CEDAW AND INDIA’s COMMITMENT

ASSIGNMENT ON WOMEN & CHILD LAW

JAMIA MILLIA ISLAMIA

NAME: RAHUL SISODIA and KAMLESH RAI (Self-Finance)

ROLL NO: 41 & 21
SUBMITTED TO: Dr. SUBHRADIPTA SARKAR (Assoc. Prof)

TOPIC OF ASSIGNMENT: CEDAW AND INDIA’s COMMITMENT.

Submitted on: Submitted by:

07/11/2020 Rahul Sisodia and
Kamlesh Rai

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ACKNOWLEDGEMENT

It gives me immense pleasure and gratitude to thank my Women & Child law teacher Subhradipta

Sarkar Sir, who gave me opportunity to do this wonderful project which helped me in doing a lot

of research and I came to know about so many new things. I am really thankful to him.

Secondly, I would like to give thanks to all my seniors who have guided throughout the research

process.

Lastly, I feel that my project would not have been completed without the help of my parents and

friends.

YOURS SINCERELY,
RAHUL SISODIA and KAMLESH RAI

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 TABLE OF CONTENTS

PAGE
S. No TOPICS NO.

1. ACKNOWLEDGEMENT 2

2. TABLE OF CONTENT 3

3. INTRODUCTION 4

4. INDIA’s STANCE ON CEDAW 6-7

5. THE CONSTITUTION 7-8

6. 9-10
SAFE GUARDER OF CONSTITUTION AND ROLE
PLAYED

7. PROMISES! 10-12

10. CONCLUSION 13

11. BIBLIOGRAPHY 14

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INTRODUCTION

As the status of women changes from time to time, new conventions are brought to give more
power to women in the ever changing society. “Women’s rights are human rights” has been
acknowledged in Vienna Conference on Human rights in 1993 following that Convention on the
Elimination of All Forms of Discrimination Against Women(CEDAW) caused significant impact
on the status of women in society and took a serious note on violation of the rights.1

CEDAW is a body consisting of 23 independent experts from all over the world, monitoring the
implementation of Convention on the Elimination of All Forms of Discrimination against Women.2
CEDAW adopted by UN General Assembly in 1979 also recognised as Bill of Rights for Women.
CEDAW contains 30 Articles dealing in different domains of women such as political, civil,
economic and social rights. History of CEDAW can be traced back to 1946, when Commission on
the Status of Women was founded under the patronage of UNESCO. Over the next 15 years, CSW
adopted several conventions on women’s rights such as Convention on the Political Rights of
Women (1953), Convention on the Nationality of Married Women (1957), and the Convention on
Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962).
In 1963, the General Assembly directed CSW sum up all these in a single document known as
Declaration on the Elimination of Discrimination against Women. In 1967, The Declaration got
adopted and and states were called to eliminate discrimination against women, extending full
electoral rights and equality to women but it's provisions were not legally binding on countries.
In 1975 International Women’s Year was declared by UN attended by representatives from 133
governments convened in Mexico City. Plan of action was adopted for a legally binding convention
on women’s rights. After three years of deliberations, CEDAW was adopted in 1979 by a vote of
130 to 0, with 10 abstentions and came into play in 1981.3

CEDAW contends government should make necessary adjustments so girls and women are treated
equally as that of men and all necessary or special actions whatever be required should be given

1 Versha Sharma, Constituitonal Provisions Relating to Women and International Instruments on Rights of
Women, 16-17 ALJ, 171 (2001-2002)
2 https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Introduction.aspx
3 Bayefsky, A. F. 2012. “Jurisprudence: CEDAW.” Accessed August 06, 2020, at http://www.
bayefsky.com/docs.php/area/jurisprudence/ node/3/treaty/cedaw/opt/0.
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for the enjoyment of their rights to it’s fullest. This is similar to a concept called “Substantive
Equality” which CEDAW promotes.

‘Substantive’ Equality

This model of equality explains as where the law treats people the same irrespective of age, caste,
sex etc. However, such approach of equality is not broad enough to stimulate conditions of actual
equality in women’s lives because the factors that discriminate against women extend far beyond
the problems caused by overtly discriminatory laws. Taking note of this, CEDAW took a three-
dimensional view of equality and calls it ‘substantive equality’. Rather than considering equality
only in legalistic terms and recognising that laws and policies ensure equality between men and
women simply by being gender-neutral CEDAW focuses on their actual impact and effect. The
substantive model of equality therefore focuses on the actual conditions of women’s lives rather
than the Articles used in laws, as the true measure of whether equality has been achieved. Hence,
State must do more than just emphasising on existing laws that directly discriminate against
women to cope up with the CEDAW. All measures whether general or special are needed to
strengthen women rights and equality in their lives. 4

Today, CEDAW is one of the most comprehensive endorsed human rights treaties and has been
ratified by 189 countries to date, South Sudan being the recent one.

