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close this bookBringing Equality Home - Implementing the convention on the elimination of all forms of discrimination against women (UNIFEM, 1998, 45 p.)
close this folderVI. RESERVATIONS
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India ratified CEDAW in 1993 but effectively reserved on the articles relating to cultural and customary practices (5(a)) and to equality in marriage and family relations (16(1)). The Government made a declaration stating that it would follow a "policy of non-interference in the personal affairs of any Community without its initiative and consent" when implementing these provisions.

Figure (© United Nations)

This declaration has been deeply troubling to women's NGOs, as it seriously undermines one of the most important contributions they felt CEDAW could make to the reform of Indian law. Women's equality rights are already recognised and respected in many of India's laws affecting public life. However, discrimination has not been challenged in the key laws that regulate and structure private life. The Indian personal laws, which control matters such as inheritance, property rights, and adoption, continue to follow patriarchal principles. For example, according to Hindu personal law, daughters are denied most of the important coparcenary property rights that are granted to sons; women's right to the family dwelling home is subordinate to men's rights; women's guardianship of their children is secondary to that of men's; and wives cannot initiate adoption. Women's NGOs characterise the present Indian legal order as guaranteeing only formal, and not substantive, equality for women. They believe that so long as private life is thoroughly regulated according to patriarchal principles, it will not be possible for women to exercise their public rights in a meaningful way. As Rani Jethmalani, of Women's Action Research and Legal Action for Women (WARLAW), explains the problem:

The regime of personal laws which are gender discriminatory and violate article 14 of CEDAW have reduced women to second class citizens. Unless these laws are amended women cannot be empowered to combat violence and cultural practices that frustrate and deny them equality and dignity. It is futile to empower women by giving them decisive voices in decision making bodies where those voices are feeble and unequal without at the same time changing the laws - If each one's voice including the voices of women is to have significance and meaning then those voices must be the voices of free persons and not slaves (Kali's Yug, at 18).

What Indian women's NGOs find especially valuable about the way the Convention conceptualises equality is its recognition that equality in private life and equality in public life are integrally connected. CEDAW requires the State to ensure conditions of equality in all aspects of women's lives, not just in their public legal and political interactions. In particular, article 5 of CEDAW obliges the Government to intervene in private life and eliminate "prejudices and other customary practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men or women." In addition, CEDAW article 16 requires that the State guarantee relations of equality within marriage and family relations. With its reservations on articles 5 and 16, however, the Indian Government appears to have adopted a strategy of passive inaction on discrimination in women's private lives, under the rubric of respect for the wishes of minority communities.

Figure (© United Nations)

WARLAW has developed an innovative and incisive legal challenge to force the Government to take action on its CEDAW commitments. In 1994, it brought a petition to the Indian Supreme Court. The petition asks the court to order the Government to state exactly how it intends to determine whether communities want the personal laws changed - and to state exactly how the Government intends to include the voices of women from these communities when making its assessment. In effect, WAR-LAW is challenging the monolithic and static model of community that is implicit in the Government's declaration. WARLAW is taking the position that the Government cannot simply assume that communities want discriminatory traditions to continue unchanged, or that male community leaders necessarily speak for the women in their communities.