ABSTRACT
The “Convention on the Elimination of All Forms of Discrimination Against Women” i.e. (CEDAW) came into existence in the UN General Assembly in the year 1979 is known as an international bill of rights for women[1]. It outlaws discrimination of any kind on the basis of gender, which infringe the human rights and fundamental freedom. The Indian government got along with the Convention for Elimination of All Forms of Discrimination against Women and restated that not treating women equally violate the principles of equal rights and respecting the human dignity of equality.
The convention explains the term discrimination against women and also states that every country should take proper measures to resolve the issue. Even though the Indian Constitution provides equal protection of the laws and equality before the law, women have been discriminated against regardless of such rules. One of the areas where it can be seen is the personal law i.e. the Hindu law
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INTRODUCTION
There are different types of personal laws prevailing in the country for thousands of years. The Christians are ruled by the Christian law, Muslims are ruled by the Muslim law, Parsi are ruled by Parsi law. The Jews are governed by their own personal laws. The Sikhs, Buddhists, Jains and the Hindus are mainly ruled by the Hindu law[2]. There are several rules and amendments under these laws according to the place where the laws are to be amended. Both women’s and men’s rights have been addressed under these laws in all the countries across the globe. But ensuring protection of women’s rights has been a triggering scenario not only in recent times, but also from the last many years.
Laws related to marriage or property or inheritance are not being able to guarantee the protection of women’s rights in the country. It has resulted in flagrant contravention of the rights of women, which are guaranteed under the International Conventions and the Indian Constitution, which are related to the protection of human rights.
There are various loopholes in the personal laws like in the Hindu law relating to the matters of man dominating society, forceful or premature marriage, endowment, hostile treatment by men at home etc. Protecting the status of women has been a sensitive issue throughout these years as the laws prevailing in the religion show that women are in a subordinate position as compared to men.
After fighting for many years, communities and various organizations have shown their concern by attending numerous conferences and meetings for protection of women’s rights. It can be said that one of the substantial attainments of this decade would be addressing the issue of injustice and negativity that women have to go through and creating awareness for discriminatory practices against women. The backstory of CEDAW involves a long-driven struggle led by women in different eras without or with the UN. The issue of inequality is complex in nature and requires an equally compound system of framework which can fight the traditional as well as the modern problems.
It is considered as a live document which is constantly redefining and expanding. The pervasive social stigma and rules and policies that systematize preconception against people of their gender identity are often shown by misogynists. CEDAW offers a box of opportunities by giving implied strength and power to all women throughout the world.
HINDU LAWS AND A WOMAN’S RIGHTS
The uniqueness in the Indian laws is that it has the largest number of laws that give special privileges to women. The author believes that such laws must be the result of all the struggles and movements led by strong and vibrant women and their growing participation in various professions and the inexorable march of feminists which questioned the laws that were gender biased and led towards rephrasing the laws relating to inheritance, dowry, rape etc. Hindu laws were viewed by the Indian society from a patriarchal approach. The idea of equality does not call for any adjustments in the positions of men and women while framing any laws. Personal laws as they are alive today have been extracted from the traditions and customs that were practiced in the ancient society that favored native patriarchy. If we take into account the term “personal laws” then it impliedly takes into account the scriptural mandates and customary practices in it.
One section where women were widely discriminated against, was the matter of inheritance. Even though they were not entirely ignored from the inheritance, but somewhat oppressed under the patriarchal framework. According to Hinduism, females were known to support men and promote procreation. In ancient history, women were referred to respectable positions in society like the Sages and Saints in Vedas and Upanishads. On the other hand, under the customs and traditions, a woman’s freedom had boundaries[3]. She was considered as a dependent being in a house which was dominated by male members.
INHERITANCE LAWS
Even though the Indian constitution provides various liberal laws ensuring equality in the society, the legal set up had discriminatory provisions. Prior to 1956, Hindus followed the Shastric and Customary laws which had differences on the basis of caste. In Manu Smriti, a wife, son and slave under the law did not have their own wealth, the part which they earn exclusively belongs to the man to which they belong. Just like this, Narada said that a son was considered independent on a case when his parents are dead and is considered dependent on them during their lifetime even though he is old[4]. So, females and their children did not have rights of property. A female was considered equivalent to positions of slaves. In a joint family under Narada, only the male affiliates were granted the right of survivorship, which was later on replaced by the women’s right to property act 1937. Such loopholes were covered later on by various legislations that are considered to be a huge development towards ensuring gender equality in the personal laws. The Hindu Succession Act 1956, the Women’s Right to Property Act 1937 and CEDAW gave birth to a new legal approach which changed the traditional mindsets and patriarchy.
