Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence

62 Pages Posted: 12 Nov 2013

See all articles by Eileen R. Kaufman

Eileen R. Kaufman

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2006

Abstract

Gender inequality has a long and pervasive history in both the United States and India. Not surprisingly, the Constitutions of both countries guarantee equality before the law: India's Constitution explicitly mandates equality for women, whereas the U.S. Constitution guarantees equal protection of the law without any explicit designation of the intended beneficiaries. American scholars, and particularly feminists, are increasingly studying India to assess whether and how the world's largest democracy, a democracy grounded in patriarchy, is making good on its promise of equality to women. We have much to learn by looking at India's experience despite the vast cultural differences between the two countries. Most notable is India's commitment to affirmative action and protective discrimination to alleviate centuries of exclusion of women from politics, education, and public employment.

This Article will explore how the respective equality guarantees have been interpreted and applied to issues of gender justice by the Supreme Court of India and by the U.S. Supreme Court. After a brief review of the historic and current gender inequalities in the two countries, Parts II & III of the Article examine the theories of equality reflected in the decisions of the two Courts. Part IV of the Article contrasts the two Courts' willingness to rely on principles of international law and to engage in judicial activism, particularly with respect to issues of gender violence. Finally, Part V analyzes the extent to which the competing theories of equality reflect and adequately address different cultural conditions within the two countries. In assessing whether either Court has played a meaningful role in advancing the guarantee of equality for its nation's women, the Article concludes that formal equality, standing alone, is insufficient to accomplish meaningful change; that a protectionist approach is a double-edged sword that recognizes and compensates for women's subordinated status, but also promotes and perpetuates that vulnerability; and that substantive equality offers the best hope for facilitating women's full and equal participation in society.

Keywords: Supreme Court, United States, India, women, equality, gender discrimination, affirmative action, sex classifications

Suggested Citation

Kaufman, Eileen R., Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence (2006). Georgia Journal of International and Comparative Law, Vol. 34, No. 3, 2006, Touro Law Center Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=2348396

Eileen R. Kaufman (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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