e

cidl
7eno
Patl

Chapter 5
Vulnerable Groups and
Human Rights
There are certain groups of human beings which either by nature or
because of deep-rooted custom are weak and vulnerable, such as, a child,
women, disabled persons, aged persons, migrant workers or persons
belonging to aparticular race. However, they being human beings do possess
human rights and fundamental freedoms. But their rights have been violated
verv frequently by the dominant section of the society. The movement of the
under privileged and deprived sections for securing a place for themselves
under the auspices of the United Nations has contributed a great deal in
Spreading the message of human rights. Anumber of conventions have been
concluded under the auspices of the United Nations to protect their rights
which are as follows :

(1) wOMEN 3De (474 . e )oo6 183 pati el. Ce

The advancement of women has been a focus of the work of the United.
Nations since its creation. The Preamble of the Charter of the United Nations
sets as a basic goal to reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and
women. Furthermore, 'Article 1 of the Charter proclaims that one of the
purposes of the United Nations is to achieve international cooperation in
promoting and encouraging respect for human rights and fundamental
freedoms for the people without distinctjon as to race, sex, language or
religion.
As early as in 1946 the Commission on the Status of Women was
established to deal with women's issues. The Universal Declaration of Human
of discrimination and
Rights had affirmed the principle of the inadmissibility equal
proclaimed that all human beings are born free and in dignity and
freedoms set forth
rights and that everyone is entitled to all the rights and based on sex.
therein, without distinction of any kind, including distinction
against women
However, there continued to exist considerable discrimination
constraints imposed
primarily because women and girls face a multitude of and respect
of rights
Oy society,not by law. It violated the principle of equality
for human rights.
The General Assembly on November 7, 1967 adopted a Declaration' on
implement
Against Women, and in order toElimination
e blimination of Discrimination a Convention on the
he principles set forth in the Declaration,

(XXI), dated November 7. I967

oeneral Assembly Resolution 2263
 108 lHunan Rights
adopted' by the General
of All Forms of Discrimination Against Women was
Convention often described as an
Ssembly on December 18 1979 The came into force in 1981. As on une
nternational Bill of Rights for Women
16, 2006, the Convention had 183 States Partics. SEX

Definitionof Discrimination Against Women'Rights:

Human laid down
Although the International Bill of including women are
comprehensive set of rights to which all persons,
were
additional means for protecting the human rights of women not been
entitled, fact of their 'humanity has Preamble
because the mere
seen as necessary protection of their rights. The
Sumcient to guarantee women the Against Women explains that, despite
the Elimination
to the Convention oa instruments,
other womnen still do not have equal rightS with
theexistence of continues to exist in every sOCiety.
men. Discrimination Against Women defines the term discrimination against
The Convention under Article 1 or restriction made on the basis of sex
women as any distinction,
exclusion
impairing or nullifying the recognition,
which has the etfect or purpose ofirrespective of their marital status, on a
enjoyment or exercise by women, human r1ghts and fundarmental
of
basis of equality of men and women, social, cultural, civi! or any other field.
freedoms in the political, economic,
down a number of fields where
The Convention under Part III lays eliminate discrimination against
States Parties are required to take steps to
women which includes the following
Article 10 provides that
) Education.-The Convention under careers and vocational guidance
women shall be provided same conditions for
same access to studies foI the
as to that of men. They shall be provided 'categories in t
achievement of diplomas in educational establishments of all pre-school,
provided in
rural as well as in urban areas. This equality shall beeducation,
general, technical, professional and higher technical as well as in
to the same
all types of vocational training., Women shall have access
curricula, the same examinations, teaching staff with qualifications of the
same standard and school premises and equipment of the same quality as
to that of men. Women shall be provided same opportunities as to men in M
matters relating to scholarship and other study grant. They shall have same
opportunities for access toprogramme of continuing education including adult
and functional literacy programmes. They shall have same opportunities to
participate actively in sports and physical education.
42Y Employment.The Convention under Article 11 provided that w
States Parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment providing the same rights, in
particular, (a) the right to work; (b) right to same employment
opportunities; (c) right to free choice of profession and employnent; (d) right
to equal remuneration including benefits and to equal treatment in respect
I. Gencral Assenbly Resolution 34/I80 dated December I8, 1979, Earlier, a Convention on the
Political Rights of Wocn was dopled On December 20, 1952 by the Gencral Asenbly
hrough a Resolution 640 (V), which came into orce on July 7, 1954, The
slated that women shal be cntitlcd to vale n all elections on equal terms Convention
with men. without
any disciMination: they shall be eligible lor cleion to all
by national law on cqual terms Willh men and publicly elected bodies established
shall be cntitled o hold public ofice and to
Cxercise all public functions.
2. Anicle I.
 Vulnerable Groups and Human Rights 109

