Women's Human Rights in India

Christine Forster, Jaya Sagade

• Publisher: Routledge India
• Year: 2019
• ISBN:
  9781000228052
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This book focuses on women's human rights in India. Drawing on case studies, it provides a clear overview of the key sources on gender and rights in the country. Further, it contextualizes women's rights at the critical intersection of caste, religion and class, and analyses barriers to the realization of women's human rights in practice. It also develops strategies for moving forward towards greater recognition, protection, promotion and fulfilment of women's human rights in India.

Drawing on critical pedagogical tools to analyse groundbreaking court cases, this book will be a key text in human rights studies. It will be indispensable to students, scholars and researchers of gender studies, sociology, law and human rights.

1
Introduction

Background context

This book focusses on women’s human rights in India. In particular, the book focusses on human rights in significant areas of women’s lives, including a right to equality and non-discrimination, a right to a life free from violence, a right to equality in marriage and family relations, a right to equal political representation and participation and a right to economic empowerment. Women face discrimination and inequality in the enjoyment of each of these rights.

The book represents the first comprehensive overview of women’s human rights in India approached primarily through the lens of the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW).¹ CEDAW, adopted in 1979 and acceded to by India in 1983, is an international human rights convention focussing on women’s rights. The full and equal participation of women in political, civil, economic, social and cultural life at the national, regional and international levels and the eradication of all forms of discrimination on the grounds of sex and gender are priority objectives of the women’s human rights framework.

Indeed, CEDAW establishes a woman’s human rights framework that can be utilised to define, analyse and articulate women’s experiences of violence, subordination, discrimination and marginality. It influences domestic legal systems by providing a standard for courts to use in judicial decision-making in cases that involve women’s rights, it creates a benchmark for government and civil society to critique and assess domestic laws and legislative amendments, it can be utilised as a tool for gender advocates to argue for the strengthening of local laws and for the introduction of gender equality mechanisms and initiatives and provides a framework for government and civil society to run public-awareness campaigns.² It provides a means for making the state accountable for violations of its international obligation to respect and fulfil women’s human rights.³ Finally, it provides a forum (at both the international and national levels) to discuss women’s human rights issues.⁴ As such, CEDAW has become an increasingly important normative framework in India.⁵

The Indian women’s movement has a long and rich herstory, beginning with linkages to the social reform movements of the nineteenth century and the political challenge to British colonialism in the twentieth century.⁶ Sarala Devi for example, born in 1872, was a political leader in the Freedom Struggle Movement and the leader of the Anti-British Movement.⁷ She founded the first woman’s organisation in India, known as Bharat Stree Mahamandal in Allahabad in 1910. The main goal of Bharat Stree Mahamandal was to promote and improve female education by bringing together all Indian women.⁸ Membership was obtained through an entry fee of one rupee and was open to all women, regardless of caste, race or class.⁹ The beginnings of the contemporary Indian women’s movement can be traced to the early 1970s, when women were active in radical protests against the Indian state.¹⁰ The influence of the international human rights framework on that movement as it emerged, particularly CEDAW, is evident in its tactical use by women’s organisations and in the responses and actions of the state to their demands for law reform.¹¹ Indeed, significant law reform changes were achieved in the 1980s, including criminalising dowry deaths, reform of discriminatory citizenship provisions and amendments to some of the personal laws.¹² From the 1990s through to 2019, the women’s movement has grown, expanded and diversified. It comprises numerous groups and organisations, which vary in location, form and type. They are urban, rural, small, large, informal, formal, localized, national, internationally affiliated and combinations of all these forms.¹³ Debates within the women’s movement have focussed on reservations for women in state legislatures and the Union Parliament, the personal laws, women’s economic empowerment, reproductive and sexual rights including alternate sexualities and violence against women.¹⁴

