Gender Discrimination in India: Perspective of
The Convention on the Elimination of all Forms
of Discrimination Against Women (CEDAW)
Mufradhatul Riadhah and Zulfiani Ayu Astutik
Department of International Relations, Department of Law
Universitas Muhammadiyah Yogyakarta
riadhahmufradatul@yahoo.co.id, zulfianiayuastutik@yahoo.com
Abstract-This paper attempts to analyse the perspective of the
Convention on the Elimination of all Forms of Discrimination
Against Women (CEDAW) in dealing with gender discrimination
that happened in India. Nowadays, the most problem in Indian
society is discrimination for Indian women because of structure of
traditional Indian society. The discrimination happened in every
single part of Indian social life, women must survive to get
education, job and also there is still gender pay gab. The women
discrimination can be visualized on various angels, the
discrimination happened also in access to decision making
institutions are not equal to both men and women. Having regards
to Article 5 of the Universal Declaration of Human Rights, Article 10
and Article 11 of CEDAW, both provide the protection to the
women and also gender equality. For instance, the gender
discrimination that happened in India is one of the violations of
principle of equality and existing treaty which regulate on
protection for all persons from discrimination. By using normative
legal research with statute approach and case approach, the
discussion indicates that gender discrimination case in India violate
the existing International Convention (CEDAW) and Indian
government shall make a new specific law about gender
discrimination.
Keywords: Discriminations Against Women, CEDAW, Gender
Disabilities, Eliminations.
I. INTRODUCTION
A survey conducted by the Thomson Reuters Foundation
has ranked India as the world's most dangerous country for
women, ahead of Afghanistan, Syria and Saudi Arabia. The
poll surveyed 548 experts on six different indices - healthcare,
discrimination, cultural traditions, sexual and non-sexual
violence, and human trafficking. India topped three - cultural
traditions, sexual violence and human trafficking.1 India is the
world’s most dangerous country for women due to the high
risk of sexual violence and being forced into slave labour,
according to a poll of global experts.2 The only western nation
1
K. Chowdhury, 2018, “Is India really the most dangerous country for
women?”, taken from: https://www.bbc.com/news/world-asia-india-
42436817, accessed on Saturday, 21 September 2019 at 13.15 pm.
2 Belinda Goldsmith, 2018, “Poll ranks India the world’s most dangerous
country for women”, taken from: https://www.theguardian.com/global-
in the top 10 was the US, which ranked joint third when
respondents were asked where women were most at risk of
sexual violence, harassment and being coerced into sex.
Experts said India moving to the top position showed not
enough was being done to tackle the danger women faced,
more than five years after the rape and murder of a student
on a Delhi bus made violence against women a national
priority. “India has shown utter disregard and disrespect for
women … rape, marital rapes, sexual assault and harassment,
female infanticide has gone unabated,” said Manjunath
Gangadhara, an official at the Karnataka state
government. The (world’s) fastest growing economy and
leader in space and technology is shamed for violence
committed against women. 3 Government data shows
reported cases of crimes against women in India rose by 83%
between 2007 and 2016, when there were four cases of rape
reported every hour. In addition, India has the most child
brides in the world around a third of all girls are married
before their 18th birthday and its own government estimated
earlier this year that there are 63 million “missing” women in
the country because of sex-selective abortion, as well as 21
million unwanted girls.4
In 1980, India ratified the Convention of the Elimination of
all forms of Discrimination Against Women (CEDAW) treaty
and enter into force in 1993.5 The purpose, as outlined in
development/2018/jun/28/poll-ranks-india-most-dangerous-country-for-
women, accessed on Saturday, 21 September 2019 at 14.00 pm.
3 Annie Gowen, 2018, India ranked world’s most dangerous for women,
reigniting debate about women’s safety”, taken from:
https://www.washingtonpost.com/news/worldviews/wp/2018/06/27/india-
ranked-worlds-most-dangerous-place-for-women-reigniting-debate-about-
womens-safety/, accessed on Saturday, 21 September 2019 at 14.15 pm.
4 Meka Beresford, 2018, “Exclusive: India most dangerous country for women
with sexual violence rife – global poll”, taken from:
https://www.reuters.com/article/us-women-dangerous-poll-
exclusive/exclusive-india-most-dangerous-country-for-women-with-sexual-
violence-rife-global-poll-idUSKBN1JM01X, accessed on Saturday, 21
September 2019 at 14.30 pm.
5 United Nations Treaty Collection, taken from:
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
8&chapter=4&clang=_en#EndDec, accessed on Saturday, 21 September 2019
at 15.00.
