CONVENTION ON THE ELIMNATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN- ADITYA MEHTANI

Human rights are rights which are inherent to all human beings, irrespective of our nationality, place of residence, colour, sex, religion, language or any other status. According to UN human rights have four basic features : they are Universal and Inalienable; they are Interdependentand Indivisible; they are Equal and Non-Discriminatory; and they entail both Rights and Obligations. In pursuance of achieving Human Rights for all, CEDAW is an international treaty and it was adopted in the year 1979 by the UN. It is also referred as an international bill of rights for women, it was instituted on 3 September 1981 and has been ratified by 189 states. The United States and Palau have signed, but not ratified the treaty. Iran, Somalia, Sudan and Tonga are not signatories to CEDAW. It consists of a preamble and 30 articles. The Universal Declaration of Human Rights proclaims the entitlement of everyone to equality before the law and to the enjoyment of human rights and fundamental freedoms without distinction of any kind and proceeds to include sex among the grounds of such impermissible distinction. 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”.[1] COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN The UN CEDAW, an expert body established in 1982, is composed of 23 experts on women's issues from around the world. The members of CEDAW, acknowledged as experts "of high moral standing and competence in the field covered by the Convention", are elected by the States parties. These elections have to meet the Convention's demands for equitable geographical distribution in membership and the requirement that CEDAW members represent "different forms of civilization as well as principal legal systems". Their terms last four years, with only half of the Committee members replaced each time elections take place. The meeting of States parties is convened every other year by the Secretary-General at UN Headquarters in New York. The officers of the Committee consist of a Chairperson, three Vice-Chairpersons and a Rapporteur. While the length of the terms of office is laid down in the Convention, the rules of procedure add that the officers shall be eligible for re-election "provided that the principle of rotation is upheld".

OBLIGATION TO MAKE LAW

The Preamble and Article 2 and 3 of the Convention puts an obligation over the signatory states (including India) to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights, and the States shall take appropriate measures, including legislation, for guaranteeing the fulfilment of the Convention. Moreover, Indian Constitution under Article 253, empowers the Parliament of India to make legislations for the implementation of International Treaty, Convention and Agreement; The domestic laws of India are sovereign and no international covenant can be preferred to the domestic law. In order to make the international covenants effective all State parties to the covenants agree to enact laws in line with the obligations under the covenant. Most covenants include a clause requiring the State parties to do so. The Constitution has thus made arrangement by empowering Parliament to make such laws by providing Article 253 and thereafter by putting an obligation on the State to give effect to the covenants by such enactments by providing such an obligation under Article51.[2] LEGAL PROVISIONS IN INDIA AGAINST WOMEN DISCRIMINATION Laws Prevalent before India’s ratification to CEDAW In Indian context, it is not the case that only after ratification to CEDAW, India got awareness towards discrimination against women and made laws thereafter. But Indian thinkers and politicians were privy to these problems even when India was a colony of British India. Thus as soon as we got the independence, these leading thinkers and politicians acknowledged the discriminations against the women and inculcated laws and provisions for the same within the Constitution itself, envisioning that these discriminations would be put to rest. 1. Article14, 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, ”thus in the eyes of law of the land i.e. of India, every citizen of India is equal, provided some reasonable restrictions, but these reasonable restrictions does not include the discrimination the basis of sex. 2. Article 15, Prohibits discrimination on grounds of religion, race, caste, sex or place of birth, nothing in this article shall prevent the State from making any special provision for women and children, Article 15(1) specifically prohibits discrimination on the basis of sex, and Article 15(3) empowers the state to take affirmative actions in favour of women. Immoral Trafficking Prevention Act (ITPA),1956 which provides for prevention of women and child trafficking in India and the help for the rescued women and also has severe penalties ranging from seven years to life imprisonment. This statute was made in accordance with India signing of United Nation Declaration, 1950 for the suppression of trafficking. 3. Sati (Prevention) Act, 1987 was a law enacted by Government of Rajasthan in 1987. It became an Act of the Parliament of India with the enactment of The Commission of Sati (Prevention) Act, 1987 in 1988. The Act seeks to prevent Sati practice or the voluntary or forced burning or burying alive of widows, and to prohibit glorification of this action through the observance of any ceremony, the participation in any procession, the creation of a financial trust, the construction of a temple, or any actions to commemorate or honor the memory of a widow who committed sati. 4. National Commission for Women was established in 1992 at New Delhi, under the provisions of National Commission for Women Act, 1990; to serve as a national level mediator for women and to empower women to fight against any discrimination which is occurring against them. LAWS ENACTED AFTER CEDAW 1. Prenatal Diagnostic Techniques Act (PNDT) 1994, to control female foeticide, the Government of India enacted this Act, which restricts the determination and revelation of gender of the foetus through amniocentesis as well as specifies the code of conduct for medical practitioners. a. Under the PNDT Act, an individual/ institution found guilty of advertising prenatal determination of gender in any form is subject to imprisonment and / or a fine. The PNDT Act was amended in 2002 and 2003, owing to innovation in technologies for sex determination through ultra sounds that impede the implementation of the Act. b. Section 318 in The Indian Penal Code. 318. Concealment of birth by secret disposal of dead body. — Parliamentary Committee on the empowerment of Women was established in 1997, which as the name suggests works for the empowerment of Women in our Nation at a national level. The primary functions of this committee are to consider the reports submitted by the National Commission for Women; and to report on the measures that should be taken by the Union Government for improving the status/conditions of women in respect of matters within the purview of the Union Government including the Administration of the Union Territories. 2. National Policy on Women’s Empowerment was launched by the Union Government of India in January 2001, and announced the Nation’s commitment to work towards the upliftment and empowerment of Women. The principal goals of the policy are to bring about the advancement, development and empowerment of women. The Policy will be widely disseminated so as to encourage active participation of all stake holders for achieving its goals. Specifically, the objectives of this Policy include; and creating an environment through positive economic and social policies for full development of women to enable them to realize their full potential. The Union Cabinet Minister for Women & Child Development, Maneka Gandhi unveiled a draft of National Policy for Women, 2016, which will replace the National Policy for the Empowerment of Women, 2001. The salient features of this draft policy are to create a society with working women as equal partners in all spheres of life and to make cyber space safe for women.[3] 3. The Prohibition of Child Marriage Act, 2006, which came into effect from 2007 makes marriage of girls under 18 years of age and of boys under 21 years illegal. This Act works as a major deterrent against child marriage in India. This Act also is contrary to the second declaration made by India during ratification, thus a great progressive step working towards the fulfilment of CEDAW.[4]

