WOMENS ANTI-DISCRIMINATION COMMITTEE TAKES UP REPORT OF INDIA20000124
Indias major communities had traditionally been governed by their respective religious laws in matters of marriage, divorce, succession, adoption, guardianship and maintenance, the Committee on the Elimination of Discrimination against Women was told this morning as it took up the initial report of India on compliance with the Convention on the Elimination of All Forms of Discrimination against Women.
Presenting that report, Kiran Aggarwal, Secretary to the Department of Women and Child Development in Indias Ministry of Human Resource Development, said that the personal laws of minority communities had remained untouched on the basis of a policy of non-interference in the personal laws of any community, unless the demand for change came from within those communities.
She said that under Hindu law a married woman was entitled to claim maintenance from her husband during the subsistence of a marriage. However, in view of the difficulties women faced in pursuing their rights in court, the Government had enacted the Family Courts Act, which had jurisdiction over such matters as marriage, matrimonial cases, maintenance and alimony, custody, education and support of children and settlement of property.
As the Committee heard comments by its members in response to the report, one expert noted that ethnic and religious groups tended to be responsible for patriarchal traditions that discriminated against women. India was obliged to enact legislation to counteract those values and take measures to induce alternative non-discriminatory practices. Perpetuating the personal laws of ethnic and religious communities was incompatible with womens rights and a breach of the Convention.
Another expert expressed concern about the Governments unwillingness to intervene in those personal laws. The report had referred to working towards the establishment of a uniform civil court. Many countries with plural systems used such courts to regulate the practice of the law. De jure equality did not necessarily provide de facto equality.
The Committee will meet again at 3 p.m. to continue hearing observations and questions relating to Indias initial report.
Committee Work Programme
When the Committee on the Elimination of Discrimination against Women met this morning, it took up the initial report of India (document CEDAW/C/IND/1) on compliance with the Convention on the Elimination of All Forms of Discrimination against Women.
The report gives a background of the political, legal and constitutional framework in which the Convention is being implemented and specific information on the constraints of and future action by the Government in the course of that implementation. It states that womens groups around the country have been demanding withdrawal of Indias reservations against the Convention. Furthermore, the Governments present policy of non-interference with the laws of minority communities, except at their initiative and with their consent, has already resulted in a number of changes, notably in Hindu, Parsee and Christian laws.
The report states that the Maternity Benefits Act and the government principles for compulsory education have been regulated by the Supreme Court and contributed to the cause of gender justice. While the Supreme Court, the High Court and lower courts administer justice in the country according to the various laws of the land, the Supreme Court has developed a strong tradition of public interest litigation, thus, enabling any member of the public to approach the court in the event of violation of their rights. The evolution, modification, renewal and growth of institutional structures for women have been established through close interaction with the womens movement. Development and institutional planning have straddled principles of welfare, equity and empowerment, among others. The report emphasizes that while in the past women were perceived as persons in need of welfare doles, currently, womens empowerment is a widely accepted principle.
Outlining the development of Indian women since the countrys independence in 1947, the report notes that the Approach paper to the ninth plan for the period 1997 to 2002 declared that empowering women is one of its objectives, as is transferring control of social infrastructure in the public sphere to womens groups. It also calls for women to identify the flow of benefits to and impact of plans and programmes on women, and declares that as one of the fundamental criteria for determining allocation priorities. Currently, work on preparing details of the plans proposals is under way and grass-roots womens organizations are involved in that process.
On Indias compliance with the Convention, the report states that the role of the family in India is very strong. While the strength of the family, respect for elders and strong family values are abiding features of the society across religions, cultures, languages and castes, the family is also very often the place where discrimination and subordination occur. In that setting, violence against girls and women reach alarming proportions. Consequently, female foeticide, infanticide, dowry-related violence and torture remain largely invisible and often go unpunished in spite of constitutional guarantees and the laws. However, judicial activism by the States Supreme Court and efforts by the media have become instrumental in changing societal attitudes. The report notes that other problems it faces in complying with the Convention occur in areas including education - the State has the largest number of illiterate women in the world -- and prostitution and trafficking in women. However, women enjoy equality in political and public life, and the Governments primary health-care programme is one of the worlds largest, consisting of 131,000 village sub-health centres, 22,000 primary health centres and 2,000 community health centres, as well as a network of hospitals, dispensaries and health posts in urban areas.
