This article is written by Gourav Asati, student of Institute of Law, NIRMA University.

“Achieving gender equality requires the engagement of women and men, girls and boys. It is everyone’s responsibility.” – Ban Ki-moon

Introduction

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the first international legally bounding instrument that was brought for addressing the rights of women and eliminating the discrimination faced by them in different spheres of life. The convention is also known as the bill of rights’ contains rights for bringing equality among males and females by ending the rooted discrimination in the society. The rights of the woman are expansively addressed by the convention and also provided the member state with an opportunity to address their country’s issues and shortcomings. The CEDAW committee is also made for the primary function of monitoring the state members for the implementation of recommendations and commitments of CEDAW. India also ratified the convention in 1980, the article will review the policies and laws introduced by the government for fulfilling the commitments made under the convention. It will also analyze the implementation of the laws for providing the rights to women, try to find the areas with the help of data available that still lacks to recognize the discrimination faced by women, and needs laws for the same.

CEDAW

In this patriarchal society, the laws for women are made by the men and their perception of the requirements of women. Consequently, the laws made for the women are speaking the language of men because eventually, they are the ones whose interests are being contented. When the Hindu Code Bill was formulated there was no representation of women in it and the majority of men are opposing the abolition of bigamy. Numerous types of inequalities and discriminations are being faced by women for which there was a need for a robust mechanism and framework that addresses all the injustices confronted by them. Till 1946 there was no international commitment for ensuring human rights, as the countries are focusing on maintaining peace and security. International human rights are considered to be derived by putting the men at the centre, therefore there was a need for a separate instrument that provides special rights to women for the discriminations faced by women. 

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also known as the Bill of Rights of women came as the first legally bounding international document for protecting women from discrimination and for safeguarding their rights. It is an international agreement of the UN that came in 1970 as the only legally enforceable document in the international sphere to all the state members who have ratified it. The convention in its preamble explicitly recognizes the existence of discrimination against women still exist and is violating the principle of human dignity, equality, and respect.

This International document is an important document that contains the rights of girls and women for bringing equality among boys/men and girl/women and ending all discrimination against females. The Members States of the convention after assessing the status of the human rights of women in their country provided the recommendation and implemented the CEDAW convention. The Convention of Elimination of All Forms of Discrimination against Women is adopted by the UN General assembly in 1979, India signed the convention on 30th July 1980 and ratified the on 9th July 1993 with other declarations and charters for the rights of the female. The CEDAW contains both the de jure and de facto equality rights for women for saving them from all types of direct and indirect discrimination.

Article 1 of the CEDAW states that there should not be any discrimination against women based on sex that nullifies or impair the enjoyment, recognition, or any fundamental right and freedom of women in economic, cultural, social, civil, or any other field. The Convention covers the public as well as private spheres and all the specific groups of women who face different types of discrimination. If any of the state members of the convention is not complying with the obligation then in such case that particular state can be removed from the committee. The convention also empowers the individual women with the right to file a complaint against the state for not complying with pe CEDAW convention. 

There is also a committee under CEDAW, which is a United Nations body having a composition of Independent experts who reviews the implementation of the CEDAW convention by the countries. The Committee has to review that the implementation is done for eliminating the discrimination faced by women. CEDAW is an international treaty that imposes a duty on the states which have ratified it to work towards securing the women’s human right.

The fourteen articles out of a total of thirty articles talk about equality in all situations and dimensions of women while dealing with the civil and legal rights of women. This article focuses on the implementation of CEDAW procedure in India through bringing various provisions and amendment in the acts i.e. Hindu Succession Act 2005, for bringing the equality and eliminating the discrimination against the female from all the domains of their life. India’s ratification to CEDAW also committed for the reductions of the violent crime primarily human trafficking, female foeticide, and dowry abuse. The article critically analyses the implementation of the laws introduced in line with the rights mentioned under conventions, actions, and commitment by the government for eliminating the cruelty and violence against women and increase peace and security with the help of statistical data. It will also throw light on the areas where India is still lacking in addressing the violation of the rights of females.

