CONTENTS

Introduction 1

Part I: Human Rights

Historical Origins 3

Philosophy and the Law 5

Key Concepts 9

Unpackaging Human Rights Law 12

Part II: From Gendered

Lives to Gender
Justice

Journey of Women’s Human Rights 19
Law: CEDAW, Vienna and Beyond

Women’s Human Rights Framework 20

Part III: International

Implementation
Mechanisms

U.N. Mechanisms 23

Part IV: CEDAW

Principles of CEDAW 27

Part V: From Global to

Local

Domestic Application of Human Rights 36
Law: Precedents and Potential

Part VI: Gender-Based

Violence

Normative Framework 40

Gender-Based Crimes in Special 41
Contexts

Part VII: Moot Court

Moot Court 53
Films and Group Discussion 59

Appendices

Evaluation 61

Agenda 63

Contents Page of the Resource 65
Package

Profile of Participant 67
 Introduction

The ‘National Training on Women and International Human Rights Law’ began
with the introduction of participants and the organisers of the training. The
participants were asked to not only share their names, organisations, their work
but also something that best describes them, a thing, animal or colour. Madhu
Mehra introduced the two organisations viz., Partners for Law in Development
(PLD), New Delhi and International Women’s Research and Action Watch
(IWRAW), Asia Pacific, which organised the training. PLD is a Delhi based legal
resource group. The organization provides legal resources for social justice
initiatives, with a focus on women’s rights. IWRAW, Asia Pacific closely monitors
women’s rights, the working of United Nations instruments and mechanisms with
the purpose of making them more gender sensitive and enhancing their
effectiveness in the realisation of women’s rights. The three facilitators for the
training programme were also introduced. Madhu Mehra, Executive Director,
Partners for Law in Development, has worked extensively at the regional and
national level on the women’s rights issues and CEDAW. Deepika Udagama is a
Professor of Law, has also served as a Special Rapporteur to the United Nations
Commission on Human Rights to study ‘Globalisation of Rights and its Impact on
the full Enjoyment of all Human Rights.’ Saumya Uma, a leading member of the
ICC-India campaign, a project of Women’s Research and Action Group (WRAG).
Besides the facilitators, Mr. Shekhar Singh, Convenor, National Campaign on
People’s Right to Information was a guest speaker. Following the introductions
the workshop and its resource package were discussed. The material consisted
of resource package1, PLD publications: ‘CEDAW – Restoring Rights to Women’,
‘Beyond Appearances’ as well as ‘Voices Against 377’ and ‘Combating Impunity’.

The expectations of the participants were mapped against the objectives of the
training to assess the resonance between the two. The mapping as detailed
below confirms a matching between the two.

Expectations Objectives
To build an understanding about To build perspective and strengthen
human rights including human rights awareness about the international
of tribals and displaced people human rights standards

To learn about women’s rights and To deepen the understanding about

different developments in the women’s rights.
women’s movement at the Critical engagement with law by
international and national level viewing it from feminist perspective
and mapping changes in law in light
of women’s movement

To understand international human To develop an understanding about

rights treaties especially CEDAW international law on women, in
particular CEDAW, special
mechanisms and the ICC

1
The contents page of the resource package is annexed as an appendix to the report.
To learn about national application of To develop and expand the ability of
international human rights participants in incorporating
instruments international standards on women’s
rights in their work with the law

To strengthen the ability to use To develop familiarity with and skills

international standards in domestic on the application of human rights
litigation and the implementation of standards in domestic litigation, and
these standards through other means thereby facilitate its implementation
through the courts.

To understand the role of law in To develop an appreciation for critical

eliminating discrimination engagement with the law through
contextualising it in relation to social
The role of state and society in contexts and marginalised groups
perpetuating inequality
To strengthen skills in building a To develop and/or build a pool of
campaign and lobby for developing lawyers and women’s rights
international standards advocates committed to advance
women’s human rights through legal
Expand the network by forging and litigation initiatives
linkages with those working on
different issues and build solidarity To build a pool of lawyers and
women’s rights advocates with the
Learn from the experiences of others capacity to technically assist each
other and others on litigation and
other legal initiatives to advance
women’s human rights
 Part I – Human Rights

Sessions
Human Rights
Key Concepts
Unpackaging Human Rights Law

Session I – Human Rights

Historical Origins
The discussion on historical origins of human rights facilitated by Madhu Mehra
began with an exercise wherein the participants were divided into four groups
and each group was asked to reflect upon the following:

 What event triggered your political awareness, share briefly how this
happened
 What event or historical moment provides the moral basis to claims made by
the human rights movement or the women’s movement or the movement that
you feel primary affiliation to? Share briefly the moment/ event and the moral
values/ principles it represents.

Group 1

Presentation
The events that triggered the political awareness of the members of the group
stemmed from both experiences within and outside the home. It ranged from
experiences of discrimination and violence against women both within and
outside the family sphere. Social practices like untouchability also touched them.
Political awareness among some of them developed on account of participation
in student politics and further involvement in other struggles. One of them joined
the J.P. movement in mid seventy’s.

Moral basis or justification for the work that the participants are involved in is
mostly drawn from either their personal subjection to discrimination or awareness
about the prevalence of the same in the society at large. Violation of rights in
cases of domestic violence or sexual harassment of women at workplace,
declining sex ratio and also rising number of dowry deaths have specifically been
used as the moral basis for the work undertaken by the different organisations
with which the participants are affiliated.
Group 2

Presentation

The discussion within the group indicated that the day-to-day experiences of life
influenced them. These factors, which the group referred to as the internal factors
when merged with external factors like information and interaction with other
people, triggered awareness in them. Participants experienced or witnessed
discrimination in access to education, nutrition etc. Women did not have as many
opportunities of receiving education as men and also the nutritional needs of
women were very often compromised in favour of men in the family. The right to
movement of women is very restricted. They are expected to stay at home and
take care of younger siblings while no such responsibility is fastened on male
children. Women are often not allowed to make choices in relation to their lives.
All these instances point to unequal treatment of women.

The group identified various events/ moments which provided moral grounding to
their work. With some of the participants, it was the government’s programme
that created their organisation such as the Mahila Samakhya programme.
Founded in 1988 by the Department of Education, Ministry of Human Resource
Development, Government of India, it focuses on women’s empowerment and
education. Similarly the UGC establishment Women’s Studies departments in
various universities. Despite such progressive actions the state is also known for
its inactions that have spurred human rights movements by different sections of
people. Such governmental inaction has also led to judicial activism providing the
moral basis to various movements. The government policies with regard to tribals
and their rights vis-à-vis forest products, forest land etc has resulted in tribal
movements in various parts of the country for claiming their rights. Political,
economic policies of the Government with respect to certain regions of the
country have adversely affected the rights of the residents of those areas.
Militarisation in certain strife torn areas has resulted in violation of the rights of
the people. In Manipur, violence against women led to the Mira Pai Bi movement
also known as the torch bearers movement. Wherever any incident of violence
against woman occurrs Mira Pai Bies guard the area with their torches. They also
mobilised against alcoholism. Now, when Manipur is witnessing armed conflict
Mira Pai Bies continue to be the source of inspiration in Manipur. It was on
account of the strength of the women’s movement in Manipur that recently in
case of rape of Manorama in Manipur by an army man, that the 17 Assam Rifles
was forced to vacate their camp.
Group 3

Presentation
The members of this group traced their political awareness to various events in
their lives such as experiencing and witnessing violence within their families and
community, such as a woman Sarpach being beaten up by her husband for
attending Panchayat meetings, or a woman being beaten up by her sons.
Besides this non-distribution of officially allocated resources to the people by the
government functionaries also moved them. These events shook their
conscience and showed them the ugly face of discrimination, violence against
women, their subordination and non-implementation of government policies and
programmes. These events caused the group members to fight against
subordination and chose NGO work.

