Chapter 3(b): Feminism and jurisprudence.

Chapter 2(b): Feminism and Jurisprudence. 

Feminist Jurisprudence asserts that all human beings are born free and equal, and thus, women’s rights must be equally protected under the law. The natural world functions through the coexistence of male and female, making women's issues equally significant in sustaining civilization. Women, especially as mothers, hold crucial roles in society. Feminist jurisprudence varies across liberal, radical, cultural, and postmodern feminism and emerged in the 1980s as a legal and philosophical movement distinct from the broader feminism movement. In Nepal, it gained momentum after 1990, following Supreme Court verdicts addressing women’s rights.

Four Schools of Feminist Jurisprudence:

1. Liberal Feminism:
   • Advocates for equal rights and opportunities for men and women.
   • Change is possible through legal and political reform without altering societal structures.
   • Key figures: Wendy Williams, Herma Hill Kay, Mary Wollstonecraft, Harriet Taylor.
   • Focuses on issues like reproductive rights, abortion, sexual harassment, voting rights, education, childcare, and healthcare.
2. Radical Feminism:
   • Rejects liberal feminism; emphasizes that men and women are inherently different.
   • Advocates for special treatment for women due to biological differences.
   • Supports quotas and reservations to counter male dominance.
   • Influenced by Marxist critical theory.
   • Notable thinkers: Catherine A. Mackinnon, Christine A. Littleton.
3. Cultural Feminism:
   • Opposes earlier feminist theories; sees male and female as complementary.
   • Emphasizes cooperation and mutual respect between genders.
   • Stresses reproductive health and societal roles of women.
   • Key figure: Rebecca West.
4. Postmodern Feminism:
   • Rejects all established norms and theories.
   • Prioritizes individual freedom, challenges all systems perceived as oppressive.
   • Embraces diversity, including LGBT rights.
   • Advocates for flexible, evolving understandings of truth and identity.

Feminist Jurisprudence in Nepal:

Nepal, though secular, retains strong patriarchal values. It is party to international treaties such as:

• CEDAW (1979),
• Declaration on the Elimination of Violence Against Women (1993),
• SAARC Convention on Trafficking (2002).

Nepal has passed key legislation like:

• Eleventh Amendment to the Country Code (2002) – eliminated property and marriage discrimination,
• Gender Equality Act,
• Domestic Violence Act (2066 BS),
• Trafficking Control Act.

Under Article 18 of the 2015 Constitution, equality is guaranteed with provisions for positive discrimination.
Article 38 guarantees reproductive rights and women's rights.
Article 29 prohibits exploitation.
Article 252 mandates a National Women’s Commission to advocate for women's issues.

Despite progressive laws, discriminatory practices persist, and further legal reforms are ongoing.

Key Supreme Court Cases in Nepal:

• Jit Kumari Pangeni Neupane v. Nepal Govt: Challenged lenient punishment for marital rape.
• Advocate Sapana Pradhan v. HMG: Equal punishment irrespective of victim’s profession.
• Meera Dhungana v. HMG: Called for legal provision addressing marital rape.
• Madhukar Rajbhandari v. HMG: Psychological and circumstantial evidence prioritized in rape cases.
• HMG v. Harilal Rokaya: Victim’s statement is valid unless proven unreliable.

Gender and Sexual Sensitivity in Law:

• Equality means equal rights, opportunities, access, and responsibilities.
• Gender is a social construct distinct from biological sex.
• Constitution supports "equal-opportunities feminism", rejecting biological differences as valid grounds for legal discrimination.

Cases on Employment and Property:

• Adv. Prakashmani Sharma v. HMG: Delivery leave not a statutory right.
• Rina Bajracharya v. HMG: Discriminatory retirement age laws deemed unconstitutional.
• Prakashmani Sharma v. HMG (Property): Inheritance laws discriminating against daughters challenged.
• Meera Dhungana v. HMG (Property): Court upheld limitations on daughters' inheritance based on age.

