1|Page Human Rights GCT-2 Assignment

Faculty of Law,

Aligarh Muslim University

(Aligarh)

Human Rights

GCT-2 Assignment

TOPIC- “Exhaustive note on CEDAW and its application

in India with special references to Article 15(3) and 16(2)
of Indian Constitution”
Submitted to Submitted by

Prof. Shakeel A. Samdani Tushar Varshney

16 B.A.LL.B. 69

GH 5631

Group 3rd

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 2|Page Human Rights GCT-2 Assignment

Synopsis

TOPIC- “Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”

1. Introduction
2. Application of CEDAW in India
3. Recommendations from women’s groups taken up by the CEDAW Committee for
India
4. Pursuant to this policy many of the personal laws have been amended
5. Article 15(3) in the Constitution Of India 1949
6. Article 16 (2) in the Constitution Of India 1949
7. Conclusions and Recommendations
8. Bibliography

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 3|Page Human Rights GCT-2 Assignment

Acknowledgement

Firstly, I would like to thank God for able to do this Project Work

Secondly, I would like to express my special thanks of gratitude to my

Criminal Procedure Code teacher Adv. Absar Kidwai for their able guidance and support
in completing this Project Work

Last but not the least I would like to extend my gratitude to my parents for providing me all

the facilities that was required in completing this Project Work.

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 4|Page Human Rights GCT-2 Assignment

“Exhaustive note on CEDAW and its application in India

with special references to Article 15(3) and 16(2) of Indian
Constitution”

Introduction

The women’s movement has claimed this Convention and deployed it as a tool to rally
around, foster international dialogue, fight for non-discrimination and equality and build
accountability among duty bearers. The Convention, therefore has become a live document,
that is being continually redefined and expanded.

The Convention on the Elimination of All Forms of Discrimination against women

CEDAW was adopted in 1979 by the UN General Assembly, is often described as an

international bill of rights for women. Consisting of a preamble and 30 articles, it defines
what constitutes discrimination against women and sets up an agenda for national action to
end such discrimination.

The Convention defines discrimination against women as "...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."

By accepting the Convention, States commit themselves to undertake a series of measures to

end discrimination against women in all forms, including:

 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

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 5|Page Human Rights GCT-2 Assignment

 to ensure elimination of all acts of discrimination against women by persons,

organizations or enterprises.1

Jain, Devaki (2005). Women, development, and the UN a sixty-year quest for equality and
justice. Bloomington, Indiana: Indiana University Press pg 88-89

Application of CEDAW in India

India signed CEDAW on July 39, 1980 and ratified it on July 9, 1993, with certain
reservations. India has not yet ratified the Optional Protocol to CEDAW. The CEDAW
Committee considered the combined fourth and fifth periodic reports of India on July 2,
2014, during its 58th session.2 As the India periodic reports were submitted to the CEDAW
committee prior to the adoption of GR 30, the reports could not have mentioned the
recommendation. However, the reports made no mention of UNSCR 1325—which was
adopted in 2000—and its supporting resolutions on women and peace and security (WPS)
adopted since.

During the 58th session, the CEDAW Committee invoked GR 30’s broad applicability to
raise concern regarding the government’s response to the violence in Gujarat and North East
India, where land rights, access to education, violence against women and basic infrastructure
remain problematic.3 In 2013, there were over 33,000 reported cases of rape, along with over
118,000 reported instances of torture, and both rates have increased multifold in the past
years.4The root causes of this dramatic increase in violence against women are the deeply
rooted inequality throughout Indian society where marginalized groups, including women,
are constantly disregarded, and an overarching culture of complicity. The CEDAW
Committee also brought up GR 30 in the context of Indian housing projects in northern Sri
Lanka, given that GR 30 addresses the extraterritorial application of the CEDAW
convention.5 Moreover, CEDAW experts relied on GR 30 to ask what concrete measures are
in place to address internal displacement that result from the conflict in India, which is
particularly affecting women.