The groups that they are working with also trace their genesis to events like
large-scale displacement of people on account of mega river valley project on the
Narmada river, need to protect consumers, domestic violence, discrimination on
the basis of gender, the need to empower women through education.

Summing up the discussion the facilitator pointed at the common thread

connecting the varied experiences of the participants. The personal experiences
coupled with an awareness that the experience also comprises a social issue, led
the participants to join an organization that was linked to a movement such as the
anti dowry movement, the Jai Prakash movement, the left movement in Kerala,
the New Education Policy, the tribal rights movement, the peace movement in
Manipur, judicial activism etc. We draw our moral strength from these
movements. The genesis of human rights principles can also be traced back to
these movements.

Philosophy and the Law

Building on the personal experiences of the participants, the facilitator for this
session, Deepika, began by asking the participants to reflect upon the
commonalities between the trigger points, which built their political awareness.
Why did a particular incident bring such a change? What was the thought
process that contributed to this change? Each event /incident triggered a thought
process culminating in a judgement with regard to the same.

Certain values generally constitute the basis of a judgement. These values

originate from religion, conscience, social and family norms, innate sense of
righteousness, interaction with others, political philosophy etc. On processing an
event, people categorise it as a crime, wrong, unfair or unjust and so on. It is our
innate conscience combined with other factors that trigger this judgement. The
generalised reactions to different events are different. For instance, people’s
views on child labour, illegal disappearances may differ from those with regard to
offering tax exemptions to the rich. The judgement about an event can therefore
be seen as a reflection of our values. This internal process of reacting to an event
may be diagrammatically represented as follows:

Event
↓
Value base
↓
Judgement
↓
Action

The value, on the basis of which a judgement/ opinion is formed may originate
from social norms, political ideology, religion, culture, conscience, law etc. Law at
times does build certain values in us, however not always is it the value on which
our judgement is based as sometimes law may appear to be unjust to our innate
conscience. However, it may be vice-versa i.e. a judgement/ opinion about a
wrong may emerge from a movement which might have been built either to bring
about a change in a law which is unjust or to bring into existence a law that may
be absent and thus resulting in injustice. All these factors interact, to build a
critique. For instance, Dowry Prohibition Act, came into being to curb a social
norm. Laws do not get enacted in a vacuum. As mentioned earlier various factors
that result in enactment of a law or a change in an existing law. Awareness about
dowry harassment and killings was the guiding factor behind amendments in the
Indian Penal Code. This conflict between social norms supporting dowry and
conscience of the people resulted in the anti dowry movement leading to law
reform. In the same way the genesis of human rights lies in these basic innate
values that are part of our conscience. These values include sanctity of life, life
with dignity as a human being, maintenance of one’s distinct identity, livelihood to
sustain oneself, to be treated equally etc.

Many of these values are incorporated into law in the human rights treaties at the
international level and in Constitutional guarantees at the national level. However,
there are some others which are still not a part of the human rights law at the
international and national level. There are movements in different parts of the
world for the express recognition of these values in law, through enactment of
laws and repeal of repugnant laws. For rights that are expressly incorporated the
struggle for their realisation remains. Law, thus, cannot be viewed as the
beginning or the end in itself. At best it can be seen as a means for the formal
and widespread recognition of the values which are just and fair and a pledge to
uphold them in all the circumstances.

One may use law to assert an entitlement or an interest but certain values like
equality and prohibition of oppression can be used as the basis of wide ranging
demands in the absence of law. The freedom struggle can be seen as an
illustration of such a demand. Even if the law does not specifically recognise an
entitlement or a right, it can be read into existing law through judicial
interpretation. Human rights standards are broad and are capable of wide
application. The moral, social, political and legal underpinnings of human rights
justify their application in all contexts.
Though the foundations of human rights may be traced back to certain values
they are distinct from them. For instance human rights have moral and ethical
underpinnings, however, the morality is not religious or cultural morality but that
which is universally recognised. These universal ethics and morals are central to
the philosophy of human rights. These morals are not based on subjective
notions of culture but on rationality and reason. The basis is therefore universal
or secular morality as against religious or cultural morality which is subjective and
is not universally followed. For example, the value enshrined in the saying ‘Thou
shall not kill’ is not restricted to any religion, but universally accepted irrespective
of religion.

The genesis of human rights can be traced back to political developments which
gave rise to modern states. The power of the modern states got legitimised
through the social contract with the people whose rights the state was duly bound
to protect. The rights that came to be protected varied from state to state. The
United States for instance protected religious freedom, freedom from cruel and
unusual punishment, equality, etc. The Irish Constitution, which the Indian
Constitution drew inspiration from, is somewhat different. In 1970 the Bolshevik
revolution gave rise to Constitutional priorities such as social and economic rights
by guaranteeing right to education, housing, health care. Therefore there was a
general sense that the state must protect human rights but that the countries
have a right to choose which rights they protect. Each country prioritizes. The
question that arises in this context is whether such prioritisation always coincides
with the aspirations of the people? In India the written constitution didn’t explicitly
recognise certain rights, e.g. Livelihood, education, access to healthcare.
However, over the years the Supreme Court has read these rights as embedded
in the Constitutional right to life. Each country could have gone its own way. But
universalisation means a departure from that.

The historical event that universalised the protection of human rights transforming
it from a domestic matter to an international one was the 2nd world war. The
second World-War stimulated a change in perspective of the international
community wherein it came to be accepted that international peace and security
cannot be achieved unless states respect the rights of their population. This was
a leap forward since the idea of governance until then was considered to be an
internal affair. Until then international affairs were limited to issues such as
navigating the seas etc, but questions like whether people within a state are fed,
whether healthcare is provided, whether they have political rights, liberty, etc
were considered internal affairs of a state, beyond the purview of the international
community. In 1945, with the advent of the U.N. the quality of human life and its
sanctity assumed significance. The international community realized that
international security is linked with political stability in the states and this is based
on the status of people and their well being in a particular state. Political stability
at the state level gives rise to international stability, making human rights
protection at the local level necessary. Even the Universal Declaration of Human
Rights (UDHR), in its perambulatory paragraph 3 recognises that human rights
must be protected so as to avoid rebellion against tyranny and oppression.
 Group Work
The participants were then divided into groups and were asked to read the
Universal Declaration of Human Rights (UDHR) and consider if the rights
protected therein resonate their understanding of human rights or appear alien to
them.
Group 1

Presentation
The group felt that all the provisions of UDHR are significant. The group
specifically considered Article 24 protecting workers rights as being very
important. The group raised concerns about following provisions of UDHR:

Article 16 (1) – The term ‘full age’ used in the Declaration seemed unclear.