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.
Additionally, Articles 2 until 16 of the treaty suggest measures
and laws that can be invoked in the fight against gender
discrimination.6 In line with the previous background, it is
interesting to discuss the gender discrimination in India based
on perspective of the existing international convention
(CEDAW).
II. RESEARCH METHOD
The research is a normative legal research which statute
and case approach. This research uses secondary data7 and
normative8 methods combined to case and statute approach 9
in analysing the issue of gender discrimination that happened
in India. In this study, the authors use the method of
exploration method that aims to recognize or get a new view
of a phenomenon which is often able to formulate the
research problem more precisely or to formulate the research
hypothesis.10 Doctrinal method is also used in this research
which focusing on reading and analysing primary materials
(such as the legislation) and secondary materials (such as
legal dictionaries, textbooks, journal articles, case digest and
legal encyclopaedias).11
Source of data in this research were collected by secondary
data method. It is a method of research to collect data from
the library research or literature study. The data are, namely:
1. Primary data is the related legislations, namely: Article 1
until Article 16 of the Convention of the Elimination of all
forms of Discrimination Against Women (CEDAW).
2. Secondary data are books, journals, news, and related
articles to the topic.
3. Tertiary data are data that supports the primary and
secondary data such dictionary, encyclopaedia, internets,
etc.
6 Marc Galanter and Jayant Krishnan, 2001, Religion and Personal Law in
Secular India, Bloomington and Indianapolis, Indiana University Press, p. 271.
7 Lorraine Andrews, 2012, “Classic Grounded Theory to Analyse Secondary
Data: Reality and Reflections”, The Grounded Theory Review 11, no. 1,
Sociology Press.
8 Soerjono Soekanto and Sri Mamudji, 2007, Penelitian Hukum Normatif,
Suatu Tinjauan Singkat, Jakarta, PT. Raja Grafindo Persada, p. 12.
9 Gusti Ngurah Wairocana, 2013, Pedoman Pendidikan Fakultas Hukum
Universitas Udayana, Bali, Fakultas Hukum Universitas Udayana, p. 75.
10
Sukandarrumidi, 2002, Metodologi Penelitian, Yogyakarta, Gadjah Mada
University Press, p. 61.
11 Mike McConville and Wing Hong Chui, 2012, Research Methods for Law,
Edinburgh, Edinburgh University Press, p. 47.
The data were collected by library research such reading,
analyzing, and deriving conclusion from related documents
(law books, legal journals, internets and other related to the
main problem of this research). The data were analyzed
systematically through descriptive qualitative method which
means that collecting the data and selecting the data
obtained from research with the focus on the problem and
then the result was arranged systematically so that it
becomes concrete data.
III. DISCUSSION
A. Violence Against Women based on CEDAW
CEDAW promotes women’s full participation in economic,
political and social life, which has enormous benefits for
societies at large. Women’s health, education and economic
status has numerous benefits for household members,
particularly children. Women’s participation in the workforce
leads to the growth of individual businesses and to the
economy at large. Women’s leadership of social movements
and participation in government can foster peace, justice and
security for people around the world.12 In order to guarantee
women’s full participation in these spheres, however, their
rights must be protected, respected and fulfilled.
Violence against women is partly a result of gender
relations that assumes men to be superior to women. Given
the subordinate status of women, much of gender violence is
considered normal and enjoys social sanction. Manifestations
of violence include physical aggression, such as blows of
varying intensity, burns, attempted hanging, sexual abuse and
rape, psychological violence through insults, humiliation,
coercion, blackmail, economic or emotional threats, and
control over speech and actions. In extreme, but not
unknown cases, death is the result.13
These expressions of violence take place in a man-woman
relationship within the family, state and society. Usually,
domestic aggression towards women and girls, due to various
reasons remain hidden. 14 Cultural and social factors are
interlinked with the development and propagation of violent
behaviour. With different processes of socialisation that men
and women undergo, men take up stereotyped gender roles
12 Gill K, Warner A and Weiss E, “From Beneficiaries to Change Agents: The
Rise of Women Leaders in International Development”, SAIS Review, 2009, p.
23-38.
13
Simmons, George B., C. Smucker, S. Bernstein, and E. Jensen, "Post-
neonatal mortality in rural India: Implications of an economic model,"
Demography 19, no. 3, August 1982, p. 371-389.