DIVORCE LAWS
Under the Hindu laws, marriage is considered as a sacred relationship which is divine and a sacrament. One simply cannot split up on any personal grounds. Divorce is still considered as an act of dishonor or disgrace, especially when a woman comes forward to it. Divorce is often viewed as an empowering movement by a woman to get away with domestic abuse. After getting separated, an Indian woman is allowed to get the maintenance from the husband but doesn’t have any rights over the assets like the house or commercial property which was bought in the husband’s name during the marriage.
ADOPTION LAWS
Under the Shastric Hindu law, limited circumstances allowed women to go for adoption. Her adoption right was restricted. Even though the adoption right of a woman is recognizable under the Hindu Adoption and Maintenance Act, 1956, discrimination still prevails in the system. Earlier, a married man could adopt, but a married woman was not allowed to adopt. This was then rectified by the new laws amended in the year 2010. These circumstances question the existence of substantive equality, where a legal system of framework prevails in a state which prescribes that everyone is equal before the law. However, this legal framework is nor extensive enough to formulate conditions that embark the actual image of women’s lives and their rights because such factors that discriminate against women are far spread beyond the problems being managed by these laws.
THE NEED FOR CEDAW AND HOW IT HELPED TO OVERCOME THE LOOPHOLES
The covenant forbids all the disparities and limitations that bar the freedom and opportunities for women from exercising equal rights as men. The preamble along with CEDAW supports that “the full and complete development of a country, the welfare of the world and the cause of peace requires the maximum participation of women on equal rights with men in all fields.” the directive principles and the fundamental rights which engulf the provisions related to equality were recognized by the “Universal Declaration of Human Rights” in a case where Chief Justice explained with the help of the declaration India’s understanding about human rights[5].
The Articles that explain equality among sexes are 14, 15(1) and (2) and 6(1) and (2) which bars discrimination against women and also welcomes ratifying actions and other declarations which lead to the execution of CEDAW. The directive principles of State policy include Part IV of the Indian constitution, which instructs the state regarding the protection of women’s human rights which also consist of right to maternity benefits, the right to equal pay, right to health and work in hygienic conditions. The existence of various acts has made it easy for women in exercising their rights like the Equal Remuneration Act 1976, the Maternity Benefit Act 1961, the Immoral Traffic (Prevention) Act 1956, the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994, the Dowry Prohibition Act 1961 are various acts that have given shape to new obligations that the state had to follow to bring gender justice.
Another case took the help of CEDAW and its provisions where the court has included the provisions in the constitution that bar the discrimination on the basis of sex and also gave importance to CEDAW by mentioning it’s general recommendations relating to sexual harassment which were directly proportionate to the article mentioning sexual harassment at workplace[6].
The Supreme court has encouraged to look into the recommendations of international conventions to give more strength to the fundamental rights and promote the intention of constitutional assurance. In case the existing domestic laws are not effective enough, then the provisions of international conventions and protocols are noteworthy for interpreting the Articles in the Constitution regarding gender equality and right to work with human dignity.
CONCLUSION
CEDAW not only provides formal rules and policies by simply saying that it stands for women’s rights by being gender unbiased, but also considers the actual effect and impact on society. The convention’s model requires the usage of actual conditions of women’s lives rather than the partial promises made under legal systems. A vast range of measures, including administrative, executive and legislative policies, programs have been initiated. The CEDAW committee has the duty of reviewing the challenges and results of newly implemented policies. Successful measures are being noted which are needed in order to achieve equality and identify the complications that need to be fixed for future implementation.
Hearing from women about their changing experiences in their countries is a great way of knowing whether the convention actually is successful or not. The committee sets different meeting times for women to record the progress of the convention. Many NGO’s are also a part of this process as they inspect the obligations of their area after the convention. This helps to raise awareness about the convention.
The traditional patriarchal approach of society has forced women to think that it is in their destiny to rely upon men. The mentality of people is such that women are suppressed under such laws. India is a multi-religious country with secular laws. It is the responsibility of the state to provide secular codes of family laws. There are political obligations that are refraining them from doing so. It is necessary to have more uniformity in the laws of all religions in order to improve the position of women. It is observed that education is an important source of attaining this goal as the stereotypes society often ignores such problems.
References:
1. Committee on the Elimination of Discrimination Against Women’s Rights (CEDAW), Amnesty International Publications (2014
2. Section 2 of Hindu Marriage Act, 1955
3. Kulwant Gill, Hindu Women’s Right to Property in India, Deep & Deep Publications Pvt. Ltd., New Delhi (1986)
4. ibid
5. Kesavananda Bharati Sripadagalvaru&ors. v. State of Kerala &Anr. AIR 1973 SC 1461
6. Vishakaand others v. state of Rajasthan and others (AIR 1997 SC 3011)
About the author –
This article is authored by Daksha Dhiman, second year law student at Symbiosis Law school, Hyderabad.