Article 16 (3) – Participants felt that no where in the Declaration is family

defined. Moreover they questioned the state obligation to protect family as
a unit.

Article 26 (3) – Participants questioned the right of parents to choose the

kind of education for their children. They felt this infringed the liberty of the
child to learn whatever he/she wants to.

Article 14 – Participants were unclear about the right to asylum to a person

upon commission of crime. It was clarified that this does not seek to
protect criminals per se. Rather it seeks to protect persons who are
criminalised for pursuing their human rights. This led to a discussion on
Kashipur and other regions where people struggling against mining
activities get branded as criminals.

Group 2

Presentation
The group read UDHR in light of the Constitution of India
Right Provision of UDHR Constitutional
Provision
Right to Life Article 3, 5, 12, 16, 25 Article 21
Right to Equality Article 2, 4, 6, 7, 23 Article 14, 15, 16
(employment) (employment), 17,18
Personal Liberty Article 9 Article 21
Freedom of Movement Article 13 Article 19 (1) (d)
Right to Association and to Article 20 Article 19 (1) (c)
Assemble peacefully
Freedom of Speech Article 19 Article 19(1) (a)
Right to Education Article 26 Article 45, 21 (through
judicial interpretation)
Right to Property Article 17
Right to Political Asylum Article 14

UDHR not only embodies traditional rights such as right to life, but also a whole
plethora of rights many of which are not explicitly recognized in our Constitution,
especially not as fundamental rights. There are some that form part of the
Directive Principles of the State Policy, which unlike fundamental rights, are not
justiciable. Article 22, 23 and 25 of UDHR, for instance pertain to social security,
just and favourable conditions of work and adequate standard of living. These
rights form part of the Directive Principles of the Constitution of India but some of
them have been read by the judiciary as implied under right to life enshrined in
Article 21 of the Constitution.

The right to property being controversial was dropped in subsequent human

rights Covenants.

Group 3

Presentation
The group discussed Articles 1-26. They inquired about the mechanisms
available to people to realise the rights mentioned in UDHR. The facilitator in the
regard pointed out that the operationalisation of the principles contained in UDHR
may be found in the subsequent treaties adopted in 1966. The UDHR, is a
declaration and not a binding treaty. Nonetheless it has a very high status of
respect and acceptance and is treated as a basic reference for human rights.

Like group 1, this group was concerned that the term family is not defined. They
too wondered about the need to protect family as a unit. Concern was also
expressed about the right to marry and found a family and the barriers in the
exercise of this right by Indian women. The facilitator pointed out that family is
considered a unit worthy of protection even in International Covenant on Civil and
Political Rights (ICCPR). The term is not however, restricted to nuclear families
but includes diverse forms of families.

Session 2 - Key Concepts

This session focussed on the basic characteristics of human rights i.e. they are

Inherent

Universal

Inalienable

Indivisible and interdependent

Elaborating upon these basic characteristics of human rights the facilitator

referred to the first perambulatory paragraph of UDHR, which recognises
“inherent dignity” and “equal and inalienable” rights of all human beings. This
paragraph recognises human rights as inherent in all human beings i.e. they are
not rights which are conferred by any authority but are obtained by virtue of being
born human. They are a part of our sovereignty, which is to be protected as part
of the contract of the people with the state. These rights are inalienable i.e. they
cannot be bought, sold, bartered etc. This renders human rights unique. Many
other rights, like contractual rights can be alienated while human rights are
inherent. They are not contingent on the legal system, for example, even though
the policy of apartheid was upheld by the law of the land of South Africa under
the colonial rule, people were still entitled to human rights which the rulers cannot
take away under any circumstances.

The UDHR is one bundle of rights as it does not recognize a hierarchy within the
rights. It recognizes that these rights are indivisible and interdependent. Though
all the rights enshrined in UDHR are indivisible and interdependent, the
Constitutions of different states as mentioned above protect or prioritise different
sets of rights. Comparing different Constitutions with the international human
rights standards, it appears that each Constitution protects different set of rights.
For instance, South African Constitution has incorporated individual rights and
group rights, the 1993 Russian constitution is very detailed with respect to the
indivisibility, interdependence of rights whereas earlier it was very weighted
towards economic and social rights. The Indian constitution does not have
freedom from torture as also certain economic and social rights. In the Sri Lankan
Constitution there is no right to liberty.

Indivisibility and interdependence implies that human rights cannot be

compartmentalised. The question then arises is what is the reason for adoption of
two international covenants in 1966 – International Covenant on Civil and Political
Rights (ICCPR) and International Covenant on Economic Social and Cultural
Rights (ICESCR). The two covenants one covering civil and political rights and
another covering economic, social and cultural rights, were the outcome of the
political developments after the adoption of UDHR. The genesis of two separate
covenants was an outcome of the division of the world into two blocs, favouring
different economic ideologies and political formations. Most of the countries that
favoured capitalism adopted democracy. The countries, lead by the U.S,
espoused civil and political rights such as freedom of expression. According to
them social/economic rights were not really rights whereas the countries led by
Soviet Union believed that social and economic rights were more important.
Secondly, there was a general impression that civil and political rights gave rise
to negative obligations and that social and economic rights gave rise to positive
rights. Therefore the nature of these rights was considered different, and as a
result they implied different responsibilities on the part of the states. For instance
the right against torture is a civil right. The state has an obligation not to torture
citizens, therefore the obligation is negative. Freedom of expression is another
example of a civil right. But a right under the ICESCR, e.g. health care, labour
standards, etc., these are considered positive rights. The state is required to take
positive action. It would for instance have to build schools, hire teachers, need
human and other resources etc. This categorisation into negative and positive
rights is also reflected in the obligations imposed on the state parties under
Article 2 of the two covenants. Under Article 2 of ICCPR the countries undertake
to “respect and to ensure” all the rights mentioned therein to all the people.
Whereas under Article 2 of ICESCR the obligation is “achieving progressively the
full realisation” of rights “to the maximum of its available resources.” Thus the
remedy in case of infringement of any of the civil or political rights had to be
immediate, and not dependent on the economic status of the country. On the
other hand, economic, social and cultural rights were considered to be mere
aspirations to be realised progressively depending on the economic resources
available to a state. However, the UN bodies required to implement the treaties
realised overtime that protection of civil and political rights was not possible
without a corresponding guarantee to secure economic, social and cultural rights;
that people are unable to exercise civil political rights because of lack of
education or healthcare. Consequently the treaty bodies reinterpreted the
obligations under Article 2 of ICESCR and clarified that the sates cannot take
indefinitely long time to fulfil these obligations and that there exist core minimum
obligations with respect to these rights which states have to fulfil. It was also
realised that both civil-political and economic, social and cultural rights have
positive and negative obligations. For instance freedom from torture, a civil right
also embodies a positive obligation to prevent torture by training law enforcement
officers, commissions, set up committees to take to task errant officers, provide
remedies, infrastructure, human resource etc. Similarly, Right to education has
negative connotations too. The state is under an obligation not to discriminate or
deny education to any person. At the same time the state must take positive
action to provide education to all.