Participation in the CEDAW

4 DR. H.O. Agrawal, International Law & Human Rights (Central Law Publications, Allahabad, 22th
edn.,2017)
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 Signed and ratified Only signed
Non-signatory
Acceded or succeeded
Unrecognized state, abiding by treaty

Articles of CEDAW are mainly divided into 3 groups :-

1st set deals with the Nature and Scope of States obligations;

2nd set deals with specific forms of discrimination and outline measures that State must make to
terminate discrimination in each of those areas;

Last set deals with the procedural and administrative matters such as the way the CEDAW
reporting process works.

INDIA’S STANCE ON CEDAW

India signed CEDAW on July 29, 1980 and ratified it on July 9, 1993, with certain reservations. India
has not yet ratified the Optional Protocol to CEDAW. By ratifying, India is under an obligation
imposed by the convention.

Supreme court in several cases held that Convention on Elimination of all forms of discrimination
on women is an integral scheme of a fundamental rights and directive principles. Article 2(e) of
CEDAW5 states that the state parties to prevent gender based discrimination and to put in force
the right to life including empowerment of economic social and cultural rights it is therefore
desirable that the enabling legislature is enacted to give legal effect to the convention so that
discrimination against woman which exist due to the legal social and cultural tradition should be
eliminated.

India while ratifying the convention made two declaration and reservations, the first one is in
regard to article 5(a) and 16(1) of CEDAW.

5 Ar 2 of CEDAW
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Ar 5(a) contends that the government of Republic of India declares that it shall abide by and
ensure those provision with conformity with its policy of non-interference in the personal affairs
of any community without it's initiative and consent.6

Ar 16(1) contends that the government of the Republic of India declares that, though, in principle
it fully supports the principle of compulsory registration of marriage, it is not practicable in a vast
country like India with variety of customs religions and the level of literacy, further, India made a
reservation by stating that it does not consider itself bound by paragraph one of Article 29 of
convention which relates to the settlement of dispute through arbitration. 7

The Constitution

Indian Constitution enshrines “Fundamental Rights” that guarantees various rights. Rights which
cannot be over emphasised in respect of women are Ar 14 Right to Equality and Ar 15 Prohibition
against Discrimination.
Article 14 states that, “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”8
Article 15 prohibits discrimination against any citizen by The State on grounds only of religion,
race, caste, sex, place of birth or any of them. Article 15(3) also allows for special provision
for women and children by clarifying that “nothing in this Article shall prevent the state from
making any special provision for women and children.” This article has been used by courts to
justify reservation in favour of women and to justify a provision. Section 497(1) of the unamended
Indian Criminal Procedure Code of 1898, which gave special treatment to women and children and
prescribed leniency in granting them bail.9
In addition, Article 16(1) contends that equality of opportunity for all citizens in matters relating to
employment or appointment to any state office. Article 16(2) states that “no citizen
shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them,
be ineligible for, or discriminated against in respect of, any employment of office under the State.”10

Chapter IV of the Constitution of India contains principles of law known as the “Directive

Principles of State Policy,” which, though not enforceable, are supposed to be fundamental

6 Ar 5 of CEDAW
7 Ar 16 of CEDAW
8. Ar 14 of INDIAN CONST
9 Ar 15 of INDIAN CONST
10 Ar 16 of INDIAN CONST
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in the governance of the country. It is the duty of the state to apply these principles in making laws.
These principles direct the state in achieving a welfare state.
Article 39(a) ensure that all citizens men and women equally have the right to an adequate
means of livelihood, Article 39(d) ensures that the state is directive to ensure that there should equal
pay for equal work for both men and women. Article 39(e) ensures that the state is directed to
secure the health and strength of workers men and women and the tender age of children are not
abused, and that citizens not forced by economic necessity to enter occupations unsuited to their age
or strength.11 Article 42 of Directive Principles directs the state to make provisions for securing just
and humane conditions of work and for maternity relief.12
Passing of Equal Remuneration Act by Indian Parliament in 1975 specifies that men
and women will be paid equally for doing the same work or work of a similar nature and also
specifying that there will be no discrimination against women at the time of recruitment or
at the time of promotion. The Maternity Benefit Act of 1961 was ostensibly passed to achieve the
purpose stated in Article 42.

