Women as vulnerable irrational heteronomous non-subjects of law : the construction of women as legal non-persons in Indian criminal laws regulating sexual conduct

• Main Author: Mukherjee, Madhumanti
• Published: University of Kent 2011
• Subjects: 346.540134
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.592678

My thesis investigates the concept of female personhood in Indian criminal laws regulating sexual conduct. 1 argue that these laws fail to safeguard women's interests in various ways and that the most significant basis for such varied range of failures is the construction of women as legal non-persons. Inherent within the Indian Constitution are notions of legal personhood that are meant to apply to all persons within its jurisdiction irrespective of sexual and other differences. , claim that conceptualisations of the woman in the criminal laws of sexual conduct do not conform to the constitutional ideal of the person. Women are sexually objectified, infantilised, their personal harms rarely validated unless those harms result in patriarchal male harms, and their sexual rights are more often not acknowledged in modern Indian legal discourse. There is a profound disconnection between the constitutional ideals and the concepts actually affirmed in the relevant criminal laws. This study adds to feminist legal scholarship on India in a number of ways:Firstly, it considers the laws of sexual violence within and as part of a broader group of laws that purport to designate what is acceptable sexual conduct _ generally. This helps to draw out common themes and exposes the basis of sexual violence laws as the need to safeguard male property in female sexuality, rather than to safeguard female sexua l autonomy. Secondly, this study offers an account of the diverse failures of the relevant criminal laws in terms of a failure to construct women as legal persons. This shifts the conceptualisation of these failures from one of distinct flaws that need to be addressed separately to one that sees them as multifarious symptoms of the same underlyingweakness. Thirdly, on the basis of the claim that the relevant criminal laws do not construct women as legal persons, the thesis argues that these laws are unconstitutional and could and should be declared void under the powers conferred to the I j i judiciary by the Constitution of India. last but not the least, this thesis incorporates a feminist judgment to showcase and emphasise t he theoretical claims I make about t he possibility of change in legal reasoning and judicial outcomes once women are constructed as legal persons with constitutional rights.