The prioritisation of one set of rights over another has affected the enjoyment and
exercise of even those rights which are given priority. For instance, the
establishment of Exclusive Economic Zones (EEZs) in Srilanka have no doubt
thrown open enormous employment opportunities to people but there is absence
of the right to unionise and apply labour laws in these zones. Thus right to work a
socio-economic right is expanded by the enormous employment opportunities but
the absence of right to unionise – a civil right, undermines the standards of just
and equitable labour conditions. The Indian Judiciary has confronted the artificial
division between civil-political and economic-social rights categorised separately
as fundamental rights and directive principles. The Supreme Court has read a
number of socio-economic rights as implied in the rights recognised in part III as
the full enjoyment of the latter was impossible in the absence of the former. In
Olga Tellis v. Bombay Municipal Corporation, the court held that right to shelter
and right to livelihood are part of right to life recognised in Article 21 of the
Constitution.
Session 3 - Unpackaging Human Rights Law

Exclusion, Invisibility and Women

The discussion on exclusion and invisibility of certain sections of people from the
human rights discourse goes back to the origin of UDHR itself. The UDHR was
adopted when many developing nations were still colonised, practices akin to
slavery were prevalent and racial discrimination was rampant. To illustrate
exclusion within the human rights discourse a small exercise of developing a
sociological profile of typical victim of human rights violations during political
emergency was undertaken by the participants. The profile that emerged of a
classic victim during emergency was that of a:
• Male
• Politically active
• In the public domain
• Middle class
• Educated

Emergency was important not only in the development of consciousness about

human rights in India but also in constructing its definition and scope. The profile
of the victim narrowed the scope of each of the basic rights. Thus freedom of
expression got restricted to political expression, liberty defined in terms of non-
interference by the state, political affiliation the marker of who matters and who
doesn’t. The understanding of human rights inevitably takes the colour of a
dominant historical event. The violations occurring during that event, the violators
that perpetrated the violations come to define the essential ingredients of a
violation. For instance police misbehaviour, enactment of draconian laws by the
Parliament all point to the state as the only violator. Private actors, as a result got
exempted from the purview of human rights; violation of rights by non-state actors
projected merely as social problems rather than human rights ones.

Neutral principles tend to get defined by dominant experiences. Either

intentionally or inadvertently the margins get excluded. For instance right to
choose a partner, covers diverse situations including the right not to marry, to live
alone or to live with a partner without marriage or to be in a same sex
relationship. Despite these diverse possibilities this neutral right is defined
predominantly in relation to marriage between two persons of opposite sex,
invisiblising those who fall outside this.

In India monogamy was introduced with respect to Hindus in 1955 but many
customary and contemporary non-monogamous marriages continue. The law
makes women in such relationships vulnerable. Then the question is how to
realize equality, fairness and justice for all when the law does not recognize all
the varied forms of human relationships.

The understanding and practice of human rights that developed during the cold
war resulted in exclusion of women who experienced violation mostly at home i.e.
in the private sphere, at the hands of non-state/ private actors. The public private
divide constructed in human rights is as below:
 PUBLIC PRIVATE
Violation of civil/political rights Violation of economic/social rights
Domain occupied mainly by Domain occupied mainly by
Negative/individual rights Positive/group rights
Perpetrator-State Perpetrator - Non-state actor

Although artificial this division has been naturalized and justified to allow states to
prioritize between different rights. It has segregated, truncated our understanding
of human rights as also the realization of human rights to certain actions only,
which are considered grave. The public-private divide has severely affected the
realisation of rights by women as the majority of women are impacted by the
private sphere. This division is arbitrary as public and private are interconnected.
For example a woman cannot participate on equal footing in the public sphere if
she does not enjoy freedom within the private domain.

Public Private
-State agents - non state
-Civil political rights agents
-Individual -Sociocultural rights
-Collective

If we look at human rights as a circle of rights, what the public/private divide has
done is to divide this circle. Most of the men operate in the public sphere where
rights are protected. These rights mainly fall in the category of civil and political
rights. Whereas women mostly operate within the private sphere where there is
protection from violations by non-state actors is not available. Men from
marginalized communities are similarly placed as women because their rights are
also determined by private actors. Thus women and other marginalised sections
which operate within the private sphere are excluded from the protection of the
dominant framework of human rights. This invisibility of women from the arena of
human rights protection has been removed slowly at a normative level with the
development of gender specific standards by the UN.
 Group Work

Having discussed the origin, notion and nature of human rights the participants
proceeded to apply the key concepts relating to human rights to two case studies
for group work. One of them was a rape cum murder case and the other related
to a challenge to section 377 of IPC criminalizing un-natural sex. The guidelines
for the two case studies given to four groups were:

What are the human rights involved in this situation?

Whose rights and interests are involved in this case?

Are the principles of universality/indivisibility/inalienability and inter-
dependence reflected in the above case? Please explain how.

Group 1 and 4 worked upon the rape and murder case while groups 2 and 3
worked on section 377.

Case Study for groups 1 and 4

Anand, aged 25, worked as a watchman in a block of apartments. He was the only
earning member in his family, and his parents and two younger sisters were wholly
dependent on his earnings. He had no criminal record.

Devi, aged 13, a schoolgirl, and the only child in her family, lived in one of the
apartments which Anand used to guard. Devi, was a very bright student and a
popular figure in her school.

One afternoon, Anand intercepted Deyi on her way home from school. He raped
and killed her brutally. Anand was tried under the prevailing penal law of the country
and convicted and given the death sentence by the trial court, considering the
gravity of the offence. (The penal law of the country provided for death sentence or
life imprisonment depending on the gravity of the offence). Following appeals and
counter appeals, the case went on for 15 years, until finally the highest court of law
upheld the conviction and sentence. Appeals for mercy for Anand made to the
President of the country were primarily based on a) the principle of the inviolability
of the right to life and also b) on studies that showed that death sentences were
almost exclusively applied against the poor. Counter appeals from citizens argued
that Anand should be hanged to death given that rape and murder of a girl child was
a very grave offence, and that Anand's culpability was all the greater since he had a
specific responsibility to safeguard
Devi, in his role as the watchman of the apartments where she lived.

The mercy petitions were denied and Anand was hanged to death.
Group 1

Presentation
Human Rights Involved in this Case

DEVI ANAND
Right to life Right to life
Right to dignity Right to mobility
Right to mobility
Right to security

Groups/persons whose human rights were violated

Rights of both victim and the offender were violated in this case

Principles Involved in this Case

The group discussed principles of inalienability and indivisibility. It was felt by the
group that the victim’s right to life, mobility, liberty and security were interlinked
with each other and could not be divided. The right to mobility and liberty was
connected to her right to life, and when her right to life was denied, so were all
the other rights. The group also discussed the issue of capital punishment. One
felt that the psychological deviance of the perpetrator justified death penalty.
Majority felt that it is generally the poor that are awarded death penalty and
favoured abolition.

