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A quest for justice and equality : Can Feminism be the answer ?

A quest for justice and equality : Can Feminism be the answer ?

By – Nabeela Siddiqui*

“The law is without doubt a remedy for great evils, yet it brings with it evils of its own” – Sir John Salmond.

Justice is of two kinds – natural or moral justice and legal justice. The first of these represents the ideal to which the second endeavours to approximate. One of the essential functions of the State is the administration of justice. The usual defect of a legal system is its rigidity which consists in the failure of the law to conform itself to the requirements of unforeseen classes of case. Conservatism or extreme Liberalism, i.e. polarisation of views is another vice of the legal system. Lastly, complexity or technicality is the common ill of modern day legal systems.

Moving, a step ahead the most loosely interpreted word is ‘equality’. The article 14 of Indian Constitution uses two expressions, “equality before the law” and “equal protection of laws”. The first expression has is of English origin and the second taken from American Constitution. While both the expressions may seem identical, they do not convey the same meaning. Where the first phrase is somewhat a negative concept implying absence of any special privilege, the other is a more positive concept implying equality of treatment in equal circumstances. However, on reading it as a whole the dominant idea that emanates is that of equal justice.  

Now, the question that arises is when we have such strongly founded principles in our Constitution, which are embedded in other Constitutions of the worlds also, then why there is an urgent need to address issues like equality and justice appertaining to women? To, answer this we need to understand as to what really feminism is about.
I would like to introduce the third most inaccurately interpreted ideology, of all times i.e. feminism.Feminism was born in 1840, when women of the era began to question their rights. The efforts of the first feminists came to fruition on August 26, 1920, when women were officially given the constitutional right to vote. Cott (1987) states “The Nineteenth Amendment is the most obvious benchmark in the history of women in politics in the United States” (Cott, 1987, 85). This was therefore the first wave of feminism. 

The second wave of feminism has traditionally received more criticism than the first wave that transpired at the turn of the 20th century. The Great Depression saw the rise of the Communist Party and was the breeding ground for leftist political platforms. People were beginning to see a need to facilitate social change. Leftist political ideology really began to take hold in the 1960s as the decade witnessed the rise of the New Left. Members of the New Left actively supported civil rights and vehemently protested the war in Vietnam.

Both women and men were dedicated to the New Left. As the decade progressed, women were clearly dissatisfied with their treatment. The “us vs. them” mentality seems irrational to some critics and could possibly be classified as a latent function of feminism since the organizers of the movement did not intend for some women to turn against the opposite sex. This courage blossomed in 1963 when Betty Friedan’s phenomenal book The Feminine Mystique was published. In her book, Friedan labelled this problem “the problem with no name.”Second-generation issues may be classified as topics like rape, sexual harassment, marriage and divorce, women’s education, affirmative action, and the reproductive rights of women. 

During the summer of 2014, a movement called Women against Feminism gained national attention. Here women describe why they feel that modern feminism does not speak for or to them. Many feminists have spoken out against this movement stating that these women do not fully understand the definition of feminism.

So, now the question is what went wrong? And why are the seeds of this novel thoughts frowned upon as poisons of society. The growing hatred towards feminism, is gaining momentum at all platforms, be it social networking sites or our day to day discourses. We have outgrown from a stage of collective bargain to being a fundamentalist. Who is to be blamed? Do the agencies involved in administration of Justice and Equality have any say? To, explain this, I will take the example of Abortion laws, also to begin with I would like to add a disclaimer here that I neither speaking in favour or against the legality of abortion. 
The issue seems to have been the core of every social networking site, newspapers and also a point of sublimation amongst the legal fraternity. I might seem to be defending our current laws on the issue; well no I am always in favour of introspection and liberal interpretation of our statutes, but my bone of contention at this juncture is to make us understand the right oriented dialogue in our society.

Laying the Foundation: A Right to Privacy

Eight years before Roe was decided, the Supreme Court heard arguments in another case that would lay the groundwork for the coming abortion rights decisions. In Griswold v. Connecticut, the Supreme Court ruled that a Connecticut law prohibiting the use of contraceptives violated the constitutionally sheltered “right to privacy,” laying the foundation for the constitutional right under which Roe would eventually find shelter. But the arguments over what constituted a “right to privacy” were far from settled. The right to privacy that many of us hold as dominant to our civil liberties today is not one that is found in the Constitution, at least not explicitly. The word “privacy” never appears in the Constitution, nor is the right to the indistinct concept of privacy ever voiced or enumerated. Instead, the right to privacy as we know it today is founded on legal reasoning extrapolated from the protections found within the Constitution’s language.