Recommendations from women’s groups taken up by the CEDAW Committee for India
1
The Convention on the Elimination of All Forms of Discrimination against Women
https://www.un.org/womenwatch/daw/cedaw/
2
See CEDAW/C/IND/4-5 and Corr.1 and Add.1.
3
The Committee’s list of issues and questions is contained in CEDAW/C/IND/Q/4-5 and the responses of India
are contained in CEDAW/C/IND/Q/4-5/Add.1.
4
http://worldwidejournals.in/ojs/index.php/gjra/article/view/657/657

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 6|Page Human Rights GCT-2 Assignment

Civil society organizations took part in a briefing with the CEDAW committee prior to the
consideration of the India reports in July 2014. During the briefing, representatives from
WinG-India specifically urged the CEDAW Committee to make use of GR 30 to address
violence against women and girls in heavily militarized regions of North East India. The
impact of women’s advocacy efforts on GR 30 was evident in the questions of the CEDAW
Committee to the Indian government delegation during the 58th CEDAW session, as well as
in the Concluding Observations. As Bondita Acharya of WinG-Assam remarked in a public
de-briefing in August 2014, “we as women activists were pleased with the level of
engagement with the CEDAW members who played an active role in raising questions to the
government of India delegation, with reference to women in conflict affected regions.5

Pursuant to this policy many of the personal laws have been amended

Judgements of the Supreme Court on maintenance for Muslim women, in the DanialLatiff
case (AIR 2001 SC 1274), and the judgement on triple talaq in the Shaminara -vs- State of
Uttar Pradesh ((2002) 7 SCC 518) hopefully, will bring about changes in the mindset of the
community with regard to payment of maintenance to divorced Muslim women and the
manner in which triple talaq is to be pronounced that is legally accepted by the Courts.
(Amongst the Mohammedans, the man has the right to divorce his wife by merely
pronouncing 'talaq' three times). Recently, there was a nation wide debate on 'triple talaq' and
the religious leaders in the Muslim Personal Law Board met in July 2004, to consider the
manner in which triple talaq is to be pronounced and to adopt a format for the 'nikhanama'
(marriage contract deed). The religious leaders have resolved to raise public opinion on these
issues in their communities. On 29th October 2004 the All India Muslim Personal Law Board
proposed guidelines for a model marriage that declares triple talaq pronounced at a time
without any adequate reason as a “grave sin”, and also stated that the spouses should resort to
mediation before going in for talaq. The Board in April 2005 adopted a model nikhanama and
suggested that declaring ‘talaq’ at one go and divorcing one’s wife should be discouraged.
The Government hopes that such initiatives will eventually bring about a change that is
favourable to women within the communities.

5
Press release on the Debriefing on CEDAW with Specific Reference to GR 30, “India requires a critical re-
examination of the human rights situation of women,” Guwahati, August 19, 2014, available at:
http://www.wing-india.org/wpcontent/uploads/2014/09/Report-on-De-briefing-on-CEDAW-in-Guwahati.pdf
[accessed 14 Nov. 2020]

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 7|Page Human Rights GCT-2 Assignment

The National Population Policy, 2000 adopted by the Government of India has set the target
of achieving 100 per cent registration of births and deaths by 2010. Registration of Births and
Deaths Act, 1969 provides a comprehensive system of registration across the country and
makes it obligatory on the part of medical institutions, maternity homes, etc. to report events
of births and deaths occurring therein directly to the concerned Registrar for registration. In
case of events occurring in houses, the head of the household has been made responsible to
report the event. The Act has also made certain persons responsible for notifying the
Registrar with regard to the occurrence of these events. The process of revamping the
registration system in the country by modifying the forms and procedures of registration with
a view to making the registration process simple, initiated in the year 1999 has been
completed. This has resulted in simplified procedures and speeding up of receipts of monthly
reports from the State Headquarters. Different State Governments have framed rules under
the Registration of Births and Deaths Act, providing procedures for the registration of births
and deaths and many States have simplified the same.

In Gita Hariharan case (AIR 1999 SC 1149) dealing with the rights of woman to be a
guardian for the minor child, the principles of the Convention have been applied to hold the
provisions of the Hindu Guardianship and Minority Act, 1956, as being discriminatory.

