Judicial Discourse and the Construction of ‘Woman’

Written by Meghalaya Times. Posted in Writers Column

Apoorva Tomar
Mary Joe Frug has argued or in a sense warned, that the postmodern position locating human experience as inescapably within language suggests that feminists should not overlook the constructive function of legal language as a critical frontier for feminist reforms. She further argues that legal rules encode the female body with meanings, and legal discourse then explains and rationalizes these meaning by an appeal to the natural differences between sexes, differences that the rules themselves help to produce.

Feminists around the world have attempted to engage with law as a saviour of women’s rights and interests. They have used law as a tool to bring about important legal reforms and ensuring that women stand at par with men in various fields of life. They have added the much needed female perspective to legal discussions. But this legal discourse can work as a double edged sword; it can be the protector as well as the oppressor. It is to be noted that judicial proceedings and pronouncements are the sites where the socially constructed identities and inequalities are further perpetrated by the legal tools and methods and therefore the role of the Supreme Court in altering the legal discourse and thus showing the way to the subordinate courts becomes inevitably important. The Supreme Court of India stands as the guardian of the Constitution and protector of the fundamental human rights of all. It is endowed with the power to translate rights into realities and has the potential to catalyze deeper cultural and social transformations towards gender equality.
However the approach of judiciary has been inconsistent and no positive trend can be traced in this regard. In spite of such tremendous power in the hands of judiciary to shape the legal discourse and to give impetus to the movement for gender equality and justice, patriarchal attitudes/values and familial ideology employed while delivering judgments has failed to free the women of their traditional roles. The legal construction of woman as chaste and loyal wives, dutiful and virginal daughters has already been lamented by feminists like Ratna Kapur. Further their representation as potential innocent mothers who shower their children with selfless love and sacrifice their lives are the pictures which have  to be changed keeping in view the demand for understanding woman as individuals with sexual agency and autonomy. Recently in State of M.P. vs Madanlal, 2015, while the Supreme Court condemned the attempts at mediation between a rape victim and the person accused or convicted but the language of the judgment is heavily guided by patriarchal perceptions of dignity. The Judgment describes a woman’s body as her own temple and how one’s reputation is “the richest jewel one can conceive of in life” and how this “purest treasure” is lost when a woman is raped. There can be no compromise or settlement with her rapist because it would be “against her honour”, which is “sacrosanct.”
In another landmark judgment in 2015, the Supreme Court asked the country to grow up and accept the fact that a woman can take good care of her child by herself. In Abc vs State (NCT of Delhi), 2015, the Court held that an unwed mother can be granted the guardianship of a child born out of wedlock. It opined that a mother is ‘best-suited’ to take care of a child born out of wedlock, “avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word mamta.” Thus the Court once again reinforced the gender stereotypes perpetuated by patriarchal social discourses.
In the view of such gendered judicial reasoning which continues to reiterate the age-old construction of women based on their social relations, it becomes pertinent to develop legal discourse by construing women as individuals and ensuring them the constitutional goal of equality. And this discourse can be developed only when more women voice their stories and experiences, when more women litigants, lawyers and women judges occupy the legal spaces and bring with them the perspectives that have hitherto been absent in judicial discourse. As Lucinda M. Finley notes that we cannot get away from law because it is such a powerful, authoritative language, one that insists that to be heard you try to speak its language. Since law inevitably will be one of the important discourses affecting the status of women, we must engage it.


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