Gender Justice and India’s Obligations Under International Conventions

A brief of the most important international rules in the matter of male/female equality.

The Universal Declaration of Human Rights, 1948, is not a treaty in itself but defines ‘fundamental freedoms’ and inspired ICCPR and ICESCR.

Art. 16: (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The International Covenant on Civil and Political Rights, 1966¹

Art.3 places an obligation on all covenanting parties to: “…undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”.

Art. 23:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

International Covenant on Economic, Social and Cultural Rights, 1966²

Art. 7 obligates state parties to: “recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers (…); (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays”

Beijing Principles of the Independence of the Judiciary³

 

The objectives and functions of the Judiciary include the following:

(a) To ensure that all persons are able to live securely under the Rule of Law; (b) To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) To administer the law impartially among persons and between persons and the State.

Convention on the Political Rights of Women, 1954⁴

(a) Women shall be entitled to vote in all elections on equal terms with men, without any discrimination; (b) Women shall be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination; and (c) Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men, without any discrimination.

The Declaration on Elimination of Violence against Women (DEVW) 1993

Art. 14: State should develop penal, civil, labour and administrative sanction and domestic legislation to punish and redress wrongs caused to women; women who are subjected to violence should be provided with access to the mechanism of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered; State also informed women of their rights in seeking redress through such mechanisms.

Convention on Elimination of all forms of Discrimination against Women (“CEDAW”)⁵

– Art. 1 defines “discrimination against women” as “…..physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non- spousal violence and violence related to exploitation….”

– Art. 1 is clarified by Recommendation 19 to include gender-based violence: “The definition of discrimination includes gender-based violence, i.e., violence that is directed against a woman because she is a woman or that affects woman disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention regardless of whether those provisions expressly mention violence…”

– Art 11(1): States parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure on the basis of equality of men and women, the same rights in particular (a) the right to work as an inalienable right of all human beings; (b) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

– Art. 22: equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place

– Art 24: State parties to include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the workplace

The UN Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) has recommended that the country should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…”

The In-depth Study on all forms of Violence against Women⁶clearly finds that non-implementation or ineffective implementation of existing domestic laws in most countries was the single most important reason for continued immunity to perpetrators of violence against women, particularly in intimate relationships.

The Justice Verma Committee is of the opinion that substantive equality and women’s rights as human rights have been established both in domestic and international legal regimes: the Constitution embraces the substantive equality approach as provided in Article 15(1) and Article 15(3)⁷; the concept of formative action under sub-article (3) of Article 15 is not merely an enabling provision but, in the context of Article 14, maybe a mandatory obligation.

The violence against women has a dual characteristic. It is an offence under the principles of penology but, more importantly, it is a direct constitutional violation.

Dowry Prohibition Act, 1961, as well as the Protection of Women from Domestic Violence Act, 2005, were enacted in India to prevent and remedy the occurrence of dowry and domestic violence in Indian society. offences of cruelty and violence by the husband and his family against the wife (for dowry or otherwise) constituted over 3% of the total number of crimes against women in 2006-2007. Why did the Parliament feel the need to enact special legislation in respect of dowry and domestic violence if the provisions of the Indian Penal Code (IPC) were being effectively enforced?

1 India acceded to the ICCPR on April 10, 1979. India has, however, not signed or ratified the optional protocols to the ICCPR (including the Second Optional Protocol, which abolishes death penalty)