Introduction
Commission on the Status of Women (CSW) was originally
established in 1946 as a sub- commission of the Commission on Human Rights, but
quickly granted the status of full commission as a result of the pressure
exerted by women's activists. The mandate of the CSW included the preparation
of recommendations relating to urgent problems requiring immediate attention in
the field of women's rights with the object of implementing the principle that
men and women should have equal rights.1 In 1974, at its twenty-fifth session
and in the light of the report of this working group, the Commission decided,
in principle, to prepare a single, comprehensive and internationally binding
instrument to eliminate discrimination against women. This instrument was to be
prepared without prejudice to any future recommendations that might be made by
the United Nations or its specialized agencies with respect to the preparation
of legal instruments to eliminate discrimination in specific fields. On 18
December 1979, the Convention on the Elimination of All Forms of Discrimination
against Women was adopted by the United Nations General Assembly at New York.
At the special ceremony that took place at the Copenhagen Conference on 17 July
1980, 64 States signed the Convention and two States submitted their
instruments of ratification. On 3 September 1981, 30 days after the twentieth
member State had ratified it, the Convention entered into force - faster than
any previous human rights convention had done - thus bringing to a climax
United Nations efforts to codify comprehensively international legal standards
for women. By the tenth anniversary of the Convention in 1989, almost one
hundred nations have agreed to be bound by its provisions.
What is CEDAW?
The Convention
was the culmination of more than thirty years of work by the United Nations
Commission on the Status of Women. Among the international human rights
treaties, the Convention takes an important place in bringing the female half
of humanity into the focus of human rights concerns. The spirit of the
Convention is rooted in the goals of the United Nations: to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women. The present document spells out the meaning of
equality and how it can be achieved. In so doing, the Convention establishes
not only an international bill of rights for women, but also an agenda for
action by countries to guarantee the enjoyment of those rights. By accepting
the Convention, States commit themselves to undertake a series of measures to
end discrimination against women in all forms, including
: · to incorporate the principle of equality
of men and women in their legal system, abolish all discriminatory laws and
adopt appropriate ones prohibiting discrimination against women;
·
to establish tribunals and other public institutions to ensure the effective
protection of women against discrimination; and
·
to ensure elimination of all acts of discrimination against women by persons,
organizations or enterprises.
Contents of the CEDAW [1]
The preamble of the Convention states the general
premise of eliminating discrimination. Article 1 defines discrimination against
women as "...any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any
other field". Articles 2 -6 cover the general obligations to be undertaken
by State Parties such as, for example, to implement the principle of the
equality of men and women in legislation as well as to prohibit by law or other
means all discrimination against women; further to establish legal protection
of the rights of women, national tribunals and other public institutions to
ensure the effective protection of women against discrimination
The Articles 7 - 16 specify the different areas that
particularly affect women and the state obligations in that regard. This list
of areas and measures is not an exhaustive coverage of all areas of gender
discrimination; for instance it does not explicitly address violence against
women.
Articles 17 - 30 describe working procedures,
reporting mechanisms and dynamic aspects of the Conventi on, which include
important points such as the establishment of a "Committee on the
Elimination of Discrimination against Women" which shall be elected by the
Member States (Article 17) By 2017, 35 recommendations had been adopted by the
CEDAW Committee.
State Reports
As soon as a
State has ratified the Convention it has to report in the first year and
thereafter every four years to the CEDAW Committee or whenever the CEDAW
Committee requests it. The State report shall focus on the legislative,
judicial, and administrative or other measures which have been adopted to
implement the provisions of the present Convention including the General
Recommendations and on the progress made, State Reports should also indicate
factors and difficulties affecting the degree of fulfilment of obligations
under CEDAW. These procedures are regulated under Article 18 of the Convention.
NGO
participation
The CEDAW Committee also supports the submission of
country - specific information from NGOs in the form of alternative or shadow
reports to the State Reports. NGOs can submit their reports to the Committee
prior to or at the session concerned; the shadow report will be considered for
the Concluding Comments and recommendations to the State party
Concluding comments
CEDAW by UN
Women watch 19 oct, 2005 Concluding
comments, also known as Concluding Observations are recommendations issued by
the Committee following the review of those States (and shadow) reports. The
CEDAW Committee comments on the progress made by the State Party in
implementing its obligations under the treaty and make recommendations for
improvement. Optional Protocol On 6 October 1999 the General Assembly adopted a
21 - article Optional Protocol to the CEDAW Convention and called on all CEDAW
States parties to ratify the new instrument.
