The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly in 1979 and enforced on 3rd September, 1981. It is an international law which has recognized rights of women. Many countries have signed and ratified this convention subject to certain declarations, objections and reservations till date.
This convention was based on the idea to ‘bridge the gap’ between people on the basis of sex which is prevalent in most of the countries.
The convention in its first chapter, reads as “The Convention was the culmination of more than thirty years of work by the United Nations Commission on the Status of Women, a body established in 1946 to monitor the situation of women and to promote women's rights. The Commission's work has been instrumental in bringing to light all the areas in which women are denied equality with men. These efforts for the advancement of women have resulted in several declarations and conventions, of which the Convention on the Elimination of All Forms of Discrimination against Women is the central and most comprehensive document.”
The convention is beautifully divided into 6 parts containing 30 articles in toto. All the members of the UN General Assembly have ratified the convention except seven states including the states of Iran, Nauru, Palau, Somalia, Sudan, Tonga, and the United States
By ratifying the convention the states undertake the following:
• 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.
Article 1 of the convention defines what discrimination means. It states that “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean 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.”
Article 3 states that the state parties shall take all necessary steps to ensure full development and advancement of women. And further article 6 states that States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.
Part II of the convention deals with political empowerment of women in the party states. Part III confers Educational, Employment, Health, Economic and Social rights on women. Article 15 envisages equality before law regarding women and article 16 deals with elimination of discrimination against women relating to matters regarding marriage and family relations.
Under article 17, the CEDAW establishes a committee called the Committee on the Elimination of Discrimination against Women under which 23 experts are appointed to deal with women’s issues. The committee consists of one chairperson, 3 vice chairpersons and other members with tenure of 4 years. As on January, 2007, Croatia was the chairperson of the Committee.
Upon ratification of CEDAW the Indian Government has made many legislations for upliftment of women. Although clear application of CEDAW by Indian Judiciary is not visible, the policies under the CEDAW are given due respect by the judiciary. The Supreme Court of India has issued certain directives to the state governments to ensure that all necessary action, including legislation, be taken to make registration of marriages compulsory.
In India the following cases have reference to CEDAW:
1. Sakshi –Vrs.- Union of India & ors.:- The case involved public interest litigation by a welfare organization concerning the India Penal Code's classification of various sexual offenses (namely those other than penile/vaginal penetration) as lesser offenses. The Court ultimately refused to strike down the provision but suggested that the legislature ought to respond to the problem. The appellants referred to several conventions, including CEDAW, which were ratified by the state. Such ratification had "created a legitimate expectation" that the State would adhere to its international commitments. The existing interpretation of rape, sought to be imposed by the respondent authorities, was in complete violation of such International commitments as have been upheld by the court.
2. Municipal Corporation of Delhi –Vrs.- Female Workers (Muster Roll):- Female workers of the Corporation sought maternity leave under the Maternity Benefit Act 1961 which was denied because they were not "regular" employees. As India is a signatory of CEDAW, Article 11 of the Convention which governs marriage and maternity was read into the contract of service between the Corporation and the women employees and the employees immediately became entitled to all the benefits conceived under the Maternity Benefit Act 1961.
3. Githa Hariharan & Another –Vrs.- Rserve Bank of India: Challenge to Hindu law which held that a mother could be the guardian of a child "after" the father. The court resolved the situation by holding that "after" did not exclusively mean death but could include a variety of situations. The court stated that the domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them.
4. Vishaka & Ors. –Vrs.- State of Rajasthan & Ors.:- Following a brutal gang rape of a publicly-employed social worker in a village in Rajasthan, a group of activists and NGO's filed a class action under Art 32 of the Constitution seeking the court's enforcement of the fundamental rights provisions relating to working women, and India's international obligations under Arts 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The SC held that any international convention not inconsistent with the fundamental rights guaranteed in the Constitution and in harmony with its spirit must be used to construe the meaning and content of the constitutional guarantee and to promote its object; this is now an accepted rule of judicial construction. It follows that Arts 11 and 24 of CEDAW, General Recommendations Nos. 22, 23 and 24 of the CEDAW Committee, relating to sexual harassment in the workplace, may be relied upon to construe the nature and ambit of the gender equality guarantee and, since the guarantee includes protection from sexual harassment and the right to work with dignity, to formulate preventive guidelines. The court issued a series of guidelines to be observed at all workplaces or other institutions for the preservation and enforcement of the right to gender equality of working women.
5. Apparel Export Promotion Council –Vrs.- A.K. Chopra:- Appellant alleged attempted sexual molestation, but because no actual molestation had occurred, appellant was dismissed. The court held that this was error and any distinction between attempted and actual molestation "rebeled against realism." The court stated that the message of CEDAW and other international agreements was to direct state parties "to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women." Such international agreements must be applied when there is no inconsistency between the conventions and the "norms and the domestic law occupying the field.
CEDAW was also brought into application in the cases of Masilamani Mudaliar & Ors –Vrs.- Idol of Sri Swaminathaswami Thirukoil; Valsamma Paul –Vrs.- Cochin University & Ors and Kerala Public Service Commission –Vrs.- Dr. Kanjamma Alex.
Thus it can be said in conclusion that the application of the CEDAW in India is although not very frequent but it is taken into account when any central or state legislation falls short in imparting justice.
-Krishanu Ray
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