Policies and Law

India passed many laws and introduced policies for performing the obligation as per the CEDAW convention and protection of rights of women. The commission asks all types of discrimination is to be eliminated from every sphere of life i.e. private, community, or public of a woman. As per the commitments of the CEDAW in the year 2005 after the ratification by India the Protection of Women from Domestic Violence Act was enacted. The act provides relief to the women who are a victim of violence due to domestic relationship by both male and female member of the family. The PWFVA protects the victim from violence and also their interest by providing compensation and not cutting off their financial resources. The committee under CEDAW is also formed which keeps eyes on the member states of the convention to check the commitments of the conventions are being fulfilled by them, India in 2007 reported to the committee about the steps taken on the commitments. India for attaining gender mainstreaming and gender development increased the budget of the National Commission for Women and introduced various legislative policies.

The addition of Article 21A in the Indian Constitution by the 86th amendment fulfils the obligation of the states by Article 10 of CEDAW which states that the appropriate measures are to be taken by the member states for elimination of the discrimination against women and ensuring their equal rights in the field of education. With the 86th amendment the constitution makes it compulsory to seek compulsory and free education to the children of 6 years to 14 years of age, it imposes a duty on the guardian and parents to provide educational opportunities. For the elimination of discrimination against women in employment all states have to take proper measures as per Article 11 of CEDAW, India passed Minimum Wage Act and the Equal remuneration act for not letting the women only as a commodity.

Despite signing the CEDAW convention in the year 1980 the legal recourse for the issues of sexual harassment came to Indian after the 1990s when the Vishaka Guidelines were issued by the Supreme Court in 1997. International and Constitutional Obligation acted as the base for bringing the legislation for sexual harassment. The legislation took the principle of gender equality from Article 14 of the constitution which guarantees equality before the law and equal protection before the law, Article 15 no discrimination on the ground of sex, Article 19 Right of fundamental freedoms, and Article 21 right to life and liberty. Constitution of Indian guarantees all the rights to women to work with dignity.

In addition to this Article 42 of the Indian Constitution also states that it is a fundamental duty of the state to provide a just and humane condition for the work. In this male-dominated society, women have to be provided personal liberty and protection from sexual harassment at the workplace. Sexual harassment violates all the rights given to a woman by the constitution from the right to live with personal liberty, dignity to gender equality. The Vishaka Guidelines were brought by the application of the provisions given in CEDAW for upholding the constitutional rights of women. 

In 2014 the CEDAW committee was set up for reviewing the implementation of the convention in India. After review, they gave some recommendations for uplifting the rights of women who are still a victim. The Armed Forces Special Powers Act (AFSPA) is recommended to be repealed or at least to be amended so that the crime against women can be brought under normal law and speedy prosecution for such crimes can be done. This will serve the women’s interest who are in a vulnerable condition and used to face a different type of abuse in the areas declared to be AFSPA. In addition to this, it also asked to bring more strict regulations for arms trade and the proliferation of small arms and light weapon (SALW), because the weapons possessed by the civilians give insecurity to women like it in places of giving increases gender-based violence. The committee urged the government to increase the participation of women in the United Nations Security Council Resolution (UNSCR) 1325 as the population of women is half therefore they have to be included in the discussion. 

Implementation via the realm of judiciary

Indian Judiciary also in its various judgments highlighted the commitments made by India for fulfilling the obligations of the convention. Vishaka Guidelines are the one which protected women from harassment at workplace by following the principle of the convention. The courts while deciding cases related to women’s rights given importance to the rights mentioned in the convention and provided the proper remedy to the victim instead of the obligation to the member state of the convention. Here are some of the decisions by Honourable courts which highlighted the international instruments and Indian constitution relation for providing rights to the women who are a victim of various types of discrimination, offences, and inequality. 

Vishaka & Ors. vs. the State of Rajasthan- In this case, the Supreme Court highlight the importance of international treaties, conventions, and other instruments to the court when dealing with the issues of Human rights. It stated that the Courts have to be alive in the matter of international instruments that are giving effect to the principles like CEDAW and directed to take the proper measures for preventing any type of discrimination against women.