4. Sexual Harassment of Women at Workplace ( Prevention, Prohibition and Redressal ) Act, 2013 was enacted to ensure women’s safety at workplace, and to protect them from sexual harassment at their place of work. Sexual Harassment includes use of language with sexual overtones, subtle touches, innuendoes, invasion of private space e.t.c. 5. Protection of Women from Domestic Violence Act, 2005, is to protect women from domestic violence. The Act for the first time in Indian Law defines the term ‘Domestic Violence’ under Section 3 of the Act. The Act is primarily meant to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives. This Act also cover the area of economic abuse against women. The Act has increased the jurisdiction and scope of the magistrates for the trials under the offences of domestic violence against women. There are many more minor statutes and policies enacted by the Parliament or the State Legislatures or the Government of India or State Governments against women discrimination and for empowerment of women in India. Though there were many laws and legal provisions working for the empowerment of women, including various Fundamental Rights as well as Directive Principles in the Constitution; show that the people of India understood the problems the women in our country face, and the signing and ratification of CEDAW in 1993 by India gave the required boost for enactment of many new and aggressive laws to ensure equality of women in all spheres of life in India. The progress has been slow, but nonetheless there is an advancement. Today, public is aware of the the discriminations against women and discussions relating to this issue are going on at the national and regional forums and do not shy away from speaking on this matter.The Indian Judiciary also has not hesitated in placing reliance on CEDAW norms for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in the Constitution of India. The Judiciary has used such international norms for interpreting fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.[5] CONCLUSION CEDAW has been heralded as a significant step in the development of international human rights; it has been welcomed as a bill of rights for women and as a visionary Convention which will address gender specific abuses of rights. However, how can CEDAW be taken forward and moved closer to towards achieving its vision or should the human rights framework be abandoned by feminists? One response is to reject the human rights model, including CEDAW and thus to ‘opt out’ of the international human rights legal system . Thus, Tang and Cheung criticise optimists who ‘contend that once a country adopts it, beneficial effects are inevitable’ and from this position it might be argued that the campaign for women’s rights is misguided and in fact is detrimental to women. Such an argument would see Human Rights instruments such as CEDAW as acting as a smokescreen obscuring the real issue of power relations between men and women. The existence of CEDAW does, however, offer a formal mechanism through which the issue of violence against women can be highlighted on a national platform. It is not CEDAW that blocks access to equal rights but the lack of a sincere political will. A more favoured response is to accept the deficiencies of CEDAW but to then work within the international legal system to ensure that women’srights become part of the legal culture of the international community: to turn the myth of women’s rights into a reality[6]. To understand the flaws of CEDAW is crucial, but if women are to ensure that the rights laid down in CEDAW are not merely men’s rights masquerading as women’s rights they must use the machinery of CEDAW creatively. Our own analysis has shown that the involvement of NGOs can make a significant difference in the monitoring of state parties adherence to the Convention and can also act as a catalyst to change. In particular, the production of shadow reports by NGOs that challenge the government’s response to CEDAW is crucial. Watching Over the Rights of Women Furthermore, nation states should incorporate CEDAW into national legislation and sign up to the Optional Protocol. Women need to make their governments accountable for the abuses that are suffered. This cannot be achieved by opting out of the system. It has been argued that setting international standards ‘represents the first, crucial step towards gender justice’ but the next steps will only be achieved by using (and not merely accepting) the tools which CEDAW offers. Women must therefore utilise all the tools at their disposal and one of these tools is CEDAW.


[1]http://www.un.org/womenwatch/daw/cedaw/history.htm [2]http://www.ebc-india.com/lawyer/articles/2004_7_23.htm [3]http://indiatoday.intoday.in/education/story/national-policy-for-women/1/671183.html [4]http://notesforupsc2013.blogspot.in/2015/08/cedaw-and-india.html [5]http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-LKA-CO-7.pdf [6]International Federation of University Women - http://www.ifuw.org/advocacy/ia cedaw.htm# monitor

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