LLM Notes: Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979

1. Introduction & Nature

·       Adoption: Adopted by the UN General Assembly on 18 December 1979 and entered into force in 1981.

·       Status: Often described as the "International Bill of Rights for Women," it is the principal international human rights treaty exclusively dedicated to gender equality.

·       Scope: It comprises a Preamble and 30 Articles structured into six parts, defining discrimination and setting an agenda for national action.

2. Definition of Discrimination (Article 1)

CEDAW defines discrimination against women broadly 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... of human rights and fundamental freedoms."

Crucially, it covers both intentional discrimination (purpose) and discriminatory effects (impact), targeting both public and private spheres.

3. Key Substantive Provisions (Articles 2–16)

The Convention mandates "substantive equality" (equality of results, not just law).

·       State Obligations (Art. 2): States must embody equality in constitutions and abolish discriminatory laws.

·       Temporary Special Measures (Art. 4): Allows for affirmative action (reservation/quotas) to accelerate de facto equality.

·       Social & Cultural Patterns (Art. 5): Obligates states to modify social and cultural patterns to eliminate prejudices and customary practices based on stereotypes.

·       Specific Rights: Guarantees equality in:

o   Political Life (Art. 7): Voting and holding office.

o   Education (Art. 10): Equal access to diplomas, sports, and scholarships.

o   Employment (Art. 11): Equal pay for work of equal value; prohibition of dismissal on grounds of maternity.

o   Marriage & Family (Art. 16): Equal rights in marriage, divorce, and guardianship (a highly contested article).

4. Monitoring Mechanism (Article 17)

·       CEDAW Committee: Establishes a committee of 23 independent experts to monitor implementation.

·       Reporting: State parties must submit regular reports (every 4 years) on legislative, judicial, and administrative measures taken.

·       Optional Protocol (1999): Allows the Committee to hear individual complaints and conduct inquiries into grave violations (India has not ratified this protocol).

5. Indian Position & Judicial Application

·       Ratification: India ratified CEDAW on July 9, 1993.

·       Reservations: India made specific declarations/reservations regarding Articles 5(a) and 16(1), stating that it will not interfere in the "personal laws" of communities unless the communities themselves take the initiative. It also does not accept the compulsory jurisdiction of the ICJ (Art. 29).

·       Judicial Activism: The Supreme Court significantly applied CEDAW in Vishaka v. State of Rajasthan (1997). In the absence of domestic law, the Court relied on Articles 11 and 24 of CEDAW to formulate the guidelines against sexual harassment at the workplace, ruling that international conventions consistent with fundamental rights must be read into domestic law.

Study guide

Answer: CEDAW 1979 (The International Bill of Rights for Women)

Mnemonic: V-DISC

• V - Vishaka & Indian Implementation

• D - Definition (Art 1)

• I - Indian Reservations

• S - Substantive Equality (Art 2-16)

• C - Committee & Monitoring (Art 17)

1. Nature & Scope (The "Magna Carta")

Adopted in 1979 (entered into force 1981), CEDAW is the most comprehensive treaty on women's human rights. Unlike previous treaties which were "gender-neutral," CEDAW specifically targets the disadvantage of women. It legally binds State Parties to eliminate discrimination in both public and private spheres (including family life).

2. Definition of Discrimination (Article 1)

For exams, memorize that the definition covers both Intent and Impact.

"Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying... human rights."

• Key takeaway: Even if a law is neutral on its face, if its effect disadvantages women, it is discrimination under CEDAW.

3. Core Obligations: Substantive Equality (Articles 2–16)

CEDAW moves beyond "formal equality" (treating likes alike) to "Substantive Equality" (equality of results).

• State Duties (Art 2-4): States must abolish discriminatory laws and modify social patterns. It specifically allows Temporary Special Measures (Affirmative Action/Reservations) under Article 4 to accelerate equality.

• Specific Fields:

  • Art 5: Modify social/cultural patterns (stereotypes).

  • Art 7: Political participation.

  • Art 11: Employment (Equal pay for equal work).

  • Art 16: Marriage and family relations (most controversial).

4. Monitoring Mechanism (Article 17)

• CEDAW Committee: A body of 23 experts monitors implementation.

• Reporting: States must submit reports every 4 years.

• Optional Protocol (1999): Allows individual complaints to the Committee (Note: India has not ratified this protocol).

5. Indian Context: Implementation & Reservations (Crucial for Indian Law Exam)

A. Reservations (The "Cultural Shield")

India ratified CEDAW in 1993 with specific declarations, stating it will not interfere in "personal affairs of communities" without their consent. This applies to:

• Article 5(a): Modifying cultural patterns.

• Article 16(1): Equality in marriage and family.
  (Critique: This limits CEDAW's power in personal law matters like inheritance and divorce).

B. Judicial Implementation (The "Golden Thread")

The Supreme Court has aggressively used CEDAW to fill gaps in domestic law:

Case Law	Principle	CEDAW Reference
Vishaka v. State of Rajasthan (1997)	Sexual Harassment guidelines created by SC in absence of law.	Relied on Arts 11 & 24 (Safe working environment).
Githa Hariharan v. RBI (1999)	Mother can be "natural guardian" even if father is alive.	Interpreted Guardianship Act via Art 16 (Equality in family).
C. Masilamani Mudaliar v. Idol (1996)	Women's right to property is a human right, not just statutory.	Cited Art 2(f) (Modify customs) to interpret Hindu Succession Act.
Municipal Corp. of Delhi v. Female Workers (2000)	Maternity benefits extended to contract/daily wage workers.	Relied on Art 11 (Right to protection of health/safety).
Shayara Bano v. Union of India (2017)	Triple Talaq unconstitutional.	Justice Joseph referred to India’s human rights obligations (implied CEDAW Art 16).

C. Legislative Implementation

• PWDVA 2005: The Protection of Women from Domestic Violence Act explicitly mentions CEDAW in its Statement of Objects and Reasons.

• POSH Act 2013: Enacted to give statutory backing to the Vishaka guidelines derived from CEDAW.

Summary for Exam Revision

• Year: 1979 (Ratified by India 1993).

• Key Concept: Substantive Equality (Result-oriented).

• Indian Reservations: Art 5 & 16 (Personal Laws).

• Top Case: Vishaka (filling the vacuum of law using CEDAW).