faork of equal value as well as equality of treatment in the evaluation of

the quality of work; (e) the right to social security particularly in cases of
retirement, unemployment, sickness, invalidity and old age and other
incapacity to work, as well as the right to paid leave; (f) right to protection
rhealth and to safety in working conditions. There shall be no discrimination
against women on groun ds of marriage or maternity.
8) Health care.The Convention under Article 12 provides that
States Parties shall take steps to eliminate discrimination against women in
the field of health care, access to health care services, including those related
to family planning.
4) Economic and Social Life.-Article 13 of the Convention provides
that discrimination against women shall be eliminated in other areas of
economic and social lhte. "They shall be provided, the same rights as to that
of men in particular (a) the right to family benefits; (b) the right to
financial credit: (c) the right to
hank-loans, mortgages and other forms of
participate in recreational activities, sports and all aspects of cultural life.
of
(5) Women in Rural Areas.-Article 14 provided eliminationsuch
discrimination against rural areas. States Parties are required to ensure
implementation of
women the right (a) to participate in the elaboration and adequate health
development planning at all levels; (b) to have access to
services in family
care facilities, including information, counselling and programmes;
planning; (c) to benefit directly from social security non-formal, including(d) to
obtain all types of training and education, formal and
alia, the benefit of all
that relating to functional literacy, as well as, interincrease their technical
community and extension services, in order to
in order to
proficiency; (e) to organise self-help groups and cooperatives employment or
obtain equal access to economic opportunities through to have
self-employment; (f) to participate in all community activities; (g) appropriate
access to agricultural credit and loans, marketing facilities,
reform as well as in
technology and equal treatment in land and agrarian
living conditions.
land resettlement schemes; and (h) to enjoy adequate
A8) Equality before Law.-Articleequality15 of the Convention provides that
with men before the law.
"States Parties shall accord to women and to administer
Women shall have equal rights to conclude contractsallstages of procedure
property and States Parties shalltreat them equallyallincontracts and all other
that
ln courts and tribunals. States Parties agree
legal effect which is directed at
private instruments of any kind with a
restricting the legal capacity of women shall be deemed null and void. States
rights with law relating to
Parties shall accord to nmen and women the same
freedom to choose their residence and
he movement of persons and the
domicile. Relations.-Article 16 provides that States
(7) Marriage and Family eliminate discrimination against women
arties shall take all measures to
family relations. Women shall be
in all matters relating to marriage and marriage; (b) the same rights, and
provided (a) the same right to enter into dissolution; (c) the same rights
esponsibilities during marriage and at its children. In all
in matters relating to their
d responsibilities as parents, shall
vases the interests of children be paramount; (d) the same rights to
number and spacing of their children
ecide freely and responsibly on the education and means to enable them
and to have access to the information,
 lHuman Rights