In Gaurav Jain’s case, (AIR 1997 SC 3021) the Supreme Court dealing with women in
prostitution, has reiterated the principles of CEDAW and has acknowledged that human
rights for women including girl children are inalienable, integral and indivisible part of the
universal human rights.

In Apparel Export Promotion Council case, (AIR 1999 SC 625) the Supreme Court,
dealing with sexual harassment, has recognized that the international instruments cast an
obligation on the Indian State to gender sensitize its laws and the Courts are under obligation
to see that the message of the international instruments is not allowed to be drowned. The
Courts are under an obligation to give due regard to International Conventions and Norms for
construing domestic laws more so when there is no inconsistency between them and there is a
void in the domestic law

Article 15(3) in The Constitution Of India 1949

(3) Nothing in this article shall prevent the State from making any special provision for
women and children Thought of this legislation to be carte blanche (complete freedom to act

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 8|Page Human Rights GCT-2 Assignment

as one wishes) to impose differential benefits and ostensibly to the advantage of women at
the cost of burdening men may ponder in your mind. But it is justified as it compensates for
early injustice met by women and children at the hands of a male-dominated society. Right to
free and compulsory education for children under the age of 14 years, section 56 of CPC,
the Maternity Benefit (Amendment) Act 2017, etc. are some of the best examples of such
provisions.

In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, U.P. govt
made provision providing reservation BTC training programme as follows:

 50% of the candidates to be selected shall be from Science stream,

 50% from the Arts stream,
 further 50% would be female candidates,
 And the other 50% would be male candidates.

Article 16 in the Constitution Of India 1949

As one of the important constitutional provisions for deprived sections, Article 16 gives
Parliament the power to make any law prescribing the requirements “for a class or classes of
employment or appointment to an office under the Central Government or any local
authority.” Clause 4 of the Article acts as a guideline for the government for making any
provision for the reservation of appointments in favour of any backward class of citizens who
are “not adequately represented in the services under the State”.6

However, as regards Article 16 (1), the Government for the present, states that it is committed
to its National Empowerment Policy adopted in 2001. This policy aims at encouraging
changes in personal laws such as those related to marriage, divorce, maintenance and
guardianship so as to eliminate discrimination against women. This will be done with the
initiative of and full participation of all stakeholders, including the community and religious
leaders. Therefore, the question of withdrawing the declaration will be considered in future.

6
Article 16 of the Indian Constitutionhttps://samistilegal.in/article-16-of-indian-constitution/

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 9|Page Human Rights GCT-2 Assignment

C.MasilamaniMudliar’s case (AIR 1996 SC 1697) the Supreme Court, dealing with the
property rights for women, has held that the personal laws, derived from scriptures,
conferring inferior status on women is anathema to equality. The court has called upon the
State to eliminate obstacles, prohibit all gender-based discriminations as mandated by 21
CEDAW/C/IND/2-3 Articles 14 and 15 of the Constitution of India. By operation of Article
2(f) and other related articles of CEDAW the State should take all appropriate measures
including legislation to modify or abolish gender based discrimination in existing laws,
regulations, customs and practices which constitute discrimination against women.

Conclusions and Recommendations

Although GR 30 provides authoritative guidance to State parties to CEDAW to ensure that

women's human rights are protected before, during and after conflict, the Indian
government’s denial of conflict hinders the implementation of GR 30 and of UNSCR 1325
and the supporting resolutions. To ensure that GR 30 and the WPS resolutions are used
complementarily to empower and protect women, as well as to recognize and put an end to
conflicts in India, WPS actors must consider the recommendations below.

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”
 10 | P a g e Human Rights GCT-2 Assignment

Bibliography

1. https://www.un.org/womenwatch/daw/cedaw/
2. http://worldwidejournals.in/ojs/index.php/gjra/article/view/657/657
3. http://www.wing-india.org/wpcontent/uploads/2014/09/Report-on-De-briefing-on-CEDAW-in-
Guwahati.pdf https://samistilegal.in/article-16-of-indian-constitution/

“Exhaustive note on CEDAW and its application in India with special references to
Article 15(3) and 16(2) of Indian Constitution”