14 Woojin Chung and Li Shuzhou, "Evidence for an Incipient Decline in
Numbers of Missing Girls in China and India", Population and Development
Review, 35(2), 2009, p. 401-16.
of domination and control, whereas women take up that of
submission, dependence and respect for authority. A female
child grows up with a constant sense of being weak and in
need of protection, whether physical social or economic. This
helplessness has led to her exploitation at almost every stage
of life.15
The family socialises its members to accept hierarchical
relations expressed in unequal division of labour between the
sexes and power over the allocation of resources. The family
and its operational unit is where the child is exposed to
gender differences since birth, and in recent times even
before birth, in the form of sex-determination tests leading to
foeticide and female infanticide. The home, which is
supposed to be the most secure place, is where women are
most exposed to violence. 16 The Fourth Conference of
Women, 1995 has defined violence against women as a
physical act of aggression of one individual or group against
another or others. Violence against women is any act of
gender-based violence which result in, physical, sexual or
arbitrary deprivation of liberty in public or private life and
violation of human rights of women in violation of human
rights of women in situations of armed conflicts.17
Violence against women has been clearly defined as a form
of discrimination in numerous documents. The Declaration on
the Elimination of Violence Against Women defines “violence
against women” as “any act of gender-based violence that
results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats
of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or private life.” 18
It has taken decades of struggle by the women’s rights
movement to persuade the international community to view
gender-based violence against women as a human rights
concern and not just as a private matter in which the State
should not interfere. In 1992, the CEDAW Committee in its
General Recommendation No. 19, asserted that violence
against women is a form of discrimination, directed towards a
woman because she is a woman or that affects women
disproportionately.19 This violence seriously inhibits women’s
15 S. Bandewar, “Abortion Services and Providers’ Perceptions: Gender
Dimensions”, Economic and Political Weekly, Vol. XXXVIII No.21 May 24-30,
2003, p. 2075-2081.
16 S.P. Srivastava, “The Perils of Pre-Birth Murder – A Sociological Analysis of
Female Foeticide”, Journal of Social Welfare, Vol.47, No. 10, January 2001, p.
7-12.
17
Amartya Sen, “Gender and Co-operative Conflicts”, Women and World
Development, New York, Oxford University Press, 1989, p. 10.
18 Bina Agarwal, A Field of One's Own: Gender and Land Rights in South Asia,
Cambridge, Cambridge University Press, 1994.
19 United Nations Human Rights Office of the High Commissioner, Violence
against women, taken from:
ability to enjoy rights and freedoms on a basis of equality
with men. In December 1993, the Declaration on the
Elimination of Violence Against Women recognized
that violence against women violates women's rights and
fundamental freedoms and called on states and the
international community to work toward the eradication of
violence against women. The same year, the Vienna
Declaration and Programme of Action recognized that the
elimination of violence against women in public and private
life is a human rights obligation20 , then the Commission on
Human Rights condemned gender-based violence for the first
time in 1994 and the same year appointed a Special
Rapporteur on violence against women, its causes and
consequences. 21 The 1995 UN World Conference on Women
held in Beijing reaffirmed the conclusions of the Vienna
Conference, listing violence against women as one of the
critical areas of concern. In General Recommendation No. 35,
the CEDAW committee recognized that the prohibition of
gender-based violence against women has evolved into a
principle of customary international law, binding all States.
Framing gender-based violence against women as a human
rights violation implies an important conceptual shift. It
means recognizing that women are not exposed to violence
by accident, or because of an in-born vulnerability. Instead,
violence is the result of structural, deep-rooted discrimination
which the state has an obligation to address. Preventing and
addressing gender-based violence against women is therefore
not a charitable act. It is a legal and moral obligation requiring
legislative, administrative and institutional measures and
reforms and the eradication of gender stereotypes which
condone or perpetuate gender-based violence against
women and underpin the structural inequality of women with
men.22
B. Child Marriage Issues
A girl child is twice vulnerable for being a child and a girl.
https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/VAW.aspx,
accessed on Sunday, 22 September 2019 at 19.30 pm.
20 UNICEF, “Guidelines on the Protection of Child Victims of Trafficking”,
taken from:
https://www.unicef.org/protection/Unicef_Victims_Guidelines_en.pdf,
accessed on Sunday 22 September 2019 at 20.15 pm, 2004.
21 United Nations Human Rights, “Special Rapporteur on Violence Against
Women, its Causes and Consequences”, taken from:
https://www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMa
ndate.pdf, accessed on Sunday, 22 September 2019 at 20.20 pm, 1994.
