The Convention on the Elimination of All forms of Discrimination Against Women and its use in advocating the human rights of Dalit Women
The situation of Dalit women in India is unique, and unlike any other. Age-old discriminations and prejudices operate in multi-layered ways across class, regional and geographic boundaries, in a conspiracy to keep Dalit women in a position of always being at the mercy of political, social and economic forces, despite Constitutional guarantees of equality, and decades of (purportedly) targetted interventions by government. The reason for the lack of change in the situation of Dalit women is due to lack of political and social will to improve their lot, as some influential sections of Indian society have a vested interest in keeping the Dalit women poor, illiterate, dependent and subjugated, despite the plethora of legal provisions in their favour, almost never implemented due to the same vested interests operating the enforcement machinery. Thus, even if this already poor and marginalized group manages to reach knock on the doors of the court, they rarely get redress. Where does one turn in such a situation?
In this context, it is important to know that the International community, represented by the UN, has worked to assure the betterment of society through involvement in the humanitarian, civil and political rights of the citizens of this world. Several important Covenants testify to its commitments to these ideals, including the Universal Declaration of Human Rights (UDHR) adopted in 1948; the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International covenants on Civil and Political Rights (ICCPR) both adopted in 1966; the International Convention on the Elimination of All forms of Racial Discrimination (CERD) adopted in 1965; the Convention on all forms of Discrimination Against Women (CEDAW) in 1979; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1984; and The Convention against the Rights of the Child (CRC) in 1989.
Of these the CEDAW is the most important Convention for the protection and promotion of Women's Human Rights. By signing CEDAW, governments commit themselves with regard to the elimination of all forms of discrimination against women and to submit to international scrutiny and international accountability on these issues. Hence, anyone working in the area of women's human rights must have a good understanding of the provisions of this convention so that it may be used, particularly in litigation to promote the rights of women, especially where legislation does not keep pace with the pace of social developments. One of the most recent and effective uses of this Convention in India was in the judgement on Sexual Harassment at the Workplace, known as the Vishaka judgement, in which several provisions of CEDAW were cited to promote the safety, welfare and rights of women in the Workplace.
Hence one yet-to-be explored option by activists working on issues of Dalit women is to cite CEDAW provisions in order to force the system to act. Therefore, activists and lawyers working on issues Dalit women need to study the Convention thoroughly and acquaint themselves with all its provisions, to enable those dealing with any issue relating to the day-to-day lives of women to analyse which article of the Convention apply, and to use these provisions in approaching the government or the legal system for redress.
The issue of Dalit women was raised in the CEDAW committee in New York in January 2007, when this writer, as part of an Indian women's NGO delegation to the CEDAW meeting, presented a detailed analysis of the CEDAW as it applies to the situation of Dalit women in India . These efforts, combined with earlier efforts, enabled the CEDAW committee raise several key questions and make general recommendations on the situation of Dalit women and girls in India, especially on the issue of trafficking for prostitution, on the non-implementation of laws banning manual scavenging, and the poor response of the legal machinery to the rampant violations of human rights of Dalit women in India. The main paper submitted to the CEDAW committee is found at the end of this article, in a section entitled: CEDAW and Dalit Women. Civil society actors especially those involved in Dalit women's issues have the responsibility to hold the government accountable for implementing these recommendations.
CEDAW and Women's Human Rights:
The post-war scenario in the 1940s focussed on development and reconstruction of war-torn societies and economies. The mobilisation of women into the war effort had brought to the fore the inherent capabilities of women into the forefront as never before. After demobilization, women realized that they were being marginalized in all spheres of public life again, despite their costly contribution to the war effort in their societies. Women in universities, schools, in industry and government, began to voice their disagreement with this approach. Dismantling of the colonial structures began in many of the countries of Asia at the same time and later in Africa , leading to the rising aspirations of the citizens of these countries. The international women's movement gained momentum and found its echo in the setting up of the UN Commission on the Status of Women, constituted in 1946, with the mandate to monitor the status of women, promote their rights, and highlight areas in which women are denied equality with men. Several Declarations and conventions on the subject of women's rights resulted, the most important and comprehensive being the CEDAW.
A brief but comprehensive document of about 12 pages, CEDAW sets out the meaning of equality and the means to achieve it. Structured like any UN document, it consists of a Preamble, and 30 subsequent articles, 16 of which focus on the civil and legal rights of women, the dimension of human reproduction, and the impact of cultural factors on gender relations. In this it is unlike any or the other conventions. CEDAW is the most comprehensive bill of Rights for Women. It is built around three principles: the principles of State Obligation, Nondiscrimination and Substantive Equality, namely equal opportunity with equal results for both men and women. That is, it sets up a clear avenue for the accountability of the state in the matter of ensuring the rights of women through ensuring that women are do not face discrimination and also enjoy substantive, ie, de facto equality with men.
