CEDAW and India

CEDAW:-

The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it was instituted on 3 September 1981 and has been ratified by 189 states.

The Convention is structured in six parts with 30 articles total.

·         Part I (Articles 1-6) focuses on non-discrimination, sex stereotypes, and sex trafficking.

·         Part II (Articles 7-9) outlines women's rights in the public sphere with an emphasis on political life, representation, and rights to nationality.

·         Part III (Articles 10-14) describes the economic and social rights of women, particularly focusing on education, employment, and health. Part III also includes special protections for rural women and the problems they face.

·         Part IV (Article 15 and 16) outlines women's right to equality in marriage and family life along with the right to equality before the law.

·         Part V (Articles 17-22) establishes the Committee on the Elimination of Discrimination against Women as well as the states parties' reporting procedure.

·         Part VI (Articles 23-30) describes the effects of the Convention on other treaties, the commitment of the state’s parties and the administration of the Convention.

Steps Taken by India:-

1.      Article 14 of the Indian constitution, Equality before Law, states, “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”

2.      Article 15 Prohibits discrimination on grounds of religion, race, caste, sex or place of birth (nothing in this article shall prevent the State from making any special provision for women and children)

3.      In 1994, India ratified the Convention of the Elimination of all forms of Discrimination against Women (CEDAW) treaty.

4.      The purpose, as outlined in Article 1 of the treaty, is to focus on the forms of discrimination that women face and to help eliminate discrimination that either intends to, or has the effect of, limiting women from participating equally in public life.

5.      To control female feticide, the Government of India enacted the Prenatal Diagnostic Techniques Act (PNDT) in 1994, which restricts the determination and revelation of gender of the foetus through amniocentesis as well as specifies the code of conduct for medical practitioners.

a.       Under the PNDT Act, an individual/ institution found guilty of advertising prenatal determination of gender in any form is subject to imprisonment and/or a fine. The PNDT Act was amended in 2002 and 2003, owing to innovation in technologies for sex determination through ultra sounds that impede the implementation of the Act.

b.      Section 318 in The Indian Penal Code

                                                              i.      318. Concealment of birth by secret disposal of dead body. — “Whoever, by secretly burying or otherwise disposing of the death body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

6.      In 1956 India passed the Immoral Trafficking Prevention Act (ITPA) which has severe penalties ranging from seven years’ to life imprisonment.

7.      From a national level, in 1992, India established the National Commission for Women, which is the national mediator for women.

8.      In 1997 India established a parliamentary committee on the empowerment of women, and in January 2001, India announced its commitment to the empowerment of women through the launching of a new National Policy on Women’s Empowerment.

The United Nations Convention on the Rights of the Child (UNCRC) is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children.

·         The Convention defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under a state's own domestic legislation.

National Human Rights Commission

NHRC:-     The National Human Rights Commission is an expression of India's concern for the protection and promotion of human rights. It came into being in October, 1993 under The Protection of Human Rights Act, 1993 and hence it is a statutory body (and not constitutional).

Composition:-

·         A Chairperson and Four Members, who can hold the office for 5 years or 70 years of age whichever is earlier

o   The Chairperson should be a retired Chief Justice of India (CJI) and other member should be a serving or retired judge of SC, serving or retired Chief Justice of High Court (HC) and two persons having knowledge or practical experience w.r.t. Human Rights.

·         Chairpersons of National Commission for (Women), NC-SC (scheduled caste), and NC-ST (scheduled tribes), NC-M (minorities) are the other four ex-officio members.

·         President can remove the chairperson or the members but in the case the reason of removal is proved misbehaviour or incapacity then the President can remove them only after a Supreme Court Inquiry.

State Human Rights Commissions:-

The Protection of Human Rights Act, 1993 makes provisions for the establishment of State Human Rights Commissions, 23 States have already set up such bodies.

·         State Human Rights Commission can inquire into violation of human rights only in respect of subjects mentioned in the State List (List-II) and the Concurrent List (List-III) of the seventh schedule of the constitution.

Human Rights:-

·         In terms of Section 2 of the Protection of Human Rights Act, 1993, "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed under the Constitution or embodied in the International Covenants and enforceable by courts in India.

·         "International Covenants" means the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966.

Functions:-

The Commission shall, perform all or any of the following functions, namely:- 

·         Inquire, on its own initiative or on a petition presented to it by a victim or any person on his behalf, into complaint of- 

·         violation of human rights or abetment or

·         negligence in the prevention of such violation, by a public servant;

·         Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

·         Visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living condition of the inmates and make recommendations thereon ;

·         Review the safeguards by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

·         Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

·         Study treaties and other international instruments on human rights and make recommendations for their effective implementation;

·         Undertake and promote research in the field of human rights;

·         Spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

·         Encourage the efforts of Non - Governmental organizations (NGO’s) and institutions working in the field of human rights;

·         Such other functions as it may consider necessary for the promotion of human rights.

