citizens, and constituting almost half of the population, are theoretically able to redress their grievances through democratic means. But due to socio-economic reasons and cultural patterns they are not effective players of the game of democracy. The disadvantages of democratic process and risks of parliamentary majoritarianism make it imperative that a pro-woman and anti-subordination interpretation of Constitution and laws shall be made. In a patriarchical social construction, where power dictates freedom, lack of power on the part of women because of their position as incomplete agents in democratic participation is likely to marginalise their freedom.4 To countervail this lacuna and make freedom worthwhile to women, empowerment emerges as the true method of freeing women. Thus instead of uncritical reliance on democratic forces, appropriate technique of interpretation can rescue their interests.

One such approach is dominance analysis as distinct from difference analysis. Catharine MacKinnon, an American feminist scholar, views gender as hierarchy and not just a difference and argues that efforts to treat gender as a question of difference are misguided and that gender should be understood to be a matter of domination and subordination.5 While the difference analysis just satisfies with formalistic reasonable explanation about differences based on sex, dominance analysis looks to the substantive issue of unfair disadvantage arising from dominance. For example, upholding of a rule which denies to women, on grounds of their safety an opportunity to work as jail officer in prisons which house male prisoners, is relying on difference analysis.6 But the dominance analysis examines how aggressive male sexuality results in unfair denial of an opportunity and how law cannot lend its force for aggravation of inequality. Logically it would invalidate such a rule. Thus when rule of law simply reflects rule of men, but not justice, an incisive judicial review is invited.

Another approach is purposive interpretation, which tries to elicit and focus on the reason or spirit behind the constitutional provisions and law. By looking to the values of the right, social needs, competing interests and policy alternatives, the development of policy-oriented jurisprudence expands the ambit of rights. For example, by analysing that guarantee of right to life and personal liberty should enable development of human personality rather than continuance of animal existence, the court reasons that right to life means right to live with human dignity and all those interests essential to this constitute essential parts of this right.7 To conform to the aspiration reflected in the term "protection" in the marginal note to Article 21 it is essential that access to those conditions which make life livable with human dignity is part of right under Article 21. If at workplace atmosphere with potential for sexual harassment exists, positive responsibility of the state and employers to remove such atmosphere and create sense of security is the method of protection. The term "protection" in the clause 'equal protection of the laws' under Article 14 as viewed by Granville Austin, "seems to place upon government the positive responsibility to give the have-less access to those rights they previously have been powerless to exercise".8 With an array of Directive Principles of State Policy which have great relevance in women's welfare,9 purposive interpretation is a seminal tool for the cause of constitutional feminism. It is appropriate to see how the Indian constitutional experience evinces the working of constitutional feminism.

Article 21 of the Constitution which does not use the term "state" allows scrutiny of private actions that violate right to life and personal liberty. The mandate of Article 21 which prohibits deprivation of life and personal liberty except according to the procedure established by law is applicable against all entities whether state or private. It is because, from the perspective of the victim, deprivation of the right by private person is also deprivation, and is to be justified strictly in accordance with law. In Nilima Priyadarshini10 the apex court exercised habeas corpus jurisdiction in an alleged case of detention of a woman by a private person. In Nasrin11, a notorious case of detention of woman in brothel subsequent to her sale by her husband, the court exercised the habeas corpus jurisdiction and got the woman released. Release of two nieces kidnapped and detained by an uncle, who planned to corner the property of his deceased brother, could be done in re Balwant Singh12 through assertion of right under Articles 21 and 32. A feminist perception of the significance of the habeas corpus remedy as realised in these recent cases is likely to help women in India.

Concerning private actions like sexual harassment at workplaces and institutions which arise in the absence of law or due to lack of effective supervision by the employer, a set of stern guidelines has been framed by the Supreme Court in Vishaka v. State of Rajasthan13. The court gathered feminist vision as an input for its reasoning from Convention on Elimination of All Forms of Discrimination Against Women, Directive Principles of State Policy, affirmative action policy under Article 15(3) and the idea of human dignity. It is because of this vision that the extraordinary type of judicial law making in this case became non controversial and acceptable. Dominance analysis of legislative silence and purposive construction of right to life jurisprudence were the tools employed in this process. Continuance of the Vishaka reasoning in Apparel Export Promotion Council14 with more clarification, and the legislative efforts to concretise Vishaka guidelines vindicate tenability of this approach.

Constitutional feminism requires an unconventional approach towards the law relating to rape, prostitution, pornography and dowry-related crimes. For example, in articulating the law relating to rape the Supreme Court in Bodhisattwa Gautam15 proceeded with a dominance analysis thus:

"Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantageous position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status".