CEDAW defines discrimination 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.” It calls for states parties (1) , inter alia, to condemn discrimination in all forms and calls upon them to undertake to embody the principle of equality of men and women in their national constitutions and legislations; establish the protection of the legal rights of women on an equal basis with men and to refrain from discrimination against women; take all measures to eliminate discrimination against women and undertake reform of existing laws, regulation, customs and practices to bring them in line with basic human rights and non-discrimination.
Countries signing the Covenant have the option to express reservations or make declarations in respect of any provision, implying that the particular provision is not binding upon them. However this is meant to be a temporary measure to give the state the time to remove obstacles to the implementation of the articles it has reserved. The ratification is the process whereby the CEDAW is tabled in the national parliament of the country, after which it is deemed to be active in that country. The Convention consists of five parts, divided as follows:
Part 1 (Art. 1 to 6) deals with definition of discrimination, and State obligation in administrative, legal, political, economic, social, and cultural fields to ensure the full enjoyment of women of their human rights and fundamental freedoms. It enjoins the states parties to undertake temporary special measures to accelerate the de facto enjoyment of these rights and freedoms. Art.6 deals with measures against trafficking and the exploitation of prostitution of women.
Part 2 (Art. 7 to 9) deals with Women's participation in political and public life.
Part 3 (Art 10 to 14) deals with Education, Employment, Health, Access to socio-economic benefits and the needs of rural women.
Part 4 (Art. 15 and 16) treats of legal rights and rights within marriage including reproduction, parenting, and property. It declares that the betrothal and marriage of a child shall have no legal effect, and that the government should take necessary action to specify minimum age at marriage and to ensure the registration of all marriages in an official registry compulsory.
Part 5 (Art. 17 to 30) establishes the Committee to monitor the implementation of CEDAW, discusses its roles and responsibilities and establishes rules of procedure for its functioning.
The Committee is composed of 23 experts nominated by their Governments and elected by the States parties, to work in their individual capacities to monitor the implementation. This body is known as the Committee on the Elimination of Discrimination against Women, commonly known as the CEDAW Committee. States parties bind themselves to submit reports at four-year intervals to the committee on their efforts to bring into effect the provisions of the Convention. The committee reviews these reports with the government representatives and discusses areas for further action by the specific country. It also makes General Recommendations to the states parties, which basically treated as directives for action by the concerned country, as well as to give broader meaning to the articles.
India and CEDAW
India signed the Convention on 30 th July 1980, and ratified it on 9 th July 1993.It has expressed reservations in respect of four sections of the Convention, namely Art 5(a) – on the modification of social and cultural patterns of society; Art 16 (1)&16 (2), on the right to enter into marriage and right of choice of spouse; and para 1 of Art 29, on the procedure for settlement of any dispute on interpretation or application of the Convention in case of failure of negotiation.
Use of CEDAW by Activists:
CEDAW has to be used in a sophisticated and informed manner as a powerful tool to promote the human rights of women. It has several strengths:
- It provides a comprehensive framework for the advancement of women and provides a framework for understanding the concept of equality: equality of opportunity and equality of results.
- It obligates states to bring domestic legislation to be in conformity of the Principles of CEDAW.
- It embodies the principle of state obligation, by making the state accountable to its efforts to bring about an enhancement in the position of women and to provide equal opportunity with equal results for both men and women in the areas of legal and judicial system, political participation and representation, policy, planning, decision making, programmes and institutions.
Article16 on rights of women in the family and Article 5 on the customs and culture are the ones which have had most reservations. The CEDAW Committee sees reservations as a manifestation of the Convention's significance as an instrument of change – even the reserving states are brought within the monitoring system and their performance in advancing the condition of women is subject to external scrutiny. As a matter fact, several states have withdrawn some of their reservations, when it was decided by those states that the reservations were not necessary, or that steps had been taken to fulfill their obligation under the treaty. At present no mechanism exists to regulate the practice of reservation.
- In many cases, the governments interpret the rights narrowly, and this causes the weak implementation of the convention. Women have a role to play here, in sharpening the articulation of the content and the necessary action for the application of the convention's provision in specific cases. General Recommendations by the Committee give a scope for developing jurisprudence around the issues addressed by the Convention. In other words, activists can engage in litigation around the issues of concern to them, using the principles, provisions and approach of the Convention.
