Administration of Justice: Feminist Jurisprudence

By: Aaditya Sinha

Introduction:

In simple words administration of justice means: what is justice according to law? In order to protect each and every individual and their rights, there must be a system that maintains the law and gives justice to each and every individual.

In the administration of justice, we will understand the concept of justice, why justice is important, and most importantly what the purpose of justice is in both criminal and civil nature.

If we are determining a nation’s rank on the basis of political organization, no test can be more decisive than its administration of justice, because it has been conceived as one of the firmest pillars of any government.

For the purpose of justice, in this topic, we will also study the need for law, which bridges the gap between two communities or gender, for example, Feminist Jurisprudence.

In feminist jurisprudence, we talk about justice with the women’s perspective. Apart from these topics, one more important topic of this section is “Secondary Functions of the court”.

Administration of Justice:

What is the Administration of Justice? In straightforward words, the organization of Justice implies equity as per law. Equity, for the most part, implies the nature of being simple. Equity comprises of unprejudiced nature, honesty or rightness, and so on.

Administration of equity is commonly isolated into two sections via the Administration of Civil Justice and Administration of Criminal Justice.

Origin and Growth of Administration of Justice:

The starting point and development of an organization of Justice are indistinguishable with the beginning and development of man. In current edified social orders, it has advanced through stages.

First Stage:

In the beginning, when society was crude and private retribution and self-improvement were the main cures accessible to the wronged individual against the transgressor, he could misunderstand his intentions with the assistance of his companions or family members.

Second Stage:

The second phase of the advancement of the general public was described by the state appearing in its simple structure when its capacities were just powerful in nature. It didn’t have to authorize power by which it could rebuff the transgressor.

Third Stage:

In the third stage of the advancement of society, wrongs could be reviewed by the installment of pay by the transgressor to the wronged (victim) who was influenced by the unfair demonstration.

In this way up to this time, the equity stayed private in nature without the urgent power of the State.

Advantages of Administration of Justice:

Favorable circumstances of Administration of Justice are as per the following –

Consistency and assurance - Legal Justice guarantees consistency and sureness. Everyone realizes what the law is and there is no extension for self-assertive activity. Indeed, even Judges need to give choices as indicated by the pronounced law of the Country. As the law is sure, residents can shape their minds and approaches appropriately.

Fairness - Another Advantage of the Administration of Justice is that there is fair-mindedness in the organization of equity. Judges are required to give their choices as per the pre-decided legitimate standards and they can’t go past them.

Disadvantages of Justice:

Regardless of the previously mentioned focal points, there are sure impediments of Legal Justice, which are as per the following –

Unbending nature - One Disadvantage of Legal Justice is that it is Rigid. Law has just been set down in points of reference. It isn’t constantly conceivable to modify it to the changing needs of society.

Society may change more quickly than legitimate equity and may bring about hardship and treachery in specific cases. Judges follow up on the rule that “hard cases ought not to make awful law”.

Details - Another weakness of legitimate equity is its details (formalism). Judges join more significance to lawful details than the merit. They offer significance to shape than to substance.

Intricacy - Modern culture is turning out to be increasingly convoluted and whenever produced time-to-time to classify or disentangle the legitimate framework yet very soon law becomes confused.

Types of Administration of Justice -

Criminal Administration of Justice:

The organization of criminal equity manages open wrongs. All offenses which are incorporated under criminal offenses are under the Indian Penal Code (IPC) and are often considered as open wrongs.

The organization of criminal equity is to rebuff the guilty party. Discipline might be depicted as the punishment by State Authority, of a result regularly viewed as wickedness (for instance detainment or passing) on an individual saw as legitimately liable of wrongdoing.

Significance and Purpose of Criminal Justice:

The principle reason and object of criminal equity is to punish the miscreant (the guilty party) and to keep up lawfulness in the public eye. It is the State, which punishes the Criminal.

