By Veena Poonacha

The language of human rights has the evocative power of initiating socio-political struggles and movements. Liberty and equality – the twin foundational principles of the discourse – have empowered people across geopolitical boundaries to overthrow tyrannical regimes and confront various forms of exploitations. This paper begins by acknowledging the power of human rights rhetoric to inspire the struggles for a more humane and just social order, but then pushes further by exploring some of the hidden tensions in the discourse, particularly when confronted with questions of gender rights.

These tensions within the discourse are not unique to gender rights, but also become apparent in articulations of other rights. They arise partly from the inevitable conflict of interests between various sets of rights and partly from the continued resistance to new ideas. For instance, the right to development demanded by developing countries may conflict with the land rights and entitlements of indigenous people. It may also conflict with environmental protections required for the survival of the planet. Contradictions also may be found in the theoretical underpinnings of the discourse when attempts are made to express, define, and extend the boundaries of these rights. The paradox of gender in the human rights discourse can be appreciated only within this broader understanding of contradictions in the discourse. Therefore, this gendered critique of “rights talk” is located within the broader critique of human rights that have grown out of the various struggles for a more inclusive framework of rights.

TENSIONS WITHIN THE
HUMAN RIGHTS DISCOURSE

The main criticism leveled on the human rights discourse refers to the fundamental question of who is the bearer of rights. Is it the individual, as articulated in the libertarian discourses of rights, or the community, as articulated in the communitarian notions of rights? The underlying concept of the individual in libertarian discourse is that the individual is an independent entity capable of and in a position to make rational choices. Such a conceptualization does not take into consideration the dynamic interrelationship between the individual and society. By defining the individual in opposition to society, it fails to acknowledge that individual choices are circumscribed by their lived experiences.

The discourse of rights also presupposes a non-existent equality of people’s conditions. It is difficult for those people on the fringes of society to realize their rights within a hierarchical social structure (based on class, race, and gender differences), a problem that is exacerbated by an elitist and conservative legal system. In the communitarian discourse, rights are defined by the notion of the community as a homogeneous unit. However, it fails to question the existing power inequalities in the community or even within a family. This power inequality within the community could mean that the rights of individuals are violated by the dominant group norms. Honor killings in India ordered by the caste/community elders against men and women who choose to marry against the dictates of family and community are indicative of this power inequality. The limitations of human rights discourse become apparent when examined through a gender lens.

Critical legal scholars also question the supposed neutrality of the law. They maintain that the law’s alleged neutral principles are driven by the exclusionary politics of the affluent and their attempts to maintain the status quo, creating tensions between the four main pillars of the rights discourse — namely liberty and freedom on one side and equality and justice on the other. For instance, the question of what sets the limits of individual freedom of speech and expression becomes important from the standpoint of protecting the rights of women and minorities. What if a person’s right to free speech and expression creates conditions that have a negative impact on another individual’s sense of self-worth? This obviously sets a limit to the freedom of speech held sacrosanct within the rights discourse. Civil libertarians believe that only acts, not beliefs or speech, should be punished and that penal sentences should not be increased because the person perpetrating the act was motivated by or held unpopular beliefs, including racist or sexist attitudes. The civil rights position maintains that the government can punish some criminal acts more severely than others, particularly if the motives are racist or sexist and therefore harmful to society.

WOMEN’S STRUGGLES FOR GENDER JUSTICE
A historical look at the struggles for women’s rights makes it apparent that the language of human rights as articulated in the age of enlightenment fueled women’s claims for civil and political liberties. Nineteenth century feminist discourse recognized the prevailing socio-political impediments to women’s rights. It did not, however, question either the class/race bias encoded in the libertarian discourse on rights, or the underlying assumption that rationality was a necessary pre-condition for any claim for rights. These omissions tended to perpetrate a certain exclusionary world-view on women’s rights. This is because it did not question the prevailing social order that made it possible for upper class women to gain freedom from household drudgery through the labor of working class women. It also did not criticize the prevailing libertarian view that rationality was the basis for assigning rights, but rather assumed that through access to education, women would be able to claim their right to equality.

In India, because the women’s empowerment movement was closely allied with the nationalist movement the parameters of the debate on women’s rights were different. Embedded in early-twentieth century Indian feminist articulations were ideas of nationalism and social transformation. Thus, influenced by the existing political philosophical discourses of nationalism and social justice, the first wave of the Indian women’s movement sought to include in the rights discourse not only formal political rights, but also ideas about socio-economic justice.

The feminist movement that developed in the 1960’s has pointed to the socio-political impediments to the realization of women’s rights. It has critiqued the overwhelming misogyny in society that denies a woman her basic right to survival — a point made amply evident from the declining sex ratio in India. It also points out that while formal equality is granted in the Constitution, attempts to realize gender rights inevitably meets with resistance. This resistance to women’s equality is evident from the long struggle to pass the Protection of Women from Domestic Violence Act (2005), as well as the 14-year long struggle to ensure one-third representation of women in the state legislatures and parliament. The struggle is not yet over. It continues to face male resistance to power sharing with women.

Contradicting these arguments on the gendering of rights, it is worth observing that the denial of rights is not necessarily gendered. Men, particularly from the marginalized sections of society, are also unable to access their rights. Therefore, any analysis of rights from a gender perspective could well detract attention from issues that affect the whole community. Undoubtedly, the non-realization of even basic rights to food, clothing, and shelter affect both men and women. But what cannot be overlooked is that as long as men and women play gender roles, the culturally constructed notions of entitlements that are embedded within them deny women even their claims to humanity. Consequently they are seen as carriers of lesser rights.

