http://www.hrdc.net/sahrdc/hrfeatures/HRF172.htm
India and CEDAW: Who's Afraid of Too Much Equality? In February 2006, the Indian Supreme Court directed the Central and State governments to finalise the compulsory registration of marriages nationwide regardless of community. In July 2007, the Court asked the five State governments—Jammu and Kashmir, Maharashtra, Tamil Nadu, Arunachal Pradesh, and Jharkhand—that had not yet fully implemented the February 2006 order to explain why they had not done so. This recent decision should be seized as an opportunity by India's Central and State governments rather than viewed as a burden. The Supreme Court's directives echo the commitment India made under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which urges State Parties to ensure that "all necessary action, including legislation… be taken …to make the registration of marriages in an official registry compulsory". Though not a panacea, such compulsory registration of marriages may help reduce the incidence of child marriages and marriages without consent as well as increase the likelihood of women obtaining financial support and custody of children upon divorce and a fair share of their husbands' estates upon their death. When ratifying CEDAW in 1993, India declared with respect to Article 16(2) that it supported the principle of universal and compulsory marriage registration, but such registration "is not practical in a vast country like India with its variety of customs, religions and level of literacy". Though India's declaration is correct to point to the serious practical difficulties involved in complying with Article 16(2)—and on that score at least, the Centre's forthrightness is refreshing—this is hardly a valid reason to abandon the attempt. Imagine the same argument being made with respect to other rights outside of the gender context, such as the right to counsel or the right to appeal in criminal cases. Citing "impracticality" as an excuse for not recognising the existence of such rights would be a non-starter, just as it should be for marriage registration. Thus, with the Supreme Court leading the way on the registration front, India should withdraw its declaration and recommit itself to all of the provisions of CEDAW. Of course, this charitable reading of India's CEDAW declaration—that India is concerned about agreeing to be bound by an international law requirement with which it would have difficulty complying—may mask a more disturbing reality. Namely, that the Central government and the State governments are willing to expend very little political capital on behalf of advancing gender equity or for ameliorating the specific rights violations suffered by women in India. The Gujarat Killings and Violence Against WomenOne telling example concerns criminality and violence against women. India's combined second and third periodic report to the CEDAW Committee admits that reported crimes against women rose from 135,771 in 1999 to 140,601 in 2003. India argued that this increase was actually a good thing because it reflected an increased awareness of legal rights and of reporting of violations. However, without comparison to non-existent data of women who were victims of crimes but did not report them to the police, such government conclusions are speculative and ultimately misleading. They miss the larger point that whatever gains are made in awareness and reporting, at the end of the day, there is little measurable progress being made in how many women are victimised. Furthermore, though India's report to the Committee took note of the "[e]ver increasing violence against women" and touted "a well-planned Programme of Action with short and long-term measures at the National and State levels", it provided few practical details, including specific goals, target populations, and implementation strategies. In fact, the Committee concluded that India has yet to develop a national plan to address violence against women—a step that the Committee recommended in 2000—and "urges [India] to proceed without delay" in implementing this recommendation. Perhaps even more disturbing is the Central and Gujarat state government's continuing passivity in responding to the aftermath of the 2002 Gujarat communal violence. That episode of violence resulted in over 2,000 deaths and included at least 300 acts of sexual violence, only a handful of which were reported. The CEDAW Committee at its February 2007 session expressed particular dissatisfaction with the sparse detail India provided on Gujarat in its report, prompting the Committee to request a follow-up report on Gujarat by January 2008. Thus far, neither the Union government nor the Gujarat state administration has satisfactorily rehabilitated or compensated victims of the violence, families of those killed, and displaced persons. Despite the Indian Supreme Court's order to reopen over a thousand court cases, only 13 persons had been convicted as of January 2007. The CEDAW Committee expressed deep concern at the conditions in Gujarat because it has meant prolonged suffering for many women, especially Muslims, who were targeted in acts of violence, including sexual violence. The criminal justice system failed in adequately following up on filed complaints. Thus, it is not surprising that the Indian government has shied away from providing substantive information regarding its efforts to combat and remedy atrocities against women. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, proposed in 2005 and currently pending in Parliament, seems to address some of the issues raised by the violence in Gujarat by providing "institutional arrangements for relief and rehabilitation". However, the Bill neglects to define offences such as crimes of sexual violence in accordance with international law, referring only to definitions in the Indian Penal Code, which do not "sufficiently recognize the gender-specific nature of offences inflicted on women, such as those perpetrated during the violence in Gujarat". In its next report to the Committee, India has the opportunity to make good the gaps in its previous reports. But to do so, it must first ensure accountability for past violations. Atrocities by security forcesAs worrying as violations by private actors are, violations perpetrated by agents of the state are particularly corrosive. The enforcement and abuse of the Armed Forces Special Powers Act (AFSPA)—largely unregulated by the Central government—has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel. The CEDAW Committee noted the conditions in Manipur, where the Assam Rifles—a paramilitary group—allegedly raped and killed Thangjam Manorama Devi in 2004 on mere suspicion of her being a member of an armed group. Indeed, as the CEDAW Committee noted, the government has not responded to widespread protests advocating the "long overdue" repeal of the AFSPA. Another glaring example of state violence against women has been the killing of Kauser Bi, who was allegedly eliminated because she knew about the extrajudicial execution of her husband by the Gujarat state police. Socioeconomic Rights: Health and EducationThe sorts of human rights concerns facing women in India are of course not limited only to extra-judicial executions, rape and other forms of violence. For example, the Indian government admits that "there are striking disparities in the health status of women and children, particularly girl children", most dramatic within scheduled caste, scheduled tribe, and other tribal and rural communities. CEDAW's report notes that the leading cause of death for women in India is complications resulting from pregnancy and childbirth. In nearly half of India's states, "the rate of safe deliveries of babies is less than 25 percent". Overall, the safe delivery rate is at less than 50 percent. Further, in answer to queries from the Committee, India was unable to supply any data on the prevalence of HIV/AIDS or on national programmes designed to combat the spread of HIV—despite the fact that the government has acknowledged HIV/AIDS as "one of the most serious public health problems in the country". India's National Alliance of Women's Organisations (NAWO) identifies education as "the key policy and programmatic concern of the Indian government", yet a serious educational gender gap remains. Initiatives such as the Sarv Shiksha Ahbiyan (Education for All) and the Midday Meal Programme have witnessed some success, increasing girls' primary enrollment from 40% in 1990-91 to almost 60% by 2003. Nevertheless, NAWO notes that girls' enrollment drops sharply in the transition from the primary level to secondary schooling. Enrollment rates for scheduled caste, scheduled tribe, rural, and Muslim girls are substantially lower. While India's 86th Constitutional Amendment, passed in 2002, mandates free, compulsory education for all children ages 6-14, "the amendment is yet to be made operational". ConclusionThe record so far shows that India has failed to take the extensive measures necessary to improve the conditions of women forced to cope with violence and socioeconomic marginalisation. The entire burden of this failure rests not only with the Central government, but also with various State governments that have not acted to comply with the Centre's policies on gender rights or even with Supreme Court orders. India's next periodic report to the CEDAW Committee provides a useful opportunity to improve the record and demonstrate respect for, and compliance with, international human rights norms and conventions. | ||
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