INTRODUCTION

HISTORICAL BACKGROUND

Jurisprudence, as a philosophy of law attempts to correlate with Social values and provides
practical solutions by way of fusion of fact, justice and value. It is a Science of law which is
primarily concerned with regulation of human conduct in accordance with the set of values,
needs and goals of each society. “JURISPRUDENCE” is derived from the Latin word
“Jurisprudentia” which means “Knowledge of Law”.

Austin1, defines jurisprudence as ‘Science of law which deals with analysis of the concepts or its
underlying principles’.

Holland defines jurisprudence as ‘the formal science of positive law’2

Gray defines jurisprudence as a science of law i.e, systematic arrangement of rules followed by
courts and principles underlying them.

The changes in social, political and economic outlook and the changes in the conditions of
individual and national life have widened the province and the scope of law viz, jurisprudence.

LIBERAL FEMINISM

Liberal feminism is an individualistic for of feminist theory, which focuses on women’s ability
to maintain their equality through their own actions and choices. Its emphasis is on making the
legal and political rights of women equal to men. Liberal feminists argue that society holds the
false belief that women are, by nature, less intellectually and physically capable than men and
thus it leads to discriminate against women in the forum and the marketplace. Liberal feminists3
believe that female subordination is rooted in a set of customary and legal constraints that blocks
women’s entrance to and success in the so called public world.

FEMINIST JURISPRUDENCE
1
In 1832, John Austin published his monumental work entitled the ‘Province of Jurisprudence Determined’.
2
Stammer has also defined Jurisprudence as a science of formal law.
3
There are libertarian feminist, socialist feminist, metaphysical feminist

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Feminist jurisprudence is a philosophy of law based on the political, economic, and social
equality of sexes. It is the study of the construction and workings of the law from perspectives
which foreground the implications of the law for women and women’s lives. This study includes
law as a theoretical enterprise as well its practical concrete effects in women’s lives. Feminist
jurisprudence seeks to analyze and redress more traditional legal theory and practice. Feminist
jurisprudence seeks the working of law as thoroughly permeated by political and moral
judgements about the worth of women and how women should be treated. Feminist
jurisprudence usually frames its responses to traditional legal thought in terms of whether or not
the critic is maintain some commitment to the tradition or some particular feature of it.

WOMEN IN THE TRADITIONAL LIFE

Traditionally, women are considered to be caretakers of the home and had to look after the
running of the family and had to manage the expenses in the most economic way. They were
kept out of the decision matters as the primary role of women was not that of ruling the family
and were under the control of the husband. Women were not too educated at that time. But there
were women in olden days too, who were educated and led paths of success in many spheres of
life and brought a transformation in the way people viewed women in the society. But in the
Modern day, women have completely transformed from a homemaker to the multitasking
women, handling responsibilities without fear. Now a days women manage career outside their
homes, nurturing their children and balance their families with their professionals.

CONSTITUTION

The Preamble of the Constitution clearly states that equality should be given to all citizens in
terms of status and opportunity. It must be understood that guarantying Rights to people of a
community becomes useless unless and until those Rights are equally enjoyed by all members of
the community. The framers of the constitution aimed at ensuring equality of status and
opportunity through the Preamble. Equality is the touchstone of Indian Constitution. The
Preamble of the Constitution inter alia talks about social, political and economic justice for all
citizens of the country. The Preamble talks about social justice which should be understood in