to exercise their rights; (e) the same rights and responsibilities with regard
to guardianship, wardship, trusteeship and adoption of children; (f)the same
personal rights as husband and wife, including the right to choose a family
name, a profession and an occupation; (g) the same rights for both spouses
n respect of the ownership, acquisition, management, administration,
enjoyment and disposition of property, whether free of charge or for a valuable
consideration.
States Parties to the Convention condemned discrimination against
women in all its forms' and agreed to pursue by all appropriate means to
eliminate discrimination against women and, to this end they undertook
(a) To embody the principle of the equality of men and women in
their national Constitutions or other appropriate legislation if not yet
incorporated therein;
(b) To adopt appropriate legislative and other measures
prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal
basis with men;
(d) To refrain from engaging in any act or practice of
discrimination against women;
(e) To take all appropriate measures to eliminate discrimination
against women by any person, organisation or enterprise.
(f) To repeal all national panel provisions which contribute
discrimination against women.
Implementation Procedure t 90\
The Convention under Article 17 made a provision for the establishment
of a Committee on the Elimination of Discrimination Against Women
(CEDAW) for the purpose of considering the progress made in the
implementation of the provisions of the Convention. The Committee shall
consist of eighteen members (at the time of entry intoforce of the Convention)
and twenty-three members (after ratification or accession to the Convention
by thirty-five States). The members shall be experts of high moral standing
and shall possess competence in the field covered by the Convention. The
experts shall be elected by States Parties from among their nationals and
shall serve in their personal capacity.
The States Parties shall report periodically to the Committee a report
on the legislative, judicial, administrative or other measures which they have
adopted to give effect to the provisions of the Convention. The Committee
examines reports submitted by States Parties and makes its suggestions and
recommendations based on their considerations.
It may also invite United Nation specialized agencies to
for consideration and may receive information from submit reports
non-governmental
organisations. Thus, the Committee acts as a monitoring system
the implementation of the Convention. "The Committee shall reporttoannually
oversee
to the General Assembly through the Eeonomic and Social Council on its
activities and may make suggestions and general recommendations based on
the examination of reports and intormation received from the States
ACommittee on the Elimination of Discrimination Parties.
Against Women wvas
1. Aticle 2.
 Vulnerable Groups and Human Rights
tahlished in 1981 when the Convention entered into force. It is
r93 independent experts. The Committee meets only for two weeks composed
which is clearly inadequate. The States Parties are required to areportyear,
neriodically to the Committee on the legislative, judicial,
ather measures which they have adopted to give effect to
administrative
the
or
+he Convention. Thus, the Convention is provisions of
implemented by means
Parties' report. The Committee submits its annual report to the of States
General
Assembly, through the Economic and Social Council, on its activities and
make suggestions and general may
recommendations based on the
of reports and information received from the States Parties. examination
Optional Protocol to the Convention on Women.-The
did not provide for Convention
individual complaint system. In order to fulfil this
deficiency the General ASsembly on October 7, 1999 adopted
Protocol to the Convention on the Elimination of AIl Forms of the Optional
Against Women which would enable victims of sex Discrimination
discrimination,
PxDloitation and other abuses to the Committee on the Elimination sexual
of
Discrimination Against Women against States Parties to the Protocol. Thus,
the Protocol would allow to bypass governments to have the Committee to
investigate their grievances. As on June 16, 2006, the Protocol had 79 States
Prties.
The Protocol provided under Article 2 that a communication may be
made to the Committee either by individuals or group of individuals in
writing and may not be anonymous. Before the complaint is considered, the
Committee must determine that all available domestic remedies have been
exhausted and the complaint has not been examined either by the Committee
or it has been or is being examined under another procedure of international
investigation or settlement. Further, a complaint is admitted only if it is
compatible with the provisions of the Convention. When the communication
has been admitted, the Committee has the option of contacting the State
Party with an urgent request that the State Party take steps to protect the
alleged victims from irreparable harm. The State Party is given six months'
time to provide a written explanation or statement to the complaint.
to the
The Committee's views and recommendations are transmitted
Parties concerned. The State Party is given six months' time to consider the
Views of the Committee and to provide a written response, including remedial
steps taken.
inquiry procedure that allows the
The Protocol also provided the investigation
Committee to initiate a confidential by one or more of its
grave or systematic
members when it has received reliable information of
Violations by a State Party of rights enshrined in the Convention. The
if so required with the
Committee may visit the territory of the State Partyrecommendations
comments or of the
Con sent of the State Party. Findings, the six month's period,
Committee is transmitted to the State Party. After
the Committee the details of any
he State Party may be invited to provide
remedial efforts taken following an enquiry.
Committee to initiate and conduct
Kecognition of the competence of the States Parties at the time
is optional and may be refused by the
an enquiry a declaration. However, the
O1 ratification of the Protocol by making
declaration may be withdrawn at a later time.
Acle I8.
12 HumanRights
The Protocol would enable victims of discrimination and other abuses
of right to communicate the Committee.
Conferences on Women
In addition to the above Conventions three Conferences held during the
UN. sponsored International Women's Decade (1976-1985) Mexico City, 1975;
Copenhagan, 1980, and Nairobi, 1985 and the Fourth World Conference on
Women held in Beijing in 1995, have greatly enhanced international
awareness of the concerns of women and provided the groundwork for
invaluable links between the national women's movements and the
international community. In the Nairobi Conference, Forward Looking
Strategies for Womnen to the year 2000 was produced but that could not be
implemented adequately in many areas though there were clear signs of
progress in the areas of education, health and access to employments.
Beijing Conference (1995) -5Son 142s
The Fourth World Conference on Women, held in 1995 (4-15 September,
1995) in Beijing, commonly called Be,jing Conference stated that Women's
rights are human rights', The Conference called for the integration of women's
human rights in the work of the different human rights bodies of the United
Nations. It considered issues of violence against women in public and private
life as human rights issues. The Conference also called for the eradication
of any conflicts which mnay arise between the rights of women and the harmful
effects of certain traditional or customary practices, cultural prejudices and
religious extremism.
A draft Programme of Action was prepared for consideration in Beijing
Conference which identified 12 critical areas of concern regarding women
which were : increasing burden, poverty; educational opportunities;
inequality in health status; violence against women; effects of armed or other
kinds of conflicts on women, inequality in women's access to and participation
in economic structures and policies; inequality between men and women in
the sharing of power and decision making at all levels; insufficient
mechanisms at all levels to promote the advancement of women; lack of
awareness of women's human rights; insufficient mobilization of mass media
to promote women's possible contribution to society; lack of adequate
recognition and support for women's contribution in managing natural
resources and safeguarding the environment and girl child.
The United Nations Genéral Assembly in 2000 convened a Special
Session on Women in 2000: Gender Equality, Development and Peace for
the 21st Century to assess the progress on Women's issues since the Beijing
Conference in 1995. The Special Session, also known as Beijing +5 renewed
the Beijing Declaration and Platform for Action adopted at the Beijing
Conference on Women in 1995. Delegates agreed that, while progress had
been made towards the full implementation of the goals set out in Beijing.
barriers still remained. Further actions and initiative to implement Beijing
Declaration and Platform for Action, was adapted by the Conterence.' At the
Beijing + 10 Review at the Commission on the Status of Women in 2005 it
1. The Secuity Council tor the ist time also addressea the silualion ot women in umed contlict
and adoptcd Resoltion L325 on Women, Peace and Secunly. The document called on all
parties lo protect women and puls hom gender-bascd voleuce. paricularly rape and sexual
buse
 Vulnerable Groups and Human Rights 113