Discipline fundamentally suggests a few sorts of torments dispensed upon the guilty party or misfortune caused to him for his criminal demonstration which may either be expected to dissuade him from restricting the wrongdoing or perhaps an outflow of society objection for his Anti-Social lead or it might likewise be coordinated to change and recover him and at the time ported the general public.

Civil Administration of Justice:

The primary object of the organization of common equity is to give alleviation by the method of payment or any other help, which can be provided, to the harmed party. The rights upheld by Civil Procedures are of two sorts’ viz., Essential rights, and Sanctioning rights.

Essential rights are those, which exist even when all things are considered. They don’t have their source in some off base.

Authorizing or therapeutic rights are those rights that appear after the infringement of an essential right. An essential right will be correct emerging out of lead or as jus in rem.

An authorizing right is one that emerges out of the infringement of another right. For instance, if X goes into a legitimate agreement, his entitlement to have the agreement performed is an essential right. On the off chance that the agreement is broken, his entitlement to harm for the misfortune caused to him for the break of the agreement is endorsing right.

An essential right might be implemented by explicit implementation. An endorsing right is upheld by authorizing implementation.

Feminist Jurisprudence:

Feminist Jurisprudence is also known as Feminist Legal Theory is actually based on an ideology that believes that women have been subordinated gender because of the law. The objective of Feminist Jurisprudence is to understand two main problems.

Firstly, it wants to know the reason why women were always subordinated because of the law and the other one is to find a solution for the problem and make sure that in the near future, the women will finally get equal status compared to the male gender.

Approach to Feminist Jurisprudence:

There are several main approaches to the issue of feminist jurisprudence, which are as follows:

  • Liberal equality model
  • Sexual difference model
  • Dominance model
  • Anti-essentialist model
  • Postmodern model

Liberal Equality Model: This model derives from the political ideology of Liberalism, as we know the basic idea of liberalism is that everyone should get equal rights and everyone should be rational enough to understand this. 

In the Liberal Equality model, the legal feminists believe that women should fight for their rights as a “Women” and should not classify the gender of the women further on the basis of caste, creed, religion, etc.

For example, black women only get legal relief on their race Feminist legal activists believe that there should be no division of the “women gender”.

In sexual difference model: It talks about the difference between the two sexes or two genders, it can be understood by the concept of “Equal Protection of Laws” which is also defined in Article 14(2)[1] of Indian constitution, this concept is known as the positive concept of equality and it is an American concept.

In the concept of “Equal Protection of law,” we talk about “reasonable classification”, we classify the people on the basis of intelligible differentia and rational nexus. In feminist legal theory, the same concept is used, here the subordinated gender which is women is the one who has been oppressed so, in order to suppress them, we intelligibly differentiate them.

For example, in India, there is “Reservation for women”, in parliament and in Gram Panchayat Election, and in many other examinations also.

This reservation is not anticonstitutional although it violates Article 15[2] of the constitution of India, which says that there should be no discrimination on the basis of caste, creed, and sex amongst the people of India.

It is mentioned in our Constitution because our country believes in the ideology of feminist jurisprudence that there was an inequality between the two sexes.

However, this concept was criticized by the postmodern feminists [A type of wave in the concept of feminism], who believed that white women and black women cannot be in the same group.

For more evident example, think of a Brahmin or an upper-caste girl and a “Dalit” girl in India, they cannot be considered in the same group, a Dalit girl probably would have suffered more because one she is a woman and other she is Dalit too.

The dominance model of feminism: This model is somewhat radical feminism, this model rejects the concept of the Liberal Equality Model and it believes that Men have exploited the women so much, that they have subordinated their gender and they also have been so dominant.

A famous author Catharine Mac Kinnon who believes that sexuality is the major reason for dominance. MacKinnon has once said “legal system perpetuates inequalities between women and men by creating laws about women using a male perspective”

The anti-essentialist model of feminist: This model was developed in the 1980s, and black and lesbian women mostly developed it. This model believes in the concept of intersectionality, which believes that there can be an intersection of injustice between gender and race or any other form of injustice.