- Another crucial area of input by civil society is the system of giving feedback to the Committee, through making suggestion of the topics on which General Recommendations can be developed and on the actual substance of the recommendations as well.
- Further, this can take the form of writing an Alternate or Shadow NGO report, giving the civil society viewpoint of the implementation of the CEDAW by the Government. Some women's groups give training and facilitation in the writing of such reports by women's groups in the participating countries. For the first time in the history of the women's movement in India , the National Alliance of Women (NAWO) produced such a report in collaboration with a number of grassroots and issue-based women's activist groups in January 2000. This coincided with the review in the year 2000 of the Initial Submission by the Government of India to the CEDAW Committee, which was done in 1998. NAWO also undertook the same exercise for the next scheduled meeting in January 2007.
• Monitor the implementation of the Convention,
• Define rights, interpret needs, identify obstacles and actions to be taken by the state, establish criteria for success ad document the impact of State action.
• Monitoring the implementation of the Convention;
• Make demands and engage in national-level advocacy that will establish women's rights to development;
• Engage in international advocacy that will put pressure on governments
CEDAW and Dalit Women
Several legislations for their welfare including those banning Manual Scavenging, Prevention of Atrocities against SC/STs, the Abolition of the Devadasi system, and reservations in Government jobs have shown little progress in implementation. Allocated of funds for alternative training and employment of manual scavengers remains largely unutilised, and manual scavenging (basically undertaking sanitation work with minimal protective equipment, almost with bare hands, mainly undertaken by women) continues unabated in the government-run Railways and municipalities. Convictions under the PA Act continue to be around 1% for ALL crimes committed against SC/STs, including both men and women. Hence the rate of conviction for crimes against Dalit women falls below this rate. This gives the perpetrators of the already high level of violence against Dalit women (rape, stripping naked and parading in public, and denial of wages for work, verbal and physical abuse, forced labour ) a greater incentive to persist in committing the crimes, for they can easily escape punishment.
At a social level, the already high level of domestic violence faced by Indian women in general is compounded for Dalit women by the denial of access to Dalits of community resources such as water and common grazing grounds, roads, and playing fields especially in the rural areas. Their dwellings are always outside the boundaries of the main village. Hence they are always at the mercy of rural elites for getting water, fodder, firewood, employment, for mobility and even to purchase basic necessities. Girl children face a real danger of abduction and rape on the way to school – almost always located some distance from the Dalit colony - which is the reason for the high level of drop-out rate of Dalit girls at middle-school, and the wide prevalence of under-age marriages of Dalit girls. Dalit children face both blatant and subtle forms of caste discrimination in the school system, especially from teachers. Even the mid-day meal scheme providing a hot lunch to school children is the site of caste discrimination, with dominant caste parents refusing to let their children eat food coked by Dalit women, or in the company of Dalit children.
The Devadasi (Deva: God, Dasi: servant) system, still widely prevalent in a large part of the northern and central part of the Deccan plateau, constitutes the most blatant form of societal violence against Dalit women and girls through the socially and religiously sanctioned forced appropriation of their sexuality: under the system, girls as young as eight are “married”- by her own parents, under social pressure from local religious tradition, to an idol of a goddess, making her ineligible for marriage. She is then available for sexual exploitation by the dominant caste men in the area. Most “devadasis” eventually end up in the flesh trade. The vigour with which the system persists in the rural areas indicates that the legislations and government schemes to ‘rehabilitate' the Devadasis are not backed by the necessary political will. The only groups which have some success in intervening are NGOs who provide welfare services for the children of Devadasis and to the devadasis who wish make a change their lives.
The lack of assets and employment cause the vast majority of Dalits to survive as landless agricultural labour or construction labour. Most of them migrate to cities and become urban slum-dwellers, seeking a more stable income and an escape from the caste stigma in the anonymity of the city. But even here the informal economy – street vendors, domestic workers, home-based production, etc. conspires to keep their earning at subsistence level. They lack access to most civic amenities despite the fact that they construct the roads, the sanitation systems, the large houses and apartment blocks which constitute the urban boon in India . The Dalits, especially Dalit women, constitute the largest section of the unorganised sector of labour in the country, which form about 93% of the total workforce in the country. Thus legislations to protect women from sexual harassment in the workplace – largely designed to be applicable in the formal sector – is unavailable to protect working Dalit women from sexual harassment at the place of work.