The report also outlines Indias policies and initiatives for womens equality in employment, access to bank loans and credits, in sports and recreational activities, and in family relations and marriage. On Indias conformity with article 14 of the Convention - equal rights of rural women -- the report says that the situation of those persons, although they constitute almost 80 per cent of the States female population, was neglected until the early eighties. Since then, the Governments basic strategy has been to ensure women a fair share in rural development and agricultural programmes through quotas, as well as women specific programmes.
Introduction of Report
KIRAN AGGARWAL, Secretary to the Department of Women and Child Development in the Ministry of Human Resources of India, presenting her countrys initial report on compliance with the Convention on the Elimination of All Forms of Discrimination against Women, said her Department lay at the centre of the national machinery for womens advancement under the overall charge of a Cabinet Minister who was accountable to Parliament. In addition, the National Commission for Women, established in 1992, was a statutory ombudsperson for women, while the Central Social Welfare Board, set up in 1953, networked with more than 12,000 non-governmental organizations working for womens advancement. At the State level, Departments of Women and Child Development and State Commissions for Women formed part of Indias institutional systems.
Reporting on sex role stereotyping and prejudice (Article 5 of the Convention), she said that the Ministry of Information and Broadcasting had been actively creating mass awareness to generate a positive portrait of women in society. Those programmes were broadcast on All India Radio, with 195 stations covering about 98 per cent of the population, and the National Television Network Doordarshan covering about 87 per cent.
On trafficking in women and prostitution (Article 6), she said that problem was being tackled largely through enactment of legislation and enforcement. The Immoral Traffic (Prevention) Act of 1986 was being amended to widen its scope to cover all persons, male or female, who were exploited sexually for commercial purposes. State governments had nominated special police officers to deal with offences under the Act.
Nearly 25 State governments had set up non-official advisory committees, comprising non-governmental organizations and social workers, to advise on the Acts implementation, she said. About 80 protective homes had been established under Section 21 of the Act to provide custodial care and protection, in addition to providing education and vocational training. A network of short- stay homes assisted by the Government and juvenile homes under the Juvenile Assistance Act had been set up.
On article 10, on equal rights in education, she said that efforts to universalize elementary education had been strengthened by the Supreme Court, which had ruled that the right to free and compulsory education for the six to 14 years age-group was a fundamental right. There were ongoing efforts to universalize elementary education up to class VIII. It was evident that the education system was still not within the reach of many girl children because of inaccessibility, lack of separate toilets and privacy, inadequate women teachers, negative perception on the part of parents, and the burdens of sibling care and household chores.
Turning to equal opportunity in employment (Article 11), she said that the International Labour Organizations (ILO) concerns for the protection of women workers were reflected in Indian labour laws. Women constituted a significant part of the workforce, but were mostly in the unorganized and informal sector where their labour was neither accounted for nor acknowledged in the national economy. To counter that invisibility of women workers, the 1991 census had initiated attempts to improve enumeration of womens economic activities. That process would be strengthened in the 2001 census.
Regarding health (Article 12), she said female infanticide was prevalent in some rural areas of India. Foeticide and infanticide were offences under the Indian Penal Code. The strong preference for male children and consequent neglect of female babies was a matter for serious concern. The Central and State governments had made the girl child the centre of a focus in health, nutrition, education and literacy programmes.
Reporting on marriage and family life (Article 16), she said the Dowry Prohibition Act had been passed in 1961 to combat the problem of dowry and amended further to make punishment for offences under the Act more stringent. The burden of proof that there was no demand for dowry had been shifted to the person alleged to have abetted the taking of dowry.
On domestic violence, she said the Indian Penal Code provided an offence called cruelty to wife by her husband or his relatives for which the offender could be imprisoned for up to three years and fined. Corresponding amendments had been introduced in the Indian Evidence Act to provide that where a woman had committed suicide within seven years from her marriage, and it was shown that her husband or any of his relatives had subjected her to cruelty, the court may presume that the husband or relative had abetted the suicide.
Reporting on marriage and family life (Article 16), she said family relations in India had traditionally been governed by religious personal laws. The major religious communities - Hindu, Muslim, Christian and Parsee - had their separate personal laws and were governed by their respective religious laws in matters of marriage, divorce, succession, adoption, guardianship and maintenance. The personal laws of minority communities had remained untouched on the basis of the policy of non-interference in the personal laws of any community, unless the demand for change came from within those communities.
She said that during the subsistence of a marriage, a married woman was entitled to claim maintenance from her husband under the Hindu law. However, in view of the difficulties women faced in pursuing their rights in court, the Government had enacted the Family Courts Act which had jurisdiction over such matters as marriage, matrimonial causes, maintenance and alimony, custody, education and support of children and settlement of property cases.