Case on Discrimination:

• Meera Gurung v. Immigration Dept.: Visa law discriminated between foreign spouses of men and women; declared unconstitutional.Legal Framework and Feminist Jurisprudence in Nepal

  1. International Instruments Relating to Gender Justice

• International instruments offer a moral and legal framework for countries to legislate gender justice in alignment with global human rights standards. The United Nations has consistently prioritized gender equality and justice:
• UN Decade for Women (1976–1985) and four world conferences on women (1975–1995) significantly boosted global awareness.
• Vienna Declaration and Programme of Action (1993) emphasized women’s full participation in all aspects of life and the eradication of discrimination.

• Beijing Declaration and Platform for Action (1995) provided guidelines for national implementation.

  Key International Instruments:

• CEDAW (1979): Obliges states to ensure both de jure and de facto equality, and eliminate direct/indirect, formal/substantive discrimination.
• Optional Protocol to CEDAW (1999)
• SAARC Convention on Trafficking (2002)
• Optional Protocol to CRC on the Sale of Children, Child Prostitution & Pornography (2002)
• Maternity Protection Convention (2000)
• Declaration on the Elimination of Violence Against Women (1993)
• At the 2005 World Summit, global leaders affirmed: “Progress for women is progress for all.”

• Gender Development Index (GDI) by UNDP evaluates gender disparities. Nepal ranked 149th in 2018.

  2. National Legal and Constitutional Instruments (Nepal)

  A. Constitution of Nepal (2072 B.S.)

• Nepal’s Constitution ensures gender justice through rights, protections, and affirmative policies.

• Key Provisions:

• Article 16: Right to live with dignity.
• Article 18: Right to equality; prohibits discrimination on grounds including sex and allows special laws for women’s empowerment.
• Article 38: Specific rights of women:
  • Equal right to lineage.
  • Safe motherhood & reproductive health.
  • Protection from all forms of violence.
  • Proportional inclusion in state structures.
  • Equal property and family rights.
• Article 42: Social inclusion rights for backward women.
• Article 51(j): State policies for:
  • Prioritizing employment for vulnerable women.
  • Rehabilitation of women victims of conflict/exclusion.
  • Ensuring services during reproductive stages.
• Article 70: President and Vice-President to represent different genders or communities.
• Article 84 & 86: Gender-inclusive representation in Parliament and National Assembly (1/3rd women minimum).
• Article 253: Functions of the National Women Commission, including:
  • Reviewing laws.
  • Monitoring treaty compliance.
  • Making policy recommendations.
• Article 267(3): Inclusive recruitment in Nepal Army.

• Article 281: Periodic review of special rights based on Human Development Index.

  B. Major National Laws and Acts

• 1. National Civil (Code) Act, 2074

• Guarantees equality before law.
• Prohibits discrimination in law, wages, or social security based on gender.
• Recognizes the household as a shared responsibility.
• Grants equal property and occupational rights to spouses.

• 2. Domestic Violence (Crime and Punishment) Act, 2066

• Defines physical, sexual, mental, and economic abuse.
• Mandates perpetrator to cover victim’s treatment costs.
• Provision for service centers, shelter, and camera hearings.
• Offers interim protection and compensation.

• 3. Sexual Harassment at Workplace (Elimination) Act, 2071

• Ensures dignified workspaces.
• Complaint mechanism: Office Chief → Chief District Officer (if unresolved in 15 days).

• 4. Witchcraft (Offence and Punishment) Act, 2072

• Criminalizes accusations and violence related to witchcraft beliefs.

• 5. Administration of Local Government Act, 2074

• Empowers Judicial Committees (led by Vice-Chairs) to mediate domestic and gender-related disputes.

• 6. Right to Safe Motherhood and Reproductive Health Act, 2075

• Ensures accessible, quality reproductive and maternal healthcare.

• 3. Legal Status of Women in Nepal

• Political Participation:

• Often seen as fulfilling quotas rather than genuine empowerment.
• Gender mainstreaming remains under-addressed in national politics.

• 4. Landmark Judicial Decisions

• Sexual Harassment & Trafficking

• Fullmaya Magar v. HMG: Directive to create laws against all forms of sexual harassment.
• Uttam Lama v. HMG: Upheld non-retroactivity principle; no impunity for human trafficking.

