INDEX

SERIAL NUMBER CONTENTS

1) Jurisprudential Theory

2) Case Study
 Indian Cases –

 Foreign Cases
3) Analysis of the Cases with Theory

4) Conclusion

5) Bibliography

6) Interim Submission
 JURISPRUDENTIAL THEORY

Feminist philosophy of law identifies the pervasive influence of fatherly and masculinist
norms on legal structures and demonstrates their effects on the material conditions of women
and girls and those who many not confirm to cisgender norms. It also considers problems at
the intersection of sexuality and law and develops reforms to correct gender injustice,
exploitation, or restriction. To these ends, feminist philosophy of law applies insights from
feminist epistemology, relational metaphysics and progressive social ontology, feminist
political theory, and other developments in feminist philosophy to understand how legal
institutions enforce dominant gendered and masculinist norms. 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. 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.
It also requires re-examination of the understanding of sex, gender, and gender roles. In
philosophy of law, as in feminist theory more generally, methods, presumptions, and
approaches vary considerably.
Despite all these differences of focus, emphasis, or approach, certain themes are common.
Normative assumptions include the equal moral worth of all human beings and the
entitlement of beings of such moral worth to equal treatment under the law, however this
might be understood. Feminist philosophers of law also share certain basic criticisms of
traditional views of the nature of law and legal reasoning, of patriarchal assumptions as
reflected in law, and of the problems that women have in securing equal justice under law.
They are attuned to the ways that power in society is shaped by the shortcomings of various
legal systems as well as to the complexities of improving these systems, including how to
decide the meaning of equal treatment under law and how it might be achieved. For example,
feminist philosophers of law may disagree about the extent to which law should attempt to
prevent dominance within intimate relationships and is complicit in oppression if it does not.
Neoliberal views emphasize liberty and consent; criticisms of neoliberalism include the
practical difficulties of choice under circumstances of patriarchy or economic constraints. To
take another example, difference feminists and liberal feminists struggle with the meaning of
equality under law and whether achieving equality might in some circumstances require
different treatment. Feminist critics point out that conceptualizing the rule of law in terms of
coherence and consistency tends to reinforce and legitimate the status quo and existing power
relationship .Indeed, one primary purpose of law as traditionally understood is to promote
stability and order by reinforcing adherence to predominant norms, representing them not
only as the official values of a society, but even as universal, natural, and inevitable. Law is
thus seen as setting the official standard of evaluation for what is normal and accepted—what
is required, prohibited, protected, enabled, or permitted. It is accordingly represented as
objective—for example, as compelled by precedent and not just a matter of opinion.
Violations, wrongs, injustices, harms, or infractions are by definition deviations from law,
and typically also deviations from the status quo. The status quo is the invisible default
standard of law. From these observations, feminist philosophers of law have concluded that
law makes systemic bias invisible, normal, entrenched, and thus difficult to identify and to
oppose. Such systemic bias may be accepted not only by actors within the legal system such
as judges but also by its victims as well as its beneficiaries. Primary tasks of feminist
philosophy of law are to identify such bias wherever it occurs within the legal system,
through methodologies such as genealogical analysis, conceptual analysis, or normative
critique.

CASE STUDY

1) Kush Kalra vs Union Of India & Anr. on 5 January, 2018

FACTS:-
This writ petition, instituted in public interest by the petitioner, complains of
institutional discrimination by the respondents against women and prays for issuance
of a writ in the nature of a mandamus to place female gainfully employed candidates
at par with similarly placed male candidates and allowing their recruitment into the
Indian Territorial Army. The writ petitioner contends that as per the advertisement put
out by the respondents, there is no scope for women to join the Territorial Army as an
officer, even if they are gainfully employed and within the age group of 18-42 years,
while this is the eligibility condition enabling similarly placed men to join. The
challenge, therefore, is premised primarily on the ground that this discrimination,
based on gender, is violative of the fundamental rights guaranteed to all women under
Articles 14, 15 and 16 of the Constitution of India and also impinges on their basic
human rights.

ISSUE:-
Did the advertisement report that was put out by the respondent did discrimination on
the basis of sex?

JUDGEMENT:-
GITA MITTAL, ACTING CHIEF JUSTICE "The subordination of one sex to the other
ought to be replaced by a principle of perfect equality, admitting no power or privilege on the
one side, nor disability on the other."
2)PHILLIPS VS MARTIN MARIETTA CORP. 400 U.S. 542 (1971)

FACTS:-
It was a United States Supreme Court case in which the court held that under Title VII of the
Civil Rights Act of 1964, an employer may not, in the absence of business necessity, refuse
to hire women with pre-school age children while hiring men with such children. The
supreme Court held that the Marietta Corp. policy did discriminate on the basis of sex and
overturned the lower courts findings and sent the case back to lower court for trial.

ISSUE:-
Did Marietta Corp. did discrimination on the basis of sex?

JUDGEMENT:-

In the absence of evidence that having preschool-age children is demonstrably more relevant
to female job performance than to male job performance, refusal to hire women with
preschool-age children violates the Civil Rights Act of 1964. In a per curium opinion, the
Court held that the Civil Rights Act of 1964 required that persons with similar qualifications
be given equal employment opportunities regardless of their sex. Because there was
inadequate evidence to determine whether having preschool-age children was actually
relevant to the business qualifications of the female candidates, the Court held that summary
judgment was inappropriate in this case.

In his concurring opinion, Justice Thurgood Marshall wrote that the Civil Rights Act of 1964
requires uniform minimum qualifications for both male and female candidates. The exception
for qualifications that may be different based on actual business necessity was only intended
to apply to jobs that require specific physical characteristics; it was not intended to justify
stereotypical characterizations of traditional gender roles.
CASE ANALYSIS:-

1) PHILLIPS VS MARTIN MARIETTA CORP.:-

Marietta and Corp. and is the above case did discrimination on the bases of sex by refusing to
hire women with pre school children than men with the same. This shows that Marietta and
corp. is a feminist and had performed financial and social gender inequality.

2) Kush Kalra vs Union Of India & Anr. on 5 January, 2018

This case is with regard to the prohibition of women candidates from joining the TA
imposed by way of the advertisements being issued inviting application for joining, it
becomes necessary to examine the prescriptions made by the respondents with regard to
the eligibility based on gender and as prescribed by law.This clearly depict the feminism
in our society.

CONCLUSION:-
Feminism refers to any ideology that seeks equality in rights for women, usually through
improving their status. Feminism is about all genders having equal rights and opportunities.
It’s about respecting diverse women’s experiences, identities, knowledge and strengths, and
striving to empower all women to realise their full rights.

It’s about levelling the playing field between genders, and ensuring that diverse women and
girls have the same opportunities in life available to boys and men.This includes seeking to
establish educational and professional opportunities for women that are equal to those for
men. Feminists have also worked to ensure access to legal abortions and social integration,
and to protect women and girls from rape, sexual harassment, and domestic violence. One
problem that feminism has had to confront-is the right of minority cultures “to live according
to their own value system”.

Women have had many great breakthroughs with their protest, but many still turn a blind eye
to the fact that there is sexual discrimination. Men are still more respected than women in our
society. Not only do they receive higher pay but the products that are marketed toward them
are less than those marketed for women. However, new generations are taking the movement
by storm with even males supporting women in their fight. The problem of women's rights at
hand is not going away anytime soon, but its growing popularity gives hope to all those
fighting for equality.

BIBLIOGRAPHY

Manu Patra
Indian Kanoon
JSTORE
http://www.feminist.org/
https://iwda.org.au/learn/what-is-feminism/