Globalisation and privatisation has caused the increasing mechanisation of the Construction sector. This, combined with the commercialisation, mechanisation and high-tech, export-oriented agricultural practices has ensured that the source of better-paid wage employment for the urban poor segment, mostly Dalit, lose work and income, contributing to their pauperisation and much human misery. The gradual withdrawal of the government public health system has the most negative impact upon the access of Dalit women and children to proper medical services.
* A women's component Plan envisaged to ensure that not less than 30% of development funds flow to women.
* Formation of Self-Help groups for women as a means of empowering them.
* Maintaining high priority of women's and children's health and nutrition through supplementary feeding, immunisation and more responsive health care.
* Improving access to education through a Special Action Plan and other initiatives, including professional and technical vocational skill.
* Enhancing access to credit through proactive measures such as setting up a development bank for women entrepreneurs.
( All the above are for women in general, and are therefore accessed by those better placed to access the benefits, and often serve to further marginalize Dalit women)
* Constitutional Provisions and other affirmative actions including reservations in government jobs and education and proportional reservations in local government bodies constitute the bulk of the government response to the issues specific to Dalit women.
Gaps and Weaknesses
The formulation of affirmative schemes by government for women are generic in nature, applying to women in general, thereby more accessible to those with access to information and influence. Most of the targeted interventions for Dalit women are not implemented for either lack of political will or support from staff of line departments.
The role of Dalit women in Decision-making whether in their personal lives, in the community or in society at large is almost non-existent. Hence in the language of CEDAW, it is abundantly clear from the foregoing that they face several ideological and material barriers to full participation at all levels, and experience discrimination and impediments in the enjoyment of substantive equality. [ Para No. 66 of Concluding Comments of the CEDAW Committee report 2000]
This can be illustrated by looking at the record of implementation on two issues, namely Manual scavenging and Devadasi system, both of which are specific to dalit women. Government response and its impact have been discussed above. There is lack of gender and caste disaggregated data, making it difficult to get reliable country-wide data on Dalit women, whether from government or research/NGO sources. [ Para No.68. 69,74 & 75 of Concluding Comments CEDAW 2000]
The state – judicial, executive and legislature – is obliged under CEDAW to ensure the full enjoyment of Dalit women's political, social, economic and cultural rights. Steps such as enabling conditions and preferential rules for Dalit women (under Art 4.1 of CEDAW), which will ensure equal outcomes as a result of equal treatment are essential to enable them to move from de jure rights to de facto equality. For instance, there is a two-child norm for candidates to be eligible for participation in elections to local bodies. It has been found that over 70% of disqualifications of electoral candidates have been on these grounds, and women from marginalised groups form a disproportionate part of those disqualified, because they often do not have control over reproductive decisions. Therefore the government gives reservations with one hand and takes it away with the other. [ Para No. 75 & 78 of the Concluding Comments CEDAW 2000]
Critical Questions on Dalit women
[Under Art.4 of CEDAW: Special Measures]
1. (a) What actions has the government taken to implement the Act Banning Manual Scavenging?
(b) Considering that the Railways and local government bodies (panchayats and municipalities) employ the largest number of Manual Scavengers,
comprising almost entirely of Dalit women, what has the government done to
(i) eliminate this form of employment and
(ii) create alternative employment and skills and
(iii) provide compensation to the manual scavengers for being forced to continue doing this work
[Under Art. 7, (b) and (c) of CEDAW: Right to participate in policy formulation and public office]
2. [Under Art. 6 of CEDAW: Measures to suppress trafficking and exploitation of the prostitution of women]
Considering that there have been legislations banning the Devadasi system in the country, but the system continues to exist, what steps does the government propose to take in order to
(i) to effectively implement the provisions so as to eliminate the socially sanctioned system of sexual exploitation of Dalit women and girls?
(2) Create alternative opportunities for women and girls already in the system in terms of education, employment and income?
3. A large number of otherwise eligible Dalit women from are disqualified from participation in local government bodies due to the imposition of the two-child norm as provided under the Population Policies, as prevailing social norms do not give Dalit women control over their reproduction.
(i) How does the government propose to eliminate this impediment to the participation of Dalit women in decision-making at the local level?
(ii) What steps does the government propose to promote the leadership and participation of Dalit women in state legislatures and Parliament?