GENDERING OF “RIGHTS TALK”

There is today clearly documented evidence to substantiate the claim that women are discriminated against and denied their fundamental right to survival, access to resources, and reproductive control. In the final analysis, the process of gender socialization itself is a violation of basic human rights as it attempts to control women’s autonomy, thought, and action. When such a mind-set is enmeshed within other blatant forms of denials, the stage is set whereby the realization of women’s rights remains only a remote possibility. The prevailing ideology disparages the woman and defines her as the “other.” Such misogynist ideologies often justify gendered violence. The effects of such crime against women are two-fold: a) it enforces their subordination by creating a climate of fear making it difficult for women to pursue their right to education and better employment opportunities; and b) it justifies their subordination through the portrayal of their victim-hood. Crimes against women therefore cannot be considered isolated aberrations, but go directly to define power relations between men and women.

Feminist critics of the prevailing socio-political order also criticize the “rights talk” theories as prejudicial to women. Research has enabled them to identify the gender blindness within dominant theories and shift the focus of enquiry from the vantage point of men to women. As a result, the overarching generalizations that characterize dominant discourses have been abandoned in favour of emphasizing the experiential basis of knowledge. The process has had specific implications for the rights discourse. The discourse (which strictly speaking, straddles liberal political philosophy, ethics, and legal theories) is premised on the assumption of the objectivity of knowledge – the “knower” is seen as existing outside the “knowable.” Consequently, the rights discourse in its classical formulation did not necessarily take into account the socio-economic and political circumstances of people’s lives; rather, it assumes that individuals are able to actualize their rights through rational choice. Pointing to the constraints in women’s lives, feminist theories have challenged the claims of neutrality within the epistemology of rights.

IMPLICATIONS FOR GENDER RIGHTS

The ensuing debates have thrown up several corollary questions on the assumed neutrality of the law and its ability to deliver justice to those who do not have equal access to the legal system. It also asks if gender equity may be achieved only if social policies recognize the special circumstances of women’s lives and the ways in which the prevailing social order denies women their entitlements to education, economic independence, etc. Because, for instance, if a woman’s reproductive role as it is defined today is an obstacle to her right to work and economic participation, then is there not a need for special provisions in social policy to establish gender equity? By stressing the differences in the conditions of men and women, feminists have asked for special concessions so as to make equality a reality. However, claims for special protections or even affirmative action through reservations, etc., also have their own limitations as they can inadvertently force women into clearly demarcated areas defined as feminine without changing the gender ideology.

Feminists also critique the semantics of “rights talk” as grounded in the artificial dichotomy in the discourse between the public and the private spheres. Human rights discourse tends to focus on the relationship between the individual and the state in the public arena. Insofar as women’s lives remain circumscribed within the private area of family, the protection of their rights remains outside the purview of state protection. Violence within the home, for instance, gets ignored; attempts to intervene in cases of family violence is seen as an intrusion of the state apparatus in the private space of the home and a violation of individual rights (read “man’s rights”). Male resistance to any laws protecting women from domestic violence becomes apparent in the media representation of its misuse. The difficulty of realizing gender rights is apparent also in the current human rights discourses that focus on community rights. To be sure, women are rarely community leaders and their voices therefore remain unheard.

Additionally, there is a growing disillusionment on the capacity of the existing legal structure to promote gender justice. Insofar as the legal system operates on established precedents, it tends to uphold a conservative social order. The legal system is relatively powerless when compared to other ideological mechanisms in society to initiate social change.

Feminist articulations pointed to the politics of the human rights discourse and the ways in which the language of rights is used to justify control over women. The right to life, for example, is the most intrinsic to the entire discourse. A minimum definition of this right has, so far, been formulated within law as negative sanctions against murder and the unlawful deprivation of the life of the individual by the state. The attendant polemics generally have been concerned with the rationale for capital punishment as well as the right to life of the unborn. And yet, as feminists have argued, in a society that glorifies war and sees capital punishment as legitimate, the sanctity of life cannot be seen as an absolute value. In the absence of safe contraceptives and women’s control over their bodies, the denial of choices for women is merely an attempt to impinge on their reproductive rights. The parameters of the debate are different in India, as the discussion on abortion rights is also located within policies for population control. The dilemma of the feminist position on abortion rights is colored by the declining sex ratio as well as the absence of sexual/reproductive rights for women. Therefore, there is within the Indian women’s movement a call for the better implementation of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act of 2003, in ways that does not further victimize women. This demand, however, is not the final feminist position on the Act. Feminists struggling for disability rights question the implicit notion in the Act that the possibility of genetic defect is a justifiable ground for abortion.

CONCLUSION

This article has attempted to illustrate the difficulty of using the human rights discourse to realize gender equality. On one hand, feminist politics is caught in a struggle to protect rights which we take for granted; on the other hand, it is also used to extend the boundaries of such rights. This accounts for the rich diversity of feminist political responses. There can be no quick-fix solutions or a single response. Gender identities are intersected with other sets of class, race and religious identities. The question becomes who speaks for whom. How does one, for instance, view the struggle by Muslim women in France to be veiled in public? Is the purdha observed by Muslim women a symbol of their subordination, or an assertion of their cultural rights, in which case is the state justified is banning it? Similarly, how does one respond to cultural practices of female genital mutilation in certain parts of Africa through the human rights discourse? Should it be condoned as a cultural right of a community or should it be banned as a human rights violation? These questions do not lend themselves to easy answers.

Veena Poonacha is the Director of the Research Centre for Women’s Studies at Mumbai’s SNDT Women’s University. This article builds on her earlier article, On the Fringes of Human Rights Discourse: Violence Against Women in Intimate Relations, Family Violence in India (Swati Shirwadkar, editor, 2009). She may be contacted at veena_poonacha@yahoo.co.uk.