Group 4

Presentation
Human Rights Involved in this Case

Right to life

Right to justice

Groups/persons whose human rights were violated

Rights of victim, offender and their respective families were involved

Principles Involved in this Case

Indivisibility: the right to life is connected to the right to livelihood. Anand’s
family was dependent on him for their well being. His livelihood fulfilled
their basic needs. The group felt that the state should have provided
support to the family.

Inalienable: Being inalienable the state has no authority to deprive a
person of his life. Imposition of death penalty is against the human rights
principles as it treats right to life as alienable.

Discussion
The facilitator added that the issue is also how the state responds to the
offence. Whether it takes into consideration the human rights of the accused,
or not. The right to a fair trail is one such right. The form of punishment is also
another point at issue. Is capital punishment in harmony with the philosophy
of human rights? The facilitator highlighted certain issues arising in this case
study as follows:

1. Right to a fair trial

2. Punishment (right against cruel, inhuman or degrading punishment)
3. Economic rights i.e., what types of punishments are meted out to certain
categories of people. This has to be examined sociologically. She pointed
out that in the U.S the largest number of people executed are members of
a minority group such as Hispanics or African Americans. The question of
racial profiling thus assumes significance. In this particular case the
economic position is relevant. The punishment awarded is coloured by the
economic and social status of the offender. This does not imply that
people should not be punished it is only that human rights should be taken
into consideration, and appropriate punishment must be awarded.

It is a difficult situation to take a universal moral stand. Imposition of death

penalty by the state may by the same logic promote general acceptance of
killing as a righteous way to punish. Furthermore, rape in the criminal justice
system, is also something that needs to be examined. Approximately just 0.03
% of the rape cases are actually punished. Most of these cases are rapes of
children. The question that arises in this regard is had Devi (victim in the case
study) been older and a slum dweller would the case have attracted the same
degree of attention.

Case Study for groups 2 and 3

Section 377, Indian Penal Code (IPC) states as follows:

Whoever voluntarily has a carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with imprisonment of either description for
a term which may extend to 10 years and also be liable to fine.

The way this provision has been understood and applied by the law (including police
and courts) is to penalize oral and anal sex, same-sex sexual acts etc, in fact all
sexual acts other than penile-vaginal penetration. A group of organisations
challenged this provision of the IPC in court as unconstitutional. They drew the
attention of the court to the abuse of this law by the police to harass, for e.g., men
having sex with men and NGOs who distributed condoms and imparted safe sex
education. They emphasized that diverse sexual expression is a well-recorded part of
India’s history and culture. They therefore asked the court to strike down this
provision and to de-criminalise all private, consensual adult sexual behaviour.
The government opposed the petition claiming that Indian society by and large
disapproves of homosexuality and that there is no social consensus in favour of
changing the law. They also argued that the proposed change would encourage
delinquent behaviour. Finally, they argued that this law has been basically used to
punish child sexual abuse and to complement existing gaps in rape laws.

Group 2

Presentation
Human Rights Involved in this Case

Right to equality

Right to liberty

Right to privacy

Right to freedom of expression

Groups/persons whose human rights were violated

Rights of common public and especially sexual minorities are affected

Issues Involved in this Case

The group pointed out that none of the major international instruments like
UDHR, ICCPR and ICESCR explicitly mention sexuality rights. However, the
preamble of UDHR recognises equal and inalienable rights of all human beings
thereby, implying equal rights of people with different sexual orientation. The
group also referred to Article 19 of UDHR which guarantees right to freedom of
opinion and expression as implicitly including freedom of sexual expression.The
group felt that government’s opposition to repealing section 377 on the ground
that the Indian society disapproves of homosexuality, does not resonate with the
state’s efforts towards upholding the rights of the people and abolishing practices
which are discriminatory and violative of human dignity. Abolition of sati, dowry,
child marriage and other practices despite society’s approval of all these
practices are a few examples. Secondly, they voiced the necessity to enact a
separate law for the prohibition of child sexual abuse - a pressing problem itself,
rather than making it an alibi for the retention of the provision which is highly
inadequate to deal with the abuse.

Group 3

Presentation
Human Rights Involved in this Case

Right to life

Right to health

Right to education

Right to freedom of expression
Groups/persons whose human rights were violated
Rights of people with different sexual orientation

Principles Involved in this Case

Discrimination, resulting in depriving sexual minorities of equal treatment violates
the principle of universality of human rights which implies that rights must be
enjoyed by all irrespective of race, colour, sex, language, religion etc. Secondly,
denial of right to education (regarding safe sexual practices) to sexual minorities
has affected their right to health. This clearly reflects the indivisibility and
interdependence of the rights. Article 16 (2) of UDHR guarantees right to choose
one’s spouse. Article 2 (1) of ICCPR prohibits discrimination. The term “such as”
used before enumerating the grounds indicates that the grounds mentioned are
only illustrative and not exhaustive thus discrimination on the ground of sexual
orientation is implicitly prohibited.

Discussion
After the presentation of the group two and three the facilitator flagged certain
issues. These are as follows:

Section 377 not only pertains to homosexuals but also heterosexuals though
mainly homosexuals are booked under this offence. There are two issues
involved in this. The first of understanding sexuality and recognising freedom of
sexual expression and second, whether the state should penalise adult
consensual sexual behaviour.

People who are marginalised on account of their different sexual orientation

suffer not only in terms of the suppression of their sexual expression which may
affect one’s mental state of mind but also with respect to their other rights like
they may not get a job or may be thrown out of it, they might be deprived of a
right to housing and education. They might be subjected to social exclusion.
Denial of one right results in denial of other rights as well emphasising the
principles of indivisibility and interdependence of rights.
 Part II: From Gendered Lives to Gender Justice

Sessions
The Journey of Women’s Human Rights: CEDAW, Vienna and Beyond
Women’s Human Rights Framework

Session 4 - The Journey of Women’s Human Rights CEDAW,

Vienna and Beyond

From the exclusion and invisibility of women from the protection of human rights,
the discourse at the international level gradually moved towards inclusion. This
session facilitated by Madhu Mehra focused on the developments at the UN in
this regard. She pointed out that international instruments on women, adopted
prior to CEDAW, reflect a clear progression in recognising the different aspects of
life in which women face discrimination. Beginning from the civil arena and
violence in the public domain, international treaty law moved towards CEDAW.
The women’s rights movement had an immense contribution in taking this
journey forward.