22
Dairiam S. From Global to Local: The Involvement of NGOs. In: Annan K,
Schopp-Schilling H, Flinterman C, eds. The Circle of Empowerment: Twenty-
five Years of the UN Committee on the Elimination of Discrimination against
Women. New York: The Feminist Press at the City University of New York;
2007.
Discrimination against them begins even before their birth
and continues as they grow. Their psychological, physical and
economic dependence on the family makes them vulnerable
to violence and child abuse within or outside the family. 23
Since 1872, the following efforts have been made to
legalise the minimum age of marriage. 24 The Civil Marriage
Act of 1872 was passed as a result of the efforts made by Raja
Ram Mohan Roy, before which, a provision of the Indian
Penal Code rendered the consummation of marriage before
the girl attained the age of 10, punishable with life
imprisonment. Social reformers of 19th and 20th century tried
to counteract child marriage as they felt it was marring child’s
educational, physical and economic progress. 25 The Child
Marriage Restrain Act of 1929 (popularly known as Sarda Act)
which fixed the minimum age for boys at 18 and girls at 15,
extended only to British India. The Act did not prohibit
marriages nor did it declare these marriages invalid or
illegal.26 With the codification of the Hindu Law, the Hindu
Marriage Act passed in 1955 made the minimum age of
marriage for girls at 15.27 In 1978, a further revision was
made in the minimum legal age. With this last amendment,
the law was finally brought nearer in line with the
accumulated scientific medical evidence showing that the
adolescent girl is at grave risk of her health, as also that of her
children, until she has reached the age of 18 at least.
Alongside, the minimum age of marriage for boys also
underwent an upward revision to 21 years.
However, it did not empower the police to prevent the
marriage by arresting a person without warrant or magisterial
order. Under the amended provision of this Act the
jurisdiction was given to metropolitan magistrates or to
judicial magistrates. They have been empowered to try any
case related to child marriage. Anybody including social
organisations, the police or the any person can make a
complaint to the police or to the magistrate directly. Acting
on a complaint, any court can itself make inquiries. In practice
this whole process is so complicated and so time consuming
that by the time these authorities are in a position to take
preventive action the marriage is already over and all proof of
23 Yvonne MacPherson, “Images and Icons: Harnessing the Power of Media to
Reduce Sex-Selective Abortion in India”, 15 (2) Gender and Development,
2007, p. 413-423.
24 Chattopadhyay R. and Duflo E, “Women Leadership and Policy Decisions:
Evidence from a Nationwide Randomized Experiment in India”, Journal of
Economic Behaviour and Organization, 2001, p. 423-429.
25 Satish Agnihotri, Richard Palmer-Jones, and Ashok Parikh, “Missing Women
in Indian Districts: A Quantitative Analysis”, Structural Change and Economic
Dynamics, 2002, p. 285–314.
26 Amartya Sen and Sunil Sengupta, “Malnutrition of Rural Children and the
Sex Bias”, Economic and Political Werrkly, May 1983, p. 857.
27 P.J. Kapur, “Girl Child Abuse: Violation of her Human Rights”, Social
Change, Vol. 25 No. 2-3, June-Sept 1995, p. 3-18.
such a ceremony obliterated.28
Further, Section 12 of the amended Child Marriage
Restraint Act empower the magistrate to issue injunctions
prohibiting marriages in contravention of this Act, but before
issuing injunction the affected parties have to be given a
notice to enable them to present defence. An injunction
issued without this notice is not valid. This procedure is so
time-consuming that marriages in contravention of this Act
are completed before the court can pass an order preventing
them. The court cannot even issue a general direction that
marriage of a child shall not be solemnised within some
particular time limit, say eight months or two years. The
punishment under the amended Child Marriage Restraint Act
remains mild, i.e. only simple imprisonment extended to
three months and a fine of Rs 1000. According to the
provisions of Section 5 of the Act whoever performs, conduct
or direct child marriages shall be punishable.
Compare to personal law in Afghanistan, marriage in
Afghanistan is a contract between the parents of an unborn
girl and a man who offers them money. A Muslim woman in
Afghanistan cannot have a say in the marriage except in
certain highly influential families33 where the women can
speak for themselves.29 A woman or a girl who is young has
an option of either living and subjecting herself to the sexual
desires of her husband even if she does not like, or to run
away in which case she if arrested for the crime of running
away from home.30
A woman’s statement is valuable as only half a man’s in
Islam.31 She receives only half the inheritance of her male
siblings. A woman’s marriage contract is involving her male
guardian and her husband, the woman not herself being a
party. A man in Afghanistan can have four wives and divorce
his wife by simple repudiation of the contract of marriage
using the word “Talak”, whereas a woman must give
particular and specific reasons, several of which are
enormously complicated to establish.32 Custody of children
reverts to the father, even if the father is abusive. Women
who remarry have to lose the keeping of her children. These
28 Emily Oster and M. Bryce Millett, "Do Call Centres Promote School
Enrolment? Evidence from India", Journal of Development Economics,
University of Chicago, 2010, p. 300.