This model does not agree with the Liberal Feminists. Mari Matsuda created the term “multiple consciousnesses” which explains the perspective of an oppressed group. anti-essentialist feminist legal theorists believe in the concept of multiple consciousnesses to understand how the law is affecting women belonging to groups other than their own.

The Post Modern model: It also rejects the idea of liberal feminists and they also believe that the concept has interfered with the sections of the society.

They also believe that law should change from time to time because the laws, which were made years ago, are the primary reason why the women are oppressed by the male gender.

The idea of Feminism and Law:

If we look at history, the laws for the women were always discriminatory to the females. We all know that there was the custom of “Sati Pratha” which was opposed by Raja Ram Mohan Roy. 

Today if we look at the customary law of “Sati” we understand how irrational that law was. That custom was discriminatory and irrational. Even after Sati, many countries did not allow women to give votes; New Zealand was the first country to give women to give the right to vote.

In the year of 1893, New Zealand became the first country to follow “Universal Suffrage”. These laws make us believe that the world was a “Patriarchal Society” and unfortunately is still a “Patriarchal Society”.

Custom and Common Ideology of people:

Even today the Marriage of a Widow is a social taboo, a widow even today does not have the right to dress-up and eat non-veg food. There are many customary laws today, which prohibit women from many things.

There are many cases of “Difference of the Pay-Parity among the sexes”. We can take the example of Sabarimala temple[3], where women were not allowed to enter the temple, even if the Supreme Court made the judgment that women can enter the temple, the women were not allowed to enter the temple.

There was the custom of Triple Talaq[4], which was even worse than that of Sabarimala. The Muslim Marriage Act still has many customs, which are derogatory in the eyes of society.

There are many cases of gender discrimination between the two genders along with the world, in order to bridge the gap we need to follow the concept of “equal protection of the law”, and we need to classify the gender, which has been subordinated by the process of intelligible differentia and rational nexus.

However, we also need to understand in order to make one gender-equal we should also not try to harm the other gender because that will make the gap between the two genders even wider.

Secondary functions of court:

The need for the court was always debatable by the jurist at that time, Austin the father of the positive school of law was always against the system of courts and judges and after that, almost every jurist was more or less against the system of law and courts.

Bentham also opposed the judge’s based law, according to these jurists law should be what it is and should not be interpreted by an apex system like a court, but today we know that without court the protection of law cannot be imagined.

For example, the constitution was there but before the case of Kesavananda Bharati v. the State of Kerala[5], there was no use of the constitution, even the preamble was added after this case. 

We can think of many cases, be it Joseph Shine v. Union of India[6] which made adultery decriminalized or be it the case of Naz Foundation case[7] which played a very important role in making the judgment of Homosexuality, section 377 of the Indian penal code,1860.

So by the above cases, we understand that we need the courts and they have a very much vital role in order to save our democracy.

Conclusion:

The project is all about the concept of “Justice”, and in order to completely understand that topic we see many sub-topics through the journey, we first understood the application of the Administration of justice, then the need for justice in both criminal and civil matters.

The need for separate justice for genders and communities including a chapter like “Feminist Jurisprudence”. The need for justice is very important in every state and in order to maintain justice, it is very important to make sure that justice is being prevailed it is very important that we understand the concept of justice very clearly.

In order to give justice to every caste, creed, religion, etc we have to use the concept of “equal protection of the law” and also we should reasonably classify the situations and follow the rules of “intelligible differentia” and “rational nexus.”


References:

[1]The Indian Constitution, 1950.

[2]The Indian Constitution, 1950.

[3] Indian Young Lawyers Association v. The State Of Kerala (2018).

[4] Shayara Bano v. Union of India and Ors. Writ Petition (C) No. 118 of 2016.

[5] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[6] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 OF 2017.

[7] Naz Foundation v. Govt. of NCT of Delhi, WP(C) No.7455/2001.

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