State parties have ratified the Optional Protocol and recognize the
competence of the CEDAW Committee to receive and consider complaints from
individuals or groups. The Protocol contains two procedures:
(1) An
individual complaint/communications procedure, which provides individuals and
groups the right to lodge complaints with the CEDAW Committee, a guideline to
this procedure can be found on the CEDAW website;
(2) An inquiry
procedure, which enables the CEDAW Committee to conduct inquiries into serious
and systematic abuses of women`s rights. These mechanisms are only applicable
in countries that are states parties to the Optional Protocol.
Indian Scenario
To date, 187 out of 193 United Nations member states
have ratified CEDAW. In 1994, India ratified the Convention of the Elimination
of all forms of Discrimination Against Women (CEDAW) treaty. According to India
Today’s newspaper article dated June 2011, India is the fourth most dangerous
place for women in the world. “The poll conducted among 213 gender experts who
ranked countries on their overall perception of danger, as well as by six key
categories of risks--health, sexual violence, nonsexual violence, harmful
practices rooted in culture, tradition or religion, lack of access to economic
resources and human trafficking” In 1997 a group of women’s NGOs brought a
petition to the Supreme Court of India on behalf of a woman who had been
brutally gang raped by her colleagues in a village in Rajasthan Vishaka
and others v. State of Rajasthan and others [2](1997). The victim, a
publicly employed social worker, had been visiting a rural village to
investigate a claim of child marriage when she was gang-raped. Local officials
failed to investigate the crime, in part because no laws existed in India to
protect women from sexual harassment in the workplace or while on the job. The
women’s organizations filed a class action suit under Article 32 of the
Constitution to seek court enforcement of the rights of working women, and
cited India’s commitments under Articles 11 and 24 of CEDAW. The court declared
that through its ratification of CEDAW and its commitment to the Beijing
Platform of Action, India had endorsed the international standard of women’s
human rights, which must include protection from sexual harassment. The court
also drew up a set of implementing guidelines and norms, including detailed
requirements for processing sexual harassment complaints.
ABUSE OF WOMEN RIGHTS
Bride
Burning – Dowry Abuse Bride burning or dowry deaths are when a bride is
doused with a flammable liquid, usually kerosene, and lit on fire by a husband
and/or in-laws when they determine a dowry is inadequate, dowry payments fall
behind, or a new demand to the bride or the bride’s parents is not fulfilled.
Bride burning will often result in the wife’s death. In 1986, the Indian
government added ‘dowry deaths’ under penal code 304-B, where a bride, within 7
years of her marriage is killed and it is shown that soon before her death, she
was subjected to cruelty or harassment by her husband, or any relative of her
husband, or in connection with any demand for dowry, such death shall be called
‘dowry death’ and such husband or relative shall be deemed to have caused her
death. The National Crime Records statistics show that in 1994 there were 4,935
dowry deaths and 25,946 cases of dowry harassment, while in 2005, eleven years
after the signing of CEDAW, that number increased to 6,787 dowry murders and
58,319 incidents of dowry harassment (National Crime Records Bureau: Ministry
of Home Affairs, 2005). As of 2008, there were 31,950 pending cases of dowry
deaths, 117 cases withdrawn, 1,948 convicted, and 3,876 acquitted or discharged[3] (National
Crime Records Bureau: Ministry of Home Affairs, 2008). The trend for dowry
harassment and dowry deaths are on the rise, therefore there is no evidence
that the ratification of CEDAW has helped reduce this violent act against
women.
Female Foeticide
- Female foeticide is where female foetuses are selectively aborted after
prenatal sex determination, thus avoiding the birth of girls. Sabu Mathew
George v. Union of India[4]
In this case, a writ petition
was filed by a public- spirited person for getting directions for the
implementation of The Preconception and Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994. It was contended by him that Ministry of Communication
and Information Technology with the help of its agencies shall block all
websites which were advertising and promoting sex selection techniques by way
of including them in their search results. The Court after considering the
question of access of information with regard to sex determination gave
direction for auto blocking the results of the same. This was a judgment which
highlighted the issue of preferring boy over girl and it was a big step to
abolish the problem of female infanticide.
Human
Trafficking – Sex Slaves Human trafficking and/or sex slave is defined
as: the procurement, recruitment, transportation, transfer, harbouring or
receipt of persons, legally or illegally, within or across borders, by means of
threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of giving
or receiving payments or benefits to achieve the consent of a person having
control over another person, for monetary gain or otherwise (India Development
Gateway, 2011). In India, more than 1.2 million children are caught up in human
trafficking as child prostitutes[5]. Many girls are tricked
into leaving their homes with the promise of a well-paid job, some are
abducted, and others sold by their families or their husband. With the enormous
amount of children caught up in trafficking in India, the number of reported
cases for 2007 and 2010 are very high. Statistically, these numbers show that
CEDAW has not reduced this violent act against women.
Few Other important Judgments.