SAFE GUARDER OF CONSTITUTION AND ROLE PLAYED

On the basis of constitutional provision enshrined under constitution Indian courts have made
number of rule and regulation which prevents the discrimination against women and consequently
held as unconstitutional.
In case of C. B. Muthamma v. Union of India13 the validity of Indian foreign services rules of
1961 was challenged which provided that no married woman shall be entitled as the right to be
appointed to the services and a woman member of the service shall obtain a permission of the
government in writing before her marriage is solemnised at any time after the marriage a woman is
required to resign from service if the government is satisfied that her family and domestic
commitments are likely to come in the way of due and efficient discharge of her duties as a member
of the service. Supreme court held at the provisions in service rules requiring a female employee to
obtain the permission of the government in writing before her marriage and denying right to be

11 Ar 39 of INDIAN CONST
12 Ar 42 of INDIAN CONST
13 A.I.R SC 1979
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appointed on the ground that the candidate is married women are discriminatory against woman, the
court further held that equality of opportunity in matters relating to the employment to the
employment does not mean that men and women are equal in all occupation and in all situations.

In Air India v Nergesh Mirza14 Supreme Court struck down the provision of the rule which
stipulated the condition that services shall be terminated on pregnancy of woman as
unconstitutional, however restriction on air Hostess not to marry within four years of services was
held reasonable.

In other case Maya Devi v. State of Maharashtra15, the requirement that a married woman should
obtain her husband consent before applying for public employment was held invalid and
unconstitutional it was observed that such requirement is an obstacle to women's equality.

In Pratibha Rani we Suraj Kumar16 it was held by Supreme Court that it cannot be said that
upon entering into a matrimony the stridhan property of a married woman has to be placed in the
custody of her husband.

In Anuj Garg & other's v. Hotel Association of India17 constitutional validity of section 30 of
Punjab excise act which prohibited employment of any woman in any part of such premise in which
liquor or intoxicating drug is consumed by the public was considered. The Delhi High Court held
that the above provision of the act is ultra-virus of Article 19(1)(g) 14 and 15 of the constitution to
the extent it prohibits employment of any woman in any such premises in which liquor or
intoxicating drugs are consumed. Court on appeal observed that instead of prohibiting womans
employment in the bars altogether the state should focus on factor by which unequal consequences
of sex difference can be eliminated. And it is a duty of the society to ensure circumstances leading
safety which may inspire confidence in women and help them to discharge their duty with freedom
and in accordance with the requirements of the profession they choose to follow.

In Vishaka and Others v. State of Rajasthan18 a writ petition was filed before Supreme court by
some of the social activities and NGOs in order to prevent sexual harassment of working woman on
all workplace by judicial process in order to fill the gap in the existing legislation. The immediate
cause for filling the petition was an accident of a brutal gang rape of a worker in Rajasthan and
before the decision was taken by the court there were no domestic law that should check the evil of
a sexual harassment of a working woman at all the places and therefore India has to look towards
the International Convention and the norms which were significant for providing a guarantee of

14 A.I.R. 1981
15 ISCR (1986)
16 A.I.R. SC 1985
17 A.I.R. SC 2008
18 A.I.R. 1997
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gender equality and right to work with human dignity. It was held that International Convention and
norms will be taken into consideration in the absence of domestic law on that matter until there is
no inconsistency between them.The court observed that each incident of sexual harassment of
women at workplace results in the violation of fundamental rights of gender equality and the right
to life and personal liberty and the court led down several norms until the legislation was not
enacted.

Promises! Promises! Promises!

Promises are meant to be broken especially when they are made in the domain of women’s rights
and status. Let’s face, the sad reality of India’s taking a step back from meeting its commitments to
the international community and to its own citizens. In the past few decades, India has signed and
ratified many significant UN conventions and covenants, only to fall far short when it comes to
implementation or amending local laws to bring them in conformity with international standards.

In pursuance of the above provisions, the State has enacted a number of acts meant not only to

protect the interest of women, but also to ameliorate their condition in all spheres of life. The
Constitution addresses the health and protection of female workers, including safety against
exploitation under the age of 14 in employment.
 It appears that the Indian Legislature is fully conscious about the need to protect the interest of
women and to give them a status equal to their male counterparts in society. However, the
enforcement aspect remains neglected and need to get worked on.
The Judiciary helped the process of equalisation between men and women during the post of
independent period. However, the most sacred object, “the constitutional mission of equalisation,
could not be achieved fully due to general ignorance of law; indifferent and hostile attitudes of law-
enforcing agencies; economic backwardness and lack of community support for women seeking
justice against discrimination; and disregard for the socio-economic basis of the laws.
Although, there is a long list of status to ameliorate the status of women, but they are not properly
implemented. For Example, the Child's Marriage Restraint Act was passed sixty-seven years ago
but a negligible number of cases have been reported. Either there is negligence on the part
the implementing authorities or a lack of public awareness because hosts of women are
unaware of this law.