W9s made clear that gender equality and human rights need to be placed at
the center of human development and human security.
These conferences and the Convention on Elimination of All Forms of
Diseimination Against Women could not achieve the desired effect in view
of the fact that women's human rights are still disregarded and violated
worldwide in different ways and to varying degrees. Violence against women
remains a global phenomenon against which no country, no society and no
community is immune. Discrimination against women exists because it has
roots in societal norms and values that do not change as a result of
international agreements or even by legislation.
CEDAW Committec in 2004 stated that even after 25 years after the
adontion of the Convention on the Elimination of All Forms of Discrimination
Against Women. no country in the World has achieved total equality between
the sexes both in law and in practices. The Committee also stated that
discriminatory laws remain in 178 States that are parties to the Convention.
In other countries, the laws might promote equality but informal
discriminations remains,
In February 2005, the Commission on the Status of Women at its 49th
Session viewed the progress made on the Women's Human Rights Agreement,
better known as the Beijing Platform for Action. The Conference focused on
12 areas, including poverty, environment, economy, education, human rights,
power and decision making, and the girl child. According to the
Secretary-General's report, many countries had made progress by introducing
new laws and through legal reforms to reduce discrimination and violence
against women. The report also stated that the Governments have established
several institutional mechanisms to advance gender equality. In all regions,
improvements have been made in education, poverty reduction, women's
health and participation in public life. The setting up of the CEDAW was
highlighted as a major step for the promotion of women's rights. But
according to June Zeitlin, Executive Director, Women's Environment and
Development Organisation (WEDO) realities are different. The WED0 report
on the status of women in 150 countries concludes that many women across
the world are worse off today than they were 10 years ago and accuses
governments of failing to keep their pledge to achieve equality of the sexes.
The effectiveimplementation of the goals and objectives of the Beijing
Declaration and Platform for Action and the outcome of the twenty-third
special session of the General Assembly was reiterated by the 2005 World
Summit Outcome. The Summit resolved to promote gender equality and
eliminate pervasive gender discrimination by (a) eliminating gender
inequalities in primary andsecondary education by the earliest possible date
and at all educational levels by 2015; (b) guaranteeing the free and equal
HEt O women to own and inherit property and ensuring secure tenure of
property and housing by women; (c) ensuring equal access to reproductive
a , 0) promoting women's equal access to labour markets, sustainable
Cmployment and adequate labour protection; (e) ensuring equal access O
Oproductive assets and resOurces, including land, credit and
technology; (f) eliminating all forms of diserimination and violence against
WOmen and girl child: and (e) promoting increased representation ot women
Eovernment decision making bodies, including through ensuring their
ual opPportunity to participate fully in the politial process.
 DPSP,Atla,keevatlon
114 Human Rights