Powers of NHRC:-

While inquiring into complaints under the Act, the Commission shall have all the powers of a civil court trying a suit under the “Code of Civil Procedure, 1908” , and in particular the following, namely;

·         Summoning and enforcing the attendance of witnesses and examining them on oath

·         Discovery and production of any document

·         Receiving evidence on affidavits

·         Requisitioning any public record or copy thereof from any court or office

·         Issuing commissions for the examination of witnesses or documents

·         Any other matter which may be prescribed

Note: -

·         The Commission is not empowered to enquire into any matter after the expiry of one year from the date on which the act constituting the violation of human rights alleged to be committed.

·         The recommendation of the commission are not binding on the govt. or authority but they must give an action taken report (ATR).

·         The commission may approach the SC or HC for the necessary directions, orders or issue of writs.

Investigation:-

The Commission has its own investigating staff headed by a Director General of Police for investigation into complaints of human rights violations.

Under the Act, it is open to the Commission to utilise the services of any officer or investigation agency of the Central Government or any State Government.

The Commission has associated, in a number of cases, non - Governmental organizations in the investigation work. 

Appointment of Members:-

The Chairperson and Members of the Commission are appointed by the President on the basis of recommendations of a Six (6) Member Committee comprising the Prime Minister as the Chairperson, the Speaker of Lok Sabha, the Home Minister, the leaders of the opposition in the Lok Sabha and Rajya Sabha and the Deputy Chairman of the Rajya Sabha as Members.

Note:-

• Under the Protection of the Human Rights Act, 1993 (PHRA) it can only make recommendations and not issue orders penalizing persons or authorities responsible for violation of human rights or award compensatory relief to victims. 
• It has to depend upon state or central governments for giving effect to its recommendations. 

Paris Principles (1991):-

The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights held in Paris on 7-9 October 1991. 

They were adopted by the United Nations Human Rights Commission by Resolution 1992/54 of 1992, and by the UN General Assembly in its Resolution 48/134 of 1993. 

• The Paris Principles relate to the status and functioning of national institutions for the protection and promotion of human rights.
• In addition to exchanging views on existing arrangements, the workshop participants drew up a comprehensive series of recommendations on the role, composition, status and functions of national human rights institutions (NHRIs).

Vienna Declaration and Programme of Action:-

Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights in Vienna in 1993. 

• The 1993 World Conference on Human Rights in Vienna represented a turning point for NHRIs. 
• For the first time NHRIs compliant with the Paris Principles were formally recognized as important and constructive actors in the promotion and protection of human rights and their establishment and strengthening were formally encouraged. 
• National Human Rights Institutions are funded by the State but are independent of it: they are not non-governmental organizations but they act as “bridge” between civil societies and Governments. They are known by different names in different countries, for instance they may be called Human Rights Commission, Committee or Council, Ombudsman, Public Defender, Provedor or Defensor.
• The internationally agreed Paris Principles define the role, composition, status and functions of national human rights institutions.

Law Commission

Law Commission:-

Law Commissions were constituted by the Government from time to time and were empowered to recommend legislative reforms with a view to clarify, consolidate and codify particular branches of law where the Government felt the necessity for it.

The first such Commission was established in 1834 under the Charter Act of 1833 under the Chairmanship of “Lord Macaulay” which recommended codification of the Penal Code, the Criminal Procedure Code and a few other matters. 

Thereafter, the second (1853), third (1861) and fourth (1879) Law Commissions were constituted in 1853, 1861 and 1879 respectively which, during a span of fifty years contributed a great deal to enrich the Indian Statute Book with a large variety of legislations on the pattern of the then prevailing English Laws adapted to Indian conditions. 

The Indian Code of Civil Procedure (CPC), the Indian Contract Act, the Indian Evidence Act, the Transfer of Property Act. etc. are products of the labour of the first four Law Commissions.

First Law Commission of Independent India in 1955 with the then Attorney-General of India, Mr. M. C. Setalvad, as its Chairman. Since then twenty more Law Commissions have been appointed, each with a three-year term and with different terms of reference. 

THE TWENTIETH LAW COMMISSION

The Twentieth Law Commission was constituted through a Government Order with effect from 1st September, 2012. It has a three-year term, ending on 31st August, 2015.

Mr. Justice A. P. Shah, Former Chief Justice, Delhi High Court

Chairman(w. e. f. 21.11.2013)

The Terms of Reference of the Twentieth Law Commission are as follows:-

A.    Keep under review the system of judicial administration to ensure that it is responsive to the reasonable demands of the times

B.     Examine the existing laws in the light of Directive Principles of State Policy and to suggest ways of improvement and reform and also to suggest such legislations as might be necessary to implement the Directive Principles and to attain the objectives set out in the Preamble to the Constitution.

C.     Examine the existing laws with a view for promoting gender equality and suggesting amendments thereto.

D.    Revise the Central Acts of general importance so as to simplify them and to remove anomalies, ambiguities and inequities.

E.     Recommend to the Government measure for making the statute book up-to-date by repealing obsolete laws and enactments or parts thereof which have outlived their utility.

F.      Consider and to convey to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government

G.    Consider the requests for providing research to any foreign countries as may be referred to it by the Government through Ministry of Law and Justice

H.    Examine the impact of globalization on food security, unemployment and recommend measures for the protection of the interests of the marginalized.