The developments at the U.N. leading towards the adoption of the

comprehensive treaty on women – CEDAW, are below:

Dateline of Developments at the UN

S. No Year Name of the International Instrument

1 1949 Convention for the Suppression of the Traffic in Persons

and of the Exploitation of the Prostitution of Others
2 1951 ILO Convention 100 on Equal Remuneration
3 1952 Convention on Political Rights of Women
4 1956 Supplementary Convention on the Abolition of Slavery
5 1957 Convention on the Nationality of Married Women
6 1962 Convention on Consent to Marriage, Minimum Age of
Marriage and Registration of Marriage
7 1974 Declaration on the Protection of Women and Children in
Emergency and Armed Conflict
8 1979 Adoption of Convention on the Elimination of All Forms of
Discrimination Against Women
9 1981 CEDAW comes into force2
10 2000 Optional Protocol to CEDAW

The above table indicates gradual realisation that women’s human rights go
beyond specific rights in a few spheres of life like the right to vote, suppression of
trafficking. That women’s rights are comprehensively part of human rights was
finally accepted in 1993, in the Vienna Declaration and Programme of Action. The
need to engender all human rights was emphasised. For instance right to
freedom of expression, or liberty, under the conventional understanding of human
rights could mean rights against arbitrary arrest and detention by police. Whereas
engendering it would bring into focus the fact that women cannot go out after 6
p.m. as they are at risk of assault. Essentially the shift within the human rights
system is to treat gender concerns and to be aware that every mandate within the
human rights system has a gender component.

The understanding about women’s rights further developed from women being
seen as a monistic entity to recognising the diversity among women. This has led
to an increasing recognition of different identities and contexts that colour the
discrimination experienced by women. It is thus evident that frontiers of
discrimination shift and the challenge is to continuously expand the frontiers of
redress.

Session 5: Women’s Human Rights Framework - CEDAW

From an inquiry into the basic principles of human rights together with the
limitations of the dominant understanding of human rights the discussion moved
towards the framework of women’s human rights. The session facilitated by
Deepika began with group work amongst the participants in which they were
asked to study CEDAW comparing it with the other human rights instruments like
UDHR, ICCPR, ICESCR and pointing out its salient features.

Group 1

Presentation
The group voiced the significance of the following provisions of CEDAW:

Article 2 (e) they pointed out, fastens responsibility upon the states to
eliminate discrimination perpetrated by non-state actors and Article 2 (g)
imposes an obligation to repeal the penal provisions that are
discriminatory.

2
CEDAW came into force on the thirteenth day after ratification by the twentieth state party –
Article 27 (1). It became operative for all ratifying states only after coming into force.

Article 3 requires the states to take measures to “ensure full development
and advancement of women” in order to guarantee the “exercise and
enjoyment of human rights and fundamental freedoms on a basis of
equality with men.” In this regard the participants discussed the policy of
the government in Haryana to forbid night work for women in call centres
to ensure safety and felt it to be discriminatory under Article 3. Such a
restriction hampers the enjoyment of freedom by women.

Article 4 requires the states to take special measures to bring about de-
facto equality i.e. equality in fact rather than only in law. Measures like
reservations for women, laws for protecting women against sexual
harassment at workplace etc are a few such measures.

The participants also pointed out silences in the Convention about the
meaning of terms like family, marriage etc i.e. whether these include same
sex relationships or not.

Another concern voiced by the group about the Convention is that
women’s equality and realisation of women’s rights is talked about only
with reference to men i.e. the Convention takes male as a standard and
views women’s equality from that lens.

Group 2

Presentation
This group focussed on the substantive areas covered by CEDAW. A few
provisions discussed by this group are as follows:

CEDAW, views women as having equal rights with men to acquire, change
or retain their nationality. It thus makes the nationality of women
independent of the nationalities of their husbands.

Article 10 on education, provides for elimination of discrimination in access
and in stereotyped roles of men and women. In this context Article 5
obliges states to ensure that family education develops an understanding
of maternity as a social function.

In employment it requires the states to provide women equal employment
opportunities, adequate service conditions and prevention of discrimination
on the grounds of marriage or maternity.3

Discrimination in particular contexts such as against rural women is also
covered by CEDAW.4 It also reflects that CEDAW does not view women
as a monistic entity.

Elimination of discrimination in marriage, procreation, divorce, right to
inheritance, guardianship of children etc has been the focus of Article 16.
CEDAW thus explicitly seeks to secure equal status of women within
family.

3
CEDAW, Article 11.
4
CEDAW, Article 14.
Group 3

Presentation
The group felt that the most significant contributions of CEDAW are as follows:

It takes into account the interplay of the public and realises that change in
the traditional role of women in public domain is needed to achieve full
equality.

Going beyond positive obligations on the states to repeal laws that are
discriminatory and to adopt legislative and other measures prohibiting
discrimination against women, it also seeks to change customs and
practices that are discriminatory.5

Unlike ICCPR and ICESCR, CEDAW also makes the states responsible
for taking appropriate measures to eliminate discrimination perpetrated by
non-state actors.6

Discussion
Adding to the presentations, the facilitator mentioned the contribution of CEDAW
to expanding the understanding of human rights. Women were unable to enjoy
the protection of rights recognised under other treaties before CEDAW came into
being. Unlike general human rights instruments, CEDAW doesn’t stop at
eliminating discrimination based on sex but goes a step ahead by prohibiting
discrimination based on stereotypes emanating from the deep rooted ideology of
gender. In other words it prohibits discrimination not only on the basis of sex but
also discrimination emerging from the social understanding about the roles of
men and women i.e. notions like women are only good for certain home tasks or
for teaching or nursing profession. She further added that the Convention gives a
very comprehensive definition of discrimination. It prohibits both intentional and
unintentional discrimination. For instance an advertisement for a job of sub
inspectors required the candidates to be of particular height and thus excluded
women who could not meet that requirement. Here even though the intention was
probably not to discriminate against women as same height was prescribed for all
the candidates but the result was discriminatory as there was certain section
which completely got excluded even though the requirement did not have any
relation to the nature of job. The instruments adopted in 1966 are based on the
notions that rights are violated only by the state against which people need
protection, whereas CEDAW recognises the violation by private actors thus
moving the debate to private actors and socio-economic rights.

5
CEDAW, Article 2(f).
6
CEDAW, Article 2 (e).
 Part III: International Implementation
Mechanisms

Session
UN Mechanisms

Session 6: UN Mechanisms

Recognition of human rights standards at the international level was one step
towards the realisation of these rights. However, to ensure that people actually
enjoy these rights there has to be a mechanism for redressing their violations.
Redress can be at various levels such as the political, social and legal. This
session focussed on the UN mechanisms for redress Human rights mechanisms
at the UN are of two types:

1. Charter based bodies

2. Treaty bodies

1. Charter based bodies (created under the UN charter)

• Commission on Human Rights (CHR)
• Special procedures of the Commission on Human Rights
• Sub-Commission for the Promotion and Protection of Human
Rights.

United Nations Commission on Human Rights is the primary International forum

on human rights. It was established in 1946 to “weave the international legal
fabric that protects our fundamental rights and freedoms.” It has 53 states as its
members. The commission meets annually in Geneva in which the member
states along with NGOs and human rights defenders participate. The
Commission on Human Rights is assisted in its work by a Sub Commission on
the Promotion and Protection of Human Rights. The sub commission, often
known as the “think tank” of the commission is comprised of independent experts
in the field of human rights. Its functions are as follows:
 to undertake studies on human rights issues
 to make recommendations to the Commission concerning the prevention
of discrimination of any kind relating to human rights and fundamental
freedoms and the protection of racial, national, religious and linguistic
minorities,
 to carry out any other functions which may be entrusted to it by the Council
or the Commission.