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Can any legislative reforms be effective if the will to implement is lacking?

Liberty of women is not just a sum of legal enactments and constitutional sanctions.

While not denying the importance of an effective legislative policy, it is not possible to bring about
a change in the status of women through legislative action alone. There is a wide gap
between the law and social attitudes and beliefs which act as a barrier in the enforcement of laws
for women's emancipation.
The complex system of social institutions, norms of behaviours and religious prescriptions,
some of which have hardened like statutory laws, obstruct proper implementation of special
protective legislation of special protective legislation for women.
Consequently, divorce remains only a theoretical possibility due to women's economic
dependence on men and the social ostracism suffered by a divorced women.
The scope of marriage, though enlarged in law, status narrow in practice, it is very difficult to many
across the social barriers. The succession law is unsuccessful. Widow remarriage has yet to be
universally accepted.19
Dowry has been outlawed, yet it remains a fundamental part of most marriage negotiations today.
Women's human rights remains a contentious area, given the high number of reservations, apathy in
translating treaty obligations into express legislative enactment at home, the inadequate
accountability and enforcement and the alienation of individual from accessing the treaty body for
enforcement of these rights. At the level of setting normative standards, wide ratification
of CEDAW is an achievement for women's human rights agenda. However until the issues of
accountability, enforceability and individual redress remain unresolved human rights will remain
far-fetched for women. This section takes an overview of the contentious issues in the context of
women's human rights and the challenges emerging in relation to them.

Indian women do not suffer from legal disparities but from practical disparities. To bring about
social change, a change in attitude is most important. Indian society should accommodate the ideas
of both modernity and tradition and it can only be achieved only through the change in attitude.
Women must be made aware what their rights are and be quite active in practising their rights when
denied opportunities to work. Indeed, they must fight back whenever feel any discrimination is in-
process. To make women tantamount to men they must be made economic independent.

19 Versha Sharma, Constituitonal Provisions Relating to Women and International Instruments on Rights of
Women, 16-17 ALJ, 171 (2001-2002)
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Until the status of women as a home maker is changed and unless women strive to change their role
within the family and revolt against traditions and customs which contribute to their sufferings - no
amount of legislation can given them equality with men.

Many new laws have been implemented and the old ones have been changed in favour to strengthen
women's position in society but the laws and efforts would go in vain unless supported by the
society. Gender issues are emerging strongly, but these need to be given proper direction and
understood in the right perspective for women to actually achieve a better position at home, at work
and in our society.
Blind faith is not enough.

CONCLUDING REMARKS

Significantly, in the matter of women rights, India's binding obligations under international law
have also started attracting attention of legal and other experts.
While women's human rights will remain a disputable domain and significant noteworthy
developments will be needed to cope up with the ever changing society. The cross sectoral alliances

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need to be strengthened and supported in their struggle to secure human rights for women.
However, it is unfortunate to see that even after 50 years of UDHR women's rights are engraved
only on paper and far from reality in practice due to complex structure of culture inadequate
systems and political will. All these combine to ensure a long struggle ahead for making human
rights a reality for all women. Therefore, after deep observation and summing it up, it can be said
that in India, it is mainly the personal laws that really deal with the lives of millions of women of all
communities. But despite, various efforts under international instruments and reform of national
laws for ensuring gender equality, women continue to be treated unequally and discriminated in the
matters of marriage, divorce, adoption, custody and the right to own and inherit property. In order
to deal with this, gender just code is the need of the hour. Thus, a uniform civil code20 is the need of
the hour for the safeguard of the oppressed, promotion of national unity and solidarity, human
rights of women in India irrespective of religious community and, moreover, to bring national laws
in conformity with the legally binding provisions of international law in the form of various
international human rights instruments already ratified by India.

BIBLOGRAPHY

MALCOLM AND SHAW, International Law (Cambridge University Press, Cambridge, 8th
edn.,2017)

20 Madhu Mehra, And Miles to Go…: Challenges Facing Women's Human Rights, 40 JILI 121 (1998).
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 DR. H.O. Agrawal, International Law & Human Rights (Central Law Publications, Allahabad,
22th edn.,2017)

The Constitution of India, 1950

Internet Sources

SCC

Indian Kanoon

Hein Online

OHCHR.org

UN.org

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