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the light of ensuring abolition of all sorts of inequalities which may result from inequality in
wealth, status, class, caste, sex, race, title etc. Economic justice ensures that every person should
get his just dues for the labour given by him/her irrespective of caste, creed, sex, status etc.
Political justice ensures that unnecessary distinction among men and women in political matters
should not be allowed. The provision contains in itself the essence of universal adult suffrage.
The Preamble talks about dignity of an individual and that dignity should be ensured by
gauranting equal fundamental rights to all individuals. Dignified lives contain in itself the
essence of equality and freedom. All the fundamental rights contained in part-III of the
constitution are applicable to all citizens of India irrespective of sex. Art-14 specifically states
that within the territory of India, the state shall not deny to any person equality of law or equal
protection of law. Then, Article 15(1) states that the state shall not discriminate against any
citizens ‘only” on the ground of religion, race, caste, sex, place of birth or any one of them4. The
provision further states that religion, castes, sex, place of birth, race or any of them cannot be the
“only”ground whereby any person is subjected to any disability, liability, restriction or condition
and hence the throwing open of public places. Thus, Article-15(1) prohibits gender
discrimination. However, certain fundamental rights contain specific provisions to protect the
rights of women. It is worthwhile to mention here that the principle of Equality does not connote
that the same law should be applied to everyone; rather it talks about equality of treatment under
equal circumstances. Thus, Art-15(3) positively discriminates in favour of women and permits
the state to make special provisions for them. Art-15(3) should be understood in the light of
‘equal treatment under equal circumstances” or “quality among equals”. The framers of the
constitution very well understood that women in the then Indian society did not have equal
political, economic and social status as that of men. They felt an urge to uplift women and bring
them under the same sun. Thus, Art-15(3) validates positive discrimination and it is in no way
contradictory to Art-15(1). 5Art-16 talk about equality of opportunity in case of public
employment. Equal employment opportunity means equal access to jobs and conditions of work.
It also contains in itself the essence of equal evaluation of performance. It must be noted here
that Art-16 talks about employment or appointment to any office under State only. Matters
relating to employment mean all matters prior or subsequent to the employments which are
connected with the employment. Art-23 specifically prohibits traffic in human beings. On the
4
PM Bakshi, The Constitution of India, 11st Edition 2011.
5
Inserted by the Constitution (77th Amendment) Act, 1995 S.2.

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basis of this Article, legislature passed the Suppression of Immoral Traffic Act, 1956 (now
renamed as Immoral Traffic Prevention Act, 1956) which aims at abolishing prostitution and
other forms of trafficking. Along with this, the Andhra Pradesh legislature has enacted the
Devdasis (Prohibition of Dedication) Act, 1988 to prohibit the practices of dedicating women to
deities and temples. The Directive Principles of State policy contained in Part-IV of the
Constitution incorporate many directives to the state to improve the status of women and for
their protection. 6Art-39(a) directs the State to secure its policy so that the citizens (both men and

women) have equal rights to adequate means of livelihood. 7Art-39(d) directs the State to secure
equal pay for equal work for both men and women. The State gave effect to this provision by
enacting the Equal Remuneration Act,1976. Art-39(e) specifically directs the State not to abuse
the health and strength of workers (both men and women). 8Art-42 directs the State to make
provisions for securing just and humane conditions of work and for maternity relief. For this
purpose the Maternity Benefit Act has been enacted. Article-44 directs the State to secure the
citizens of India with a uniform civil code throughout the territory of India. Dr Ambedkar was in
favor of reformation of personal laws and establishment of Uniform Civil Code. The first woman
chief justice Leila Seth said that a common civil code would ensure that the harmful customary
practices which are degrading to the dignity of woman can be broken down with an uniform civil
code. There was an existing controversy that a uniform civil code shall take away the religious
rights of individuals. To this, justice Leila Seth correctly replied that uniform civil code will not
take away the religious rights of people. It will only ensure that a woman has her equal property
rights, her right to adopt, her from against arbitrary divorce, her right to inheritance and her right
against the practice of polygamy by her husband even if her father or husband gets converted to
another religion.Through the 73rd and 74th amendment of Indian Constitution, reservations of
seats were provided to women in elections to the Panchayat and municipalities. Art-243D of the
Constitution provides that in the direct election in every panchayat not less than 1/3rd of total
number of seats are to be reserved for women. Article-243T(3) provides for reservation of seats
for woman in direct elections to every municipality. Art-51A(e) inter alia states that it is the duty
of every citizen of India to renounce from practices which are derogatory to the dignity of
women.
6
Inserted by the Constitution (42nd Amendment) Act, 1976 S.8.
7
State of Bihar v Kameshwar Singh, AIR 1952 SC 252
8
MCD v Female workers (Muster Roll) AIR 2000 SC1274

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 UNEQUAL WORK OPPORTUNITIES

Why the ratio of men and women working in same organisations is always more on the female
side because the organisations do not wish to take females as workers in their organisations and
more liabilities increase with more number of female workers whether it be anything. They think
employing female workers under them will result in chaos in such organisations and work will
be hampered. No concept of equal pay for equal work has still come up in the country, women
are still paid less for the same work men do. The concept behind this is nothing because women
need work and they get negotiated easily at lower wages. It should be but opposite and to pay
women more as they manage everything when they work, either house or office and that too with
full dedication and hard work. Only the work needs to be appreciated and this issue can never be
solved till there would be strict laws on equal pay for equal work would come up, they are
special, that is why they need special care and appreciation, need and must get even more paid as
they can do what a man can do but a man cant do what all a lady can do.