Apart from being assisted by the sub commission, the UN High Commission on
Human Rights also has special procedures which fall into three main categories:

SPECIAL RAPPORTEURS
The Commission is assisted by individual experts working individually as special
rapporteurs. Special procedure is a mechanism established by the Commission
on Human Rights to engage with certain issues or certain pressing country
situations all through the year. Thus the mandate of special procedure is to
examine, monitor, advise or report with respect to human rights situation in a
country (country specific) or on a particular human rights issue (thematic) so
accordingly special rapporteurs may be country specific or thematic. Country
specific special rapporteurs have been set up for Afghanistan, Iraq, Rwanda,
Cuba, Myanmar, Zaire, Cambodia, Yugoslavia etc. Special rapportuers (thematic)
are on issues like torture, religious intolerance, mercenaries, violence against
women, internally displaced people etc. The rapportuers can visit different
countries either on request or on invitation from the country.

WORKING GROUPS
Working groups consist of experts who work in a group on a particular issue.
Working groups have been set up on several issues like enforced or involuntary
disappearances, structural adjustment and economic, social and cultural rights,
drafting an optional protocol to torture Convention, drafting optional protocols to
CRC etc. Working groups are appointed by the Commission in order to develop
existing standards to confront new and growing concerns.

ADVISORY SERVICES AND TECHNICAL COOPERATION

Here problems are identified which the Commission seeks to address. It regularly
requests the Office of the High Commissioner for Human Rights to provide
assistance to governments through its programme of advisory services and
technical cooperation in the field of human rights. This assistance takes the form
of expert advise, human rights seminars, national and regional training courses
and workshops, fellowships and scholarships and other activities aimed at
strengthening national capacities for the protection and promotion of human
rights.

Every year in its annual meeting the UN Commission on Human Rights adopts a
number of resolutions and statements concerning matters which are relevant to
people living in different regions and circumstances. The Commission is a
political institution and thus its actions and their effectiveness is coloured by
international politics. Countries lobby in order to avoid passage of any resolution
with respect to human rights violation in their country for instance Sri Lanka
avoided a resolution with respect to ethnic riots but instead promised to set up a
national human rights commission and a human rights task force. Communities
struggling for realisation of human rights in different countries lobby to get the
issue raised in UN High Commission. The dalit groups lobbied even though no
resolution was passed it helped to bring their issue in the limelight.

2. Treaty Bodies
Treaty bodies derive their authority from the respective treaties through which
they are created. There are seven human rights treaty bodies that monitor
implementation of the core international human rights treaties:

Human Rights Committee (HRC)

Committee on Economic, Social and Cultural Rights (CESCR)

Committee on the Elimination of Racial Discrimination (CERD)

Committee on the Elimination of Discrimination Against Women (CEDAW)

Committee Against Torture (CAT)

Committee on the Rights of the Child (CRC)

Committee on Migrant Workers (CMW)

These Committees comprise of independent experts. The Committees monitor

the implementation of the treaties by the States Parties through a number
different procedures. These procedures are -

Reporting procedures
1. Under all these treaties the States Parties undertake to submit regular
reports to the respective committees about the steps taken to implement
the treaty and difficulties faced in the same. Article 18 of CEDAW requires
the States Parties to submit a report every four years. There are guidelines
provided in the treaty about what reports should contain so that a report is
not superficial but substantial. In case it is just a superficial report then the
committee has the power to send it back to the state party and ask for
additional information. Under the ICCPR for instance, when considering
the right to life, a state cannot merely say that it is guaranteed under the
Constitution. It must show what steps it has taken in order to ensure that
the right is safeguarded. For instance it must report on:

whether it has the death sentence;

life expectancy;

quality of life

infant mortality rates

Using the state and alternative information the committee reviews state
performance. This review is conducted through ‘constructive dialogue’ with the
state party. Representative of the state party appear before the committee to
respond to their queries and concerns. This ensures that the state reflects upon
the existing situation and endeavours to improve. At the end of the review
process, the treaty bodies issue Concluding Observations. These contain very
specific recommendations for the state concerned. The report is then placed
before the General Assembly. NGOs in different countries have been making
innovative use of the reporting mechanism to apprise the committee of the de-
facto condition in the state concerned by submitting alternative reports. The
treaty bodies welcome these alternative reports also called shadow reports
submitted by NGOs which apprise them of the real situation on the ground on
which the state reports might be silent. Once the concluding observations are
issued by the Committee the NGOs can use them to monitor implementation.

Individual complaint procedures

Under CERD, ICCPR, CAT, CEDAW individual complaint procedures are also
provided for. These procedures are provided in the Optional Protocols to these
treaties. As the name suggests, the procedure provided under the optional
protocol is optional and is only applicable with respect to a State Party, which
accepts the competence of the Committee to hear such complaints. An individual
can complain to the committee under this special procedure only after having
exhausted available domestic remedies.
Inquiry procedures
Two of the treaties also provide for an inquiry procedure. Under this procedure an
inquiry can be initiated by the committee in case it receives reliable evidence
indicating grave or systematic violations of the Conventions in the any of the
states Parties. Article 20 of CAT and Optional Protocol to CEDAW provide for this
mechanism.

The facilitator emphasized the importance of utilizing these international forums

to make issues public. Once the issue is in the public eye, and governments
respond to that. NGOs, civil society groups have a significant role to play while
submitting alternative reports etc. Knowing how the mechanism work is the first
step in the entire process. The second step is to strategize which issue would
benefit most from international attention.
 Part IV: CEDAW

Session
Principles of CEDAW

Session 7: Principles of CEDAW

The discussion moved from deliberations on basic principles of human rights,

CEDAW and the human rights mechanisms at the international level to the basic
concepts in CEDAW. CEDAW embodies 3 essential concepts:
• Equality
• Non-discrimination
• State obligation
Running through all the three is affirmative action.

Equality
Participants mentioned equal treatment, equal opportunities or access and
equality in position or status as generally as the goals of equality. These goals
indicate that the concept of equality is understood in more than one way. The
facilitator mentioned that at different times these goals have been part of the
process through which the understanding of equality developed. Different goals
were the focus of attention at different times. Equal treatment, mentioned the
facilitator was the aspiration at the initial stage of the movement, when liberal
feminism aimed at securing equal rights for women. At that time certain basic
rights were not guaranteed to women, right to vote for instance. At that time in
order to secure the same rights for women as men had it was considered
imperative to establish that women are the same as men and therefore denial of
rights to them was unjust. Equal treatment through recognition of equal rights for
both men and women was at that time seen as the way to achieve equality. This
approach toward equality is referred to as the sameness approach or the formal
model of equality.

The recognition of equal rights for women did not actually place women at the
same position as men. There were still lesser number of women in the workforce
as compared to men despite equal right to employment. Likewise it was the case
with respect to other rights. It became evident that the mere emphasis on
sameness between men and women and ignoring the differences that in reality
exist between them, only perpetuates inequality. Thus recognition of difference
between men and women, the contexts in which they exist and their needs
emerged as necessary to achieve equality. This laid the foundation of
approaches that recognised the difference between men and women. One of
these is the protectionist approach on which the Indian law is largely based.