In Griswold, the Supreme Court concluded that while there was no categorical mention of privacy in the Constitution, the privacy rights implied in the Bill of Rights and subsequent amendments demonstrated that the Founders intentions to respect and recognise the same. For example, the Court reasoned that the First Amendment protected the privacy of personal faith; the Fourth Amendment protected the privacy of one’s person and belongings, and so on and so forth.

Using this inductive reasoning, the Court concluded that the right to privacy was found in the “penumbras” and “emanations” of the Constitution and that it protected a “right to marital privacy” that unquestionably made the decision to use or forego contraception as a private one.

The era of Confusion: Roe vs. Wade

It all begins with the filing of a case by Norma McCorvey known in the documents as Jane Roe. The case is filed against Henry Wade, the district attorney of Dallas County from 1951 – 1987, who enforced Texas law that prohibited abortion, except in cases of saving a mother’s life. The court held that a women’s right to abortion fell under the garb of Right to Privacy (Recognised in Griswold vs. Connecticut) which was protected by the Fourteenth Amendment to U.S. Constitution. Jane Roe comes forward and switched sides on the abortion debate. In 1997, she started ‘Roe No More’, a pro-life outreach organisation and later in 2003 she files a motion in US Court against the judgement of Roe vs. Wade (1973). It was supported by 1000 affidavits from women who acknowledged the ills of abortion. A three judge panel of U.S. Circuit Court of Appeals in New Orleans dismisses a motion from the original plaintiff. Finally, Norma McCorvey, the Roe in Roe vs. Wade dies a silent death on February 18, 2017.

The judges assume certain profound interests, in cases which are novel and also appertaining to public at large. So, is the situation with Roe vs. Wade, where the passionate language, ratio decendi of the case and also the interpretation of provisions clearly highlights the judges’ aptitude while passing the judgement. Not only, is the said case the most cited of all cases, but it has emerged as a precedent for various issues, which were ancillary to the main fact in issues of the case. On refreshing the chronological set of events, one can easily make out the deviating route of the given case. 

Justice Ruth Bader Ginsburg, the leader of the Supreme Court\'s liberal wing, approvingly quoted Chief Justice William H. Rehnquist, a bête noire to Democrats for most of that time, as saying that a good judge is bound to apply the facts and the law to come up with a decision, even if it is "not what the home crowd wants." It\'s not that she opposes the holding that recognizes a right to an abortion. It\'s that she opposes the logic of the 1973 court\'s majority opinion and the constitutional basis for the same. She regards it as doctor’s freedom to practice, which is not women-centred, rather was physician centred. Ginsburg has also says that the ruling damaged the growing movement for abortion rights by going "too far, too fast" and catalysing the conservative pro-life community, which considers Roe a mammoth act of judicial overreach.

On refreshing the chronological set of events, one can easily make out the deviating route of the given case. Uproar in name of Women’s rights movement claiming Abortion as a right, found its way on both societal and legal fronts. This very day reminds me of her limitless contributions to a debate which needed voice and a thinking of an ordinary prudent being. If, I were to take a lesson from the case mentioned above, I would definitely absorb two facts – 
a. How the right-interest dichotomy is being misconstrued
b. How widening the latitude of one issue might also lead to inviting mischievous interpretations.

The Indian Interpretation – 

Coming to our homeland, we have The Indian Penal Code, 1860 which is a basic criminal law of the country, which has made induced abortion a criminal offence under sections 312to 316 of the Code. To our irony, the words like ‘miscarriage’ and ‘unborn child’ have not been defined by the code. But, on legally interpreting the provisions, we can find voluntary causing miscarriage as criminal abortion, hence making it an offence. The last few decades, have seen a liberal approach towards abortion laws, by the enactment of MTP Act, 1971, whereby widening the exception clauses to the same.