The women’s movement’s engagement with international human rights law occurs at multiple levels. As petitioners, women are challenging the legal system to recognise their rights by appealing to norms of equality and non-discrimination in both international and national law.¹⁵ At the level of the judiciary, the Supreme Court of India now explicitly incorporates the rules and principles of CEDAW where gaps exist in national legislation.¹⁶ At the law-making level, the legislature has begun to initiate laws that are consistent with women’s human rights.¹⁷ Despite such promising developments, the material reality of women’s lives in India does not reflect significant improvement, nor has the gap between formal rights and the actual status of women been narrowed sufficiently as a result of the legalisation of women’s human rights.¹⁸

The birth of a girl in India, according to a popular Hindu saying, is like the arrival of Lakshmi, the four-armed goddess of wealth, often depicted holding lotus flowers and an overflowing pot of gold.¹⁹ However, discrimination against women in India occurs throughout her life-cycle in a range of forms, in every aspect of her life in both public and private spheres.²⁰ Indeed, in 2018 India ranked a dismal 108 overall out of countries in the Global Gender Gap Report (Report) produced by the World Economic Forum.²¹ The Report ranks 144 countries on the progress they have made towards gender parity in four areas – health, education, economics and politics.

India ranked 142 for economic participation and opportunities. The Report noted a number of marked inequalities between women and men. For example, 66 percent of women’s work is unpaid, compared to 12 percent of men’s; only 1.8 percent of women are employed in skilled work, compared to 8.1 percent of men and only 42.6 percent of women have a bank account, compared to 62.5 percent of men.²² In addition, the Report noted a significant gender gap among legislators, senior officials and managers, as well as professional and technical workers. In other economic figures, on average women earn 25 percent of what men earn,²³ women do 65 percent of the daily unpaid work²⁴ and the employment of women in the workforce has declined from 36 percent employed in 2005–2006 to 24 percent in 2015–2016.²⁵

On the health and survival pillar, India ranked a very low 147, with disturbingly poor statistics on women’s health.²⁶ According to the Report, one in five women, many who are child mothers, die during pregnancy or childbirth.²⁷ Many women are not provided with adequate maternity facilities and services and suffer death or serious morbidity issues and other harms in childbirth, and infants are born with preventable conditions.²⁸ Lastly, there is a high prevalence of gender-based violence which significantly lowered India’s ranking on this pillar.²⁹

India ranked 114 on educational attainment. India has succeeded in fully closing its primary education enrolment gender gaps with an enrolment of 92.9 percent; however, enrolment drops to 62.2 percent at secondary school.³⁰ Indeed, the 2011 census reveals that 82 percent of boys are literate while only 65 percent of girls can read and write.³¹ In many schools, there are no separate toilet facilities for girls. The lack of privacy means many girls drop out of school at menstruation.³² Additionally, the lack of girls-only schools in rural areas, the cultural bias in favour of boys, early marriage, the heavier domestic and subsistence duties of girls and the lack of female primary teachers in rural areas all combine to discourage girls from participating in education.³³ Further, many families do not want to lose a helping hand at home and on the land by sending their daughters to school.³⁴ Poverty and malnutrition, coupled with the preferential feeding of boys, also ensure that girls are more likely to be undernourished.³⁵ This adversely affects their school performance and their retention rate. Although the tertiary education gender gap is almost closed, with the 26.6 percent of women attending almost equal to men at 27 percent, many women do not continue to work in the professions in which they have trained after marriage.³⁶

The most successful ranking was on political empowerment, where India ranked 19. This is in part, however, a reflection of the low political participation of women globally,³⁷ rather than an outstanding performance by India. India has 11.8 percent women in the national parliament, and 18.5 percent of ministerial positions are held by women.³⁸ Women have a low rate of participation in local government; however in the panchayat system, since the introduction of reservations, women’s representation has soared.³⁹

Defining women’s human rights

A standard definition of human rights is those rights a person has because they are human. They are, according to this definition, universal, inalienable and indivisible – they cannot be transferred, forfeited or waived.⁴⁰ Although human rights may be understood in an abstract, philosophical or moral sense, in this book, women’s human rights are explored in their legal context. In a legal sense, human rights are expressed and guaranteed by international law in the form of charters, treaties, conventions, declarations and various statements made by treaty-bodies.⁴¹ Civil and political rights include the right to equality and non-discrimination; the right to privacy and the freedoms of thoug...