Durgah Committee Case– Article 25 of the Indian Constitution guarantees the right to religion but can be practice counter to public health, morality, and order. The practise of FGM cannot be considered an essential practice as it is only a gullible belief which violates the rights, dignity, and privacy of women. Article 21 when read with Article 51A (e), it mandates a duty on Indian citizen for renouncing the practice that is derogatory to the dignity of women. 

Punita K. Sodhi vs. Union of India– In this case, Delhi High Court held that sexual harassment may be a species of sex-based discrimination, the commission and omission are encompassed by the sex-based discrimination, it is not restricted to only the acts that contribute of express undesirable sexual acts or innuendos.

Nisha Priya Bhatia vs. Union of India– The SC, in this case, held that the approach should not be confined when dealing with the cases of sexual harassment at the workplace to only the cases where there is an actual commission of an act of harassment, it should extend to the situations in which the women employees are subjected to hostility, prejudice, humiliation and discriminatory attitude in the daily functioning of the work.

Status Quo

Mere ratification to any International Obligation and bringing laws on the line of that instrument does not help in achieving the aim. There has to be practical application after proper study and needed to be updated with the time and change in the thinking process. Many laws and policies were introduced in India but still, many women are not able to take the benefits of the rights provided to them according to law. Many of them are not recognized as a victim due to lack of data or official records. 

In 2020, Sudan criminalized the practice of Female Genital Mutilation. India is also the hub of similar practices and many women are a victim of this practice. In India, there is no official data available that shows the practice of FGM the study shows that 75% of daughters have been subjected to FGM and 33% of them faced various health complications as a result which affected their sexual life. Our Constitution envisages healthy and happy childhood for children free from all types of exploitation and abuse. The law should have to bring by the government for imposing a ban on such inhuman practices, the CEDAW lays down that the steps are to be taken for violation of women’s rights. In India lack of data or any official study doesn’t mean that the practice isn’t existence, the practice of unjustifiable exercise violating privacy and integrity needs to be criminalized as soon as possible. 

In matters related to the LGBTQ+ gender minorities the rights cannot be claimed by the constitution or if claimed then for them it is very difficult to live with dignity in society. In 2018, a lesbian couple committed suicide by jumping into the Sabarmati river, Ahmedabad. In 2019, a 19-year-old girl was tied and beaten by the villages in East India for her relationship with a girl. The Convention is also needed to apply for protecting the right to life of homosexual women, whose rights are being continuously violated by the society of heterosexual norms. It took 67 years after adopting the Constitution of India and after 37 years of ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and after the celebration of International Women’s day for 107 years to bring equality among men and women under Hindu Succession act for inheriting the property. Despite the introduction of an amendment in the act, many women are still discriminated and no equality was given to women in the inheritance of property due to still prevailing old-age practices. 

Conclusion

The Convention on the Elimination of All Forms of Discrimination against Women is the first legally bounding international convention that outlined the gender-specific human rights to which India ratified and complied by enacting laws and introducing policies for fulfilling the obligations. In India, women are discriminated against based on personal laws, which were amended and equality to women was also provided. The Hindu Succession Act was amended for making the woman an heir of the father for inheriting the property under the act. 

There still lies a lack of efficacy in the compliance of convention as there is a need for potential challenges for claiming the rights by the gender minorities CEDAW in India. The Convention with the change in time and ideology of the people has been also criticized for not covering the diversity and range of the experiences faced by women. In 2014 the CEDAW committee also issued a recommendation after reviewing the implementation of the CEDAW convention and finding that still there are countless women’s rights are being violated and they are the victim in many aspects of life. While widening the scope of the convention there is a need to understand the diversity of women, the women have to be seen in a different section, not as a class. When bringing rights and laws for women the sections of women have to be identified who are going to be represented. The CEDAW is an alive convention that is constantly evolving and the countries which have ratified this convention also enacting new laws and policies for covering the different experiences lived by a woman. 

“The essence of law lies in the spirit, not its letter, for the letter is significant only as being the external manifestation of the intention that underlies it.”- Salmond

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

The post Post ratification influence of the CEADW in India appeared first on iPleaders.