29 Kaivan Munshi and Mark Rosenzweig, “Traditional Institutions Meet the
Modern World: Caste, Gender, and Schooling in a Globalizing Economy,”
American Economic Review, 96(4), 2006, p. 1225-1252.
30 Quil Lawrence, “For Afghan Women, Rape Law Offers Little Protection”,
taken from: https://www.npr.org/2011/12/02/143057341/for-afghan-
women-rape-law-offers-little-protection, accessed on Sunday, 22 September
2019 at 19.00 pm, 2011.
31 Vina Mazumdar, Political Ideology of the Women’s Movement’s
Engagement with Law, New Delhi: India, Centre for Women’s Development
Studies, 2000, p. 20.
32
According to the Personal Law guided by the Sharia.
are real issues of inequality and discrimination that Muslim
women face every day in Afghanistan.
There are several social factors that have contributed to
the prevalence of child marriage. The girl is considered to be
a burden of the household and thereby she is married in an
early age. Marriages between cousins is common in South
India. Sometimes marriages are settled even before the birth
of the child. In Rajasthan communities like Balai, Bhangi,
Bolal, Chamar, Dholi, Gujars, Malis and Meenas believe, that
marriage can be performed in childhood days irrespective of
their age and maturity.33 Sometimes betrothal takes place
before the pair is born, commonly known as ‘kotha
tharpana’. This custom ensures that the girl is secure as she
has been married within the clan.34 Parents believe that, it is
easy for the child-bride to adapt to a new environment as
well as it is easy for others to mould the child to suit their
family environment and practices.35
Child marriage is also done to maintain pre-marriage
chastity among the girls. Some parents also believe that, it is
easier to impose their will on their children while they are still
infants. They believe that, once married, boys do not flirt
around with village girls and the girls learn to take
responsibilities.36 There is also a conviction that it is easier for
the couple to adapt themselves to each other as the children
stay with each other since childhood. Despite growing up
together, the boys are not completely connected or
committed to their wives and some even seek relationships
outside marriage.37 The girl is considered to be an additional
labour as she is involved in unpaid jobs within or outside the
house in the rural as well as urban scenario. This is another
reason why the parents are worried about the girl’s chastity
before marriage.38
The impact of child marriage over the young bride’s future
is enforced widowhood, inadequate socialization, education
deprivation, lack of independence to select the life partner,
lack of economic independence, psychological as well as
marital adjustment, low health/nutritional status as a result
of early/frequent pregnancies in an unprepared psychological
33 S. Saravanan, “Violence against women in India: A literature review”,
Institute of Social Studies Trust, 2000, p. 78.
34 Sunita Kishor, “May God Give Sons to All: Gender and Child Mortality in
India”, American Sociological Review, 58, 1993, p. 247-265.
35 Claudia Goldin, Understanding the Gender Gap: An Economic History of
American Women, New York, Oxford University Press, 1990, p. 179.
36 Cecilia Ng and Swasti Mitter, "Valuing Women's Voices: Call Centre
Workers in Malaysia and India”, Technology and Development, 9(2), 2005, p.
209-233.
37
Erica Field, Seema Jayachandran and Rohini Pande, "Do Traditional
Institutions Constrain Female Entrepreneurship? A Field Experiment on
Business Training in India", American Economic Review, 2010, p. 56.
38 Kristin Mammen and Christina Paxson, "Women's Work and Economic
Development", Journal of Economic Perspectives, 14(4), 2000, p. 141-164
state of the young bride.39 Thousands of adolescent girls are
at risk from child marriage and the implications are not only
on their health but also on the right to fulfil their human
potential unhampered by the premature assumption of adult
roles and responsibilities.
IV. CONCLUSION
Apparently, gender discrimination that happened in India is
something very critical to be settled by India Government. It
impacts to the protection of the rights of India citizens in
running their life and India as Party of the Convention on the
Elimination of all Forms of Discrimination Against Women
(CEDAW) is firmly infringed the Article of the Convention
itself.
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