Status of Women in India

India has given equal status to women under its Constitution under
Article 14 which provides that "The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory
of India". The above provision clearly shows that women in India enjoy right
toequality and any discrimination against them shall be violations of equality
of right and respect for human dignity. The Constitution also provides under
Article 15 that every female citizen has a right to access to shops, public
restaurants, hotels and places of public entertainment and no restriction can
be imposed on female citizens with regard to the use of wells, tanks, bathing
ghats, roads and places of public resort maintained wholly or partly by State
funds. Article 16 of the Constitution provides that there shall be equality of
opportunity for all citizens (including women) in matters relating to
employment or appointment to any office under the State.
Women in India enjoy right to equality. However, in order to improve
their status further, the Constitution provides under Article 15(3) that State
may make special provisions for women. Consequently, a number of legal
provisions aimed at securing equal status for and removing discrimination
against women have been made. For instance, the Constitution was amended
in 1992 to reserve 33 per cent of the seats in their favour in Panchayats'
and Municipalities.' The Amendment is regarded as a major step for
socio-economic empowerment of the women in India. The Constitution has
also cast the duty on every citizen to renounce practices derogatory to the
dignity of women. It being a part of Directive Principles of State Policy, is
not enforceable in a court of law but if the State makes any law to prohibit
any act or conduct in violation of this duty, the Court would uphold the law
as a reasonable restriction of the fundamental rights.
Indian Courts on the basis of above constitutional provisions have
regarded a number of rules and regulations as discrimination against women,
and consequently, unconstitutional. For instance, in C.B. Muthamma v. Union
of India,' validity of the Indian Foreign Service (Conduct and Discipline)
Rules of 1961 was challenged which provided that no married women
be entitled as a right to be appointed to the services and a shall
of the service shall obtain the permission of the woman member
Government
the marriage is solemnized and at any time after the
in writing before
marriage
member of the service may be required to resign from service, if the
a woman
Government is satisfied that her family and domestic commitments are likely
to come in the way of the due and efficient
discharge of her duties as a
member of the service. The SupremeCourt held that the Provisions in Service
Rules requiring a female employee tO obtain the
permission
Government in writing before her marriage is solemnised and denyingofright the
to be appointed on ground that the candidate is a
married woman are
discriminatory against women. The Court however held that equality of
opportunity in matters relating to employment does not mean that men and
women areequal in all occupations and all situations, In Air lndia v. Nergesh

Aicle 243D-Ioscrted by lheConstilubon (Seventy-Ihrd Aendmen) AcL 199)

