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Bucking Convention: How Indian courts have internalized CEDAW

A small plant, contained in a jar with a label of the flag of India, is propagated. Its shadow resembles the female gender symbol.

Sarita Skagnes was born in a small village in Northern India as the third daughter in her family. Based on the perceived lack of honor and value that she brought to her family due to her gender, Skagnes’s parents exchanged her for a male cousin and left her to live with her aunt. Skagnes’s story, while appalling in its own right, is a common one for women and girls in India. In fact, a 2018 Thomson Reuters study deemed India the “most dangerous country for women” based on sexual violence, economic opportunity, and cultural attitudes that devalue female life.

Standing in stark contrast to this reality is India’s promise to protect and promote gender equality through its 1994 ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). By ratifying CEDAW, India made a written, legally binding pledge to uphold the Convention’s stipulations. This commitment includes responsibilities to pass domestic legislation ensuring women’s legal rights and to adjust social norms to promote gender equality. The country, however, has a long way to go until the lived reality of its citizens reflects its laws. While CEDAW has not been entirely effective at fostering profound improvements in gender security in India, it still has the potential to be a powerful force that champions women’s rights.

States that ratify CEDAW not only publicly commit to advancing gender equality but are also legally bound to put its provisions into practice. To prove continued progress, parties to the Convention must submit reports to the UN every four years outlining the steps they have taken to achieve CEDAW’s goals. India has submitted a few rounds of reports since ratifying CEDAW, but the country’s “policy of non-interference in the personal affairs” of its citizens has consistently been used to undermine its commitments to gender equality. This policy severely restricts progress. In fact, it enables Indian states to prioritize cultural customs that facilitate practices like child marriage, son preference, and female genital mutilation over India’s international responsibilities.

These limitations have become clear in a variety of Indian court cases over the past few decades. For example, in Ahmedabad Women’s Action Group and Others v. Union of India (1997), several groups brought forth a lawsuit arguing that discriminatory family laws were inconsistent with India’s commitments to protecting women’s rights. India’s Supreme Court, however, refused to engage.

Additionally, in its most recent review of India, the CEDAW Committee highlighted sexism in certain regional legal systems that prevents the government from interfering in cases of child marriage. During this same review, the Committee drew attention to the ways in which India’s narrow definition of rape—which does not classify marital rape as a criminal offense—facilitates gender-based violence and leaves women without legal avenues to pursue justice. These realities are deeply concerning, especially given the prevalence of the cultural devaluation of female life in the country. India clearly has a long way to go to fulfill its commitments to CEDAW.

Despite its limitations, CEDAW has demonstrable effectiveness: Its ratification is consistently correlated with improvements in women’s rights and has even driven progress in a few select cases in India. In Vishaka v. State of Rajasthan (1997), the Supreme Court of India referred to Article 11 of CEDAW, which calls on states to eliminate discrimination in the workplace, to support its decision that “the need for safe working environments for women [is] an extension of non-discrimination.” This citation was used in tandem with certain articles of the Indian Constitution to bolster the Court’s final decision. Beyond demonstrating that CEDAW can be an effective legal tool to protect women’s physical and economic security, this case shows how the Convention can complement national legislation to strengthen a courtroom decision.

CEDAW has also been cited in cases of family law to affirm women’s property rights. In C. Masilmani Mudaliar v. Idol of Shri Swaminathaswami Thirukoil and Others (1996), the Supreme Court ultimately held that a woman has the complete authority to own and sell a property bequeathed to her. In this case, the Court used CEDAW to emphasize the importance of gender equality and to conclude that India’s obligations under CEDAW nullified its policy of cultural non-interference. To bolster its decision, the Court decided that the Hindu Succession Act, which was used to argue that women do not have absolute property rights, was not applicable. Though CEDAW did not actively supersede Indian law, it rendered certain anti-feminist provisions irrelevant. This case is important because it upheld the spirit of the Convention and helped the country take legal steps toward gender equality without negating national legislation.

Moving forward, the two aforementioned legal cases must provide a framework for how Indian courts and policymakers can employ CEDAW in creative ways. The Vishaka case, which ensured protections against sex discrimination in the workplace, demonstrates how courts can depend on CEDAW to strengthen the legitimacy of national legislation promoting women’s rights. Furthermore, the Masilmani Mudaliar case regarding property rights shows that CEDAW can be adaptive; it can simultaneously exert a degree of supremacy and work around existing laws. Although this kind of innovative and flexible application of the Convention must take place on a wider scale, these foundations for decisions that protect women’s security do exist. Indian courts and policymakers should commit to relying on these precedent cases in future legal battles pertaining to women’s rights.

A radical and comprehensive overhaul of existing policies and practices would obviously provoke the most profound change for women in India. That being said, this kind of approach is unfortunately unrealistic. Employing CEDAW in legal settings, then, is a small but critical step toward enhancing gender security in a country that values women’s lives less than men’s. Doing so would account for gaps in national legislation while helping India fulfill its commitments to international human rights law. Perhaps most importantly, Indian leadership would begin to set a powerful example for the Global South. It may even set the stage for other non-Western democracies to follow suit.

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