India: Implementing Sex Equality Through Law

I. INTRODUCTION India has a long tradition of attaching profound importance to equality. Addressing some especially entrenched and dramatic inequalities of dignity, material well-being, and political empowerment-deriving from the traditional caste hierarchy, from discrimination against minority religious communities, and from pervasive traditions of sex hierarchy in all the major religions and cultural groups-the constitutional framers made bold and decisive commitments to a range of human rights, liberties, and equalities. The Preamble states that the People of India commit themselves to secure to all citizens: "Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation."1 In many respects the nation's legislative and judicial traditions have pursued these commitments, especially in seeking the full equality of the previously subordinated groups. On the other hand India remains the scene of striking inequalities, sometimes shaky liberties, and a sometimes threatening absence of fraternity. Literacy rates remain around 65 percent for men and 40 percent for women. Women hold only 6.7 percent of seats in Parliament, and only one seat (out of twenty-six) on the Supreme Court. Women still have a difficult time protecting their bodily integrity, whether against domestic violence (marital rape is not a crime and police rarely enforce laws against domestic violence), or against rape outside the home (a woman's sexual history is still relevant evidence in rape trials). Economic well-being still too frequently follows traditional lines of caste, class, and sex. Violence along lines of caste and religion remains a common feature of life in many regions of the nation. Following the complex history of the struggle for human rights through law in India thus provides a fascinating study of the prospects and problems for implementation of international human rights norms in a parliamentary democracy, against background traditions of entrenched inequality. This Article will consider the ways in which domestic political processes have implemented, or failed to implement, rights that are important to the international human rights debate-in one case responding to the stimulus of an international treaty, but often enacting ideals already explicit in the national Constitution. I focus on sex equality and on a range of rights of particular salience for women because this focus proves a valuable way to understand the workings of the political process more generally, its pitfalls, and what citizens may reasonably hope from it. I focus on the role of law, rather than on the diverse efforts of administrative agencies, non-governmental organizations ("NGOs"), and movements and groups of many kinds; therefore I tell only one part of the story of women's empowerment. Law is not a profession particularly held in honor in India, and thus feminists tend to have lower expectations from law than they do in the United States. If we can show that, nonetheless, considerable progress toward sex equality has been made through law, this finding will suggest (correctly, in my view) that there has been even more significant progress in other domains. This story of internal reform through law is significant because today people who are deeply committed to international human rights differ profoundly over the appropriate strategies to implement and maintain these rights. Some follow Kant in defending national sovereignty and opposing any serious intervention, in the name of human rights, into the affairs of another nation. Usually these Kantians also share Kant's own optimism that democratic states, left to their own devices, and exposed to the moral suasion of the international community, will become progressively more enlightened, and come to treat humanity in the person of all their citizens as an end, in the ways international human rights norms spell out. …