) Alicle 243TInsertcd by he
(onstulon (Scventy-fourth Amcndu'en) Aet Jy9)
? Alicle 51-Ae) Inscrled by lhe
onstituuon lorty secOnd AmCndmen) AcL 19) 76.
4. ALR Supreme Cout 1979 p. I8O8
 Vulnerable Groups and Hunan Rights
Moorza. I the Supreme Court struck down the provision of the rules which
finulated the condition that services shall be terminated on her pregnancy
onstitutional. However, restriction on Air Hostess not to marry within
four years of service was held reasonable. In Maya Devi v. State of
Maharashtra, the requirement that a married woman should obtain her
husband's consent before applying for public employment was held invalid
dnconstitutional. It was observed that such a requirement is an
anachronistic obstacle to women's equality. In Pratibha Rani . Suraj Kumar
it was held by the Supreme Court that it cannot be said that upon entering
into matrimony the Stridhan property of the married women has to be placed
in the custody of her husband. In Githa Hariharan v. Reserve Bank of India.4
the Supreme Court while interpreting the word 'after' used in Sec. 6 of the
HinduMinority and Guardianship Act, 1956 held that the mother could be
the guardian in absence of the father.
In Vishaka and others v. State of Rajasthan, a writ petition was filed
before the Supreme Court by certain social activists and NGOs with the aim
of preventing sexual harassment of working women in all work places
through judicial process, to fill the vacuum in existing legislation. The
immediate cause for the filing of the petition was an incident of alleged brutal
gang rape of a social worker in avillage of Rajasthan. It was observed by
the Court that there is no domestic law to check the evil of sexual harassment
of working women at all work places, and therefore the contents of
International Conventions and norms are significant for providing guarantee
of gender equality and right to work with human dignity. International
Conventions and norms are to be taken into consideration in the absence of
enacted domestic law and when there is no inconsistency between them. The
Court stated that :
"It is now an accepted rule of judicial construction that regard
must be had to international conventions and norms for construing
domestic law when there is no inconsistency between them and there
is avoid in domestic law.
women
The Court observed that each incident of sexual harassment of
Gender Equality'
at work place results in violation of fundamental rights of penal laws in India
civil nor
and the "Right to life and liberty, Since neither harassment in work places,
provide specific protection to women from sexual effective entorcement of
the Court laid down the guidelines and norms, forguarantee against sexual
the basic human rights of gender equality and sexual harassent at work
narassment and abuse, more particularly against
other institutions, until a
places, for due observance at all work places or
legislation is enacted for the purpose persons in
employer or the responsible deter
1. It shall be the duty of theinstitutions the
to prevent or
work places or other and provide the
Commission of acts of sexual harassment
Au ndia Cabin Cew Axsociation v. Yeshwnee
AJK. 1981 Supreme C'owt I82) ASO see
Merchant, A.JR 2004 Supree Couwt p. I87
2. ISCR 0986) p. 743
3. ALR. 1985) Supreme Court p 025.
4. ALR. 1999 Supreme Court p. T149
5. ALR. 1997 Supreme Court p. 3010
6. lbid. p. 3015.
7. lbid. ). 3016.
 Human Rights

Drocedures for the resolution, settlement or prosecution of acts of

sexual harassment by taking all steps required.
2. All employers or persons in charge of work place should take
following steps to prevent sexual harassment (a) Express
prohibition of sexual harassment as defined at the work place
should be notified, published and circulated in appropriate ways;
(b) The rules/regulations of Government and public sector bodies
relating to conduct and discipline should include rules/regulations
prohibiting sexual harassment and provide for appropriate
penalties in such ruls against the offender; (c) As regards private
employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act of 1946; (d) Appropriate work
conditions should be provided in respect of work, leisure, health
and hygiene to further ensure that there is no hostile environment.
3. Where such conduct amounts to a specified offence under the
Indian Penal Code or under any other law, the employer shall
initiate apprcpriate action in accordance with law by making a
complaint with the appropriate authority. In particular, it should
ensure that victims, or witnesse are not victimized or
discriminated against while dealing with complaints of sexual
harassment. The victims of sexual harassment should have the
option to seek transfer of the perpetrator or their own transfer.
4. Appropriate disciplinary action should be initiated by the employer
if the conduct amounts to misconduct as per relevant conduct rules.
5. An appropriate complaint mechanism should be created in the
employer's organisation for redress of the complaint made by the
victim. Such complaint mechanism should ensure time bound
treatment of complaints.
6. It should be adequate to provide, where necessary, a
Committee, a special counsellor or other support serviceComplaints
including
the maintenance of confidentiality. The Committee should be
headed by a woman and not less than half of its members should
be women. In order to prevent the probability of any undue
pressure or influence from senior levels,
such Complaints
Committee should involve athird party, either NGO or other body
who is familiar with the issue of sexual
harassment. The
Complaints Committee must make an annual report to the
government and the action taken by it.
7. Employees should be allowed to raise issues of sexual harassment
at workmen's meeting and in other appropriate forum and it should
be affirnmatively discussed in Employer-Employee meeting.
8. Awareness of the rights of female employees in this regard should
be created in particular by prominently notitying guidelines in a
suitable manner.
9. Where sexual harassment occurs as a result of an act or omission
by a third party or outsider, the employer and person in charge
will take all steps necessary and reasonable to assist the affected
persons in terms of support and preventing action.
 Vulnerable Groups and Human Rights I17