Comments and Questions by Experts
An expert said she recognized the challenge India faced in guaranteeing rights for its almost 5 million women. Its established programmes signalled the States commitment to gender equality, as did the work done by civil society, the Supreme Court and non-governmental organizations. She wondered whether there was a system of regulatory controls, as that could be an inhibitor to the undertakings of the non-governmental organizations.
Strengthening the local courts was also an important catalyst for equality, she continued, for example, their monitoring of the equal remuneration act could ensure its successful implementation. On the issue of the proposed revamping of the education curriculum to deflect gender stereotyping, she requested that the delegation provide an example of that curriculum.
She expressed concern about the Governments unwillingness to intervene in the personal laws of the different ethnic and religious groups, noting that the report had referred to working towards a uniform civil court. Many countries with plural systems used that type of court to regulate the practice of the law. She said that the Constitution did not include any article relevant to private actors -- only the State. That eliminated the possibility of the establishment of a gender discrimination law. De jure equality did not necessarily provide de facto equality, she stressed. Also, women in the untouchable caste did not seem to enjoy the rights under those laws. It seemed as if the 1995 Beijing Plan of Action had not been integrated in the Governments programme. Along with the status of the Convention, that should also be the focus of national policies for women.
There must be effective resource sharing between the National Commission for Women and Indias Ministry of Women and Child Development, she suggested. The budget allocation for health was particularly important in the provision of those services to the poor. Another key issue of the Convention was violence against women -- the report had not included customary practices and other factors that produced such violence. It had referred to legislative reform, but there were gaps in the regulatory framework for rape against women and children. Turning to abortion, she questioned the reports of septic abortions versus the countrys policy of freedom of choice.
Another expert said democracy was built on the pillars of equality and freedom for all - it did not provide for any kind of discrimination. The separation of the public and private spheres had always worked against womens rights in the world and to eliminate existing discrimination one had to alter social and cultural values often perpetuated by religious and ethnic communities, and legitimize those traditions. India needed to re-interpret its values governing religious and cultural norms.
Generally, ethnic and religious groups had the tendency to be responsible for patriarchal traditions that discriminated against women, she said. The State was obliged to enact legislation to counteract those values and take measures to induce alternative non-discriminatory practices. Perpetuating the personal laws of ethnic and religious communities was incompatible with womens rights and a breach of the Convention. Unless a creative way was found to deal with the countrys position, the many specific advances in Indias policies on education, health and other areas could be nullified. What active steps would be taken to induce a non-discriminatory mindset? she asked.
Referring to article 2 - elimination of discrimination against women - an expert said she was also concerned by the apparent absence of coherent legislation to protect womens rights in India. Did Article 14 of Indias Constitution contain the principle of substantive equality to prohibit discrimination?
Had the Supreme Court established any legislation to interpret the principle as enshrined in article 2? she inquired. Bearing in mind that recommendation 19 of the Convention had expanded the interpretation of article 2 on violence against women, did the Government have any intent of accelerating its efforts to legislate prohibition of all forms of violence, including sexual acts against women and children, or to incorporate provisions that no longer allowed womens sexual history to be examined during trials?
She expressed further concern that the work of the Commission and other womens groups had not been incorporated in government policies and requested clarification on the nexus between their action and that taken by the Indian Government. Could there be one comprehensive code to ensure equality of women in all aspects of Indian life regardless of religion or culture? she asked.
Another expert referred to a law enacted into the Indian Penal Code during the years of colonial rule that made adultery by a man with a married woman a criminal offence. That law gave the husband the right of accusation against the adulteress. Such laws were discriminatory to women, who also risked being penalized under vagrancy and prostitution laws. When did the Government of India intend to abolish such provisions? she asked
Another expert asked what status the Convention enjoyed under Indian law. Did mere adherence to an international instrument or standard necessarily make it a part of national law? She asked how serious Indias National Commission of Women was about carrying out legislative reform. Could it ensure that there would be support for legislative reforms by all sectors of society to ensure their success? Various policies referred to in the report did not seem to have been formulated in a framework of equality.
Another expert said the report did not make clear the exact relationship between the national Government and State governments with regard to legislation and allocation of resources. How did the Central Government ensure that State governments were actually implementing the provisions of various laws? What were the specific mandates of the Central and State governments?
She asked to what extent implementation had been carried out in cases of atrocities and police bias against scheduled tribes and castes. The report lacked information on the triple exposure of women to discrimination by gender, class and caste.
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