‘Women’s Rights As Human Rights’: A
Dynamic Approach Towards Gender
Justice
PROF. DR. P. ISHWARA BHAT1
“Fear not, for thou shalt conquer,
Thy doors will open, thy bonds break
Often thou losest thyself in sleep,
And yet must nd back thy world
Again and again”
-Rabindranath Tagore (Nai Nai Bhoy)2
"The extension of women's rights is the basic principle of all social
progress”
-Charles Fourier3
INTRODUCTION
As inheritors of unequal socio-cultural legacy and biased legal
environment, and victims of sex-based discriminations and violence,
women deserve and need special care and protection. The social
transformative competence of human rights has great relevance, moral
content and active role in providing this protection by sensitizing the legal
rights of women from the angle of human rights. To say that women’s
1 Prof. (Dr.) Ishwara Bhat, LL.D, (NLSUI) Vice Chancellor, Karnataka State Law University, Hubballi & Former
Vice Chancellor, WB NUJS, Kolkata.
2According to the poet, the call comes from the earth and sky to get rid of pain, shame and fear and sing
with gladness mingled by the elements of nature.
3Cited by Justice K S Radhakrishnan in Voluntary Health Association of Punjab v. Union of India AIR 2013
SC 1571 paragraph 27
65
fi
, rights are human rights is not only going beyond recognition of natural and
ideal position that women are human beings but is also suggesting that the
operation of the legal system should be reoriented to help the cause of
women. Since law and legal system are parts of culture, the historical
biases that operated against women continued and still continue in the
legal regime to some extent. All the organs of government, local bodies,
governance system and mechanism of federalism have immense
responsibility to enhance the level of human right content in the gender
related laws and their implementation so that women get better protection.
The recent legal scholarship on feminism has laid focus on women’s rights
as human rights as an instrument to raise the societal capability for
empowerment of women, in order that they may overcome the fear, lose
the bonds and conquer the new opportunities of wellbeing.4 This paper
tries to locate gravitational centre of human rights approach in recent pro-
woman legal developments, and argues that unless every legal right of
woman is perceived as human right with special protective measure, the
much aspired women empowerment may not take off; that human rights
can combat patriarchy-skewed cultural norms; and that enhancing the
level and content of human rights in women’s legal rights goes a long way
in women empowerment.
THE CONCEPT AND THE CONTEXT
Human rights emphasize three vital factors: human wellbeing with bodily
integrity and autonomy; recognition of equality of status and dignity; liberty
to take decisions and effectuate them in action. All these are to be
supported by due process and rule of law. In the context of woman, these
have special implications towards the goal of attaining gender justice. The
concept of gender justice implies a comprehensive goal and scheme of
protecting the class of subordinated gender from the exploitations and
denials in icted by the dominant gender.5 The strategy requires that
women's subordination in a socio-legal regime should be countered by
anti-subordination interpretation and dominance analysis, and a patriarchal
social construction which makes power to dictate freedom ought to be
4See for example, Charlotte Bunch, ‘Women’s Rights as Human Rights: Toward a Revision of human
Rights’ (1990) 12 (4) Human Rights Quarterly 486, where Bunch views that women are often discriminated
on the basis of gender, which has the deeper e ect of violating their human rights, and which pose serious
challenge to human rights.
5 P Ishwara Bhat, Law and Social Transformation (Eastern Book Co., 2009) 515.
66
fl ff
, tackled by empowerment as the true method of freeing women.6
Convention on Eradication of Discrimination Against Women (CEDAW)
obligates the State Parties to legislate and replace discriminatory practices
against women by egalitarian norms and practices.7 Kabaskal Arat argues
that in contemporary patriarchal societies, cultural values and hierarchical
structures con ict with women’s rights, and that human rights can set
them right through active involvement of state authority.8 She observed,
“Human rights are closely linked to culture, and the expansion, full
recognition and protection of rights would demand the transformation of
cultural norms and their material foundations. Thus, compliance with
international human rights would require a shift in cultural mores, as well as
political commitment.”9
The transformative competence of human rights for women is established
globally over the centuries. It is with the recognition of woman’s valuable
rights through sense of humanism and respect for dignity that her legal and
social position was elevated. Patriarchy’s shocking practices like sati,
female infanticide, indignities of widowhood, dowry and peculiar notions of
chastity could be addressed in India through laws whose conscience was
human rights. From Magna Carta (1215) to Human Rights Act 1998 in
England, from Universal Declaration of Human Rights 1948 to CEDAW and
beyond, the story unravels gradual enhancement of women’s human rights
through law. Being a strong instrument of public policy and social reason,
law’s sensitivity to human rights/feminist movement imbibed the radical
spirit of reform to assert women’s right to be human and be digni ed.
Patriarchy’s clutches got slackened through law owing to the alchemy of
human rights.
One of the most telling way through which human rights could be infused
into legal rights is by creative application of constitutional provisions as
they are superior norms that in uence the ordinary legal norms. Feminist
6 Tracy E.Higgins, ‘Democracy and Feminism’, 110 Harv. L.Rev. 1657 at 1676-85.
7 Article 2 (f), 3 and 5 of CEDAW
8Zehra F Kabaskal Arat, ‘Women’s Rights as Human Rights: The Promotion of Human Rights as Counter
culture’ (2008) XLV (2) UN Chronicle https://unchronicle.un.org/article/womens-rights-human-rights visited
on 27/5/2018.
9Ibid. She contemplates that cultural norms shall be analysed in conformity with human rights principles
and that diversity should be recognised for this purpose.
