Chicago Journal of International Law


This Article will use the case of sex equality in India to argue for an intermediate position. Usually, and on balance, I shall argue, the Kantian position is the wisest: norms are meaningful and stable only when they are adopted freely from within. Moreover, the nation is the largest unit we currently have that is sufficiently accountable to people's voices to be a legitimate vehicle of their most important concerns. On the other hand, there is much to be said about what nations do well and not so well in this area, and the case of India does provide occasion for criticism of certain forms of democratic procedure as ineffective safeguards of fundamental liberties. It also shows that international documents and the pressures they supply are extremely valuable prods to the internal democratic process of nations seeking to equalize previously unequal groups. Finally, I will grant that there are some cases in which a thin but serious set of international institutions, able to impose sanctions, should indeed intervene in domestic affairs-though not, I believe, in any case we have yet seen in India since Independence. I begin by setting out some basic facts about the structure of the Indian system, and the ways in which basic rights are addressed in the domestic framework. In Section III, I discuss the problems for sex equality and other important human rights created by the system of personal laws, separate for each of the major religions, that govern family law, property, and inheritance. In Sections IV and V, I examine some outstanding instances of progress toward both sex equality and major liberties through judicial review of statutes and a tradition of substantive due process. In Section VI, I examine an important sexual harassment case in which human rights norms in the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") were held to be binding on the nation. In Section VII, I consider another important legal source of women's empowerment, the reservation of seats for women in local panchayats or councils, and the controversy over extending these reservations to the national parliamentary level. I conclude with some reflections about the prospects for progress on human rights through domestic political action.