To understand the issues surrounding abortion in India, it is necessary to contextualise the advancement of the MTP Act, which liberalised abortion laws in India. The MTP was enacted two years before the landmark judgement of the US Supreme Court in Roe v Wade – which held that laws which criminalise all abortions, except those required to save a mother’s life, were unconstitutional and violated the right to privacy of a pregnant woman. But this right should be balanced against the right of the state’s legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life at various stages of pregnancy. The MTP Act overrides the IPC by allowing a woman to get an abortion within the first 12 weeks of pregnancy, provided a registered medical practitioner diagnoses grave danger to the pregnant woman’s physical and mental health. If the foetus is between 12 and 20 weeks old, then the procedure requires permission from two medical practitioners. The Act also allows abortion if the foetus will be born with severe abnormalities.

To determine the risk of physical and mental harm to a pregnant woman seeking abortion, the Act takes into account the woman’s actual as well as reasonably foreseeable environment. Evidently, there are divergent and conflicting case laws when it comes to the issue aborting a foetus beyond the stipulated 20-week period. There is also the important issue of a woman’s right to her body, as it is limited under the current laws.

The Ministry of Health and Family Welfare proposed some amendments to the MTP in October 2014 which addressed these issues to a limited extent.Notably, the amendment also recognises the growing reality of sexually active single unmarried women and provides that single woman can seek an abortion within the stipulated time period if it can be established that the pregnancy was unplanned and a result of contraceptive failure. The current MTP Act only accounts for sexually active married women.

The decision to terminate a pregnancy is never an easy or mechanical decision and it takes a severe toll on the affected parties, especially the woman. There is a need to strike a balance between the rights of women to control their bodies and the legitimate interests of the state to prevent selective sex determination as well as protect the interests of the woman and the unborn foetus.

Polarisation of thoughts – 

The whole notion of feminism has seen a drastic change over the years. It’s hard to admit the fact that the novel seeds of feminism have rotten to develop Femi-Nazis, i.e. a contemporary section of feminist in modern era. Everywhere, I see is hate, be it hate for the other gender, or hate for the other race, religion, language etc. Abortion laws in India are framed in consonance with the societal set of our country, yes we own our bodies, but it is for us to understand the foetus also has a sperm to it. We, only talk of equality when we face inequality, conclusively we only demand justice when our claims are injured. 
Man – Women relationship should have one basis that is equality because there is a very thin line between empowerment and right oriented fanaticism.  Every right has a concurring duty too; we have Fundamental Rights and aligning Directive Principles of State Policy in our Constitution. I am not against the very thought of feminism, but I condemn the uprising of feminist fundamentalism. This Women’s day, we must seek love and not hate, compassion coupled with empowerment, wisdom with criticism, equality with reasonability and lastly feminism without fundamentalism.

Concepts to be reclaimed and the onus to be heavily borne by the Judges – 

I would like to quote a thought which I discovered on the internet while browsing through a website. “Equality is not a concept. It\'s not something we should be striving for. It\'s a necessity. Equality is like gravity. We need it to stand on this earth as men and women, and the misogyny that is in every culture is not a true part of the human condition. It is life out of balance, and that imbalance is sucking something out of the soul of every man and woman who\'s confronted with it. We need equality. ” ― Joss Whedon

To my better understanding, this is one of the finest quotations which encapsulate the profound understanding of equality. Indeed, our Constitution too, through its Golden Triangle of Fundamental Rights (article 14, 19 and 21), has very well established a stable backbone of equality clauses in India. India like U.S., is also a champion of supplanting and supplementing various rights, whereby broadening the legal spectrum in the name of fundamental rights. Sometimes questions of fact, law and discretion have all to be judiciously weighed before justice can be administered.Of course, to tackle this judicial jugglery we have devised the doctrine of harmonious construction and rule of proportionality to balance views and outcomes in a controlled manner. A hypothetical situation could be one where, the Parliamentarians who have the power to pass laws and change the lives of billions and trillions could incorporate stakeholders from within the society. Than finally, presenting a proposal to redress the issues, we lack dialogue and social intercourse of ideas.  The biggest problem we face is the mechanical approach of law framing, rather than participation of the commune theorising the problem, creating a hypothesis with the help of the stakeholders, like anthropologists, criminologists, sociologists, feminists, men’s rights wing etc, to get both views and counter views on the same. A sound policy or rule culminating into a law can only address to such issues and dissolve the problems of ideological polarisation, when it has a social element attached to it.

Nabeela Siddiqui, Director – Research and Publications (ProBono India), Master’s in Law (Constitutional Law and Legal order), Department of Legal Studies, University of Madras, Member – All India Democratic Women’s Association, (AIDWA).