10 The Central/State Governments are requested to consider adonting

suitable measures including legislation to ensure that the
ujdelines are also observed by the employers in private sector
TheCourt stated that the 'above guidelhnes and norms would be strictly
ahserved in all work places for the preservation and enforcement of the right
to cender equality of the working women. These directions would be binding
and enforceable in law until suitable legislation is enacted to occupy the
field.!
In Apparel Export Promotion Council v. A.K. Chopra,' the Supreme
Court observed that the message of international instruments such as the
Convention on the Elimination of All Forms of Discrimination Against Women
and the Beijing Declaration which directs all States Parties to take
appropriate measures to prevent discrimination of all forms against women
besides taking steps to protect the honour and dignity of women is loud and
clear. These international instruments cast an obligation on the Indian State
to gender sensitise its laws and the courts are under an 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 void in domestic
law.

India and CEDAW

India has ratified the Convention on the Elimination of All Forms of
Discrimination Against Women (1979) on July 9, 1993. Ratification of the
Convention obliges India to honour the obligations imposed by the
Convention. In Madhu Kishwar v. State of Bihar, it was held by the Supreme
Court that the Convention on the Elimination of AIl Forms of
Discrimination
Against Women is an integral scheme of the Fundamental Rights and the
Directive Principles. Article 2(e) of CEDAW enjoins the States Parties to
breathe life into the dry bones of the Constitution, International Conventions
and the Protection of Human Rights Act, to prevent
gender-based
discrimination and to effectuate right to life including empowerment
economic, social and cultural rights. Article 2(f) read with Articles 3, 14 andof
15 of CEDAW embodies concomitant right to
scheme of the Indian Constitution and the Human development as an integral
Rights Act. It is therefore
desirable that the enabling legislature is enacted to give legal effect
Convention so that discrimination against women which exists due to tolegal, the
SOCial and cultural traditions is eliminated. Rights provided therein will
remain meaningless to a large number of women due to their poverty,
ignorance and illiteracy.
India while ratifying the Convention made two declarations and a
reservation. The first declaration reads : with regard to Articles 5(a) and
101) of the CEDAW, the Government of the Republic of India declares that
lt Shall abide by and ensure those provisions with
Ol non-interference in the personal affairs of anyconformity with its pollcy
community without its
I. Al.R. 1977 Suprene Court. p.
2. Al.R. 1999 Supreme Court. p. 3017.
3. AlR. 1996 S.C.W. p. 2178: Also625.see Gaurav Jain v. Union of India, A.LR. 1997 Supreme
Court p. 3021.
I18
HumanRights
initiative and consent. The second declaration States with regard to Article
16(2) of CEDAW, the Government of the Republic of India
though in principle it fully supports the principle of compulsorydeclares that
of marriage, it is not practicable in a vast country like
India
registration
of customs, religions and level of literacy. In with its variety
declarations, India made a reservation by stating that addition to the above
itself bound by paragraph 1 of Article 29 of the it does not consider
settlement of disputes through arbitration. Convention which relates to
It is to be noted that the
of marriage has become Declaration relating to compulsory registration
Court in Seema v. Ashwani meaningless in view of the decision of the Supreme
of all persons who are citizens Kumar,' wherein the Court held that 'marriages
of India belonging to various religions
be made compulsorily registrable in their should
solemnized. The Court asked the States to notify theStates, where the marriage is
months. An official shall be registration within three
As and when the Central appointed under the rules to register marriages.
same shall be placed beforeGovernment enacts a comprehensive statute, the
the Supreme Court for
States shall ensure that the directions are scrutiny. Counsel for the
In 1990, National carried out immediately.
Commission for Women Act was enacted by the
Parliament which established a National Commission for
Commission had wide powers to ensure steady and due Womnen (NCW). The
women. The Commission has been
empowered to
development of
all matters relating to safeguards
provided for
investigate and examine
and other laws; to review the existing women under the Constitution
other laws affecting women and to provisions the Constitution and
of
amendments
legislative measures to meet any lacunae, inadequacies so as tO suggest remedial
or
of violations ofshortcomings
such legislations and to take up the in
cases constitutional
provisions and of other laws
that the directions issued by with appropriate authorities. It is to
the Supreme Court in Vishaka case be noted
been followed by the institutions. The has not
in its Annual Report of National Human Rights Commission
2000-2001
by the Supreme Court were not being has observed that the guidelines
issued
implemented adequately, whether in
