The Carceral Seductions And The Unfinished Struggles Of Legal Feminism In India

Every March 8, legal feminists in India are reminded of their uneasy tryst with the law—a rendezvous filled with triumphs, betrayals, and lingering questions. The International Women's Day has become a tableau of state-sponsored empowerment rhetoric, one in which feminist struggles are neatly packaged as victories of progressive legal reform. The grammar of rights, codified into statutory provisions, is recited as a kind of constitutional catechism, where the very structures that once sought to silence women now performatively celebrate their emancipation. And yet, it remains worth asking: is this legal feminism's final resting place—a doctrinal list of legislations, a history of partial reforms, a bureaucratized network of redressal mechanisms that promise justice but rarely deliver it?

To put it differently, has the law become the graveyard of feminist aspirations? Or does its paradoxical nature—as both a site of intervention and a mechanism of containment—continue to provoke insurgent feminist imaginations? These are not rhetorical questions but lived dilemmas, evidenced in the legal trajectory of gender justice in India. If one were to retrace the contours of legal feminism in the past five decades, one would find a history of entanglements—moments when the law has been successfully repurposed to advance feminist goals, but also moments where it has disciplined and depoliticized feminist radicalism. It is within this complex terrain that we must locate the contemporary crisis of legal feminism: its dangerous romance with carcerality, its incorporation into governance, and its increasing capitulation to a neoliberal idiom of individualized empowerment.

Feminism and the Carceral State: A Faustian Bargain?

The rape of Mathura, an Adivasi minor, in police custody in Tukaram v. State of Maharashtra (1979) was the seminal moment of feminist legal critique in postcolonial India. The Supreme Court's acquittal of the accused policemen on the grounds of "implied consent" catalysed the emergence of legal feminism as a serious challenge to patriarchal jurisprudence. The outrage against the ruling forced the state to amend the rape laws in 1983, marking the first instance where feminist mobilization directly shaped legislative reform.

But this was also the moment where a central tension emerged: in seeking legal protection against gendered violence, feminist activism necessarily relied on the state's coercive capacities. The 1983 amendments strengthened rape laws, but they also embedded feminist legal struggles within a carceral logic—where punitive state power, rather than structural transformation, became the primary means of addressing gender-based violence. This paradox only deepened in subsequent years, as feminist legal interventions increasingly operated within a punitive framework.

The passage of Section 498A IPC in the 1980s, which criminalized cruelty against women in marriage, and Section 304B, which addressed dowry deaths, were hard-won feminist legal victories. Yet, they also invited their own contradictions. While these laws sought to expose and criminalize domestic violence, they simultaneously expanded the reach of the police into the most intimate domains of social life. Feminists were thus caught in an impasse: demanding legal redress for structural violence while inadvertently strengthening the disciplinary state—a state that has historically functioned as an instrument of casteist, patriarchal, and majoritarian power.

From Transformative Constitutionalism to Governance Feminism

The 1990s marked the entry of feminism into the constitutional domain, shifting the focus from criminal law to governance. The Vishakha judgment (1997), emerging from the gang rape of a Bahujan woman, was hailed as a landmark moment of feminist jurisprudence. The Supreme Court, in the absence of legislative intervention, laid down guidelines for sexual harassment at the workplace, invoking Articles 14, 15, 19, and 21 of the Constitution to affirm gender equality.

While Vishakha demonstrated the transformative possibilities of constitutional litigation, it also ushered in a new phase of feminist legal engagement—one that was increasingly absorbed into the machinery of governance. The codification of Vishakha principles in the Sexual Harassment of Women at Workplace Act (2013) illustrated how feminist demands were no longer merely oppositional; they were being incorporated into state frameworks. The setting up of bodies like the National Commission for Women (NCW) further indicated a shift from movement-based activism to institutionalized feminism, where gender justice was mediated through state-sponsored regulatory mechanisms.

But constitutional victories, much like legislative reforms, are not immune to political appropriation. The Shah Bano judgment (1985) is a cautionary tale in this regard. The Supreme Court's ruling, which held that a divorced Muslim woman was entitled to maintenance under the Criminal Procedure Code, was framed as a triumph of secular feminism. But the state's response—the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which reversed the judgment—revealed how gender justice is frequently subordinated to the imperatives of community appeasement. Similar patterns have played out in contemporary legal reforms, where laws meant to protect women (such as 498A IPC) have been diluted under the pretext of preventing their "misuse," reflecting the state's strategic co-optation of feminist concerns.

The Neoliberal Feminism of the Present: Individual Empowerment over Structural Justice

The 2000s saw the rapid NGO-isation of feminist legal activism, where grassroots mobilization was increasingly replaced by donor-driven advocacy. The passage of the Protection of Women from Domestic Violence Act (PWDVA), 2005 was emblematic of this shift. Unlike earlier carceral interventions, the PWDVA provided civil remedies, focusing on protection rather than punishment. Yet, its implementation remained constrained by an under-resourced state apparatus, demonstrating once again that the mere existence of rights does not guarantee justice.

What is more alarming, however, is the broader ideological shift in feminist legal discourse. Gender justice is now framed through the language of empowerment rather than redistribution. State and corporate initiatives celebrate women's entrepreneurship, financial inclusion, and individual success stories, all while dismantling welfare protections, informal labor rights, and social security mechanisms that disproportionately impact women. This neoliberal turn has resulted in a deeply contradictory legal feminism: one that demands justice through the courts but remains largely silent on the structural conditions that produce gendered subordination.

Post-Nirbhaya Feminism and the Return of Carceral Logics

The Nirbhaya case (2012) marked a turning point in feminist legal activism, where punitive measures became the dominant framework for justice. The Criminal Law (Amendment) Act, 2013 introduced harsher sentencing for sexual violence, including the death penalty, reinforcing the idea that justice is best achieved through retribution. This carceral turn was further solidified in 2018, when the government amended the POCSO Act to introduce capital punishment for child rape, despite feminist concerns about its ineffectiveness and disproportionate impact on marginalized communities.

Recent developments, such as the Aparajita Bill, passed in the wake of the R.G. Kar Medical College rape and murder, illustrate how easily feminist demands for justice can be instrumentalized to justify expanded state control. The demand for stricter laws, while understandable in moments of public outrage, ultimately strengthens a carceral state that is more invested in punishing individuals than addressing the conditions that enable sexual violence.

Conclusion: The Future of Legal Feminism Must Be Insurgent, Not Institutional

If legal feminism in India is to reclaim its radical edge, it must move beyond the seductions of legal recognition. It must refuse to be disciplined by the imperatives of state power and neoliberal governance. It must center the struggles of sex workers, transgender persons, Dalit and Adivasi feminists, and other marginalized communities who remain largely absent from mainstream feminist legal discourse.

Justice, as feminist history has taught us, is never granted from above. It is seized, demanded, and fought for—not through legal compliance, but through political insurgency. The question legal feminism must now ask itself is not how to better integrate into the state, but how to fundamentally transform the conditions of power that sustain gendered oppression. The law, after all, is but one battlefield in a much larger war for justice.

Jhuma Sen is a human rights lawyer in India practicing before the Calcutta High Court and the Supreme Court. She is also currently a Global Fellow in Courage at Brown University. She is an Adjunct Faculty at the National University of Juridical Sciences, Kolkata. She can be reached at sen.jhuma@gmail.com