The court logically looked to the personal and social side of the crime and observed:

"It (rape) is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 ... The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many ways".16

In four important dimensions the feminist vision has helped in infusing human rights values into rape law. Firstly, consent based on deception, promise of marriage and fake marital ritual were considered as no consent and rigours of earlier law on consent are avoided by a feminist perception in Bodhisattwa. Similarly, it was held, absence of bodily injury and the fact of submission do not imply consent.17 Secondly, the requirement of corroborating the circumstantial evidence, a rule which was unjustifiably applied in this sphere for a long time, is dispensed by the judiciary. The view of Ahmedi J. in C.K. Jain reflects the feminist vision. The learned judge observed:

"To insist on corroboration except in rarest of rare cases is to equate a woman who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated."18

Thirdly, in ultimately evolving a rule that the character, reputation or status of a rape victim is not a relevant factor for consideration by the court while awarding the sentence to a rapist, the court was keeping in mind decency and dignity of womanhood.19 Fourthly, award of compensation to the rape victim - which is a discretionary power of sentencing judge in criminal cases in general - is made obligatory by application of Article 21. In Delhi Domestic Working Women's Forum20 and Bodhisattwa21 the court was reasoning that the effect of rape was a long-term one, impairing the capacity of personal relationship, altering behavioural values and putting her into deep emotional crisis. The court based the compensatory remedy on right to life and personal liberty. The statutory changes relating to law of rape about presumption, in camera trial, secrecy of rape victim's identity and custodial rape add to the different aspects of constitutional feminism.

In the matter of protecting the interests of prostitutes, especially child prostitutes and children of prostitutes, the Supreme Court made a dominance analysis of prostitute's position. K. Ramaswamy J. in Gaurav Jain22 for the court observed,

"The prostitute has always been an object and was never seen as complete human being with dignity of person; as if she had no needs of her own, individually or collectively. Their problems are compounded by coercion laid around them and tortuous treatment meted out to them. When they make attempts either to resist the prostitution or to relieve themselves from the trap, they succumb to the violent treatment and resultantly many a one settle for prostitution".

The court ordered for establishing of Child Development and Care Centre under the sponsorship of government and NGOs to rehabilitate child prostitutes and children of prostitutes so that they can be weaned away from the surrounding atmosphere and be given maintenance, medical facilities and education.

The procedural due process revolution started in Maneka Gandhi23 had its own impact upon woman's rights. The requirement that the procedure established by law shall be just, fair and reasonable has been invoked in dowry death or harassment cases to compel the police to file FIR and conduct investigation,24 to tone down the rule of benefit of doubt as the offence occurs within the four walls of the house25 and to sternly deal with the dowry crimes by exemplary punishment.26 Analysing the procedural law from the side of female victims rather than solely from the view point of accused reflects the anti-subordination interpretation. Such an approach enhances the societal confidence about legal system's ability to protect life and personal liberty of all persons. It will be a tunnel vision to analyse the procedural due process from the perspective accused persons only.

Procedural due process norms have helped women in ensuring fairness in the process of arrest, interrogation, custodial detention and detention in protective homes. The requirement of female police officer to arrest and search women,27 the need to arrest and interrogate women only during day hours,28 separation of female prisoners from male prisoners29 and fair conditions in protective homes30 so as to be conducive for dignity of women have been insisted in a number of cases applying the Maneka dictum. Statutory changes relating to burden of proof in the law relating to dowry, rape and immoral traffick have added to the pro-woman approach.

Dominance analysis is used in constructing the privacy law for women. The Supreme Court in Nergesh Mirza31, while invalidating a service regulation that required air hostesses to retire upon their first pregnancy, considered that the regulation was obstructing the ordinary course of human nature and a cruel insult on Indian womanhood by interference with her personal choice. The rule's underlying intention that air hostesses should look impressive reflected dominance - subordination relationship, which was rightly rejected. In Neera Mathur32, LIC's roving collection of information about its women employees' unnecessary personal details were found to be invasion of right to privacy. The Supreme Court in Madhukar Narain33 upheld the right to privacy of women of easy virtue against compulsions for sexual acts against her will. Anti-subordination vision in this approach infused aspects of human dignity into right to privacy in this case.

Concerning constitutionality of restitution of conjugal rights dominance analysis was profusely made in Sareetha34. P.A. Choudhury J. for the Andhra Pradesh High Court viewed that there was substantive inequality between husband and wife in the matter of restitution of conjugal rights, that the remedy was instrument of oppression by male and had potentiality for unwanted pregnancy against wife's will. Although the Delhi High Court in Harvinder Kaur35 and the Supreme Court in Saroj Rani36 upheld the statutory provision, overturning Saritha it is a matter of satisfaction that at least to this limited extent dominance analysis was made in these cases.