The full text of the relevant Concluding Comments for India by the CEDAW Committee can be downloaded fromhttp://www.un.org/womenwatch/daw/cedaw/37sess.htm
The sections of the Concluding Comments of the CEDAW Committee in Jan 2007 in respect of Dalit women are excerpted below for the convenience of readers. Para numbers correspond to their numbers in the original report:
8. The Committee is concerned that the State party has not taken adequate steps to implement the recommendations in regard to some concerns raised in the Committee's previous concluding comments adopted in 2000. 1 In particular, the Committee finds that its recommendations in paragraphs 67 (to introduce a sex discrimination act in order to make the standards of the Convention applicable to
non-State action and inaction), 70 (to develop a national plan of action to address the issue of gender-based violence in a holistic manner), 75 (to enforce laws preventing discrimination against Dalit women) and 81 (to take affirmative action to increase women's participation in the judiciary) have been insufficiently addressed.
11. The Committee urges the State party to review its reservations to articles 5 (a) and 16 (1) with a view of withdrawing them, to proactively initiate and encourage debate within the relevant communities on gender equality and the human rights of women and, in particular, work with and support women's groups as members of these communities so as to (a) modify social and cultural
patterns of conduct to achieve elimination of prejudices and practices based on stereotyped roles for men and women and (b) review and reform personal laws of different ethnic and religious groups to ensure de jure gender equality and compliance with the Convention.
18. While noting that poor women are entitled to receive free legal aid under the Legal Services Authority Act and that the National Legal Service Authority aims to enhance legal literacy for women and provide access to justice, the Committee is concerned about the quality and scope of the free legal services provided and the access of women in rural and tribal areas to such services.
19. The Committee urges the State party to provide free legal services to poor and marginalized women in rural and tribal areas in addition to urban areas and to monitor the quality and impact of such services in regard to ensuring women's access to justice. It requests the State party to provide information about access of women, including scheduled caste, scheduled tribe, backward class and minority women, to free legal services and the scope and effectiveness of such services in its next periodic report.
20. The Committee continues to be concerned about the absence of a comprehensive plan to address all forms of violence against women. While appreciating the enactment of the Domestic Violence Act, 2005, the Committee is concerned that the various states and union territories have not put into place mechanisms to effectively enforce this Act.
21. The Committee calls upon the State party to develop, in consultation with women's groups, a coordinated and comprehensive plan to combat all forms of violence against women taking a life cycle approach. It urges the State party to take steps in partnership with states and union territories to fully and consistently implement and enforce the Domestic Violence Act and to ensure that all women victims of domestic violence, including scheduled caste, scheduled tribe, backward class and minority women, are able to benefit from the legislative framework and support systems in place and that perpetrators are effectively prosecuted under the Penal Code and adequately punished. It recommends that public officials, especially law enforcement officials, the judiciary, health-care providers and social workers, are fully sensitized to all forms of violence against women, including domestic violence. It requests that adequate statistics on all forms of violence against women be collected in a consistent manner.
26. In addition to previously expressed concerns about customary practices, such as dowry, sati and the devadasi system, 3 the Committee is concerned about the practice of witch-hunting, which constitutes an extreme form of violence against women.
27. The Committee recommends that the State party adopt appropriate measures to eliminate the practice of witch-hunting, prosecute and punish those involved, and provide for rehabilitation of, and compensation to, victimized women. It recommends that such measures be based on an analysis of its
causes, including control over land. The Committee calls upon the State party to create public awareness of forms of violence against women rooted in custom as an infringement of women's human rights.
28. The Committee is concerned about the ongoing atrocities committed against Dalit women and the culture of impunity for perpetrators of such atrocities. The Committee is also concerned that, despite a law banning manual scavenging, this degrading practice persists with grave implications on the health of Dalit women engaged in this activity.
29. The Committee recommends that the State party put in place a mechanism to monitor effective enforcement of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act in order to ensure accountability and end impunity for crimes committed against Dalit women. It calls upon the
State party to increase Dalit women's legal literacy and improve their access to justice in bringing claims of discrimination and violation of rights. It requests the State party to report specifically on the impact of such initiatives in its next periodic report. The Committee also urges the State party to study the health implications of manual scavenging on Dalits engaged in this profession and on the community as a whole, and to address all the impediments to eradicating this practice, including by putting in place modern sanitation facilities and providing the Dalit women engaged in this practice with vocational training and alternative means of livelihood.
32. While appreciating the additional data provided by the State party during its dialogue with the Committee, which indicates improvements in enrolment rates of women in primary education, and while commending the State party's future plans of focusing efforts on education of marginalized sections of the population, the Committee is concerned about the continuing disparities in the educational status of scheduled caste, scheduled tribe and Muslim women and the limited access of these groups of women to higher education.
Cynthia Stephen is Independent Writer and Researcher
1) States parties is UN language for the states who sign conventions, hence “parties” to the convention.