institutions of the public sector or in those of private sector.
have not set up the Complaints Many institutions
Committee, required under the
deal with complaints of sexual at the work place. judgment,
to
In order to ensure proper
harassment
in Vishakah case, the NCW implementation
drafted
of the guidelines laid down
a Bill entitled 'Sexual
Women at the Work Place (Prevention and
Redressal) Bill,
Harassment of
pending before the H.R.D. Ministry for consideration. If the 2004. The Bill is
it will be tabled in Parliament for the Bill is approved.
legislation.
Supreme Court guidelines laid down in the Vishakha case. The Bill will replace the
It is to be noted that although
to women by the Constitution, it is a equality
myth to
of status has been guaranteed
the victims of various kinds of violence within millions of women as they are
the educational system. They are still the houses, at work places and in
promises for improving the plight of women were subject of suppression. Tall
was declared as Women's Empowerment Year' but they made during 2001 which
fulfilled. National Policy for the Empowerment of Womenwere far from being
was placed before
a øroup of ministers but the policy has
not been adopted. Seminars were
1. AR 2006 Supreime Coun. p. 158 at p. |l61.
 119
Vulnerable Groups and lIuman Rights
organised on a number of issues affecting the conditions of women, no
improvement has been made. They are being discriminated as compared to
brothers at home and their nmale colleagues at work.
Protection of Women from Domestic Violence Act, 2005.The
Beijing Declaration and the programme of action had regarded domestic
violence as a human right issue and a serious deterrent to development. In
order to provide effective protection of the rights of women who are victims
of violence of any kind occurring within the family, the Protection of Women
from Domestic Violence Act, 2005 was enacted by the Parliament.
Domestic violence has been defined by the Act under Section 3 as any
act, omission or commission or conduct of the respondent shall constitute
domestic violence in case it : (a) harms or injures or endangers the health,
safety. life, limb or well being, whether mental or physical, of the aggrieved
person or tends to do so and includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse; or (b) harass, harms,
injures or endangers the aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful demand for any dowry or
other property or valuable security; or (c) has the effect of threatening the
aggrieved person or any person related to her by any conduct mentioned in
clause harm, whether physical or mental, to the aggrieved person.
Any person who has reason to believe that an act of domestic violence
has been, or is being, or is likely to be committed, may give information
about it to the concerned Protection Officer. Apolice officer, Protection Officer,
service provider or Magistrate who has received a complaint of domestic
violence or is otherwise present at the place of an incident of domestic
violence or when the incident of domestic violence is reported to him, shall
inform the aggrieved person (a) of her right to make an applicationfor
obtaining arelief by way of a protection order, an order for monetary relief,
a custody order, aresidence order, a compensation order or more than one
such order under this Act; (b) of the availability of services of service
providers; (c) of the availability of services of the Protection officers; (d) of
her right to free legal services under the Legal Services Authority Act, l987;
(e) of her right to file a complaint under Section 498-A of the Indian Penal
Code, wherever relevant.
An aggrieved person or a Protection officer or any other person on behalf
of the aggrieved person may present an application to the Magistrate seeking
one or more reliefs under the Act. The relief sought may include a relief for
issuance of an order for payment of compensation or damages without
prejudice to the right of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic violence committed
aggrieved person
by the respondent. The Magistrate may, after giving the being
and respondent an opportunity of being heard and on prima facie
satisfied that domestic violence has taken place or is likely to take place,
prohibit the
pass a protection order in favour of the aggrieved person andor (b) aiding
respondent from (a) committing any act of domestic violence;
violence; (c) entering the
or abetting in the commission of acts of domestic
place of employment of the aggrieved person or, if the person aggrieved is a
child, its school or any other place frequented by the aggrieved person; (d)
with the aggrieved
attempting to communicate in any form, whatsoever,or telephonic contact;
electronic
person, including personal, oral or written or
120 lHunanRights
accounts; or (f)
(e) alienating any assets, operating bank lockers or bank
causing violence to the dependents and other relatives.
It is to be noted that the Act alone cannot eliminate the discrimination
against woman. In order to reduce discrimination, we must change the
attitude and behaviour of men: and this has to start early, in boyhood.
Enlightened fathers, husbands and brothers are more likely to respect
daughters, wife and sisters.