Convention on Elimination of All Forms of Discrimination Against Women (Cedaw)

CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) INDIA'S FIRST REPORT INTRODUCTION 1. The instrument of ratification of the Convention deposited by the Government of India contain the following two Declaratory Statements and one Reservation. 2. Article 16(1) calls for the elimination of all discrimination against women in matters relating to marriage and family relations. The Declaratory Statements in this connection reads as under:- "With regard to Article 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent" 3. Article 16(2) calls for making the registration of marriage in an official registry compulsory. The Declaratory Statement for this Article reads as under:- "With regard to Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it agrees to the principle of compulsory registration of marriages. However, failure to get the marriage registered , will not invalidate the marriage particularly in India with its variety of customs, religions and level of literacy/" 4. Article 29(1) of the Convention establishes compulsory arbitration or adjudication by the International Court of Justice of disputes concerning interpretation. The reservation proposed by the Government of the Republic of India reads as under:- "With regard to Article 29(1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it does not consider itself bound by paragraph 1 of this Article." 5. The Government of India hereby presents its first report as required under Article 18 of the Convention. The submission of this report has been preceded by widespread consultations throughout the country from 1993 to 1996. 6. A total of over 20 meetings with a number of women’s organisations were held during this period providing the Government and participants with considerable insight on a wide range of gender issues and issues relevant to Indian women. Further, one meeting was specifically held with NGOs and individual women interested in issues relating to women’s rights in late 1994 to elicit views on how to go about preparing India’s initial report. The present report takes into account the discussions and conclusions of this long and widespread consultative process. Further, detailed discussions were held and written inputs received from various Ministries/Departments of the Government of India on different Articles of the Convention. 7. The report comprises two parts following the general guidelines adopted by the Committee on the Elimination of Discrimination against Women. The first part contains general information about India and the political, legal and constitutional framework in which the Convention is being implemented. The second part contains specific information with respect to each of the article of the Convention in terms of steps being taken by Government, the constraints if any, and the future course of action contemplated by the Government. 8. There has been a growing demand for withdrawal of India’s reservations/declaratory statement from women’s groups throughout the country and the matter is under consideration. The Government’s present policy of not interfering with the personal laws of minority communities except at their initiative and with their consent, has already resulted in a number of changes. For example, the Hindu personal laws. Parsee personal laws and the Christian personal laws have been amended. The demand from women’s groups is that the Government’s policy should at least be modified to say that when ascertaining the views of the minority communities, the views of women of such communities would be specially taken into account. This is also under the consideration of the Government. PART – I Basic General Information and Frame Work General Information 9. India attaining freedom in 1947, formed itself into a Democratic Republic, with a Parliamentary system, an independent judiciary and a detailed written Constitution. It is a Union of States, comprising 25 States and 7 Union Territories. It has a federal Constitutional system of governance with certain unitary features in which legislative, executive and judicial powers are shared between the Union and the States and Union Territories. Election to the Union Parliament and State Legislatures is held every five years on the basis of universal adult franchise. In India, women and men have had equal voting rights since the inception of the Republic. 10. Lying between 8.4 degrees North and 36.6 degrees North latitudes and 68.7 degrees East and 97.25 degrees East longitudes, India is the 7th largest nation in the world and with a population of 846.30 million in 1991 (presently estimated at over 970 million) it is the second most populous. Constitutional and Legal Framework 11. The Constitution of India, which came into force on 26th January, 1950 operates as the fundamental law in India. All the organs of State owe their origin to the Constitution and derive their authority from and discharge their responsibilities within the framework of the Constitution. It deals with the structure and system of governance, makes detailed provisions regarding the fundamental rights of citizens and other persons and lays down certain broad Directive Principles which are to guide the different organs of State, the Legislature, the Executive and the Judiciary. It envisages a government which is federal in structure with unitary features. The President is the Constitutional head of the Union. It provides for a Council of Ministers which is collectively responsible to Parliament and is headed by a Prime Minister. The Constitution provides for an independent judiciary, an independent Comptroller and Auditor General, an independent Election Commission and independent Public Service Commission. It distributes legislative and executive powers between Parliament and the State Legislatures and provides for the vesting of the residuary powers in Parliament. The system of government in the States closely resembles that of the Union. The State Executive consists of the Governor and Council of Ministers with the Chief Minister at its head, Every State and some Union Territories have a Legislature with one or two Houses. A multi-party system of electoral politics has been in existence since independence. 12. The Indian Constitution was drafted around the same time as the Universal Declaration of Human Rights and was therefore strongly influenced by the latter. The principle of gender equality is firmly established in our Constitution. It provides for equality before law and equal protection of the law, prohibition of discrimination, and equality of opportunity in matter of public employment. The Indian Constitution further provides for affirmative action and for positive discrimination by empowering the State to make special provisions for women. The Constitution also contains certain provisions, called Directive Principles, which enjoin upon the State inter-alia to secure the right to adequate means of livelihood for both men and women equally, equal pay for equal work for both men and women, the health and strength of workers, for both men and women, and ensuring that the citizens are not forced by economic necessity to enter vocations unsuited to their age and strength. Further a duty is cast on every citizen of India to renounce practices derogatory to the dignity of women While the Fundamental Rights enshrined in the Constitution are justiciable, the Directive Principles of the Policy are considered in general non-justiciable in terms of recourse to judicial remedies. The Supreme Court of India however through its activist role has infused dynamism even into the non-justiciable provisions and has issued directives to the State from time to time to implement the Directive Principles. In a recent judgement the Supreme Court made it clear that the State or any of its organs could not do anything that violates these principles and some of the principles have already become law. The Maternity Benefits Act and the reservations for women in institutions of local governance are two relevant examples. Further, according to the Supreme Court, some directive Principles like the one on compulsory education, with the lapse of time provided by the Constitution have now to be viewed as a fundamental right. While the Supreme Court and the High Court and lower courts administer justice in the country according to the various laws of the land, the Supreme Court of India has over the years developed a strong tradition of public interest litigation (PIL). According to the Supreme Court’s explanation, this is a system whereby in the event of the violation of rights of any person or call of persons by omission or commission and such persons being unable to approach the court (by reason of poverty, disability, social or economic disadvantage), any member of the public can maintain an application for an appropriate direction, order or writ. This has further enriched India’s elaborate legal edifice and contributed to the cause of gender justice. Recent pronouncements of the Supreme Court on such matters as the need for a Uniform Civil Code for all women irrespective of religion, the need for equal property rights for women particularly in case of inheritance, pronouncements on child labour, child prostitution, sexual harassment at place of work, need for in-camera trial of rape cases etc. are evidence of such an activist role of the Court. The Supreme Court has also in a number of personal judgements struck down some unequal provisions of certain personal laws by declaring them as ultra vires to the Constitution of India (For example 14 laws governing Christians in Kerala were struck down).

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