An instance of devising a tactful remedy based on dominance-analysis can be seen in Madhu Kishwar v. State of Bihar37. In this case the constitutionality of Chota Nagpur Tenancy Act, 1908 which conferred right of intestate succession over tenancy exclusively to the male heirs of the deceased tribal was questioned. The Hindu Succession Act, 1956 which provides for gender equality in the matter of intestate succession is not applicable to the tribals. This position was challenged as discriminatory depriving right to life. The Supreme Court abstained from declaring the impugned law as violative of right to equality since the tribal law and customs were based on cultural diversity and intimate community desires and that non-uniformity is not always discriminatory. The court feared about 'a bee-line of similar claims' from various fields of personal laws and found the legislative remedy as more appropriate for reform. The majority judges, Kuldip Singh and Punchhi J.J. declined to read down the expression 'male descendant' to include 'female descendant' as resorted to by K. Ramaswamy J. who rendered the minority judgment. However, they held that right of the male descendant in the tribal tenancy shall be subject to the right of female dependants of the deceased to maintenance. Punchhi J. for the court observed,

"It is in protection of the right to livelihood, that the immediate female relatives of the last male tenant have the constitutional remedy to stay on holding the land so long as they remain dependant upon it for earning their livelihood, for otherwise it would render them destitute... It is in this way only that the constitutional right to livelihood of a female can interject in the provisions to be read as a burden to the statutory right of male succession".38

It is interesting to note that instead of pleading incompetence to declare the personal law as bad in view of gender discrimination the Court resorted to superimposition of constitutional right to dignified life - including right to means of livelihood - upon statutory provision. This should be appreciated as a clever and rewarding strategy with potential for future application. It is pertinent to note that in adopting this strategy the court appreciated the fact that the tribals were not agreeing for reform of their personal law and that, without a general acceptance of social legislation, reformatory effort becomes futile.

In the sphere of right to equality there has been no uniform judicial approach in the analysis of legal position in relation to the woman question.39 In early cases High Courts employed difference analysis to uphold legislations that classified between men and women for the purpose of employment in prisons,40 for deciding the extent of land holding,41 for serving of court summons42 or in the matter of sanctity of marital bed.43 However, gradually in cases relating to public employment while quashing the discriminatory provisions that gave advantages to men and imposed disabilities on women the courts have been using the dominance analysis. Maya Devi v. State of Maharashtra, where the requirement of husband's consent for wife's application for public employment was struck down as an anachronistic obstacle to woman's equality and economic justice, reflects this approach. To a certain extent in Nergesh Mirza also dominance analysis was employed.

Since Article 15(3) itself hints substantive approach, its application for giving special educational facilities, for giving representation in local bodies and for protection in places of work has a substantive dimension. Upholding a service rule that preferred women in recruitment to public employment to the extent of 30% of posts, the Supreme Court stated in Government of A.P. v. P.B. Vijayakumar44:

"To say that under Article 15(3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provision for women in respect of employments or posts under the state is an integral part of Article 15(3)".

The subordinated position of Christian woman, who was denied equal right in the matter of divorce against her husband, was brought to the limelight by way of anti-subordination interpretation in Ammini E.J.45 Referring to the life of Christian wife being compelled to live as wife against her will the High Court of Kerala observed,

"It will be a humiliating and oppressed life without freedom to remarry and enjoy life in the normal course. It will be a life without freedom to uphold the dignity of the individual in all respects..."

The court quashed the impugned provision as violative of Articles 14, 15 and 21. Interpretation of the Guardianship law in the light of Article 15 by the Supreme Court in Githal Hariharan46 could equate the position of mother to that of father in the matter of guardianship.

The provisions in Directive Principles about equal entitlement to livelihood, equal pay for equal work, protection against moral and material abandonment, maternity leave, nutrition, equitable distribution of material resources of production and respect for international conventions have significant value in building the corpus of constitutional feminism.47 The provisions for making reservations for women in Panchayat Raj institutions and other local bodies are aimed at enhancement of the extent of women's participation in democratic process. This is likely to be widened by constitutional amendment for women's representation in legislatures by reservation.

It can be said that constitutional feminism has come to stay in India and it is likely that it may have considerable influence in our legal discourse.