Air India v. Nargesh Meerza[6]
(1981)
In this case, certain discriminatory rules made by Air
India were under the scanner of Supreme Court. The rules formulated by Air
India were that an Air hostess would retire on attaining the age of 35 years,
or on marriage if marriage is contracted within the first four years of service
or on the first pregnancy of the Air Hostess, whichever was earlier. The Court
held the rules as unconstitutional and struck them down. It was held that the
rules were arbitrary in nature and in violation of Article 14 of the
Constitution. It was further held that excessive power was being delegated in
the hands of the Managing director and till the time a uniform police was taken
up the age of retirement of all air hostess would be .
Vishakha v State of Rajasthan[7]
The case was about sexual harassment at work
place, the court took notice of the issue and agreed there was a indeed a void
which needed to be filled. The court for the first time invoked the
International Covenants to which India was party and signatory. It specifically
relied on the Convention on the Elimination of All Forms of Discrimination
against Women, 1979, to adjudicate the instant petition. The court held that
there was a need to provide a safe environment to women which was free from
sexual harassment and as such it made several guidelines for the implementation
by the employers and the government.
Indian Young Lawyer’s Association v. The State
of Karnataka,[8] In this case, the question before Supreme
Court was regarding the entry of women from the age of 10 to 50 inside the Lord
Ayappa temple at Sabrimala, Kerala. It was held by the court that the
exclusionary practice at Sabrimala was violating the rights of the women since
it imposed restriction on their freedom and as such the Rule which placed a
restriction on their entry was violative of their right to Worship.
Ministry of Defence v. Babita Punia &
Ors.[9]
Recently,
on 17th Feb, 2020 India's top court ruled that all women army officers are now
eligible for permanent commissions, allowing them to be in commanding roles.
The ruling means that all women officers will now be on par with men when it
comes to promotions, ranks, benefits and pensions. The Supreme Court rejected
the government's plea to overturn the Delhi high court's order on the same
matter. The ruling has been hailed as a "great leap" towards equality
in the army
The Indian constitution was adopted on November 26,
1949; two years after India became a sovereign nation. Article 14 of the Indian
constitution, Equality Before Law, states, “the State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India” (Ministry of Law & Justice, n.d.). Article 15 Prohibits
discrimination on grounds of religion, race, caste, sex or place of birth and
further states. From a national level, in 1992, India established the National
Commission for Women, which is the national mediator for women. In 1997 India
established a parliamentary committee on the empowerment of women, and in January
2001, India announced its commitment to the empowerment of women through the
launching of a new National Policy on Women’s Empowerment. According to Amnesty
International, however, “these policies should be more than just further
rhetoric and should firmly address ongoing problems of non-implementation
and/or discriminatory implementation of safeguards and impunity for
perpetrators of violence against women” Summit 1999
CONCLUSION
Violence against women is maintained in India, also,
because: the reality of the situation on the ground for women and members of
vulnerable groups continues to be extremely harsh despite the Constitutional,
legislative and administrative framework in place in India . The Government has
undertaken various measures, through law, policies and programmes in the last
7-8 years to address gender inequality and to eliminate discrimination against
women and girl children. Many laws and programmes are still being reviewed to
repeal the discriminatory provisions. There are significant improvements on
various indicators, which have been discussed at length, in the above
paragraphs. With the general poverty level reducing to 26 per cent and the
marked increase in female literacy level, slight improvement in sex ratio and
the entry of women into decision-making bodies, the inequalities that exist
between men and women have reduced. However gender discrimination continues to
be a daunting challenge and the Government will continue to pursue all
measures, in a concerted manner, to eliminate discrimination against women and
to translate the dejure rights into defacto enjoyment of rights and equal
results. The Government commits to pursue the National Policy on Empowerment of
Women, 2001 and the Plan of Action that is being adopted to give effect to this
policy, strengthen gender budgeting and the Women Component Plan and adopt
planning strategies that enhance socio-economic gains for women, which in turn
would lead to empowerment of women.
Bibliography
·
Constitution
Of India, 1950
·
Universal
declaration on Human rights 1948
·
CEDAW,
1979
·
Anne Hellum , Women's Human
Rights: CEDAW in International, Regional and National Law Cambridge
University Press, 2013
Websites:-
https://www.wilpf.org/a-look-at-womens-rights-in-india-through-cedaw/
https://asiapacific.unwomen.org/en/countries/india/cedaw
https://www.un.org/womenwatch/daw/cedaw/cedaw36/India2-3E.pdf
[1] Visited
https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
on 28th Oct 2021 on 11:30 am
[2] (1997) 6 SCC 241
[3] (National Crime
Records Bureau: Ministry of Home Affairs, 2008)
[6] 1981 SCC(4) 335
[7] Supra Note 2
[8] WRIT PETITION (CIVIL) NO. 373 OF 2006
[9] Civil
Appeal No 9367-9369 of 2011