67
fl fl fi
Dynamic Approach Towards Gender
Justice
PROF. DR. P. ISHWARA BHAT1
“Fear not, for thou shalt conquer,
Thy doors will open, thy bonds break
Often thou losest thyself in sleep,
And yet must nd back thy world
Again and again”
-Rabindranath Tagore (Nai Nai Bhoy)2
"The extension of women's rights is the basic principle of all social
progress”
-Charles Fourier3
INTRODUCTION
As inheritors of unequal socio-cultural legacy and biased legal
environment, and victims of sex-based discriminations and violence,
women deserve and need special care and protection. The social
transformative competence of human rights has great relevance, moral
content and active role in providing this protection by sensitizing the legal
rights of women from the angle of human rights. To say that women’s
1 Prof. (Dr.) Ishwara Bhat, LL.D, (NLSUI) Vice Chancellor, Karnataka State Law University, Hubballi & Former
Vice Chancellor, WB NUJS, Kolkata.
2According to the poet, the call comes from the earth and sky to get rid of pain, shame and fear and sing
with gladness mingled by the elements of nature.
3Cited by Justice K S Radhakrishnan in Voluntary Health Association of Punjab v. Union of India AIR 2013
SC 1571 paragraph 27
65
fi
, rights are human rights is not only going beyond recognition of natural and
ideal position that women are human beings but is also suggesting that the
operation of the legal system should be reoriented to help the cause of
women. Since law and legal system are parts of culture, the historical
biases that operated against women continued and still continue in the
legal regime to some extent. All the organs of government, local bodies,
governance system and mechanism of federalism have immense
responsibility to enhance the level of human right content in the gender
related laws and their implementation so that women get better protection.
The recent legal scholarship on feminism has laid focus on women’s rights
as human rights as an instrument to raise the societal capability for
empowerment of women, in order that they may overcome the fear, lose
the bonds and conquer the new opportunities of wellbeing.4 This paper
tries to locate gravitational centre of human rights approach in recent pro-
woman legal developments, and argues that unless every legal right of
woman is perceived as human right with special protective measure, the
much aspired women empowerment may not take off; that human rights
can combat patriarchy-skewed cultural norms; and that enhancing the
level and content of human rights in women’s legal rights goes a long way
in women empowerment.
THE CONCEPT AND THE CONTEXT
Human rights emphasize three vital factors: human wellbeing with bodily
integrity and autonomy; recognition of equality of status and dignity; liberty
to take decisions and effectuate them in action. All these are to be
supported by due process and rule of law. In the context of woman, these
have special implications towards the goal of attaining gender justice. The
concept of gender justice implies a comprehensive goal and scheme of
protecting the class of subordinated gender from the exploitations and
denials in icted by the dominant gender.5 The strategy requires that
women's subordination in a socio-legal regime should be countered by
anti-subordination interpretation and dominance analysis, and a patriarchal
social construction which makes power to dictate freedom ought to be
4See for example, Charlotte Bunch, ‘Women’s Rights as Human Rights: Toward a Revision of human
Rights’ (1990) 12 (4) Human Rights Quarterly 486, where Bunch views that women are often discriminated
on the basis of gender, which has the deeper e ect of violating their human rights, and which pose serious
challenge to human rights.
5 P Ishwara Bhat, Law and Social Transformation (Eastern Book Co., 2009) 515.
66
fl ff
, tackled by empowerment as the true method of freeing women.6
Convention on Eradication of Discrimination Against Women (CEDAW)
obligates the State Parties to legislate and replace discriminatory practices
against women by egalitarian norms and practices.7 Kabaskal Arat argues
that in contemporary patriarchal societies, cultural values and hierarchical
structures con ict with women’s rights, and that human rights can set
them right through active involvement of state authority.8 She observed,
“Human rights are closely linked to culture, and the expansion, full
recognition and protection of rights would demand the transformation of
cultural norms and their material foundations. Thus, compliance with
international human rights would require a shift in cultural mores, as well as
political commitment.”9
The transformative competence of human rights for women is established
globally over the centuries. It is with the recognition of woman’s valuable
rights through sense of humanism and respect for dignity that her legal and
social position was elevated. Patriarchy’s shocking practices like sati,
female infanticide, indignities of widowhood, dowry and peculiar notions of
chastity could be addressed in India through laws whose conscience was
human rights. From Magna Carta (1215) to Human Rights Act 1998 in
England, from Universal Declaration of Human Rights 1948 to CEDAW and
beyond, the story unravels gradual enhancement of women’s human rights
through law. Being a strong instrument of public policy and social reason,
law’s sensitivity to human rights/feminist movement imbibed the radical
spirit of reform to assert women’s right to be human and be digni ed.
Patriarchy’s clutches got slackened through law owing to the alchemy of
human rights.
One of the most telling way through which human rights could be infused
into legal rights is by creative application of constitutional provisions as
they are superior norms that in uence the ordinary legal norms. Feminist
6 Tracy E.Higgins, ‘Democracy and Feminism’, 110 Harv. L.Rev. 1657 at 1676-85.
7 Article 2 (f), 3 and 5 of CEDAW
8Zehra F Kabaskal Arat, ‘Women’s Rights as Human Rights: The Promotion of Human Rights as Counter
culture’ (2008) XLV (2) UN Chronicle https://unchronicle.un.org/article/womens-rights-human-rights visited
on 27/5/2018.
9Ibid. She contemplates that cultural norms shall be analysed in conformity with human rights principles
and that diversity should be recognised for this purpose.
67
fl fl fi