*   M.A., LL.M., Ph.D., Reader and Chairman, Department of Studies in Law, University of Mysore, Manasagangotri, Mysore 570006. Return to Text

1. Clare Dalton, (1987) 3 Burkeley Women's Law Journal 1, cited by M.D.A. Freeman, Lloyd's Introduction to Jurisprudence, London: Sweet & Maxwell, 1996, p. 1028. Return to Text
2. For similar reasoning in the context of Articles 16(4) and 15(4) see Ajit Singh v. State of Punjab, 7 (1999) SLT 476; C.A. Rajendran v. Union of India, (1968) 1 SCR 721. Return to Text
3. Article 51A(e). Return to Text
4. See Tracy Higgins, "Democracy and Feminism" 110, Harv. L. Rev. 1657 at 1676-1685. Return to Text
5. Catherine A. Mackinnon, Feminism Unmodified: Discourses on Life and Law, 1987, Harvard University Press extracted in M.D.A. Freeman, supra n.1, p. 1087. Return to Text
6. Raghuban v. State of Punjab, AIR 1972 P&H 117 where such rule was upheld on this reasoning. Return to Text
7. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212. Return to Text
8. Granville Austin, Working a Democratic Constitution, New Delhi: Oxford University Press (1999) p. 669. Return to Text
9. Articles 39(a) to (f), 42, 43, 44, 45, 47 and 51. Return to Text
10. Nilima Priyadarshini v. State of Bihar, 1987 Supp SCC 732 : 1988 SCC (Cri) 138 and 1989 Supp (1) SCC 336 : 1989 SCC (Cri) 436. But see Vidya Verma v. Dr Shiv Narain Verma, AIR 1956 SC 108, wherein the Supreme Court observed that detention of a woman by a private person is not remediable under Article 21. This was based on an approach, it is submitted erroneous, that Article 21 provides for a right only against state, and not against individual. In fact, material facts of the case did not point out detention but an attempt to abuse the process of writ of habeas corpus. Hence the observation was obiter dicta. Return to Text
11. Indian Express, 4th Feb. 1994 (Bangalore ed.). Return to Text
12. (1996) 3 SCJ 592. Return to Text
13. (1997) 6 SCC 241. Return to Text
14. Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759. Return to Text
15. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 at 500. Return to Text
16. Ibid at 500. Return to Text
17. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384. Return to Text
18. State of Maharashtra v. C.K. Jain, (1990) 1 SCC 550. Return to Text
19. State of Haryana v. Prem Chand, (1990) 1 SCC 249. Return to Text
20. Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14. Return to Text
21. (1996) 1 SCC 490. Return to Text
22. Gaurav Jain v. Union of India, (1997) 8 SCC 114 at 119. Return to Text
23. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. Return to Text
24. Joint Women's Programme v. State of Rajasthan, 1987 Supp SCC 707. Return to Text
25. State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86 : 1992 SCC (Cri) 241; State of Punjab v. Iqbal Singh, (1991) 3 SCC 1 : 1991 SCC (Cri) 513. Return to Text
26. Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403. Return to Text
27. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424. Return to Text
28. D.K. Basu v. State of W.B., (1997) 1 SCC 416. Return to Text
29. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96. Return to Text
30. Upendra Baxi v. State of U.P., (1983) 2 SCC 308. Return to Text
31. Air India v. Nergesh Mirza, (1981) 4 SCC 335. Return to Text
32. Neera Mathur v. LIC, (1992) 1 SCC 286. Return to Text
33. State of Maharashtra v. Madhukar Narayan, (1991) 1 SCC 57. Return to Text
34. T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356. Return to Text
35. Harvinder Kaur v. Harmandil Singh, AIR 1984 Del 66. Return to Text
36. (1984) 4 SCC 90. Return to Text
37. (1996) 5 SCC 125. Return to Text
38. Ibid at 1884. Return to Text
39. See Ratna Kapur and Brenda Cossman, 'On Women, Equality and the Constitution: Through the looking glass of feminism' (1993) 1, NLSJ 1. Return to Text
40. Raghuban v. State of Punjab, AIR 1972 P&H 117. Return to Text
41. Sucha Singh v. State of Punjab, AIR 1974 P&H 162; Nalini Ranjan v. State of Bihar, AIR 1977 Pat 171. Return to Text
42. Shahbad v. Abdullah, AIR 1967 J&K 120 Return to Text
43. Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321; Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137. Return to Text
44. (1995) 4 SCC 520 at 525. Return to Text
45. Ammini E.J. v. Union of India, AIR 1995 Ker 252 at 268; Pragathi Verghese v. Cyril George, AIR 1997 Bom 349. Return to Text
46. Githal Hariharan v. RBI, (1999) 2 SCC 228. Return to Text
47. See supra n. 8. Return to Text