Women may have gotten the Equal Pay Act in 1963, making it illegal to pay men and women
differently for the same type of wok, but today women are still paid on average, only 78% for
every what man earns Under Section 4 of the Equal Remuneration Act, 1976 which says that it
is the duty of the employer is to pay equal remuneration to men and women workers for same
work of similar nature.

Section 5 of the Act specifically makes positive discrimination against women as it says that no
employer while making recruitment for the same work or work of a similar nature make any
discrimination against women.

CASES

1) 9Randhir Singh v Union Of India

9
1982 AIR 879

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In this case, Equal pay for equal work is not a mere demagogic slogan. It is a constitutional goal
capable of attainment through constitutional remedies by the enforcement of constitutional
rights. Article 39(d) of the constitution proclaims, as a directive principle ‘Equal pay for Equal
work for both men and women’. Article 14 and 19 guarantee respectively the fundamentals
rights to equality before the law and equality of opportunity in the matters of public employment.

2) 10
Grih Kalyan Kendra v Union Of India

In this case Equal pay for equal work is not expressly declared by the constitution as a
fundamental right but in view of the Directive Principles of State Policy as contained in Article
39(d) of the constitution equal pay for equal work has assumed the status fundamental right in
service jurisprudence having regard to the constitutional mandate of equality in Article 14 and 16
of the constitution. Equal pay for equal work and providing security for service by regularizing
casual employment within a reasonable period has been accepted as a constitutional goal of
equality and social justice.

DEVELOPMENT OF LEGISLATIONS AND JURISPRUDENCE IN MATERNITY

In the ancient time, the employer thought that maternity was a state of disability for woman
workers from doing any work during the few weeks immediately before and after the child birth.
The employer belief that this period is wastage of both time and money, so simply they
terminated the services of woman workers and didn’t provide any type of wages or benefits to
them. So many women had to go on leave without any payment of their salary during this period
in case they didn’t want to lose their job. To remove this, concept of MATERNITY BENEFIT
ACT 1961 came to enable the women workers to carry on the social function of the child ,
bearing and rearing without undue strain on their health and loss of wages. Every women
employed is entitled to the payment of maternity benefits at the rate of average daily wages with
without any inequality.

WOMEN WHO BROUGHT THE CONCEPT OF EQUAL PAY

10
1991 AIR 1173

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In honor of equal pay day, we want to pay homage to the women who came before us who fought
for equal pay. But the fight is far from over. According to the Institute for Women’s Policy
Research, on average, women won’t reach pay parity until 2059. It’s even worse for women of
color. Black women won’t see equal pay until 2124, and Hispanic women can’t look forward to
equal pay until 2233. That’s if the rate of progress stays the same. However, looking back on those
who challenged unequal pay proves that we don’t have to wait for the system to correct itself. Here
are just a few cases of women who took matters into their own hands.

1)Esther Peterson: She is the leader of the Women’s Bureau one who brought the concept of Equal
Pat Act,1963. The Equal Pay Act of 1963 was an important step toward codifying the illegality of
sex discrimination in terms of wages. Although the EPA hasn’t resulted in complete pay equality,
by helping to pass a law for equal pay, an employee could now take her employer to court—
opening up an important legal tool for gender equality.

2)Flo Kennedy and Ti- Grace Atkinson: Flo Kennedy, Ti-Grace Atkinson, and members of the
National Organization for Women protested against the common practice of sex-segregated
newspaper “help wanted” ads. They picketed The New York Timesfor an entire week and launched
a national campaign to stop the discriminatory practice that resulted in a structural pay gap. NOW
filed a lawsuit, and as a result, the Equal Employment Opportunity Commission ruled that separate
want ads for men and women. The activism of Kennedy, Atkinson, and NOW helped abolish the
discriminatory practice of keeping women out of good-paying jobs. NOW’s visible victory and
year-long campaign also energized feminist activists and contributed to the rising women’s
movement.

3)Lorena Weeks: Lorena Weeks worked as a night telephone operator at Southern Bell Telephone
& Telegraph Company. A mother of three young children, she jumped at the opportunity for a
higher paying job when she saw a posting for a switchman position. Southern Bell denied her the
position because she was a woman and gave the job to a man with less seniority. So Weeks, with
the help of NOW, sued her employer and won the first sex discrimination case argued under Title
VII of the 1964 Civil Rights Act. Not only did Weeks then get the position she rightfully deserved,
she also received $31,000 in back pay. Weeks’s case set a precedent that helped ensure women
weren’t denied jobs on the basis of their sex.