• Murder & Domestic Abuse

• Laxmi Badi v. Lal B. Badi: Reduced sentence due to psychological abuse and provocation by spouse.

• Superstition & Social Harm

• Reshma Thapa v. HMG: Directive to legislate against witchcraft accusations.
• Dil B. Bishwokarma v. HMG: Declared Chhaupadi practice unconstitutional; government ordered to act.

• Right to Privacy

• Advocate Sapana Pradhan Malla v. Nepal Government: Directive to protect identity of women, children, and vulnerable individuals in legal proceedings.
• Annapurna Rana v. Gorakh Samsher: Upheld constitutional right to privacy, opposed virginity testing.

• 5. Feminist Jurisprudence

• Feminist legal theory critiques how traditional law has ignored women's experiences and interests. It emerged with influence from the Critical Legal Studies Movement and ideologies like Marxism, liberalism, and socialism.

• Key Thinkers:

• Ann C. Scales, Patricia A. Cain, Robin West, Catherine A. MacKinnon, Susan Moller Okin, among others.

• Impact in Nepal:

• Post-2046 B.S., Nepal has witnessed:
• Legal reforms.
• Campaigns against discrimination.
• Increased academic and policy focus on gender justice.

• 6. Key Feminist Concepts (Geeta Mam’s Slide Outline)

• Feminism: Advocacy for equal treatment of women as full human beings.
• Feminist Methods & Waves: Diverse approaches and eras of feminism.
• Gender & Sexual Sensitivity in Law: Legal response to gendered violence and inequality.
• Gender Equity & Empowerment: Legal & policy mechanisms to uplift women.
• Forms of Violence Against Women (VAW) in Nepal: Includes trafficking, domestic abuse, harassment.
• Economic Subordination of Women: Unequal pay, unpaid labor, lack of access to property.
• Motherhood & Reproductive Rights: Legal guarantee of reproductive health.

• Role of State: Through affirmative actions, inclusion policies, and legal reforms.

   

  Rights Relating to Motherhood and Reproductive Rights in Nepal

  The Right to Safe Motherhood and Reproductive Health Act, 2075 (2018)

  This Act seeks to ensure that every woman can experience the reproductive process in a state of complete physical, mental, and social well-being, rather than simply the absence of disease or disorders. It emphasizes women's autonomy, dignity, and access to reproductive health services as a fundamental human right.

  Key Challenges to Reproductive Rights:

• Patriarchal Social Structures: Includes sex-selective abortions, son preference, child marriage, and domestic violence.
• Lack of Economic, Social, and Cultural (ESC) Rights: Women’s health is compromised due to poverty, disease, disability, and premature death.
• Ignorance and Prejudice: Deep-rooted misinformation about women’s sexuality and reproductive health persists.
• Poor Resource Mobilization: Inadequate funding, staffing, and infrastructure in reproductive health services.

• Conflict and Natural Calamities: Disasters and conflict disproportionately affect women’s reproductive health and access to care.

  Defining Reproductive Health:

  Reproductive health implies that individuals:

• Have the ability to reproduce and decide freely about childbearing.
• Can engage in safe and satisfying sexual relationships.
• Can carry pregnancies safely and achieve healthy child development.

• Can regulate fertility without health risks.

  Integral Components of the Highest Attainable Standard of Health:

• Human dignity
• Right to life and prohibition of torture
• Non-discrimination, equality, and equity
• Right to privacy and access to information

• Adequate standard of living: food, clothing, housing, medical care, and social services

  Reproductive Functions and Family Planning:

              International Commitments:

• Teheran Conference on Human Rights, 1968: Recognized the right to decide freely and responsibly on the number and spacing of children.

• Cairo Conference, 1994: Emphasized family planning without coercion, promoting informed choices and access to reproductive services.

  Reproductive Rights as Human Rights:

  These rights are tied to both Civil and Political Rights (CPR) and Economic, Social, and Cultural Rights (ESCR), promoting:

• Equality and liberty
• Privacy and dignity
• The right to life

• Sustainable human development

  CEDAW Article 12:

  Mandates state parties to eliminate discrimination in healthcare and ensure equal access, including family planning services.

   

  Prepared and edited by Madhu Dahal.