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4)John F Kennedy: National legislation was finally passed in 1963, when John F. Kennedy
signed the  into effect, overcoming opposition from business leaders and the U.S. Chamber of
Commerce, Equal Pay Act who were concerned that women workers were more costly than male
ones. When he signed the bill, Kennedy called it a “significant step forward,” and noted that, “It
affirms our determination that when women enter the labor force they will find equality in their
pay envelopes.”

CONCLUSION

Our analysis looks specifically at a sector that has high female participation and explores a
company culture that enabled women to rise in the ranks: one that diminishes psychological
barriers through role models, mentorship and sponsorship that overcome traditional risk aversion
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and lower confidence that women have which may impact pay and moving into leadership ranks.
We explored how a culture based on gender equality and inclusion with feminine traits of
collaboration, inclusion, and relationships has built on itself over time creates a cyclical structure
for women’s advancement and equal pay. Gap further has a robust system in place to analyze
pay data annually, and provide information to managers in order to empower them. While one
may shrug off their achievement of equal pay to attribute it to the sector, recall that female-
dominated sectors have higher wage disparities. Gap is a company from which others can look to
for lessons in furthering their own efforts for equal pay and supporting women to rise in the
ranks. Understandably, equal pay and gender equality will never be perfectly achieved, but rather
both require ongoing effort and consistent monitoring. While Gap has demonstrated itself as a
leader in this space, there remains additional space to grow, as is true for all companies along the
spectrum. Gender equality after all, is not a final destination that can be won, but an ongoing,
fluid process and journey requiring steadfast commitment.

ANALYSIS

WHAT CAN BE DONE TO CLOSE THE GAP

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World Economic Forum has said women may have to wait 217 years for the Gender Pay Gap to
close. Companies need to actively invest in training and staff that can sensitize people to the
issue of the gender pay gap and how our conditioning and biases can influence it. Active
consider should be made to consider women for leadership roles. This can be buttressed by
mentoring schemes, leadership workshops for women. Organisations should not shy away from
addressing sensitive topics like patriarchy and sexism in their discussions to educate and inform
its workforce. Women too have role to play., they must realise that it is okay to negotiate. We
have been conditioned to be nurturing and avoid conflict. Transparency of wages should be
bought into the concept so that there would be no unequal pay. There should be implementation
of no negotiation policy in regards to salaries may contribute decreasing the wage dfferences
between men and women. Policies that reduces barriers which prevent women from starting and
developing their own businesses would result in encouraging more women to become
entrepreneurs which would narrow the gender gap. The women entrepreneurs should be given
special training and skill development programs could improve women’s market access and
encourage their business to grow and be more stable. Mentoring programs help women integrate
better when the programs are made specifically for women. It is analysed from the research topic
that the gender gap should be removed as in today’s world there is no difference between male
and female. As we all know that this gap would not be removed even then some of the women
are doing a lot of efforts to reduce the gender pay gap. All the facilities which are given to male
should be provided to female. Along with that certain legal provisions for women have been
enacted viz: the Factories Act, Maternity Benefit Act, Dowry Prohibition Act, Equal
Remuneration Act, Child Marriage Restrain act, Medical Termination of Pregnancy Act,
National Commission for Women Act, Protection of woman from domestic violence Act,
Protection of women against sexual harassment at workplace etc. I personally believe that the
increase in women-related violence is the direct result of the fact that differences between men
and women are more highlighted lately and women are provided with certain temporary
privileges. Equality should be brought back to a place where both men and women can embrace
it and it needs to be re-claimed in a way that is inclusive of men. When violence against women
is highlighted through media, violence against men should also be brought into International
Journal of Legal Development and Allied Issues account. It must be remembered that when
women are expected to stay at home, protect the family and be good mothers; men are expected

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to go out and be bread-earners. If women are oppressed by the social idea of beauty, men are
oppressed by the social idea of success. I believe that the present idea of equality is less dynamic
in its approach and it must be re-claimed in a way to which even men can relate. Then only
equality in the true sense of the term would be possible.

REFERENCES

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1. Prof Nomita Aggarwal Jurisprudence (Legal Theory)
2. Lloyd’s Introduction to Jurisprudence 9th Edition Michael Freeman FBA.
3. International Journal of legal Development and allied laws
4. William & Mary Journal of women and the law
5. Yale law Journal – The emergency of feminist Jurisprudence
6. https://www.mydomaine.com/women-who-fought-for-equal-pay
7. https://www.wikipedia.org/
8. V.N. Shukla’s Constitutional of India 13th Edition Mahendra Pal Singh

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