The protectionist approach not just recognises the differences but also considers
them natural and unchangeable. It works within the parameters of the differences
and in the process strengthens the differences. This model was part of the
feminist stream that recognised and celebrated women’s difference. It was a
significant departure from the formal model that sought to erase difference. The
limitation of the protectionist model is that in offering protection to women it
sustains the difference. It does not therefore lead to empowering women or
changing their status. This model was a step forward to the extent that it
recognised the difference however, it did not question the notions from which
these differences emanate. The third approach to equality also recognises the
differences, but questions the causes and results of such difference seeking to
correct them. This approach is known as the corrective or substantive model of
equality. This model is based on correcting previous and continuing
disadvantage and thus has correction and choices built into it. It not only
examines the differences but also their outcome and seeks to ensure equality of
outcome or benefit i.e. if the outcome of difference results in disadvantage to
women, it would create conditions that lead to disadvantage. It thus supports
affirmative action, which aims at providing enabling conditions to overcome the
discrimination.

Article 4 of CEDAW imposes an obligation upon the states parties to adopt

temporary special measures to accelerate equality between men and women.
This provision thus embodies what is called as affirmative action. The provision
envisages two kinds of measures:
• Temporary
• Responding to special needs – such as maternity

Temporary special measures aim at achieving equality by addressing historical

disadvantages. They are temporary in the sense of being time bound with regard
to securing the result. Thus the term temporary has been interpreted in relation to
the objective that the measures seek to achieve. The notion of temporary implies
that condition is changeable. Thus maternity would not fall within this but is
covered under response to special needs. Temporary measures are not just
limited to providing reservation for women in different arenas but also include
measures like tax or fee exemption, loans for various purposes etc.

Non - Discrimination
The CEDAW’s approach towards equality is reflected in its definition of
discrimination enshrined in Article 1. Unlike other human rights instruments,
CEDAW goes beyond the mere act of discrimination to reach the roots from
where it emanates by recognizing the role of gender-based ideology. The term
‘sex’ used in CEDAW does not merely imply biological difference between men
and women but includes the stereotyped roles of men and women and patterns
of conduct on the basis of which they are accorded different treatment or their
rights are restricted or nullified.7 The definition connects the gender-based
ideology not only with the intentional or unintentional action involving different
treatment, restriction or exclusion but ultimately with the outcome of that action.
The terms “effect” and “purpose” used in the definition indicates that intention to
discriminate does not matter. Whether the impugned action is taken with the
intent to discriminate or not if the effect is discriminatory, it would fall within the
definition. For instance in Bangladesh under a rural development scheme women

7
CEDAW, Preamble, Article 5, 10 ( c).
and men were to be trained in aqua culture if they owned a pond at the place of
their residence. Women got excluded because they either did not own a pond or
owned a pond at their natal place. Thus without intending to discriminate the
scheme excluded women and was thus discriminatory. Similarly most banks
require immoveable property as collateral to issue credit. This excluded most
women, as until recently, Hindu ancestral laws did not allow women to have a
share in ancestral property.

Further, the outcome, in order to constitute discrimination, must involve

impairment or nullification of recognition, enjoyment or exercise of human rights
or fundamental freedoms. Recognition connotes acknowledgement of a right.
Enjoyment involves creating conditions where the right can be enjoyed. Allocation
of resources to create structures or for putting systems in place to provide
enabling conditions marks a significant step towards securing enjoyment of
rights. Exercising a right involves its assertion and demand for its protection if
there are barriers thwarting its enjoyment. The state has a major role to play in
securing not only recognition but also enjoyment and exercise of rights.

CEDAW incorporates a broad understanding of the concept of non-

discrimination. It takes within its purview both the state and non-state actors.
Article 2(e) obliges the state to address discrimination by “any person,
organisation or enterprise.” Article 1 itself provides for elimination of
discrimination in “political, economic, social, cultural, civil or any other field.”
Article 5 requires modification of “social and cultural patterns of conduct of men
and women” to eliminate prejudices, customary and other practices which are
“based on the idea of inferiority or the superiority of either of the sexes or
stereotyped roles of men and women.” All these provisions seek to eliminate
discrimination perpetrated by any actor in any sphere whether public or private. In
case of violation by private actors state is held responsible in case it is shown
that the state did not act with due diligence to prevent violation of rights.

State Obligation
Provisions 2 to 4 of CEDAW outline the obligations of states parties with respect
to achieving de-facto equality for women. These obligations imply the following:

Respect

Protect

Fulfil

These three respectively seek to ensure recognition, exercise and enjoyment of

rights. The obligation to respect involves measures like statutory recognition of
rights whereas the obligations to protect and fulfil require putting policies and
programmes in place and allocation of adequate resources to ensure enjoyment
and exercise of rights. These obligations are however not limited to ensure that
steps are taken with the aim of achieving equality but they extend to ensuring that
they actually usher equality. These two obligations are respectively known as:

Obligation of means

Obligation of results
Thus it does not suffice for the states to declare that it is taking measures to
secure equality but it is also incumbent upon them to show how those measures
are bringing about change.

GROUP WORK
In order to sharpen the understanding of participants about the concepts of
equality, non-discrimination and state obligation the participants were divided into
small groups to discuss case studies. In the case studies they had to identify the
human rights involved in the given fact situation, evaluate compliance with the
human rights standards and prepare a proposal to address the situation. The
group contextualised the case studies as evident from their presentations,
focussing on issues particular to their chosen contexts.

Case Study

Kapra-Kapra is an export oriented garments manufacturing factory in an Export

Processing Zone in Country Amardesh. It is owned by a private company, K Limited
(KL). Like many other garment factories, they have hired many young women on
daily contract work for sewing of buttons on garments, a very tedious and repetitive
job. Hundreds of girls and young women come to work in garment factories from rural
areas for livelihood. The factory owners assure them of security and good pay.
However, as labour laws in EPZ areas are different from the general factory laws, it is
not clear what the employer’s responsibility really is. Kapra-Kapra like many other
factories provides the women a few rooms for lodging – these are overcrowded. They
work women in two shifts – one during the day and the other at night. The pay is poor
and work hours tedious, amenities poor and no holiday. To ensure compliance with
long work hours and to provide security, the women are locked up in the factory
shed. They do not have direct access to toilet, water or food once in the shed.
Despite the hardship women continue to seek such jobs, although most last only 2
years before their efficiency declines and are fired.

One night, a fire starts inside the factory. The watchman is away when the fire starts.
The door of the shed is locked from outside. There is no window, only openings are
ventilators at a great height. The women try shout to raise an alarm to seek help –
clambering on each other to reach the ventilators. By the time help arrives 13 women
have died and 32 are injured.

After the fire, the company, KL, paid compensation to the family of the dead workers.
There was no formal investigation into the fire by the company or by the government
authorities. Several other such fires have taken place in other private factories
around the country over the past few years, and at least ten other workers have
reportedly died.

Questions for Discussion

1. Evaluate Amardesh’s compliance with human rights standards, particularly

under CEDAW in relation to the EPZ factories. List the range of rights violated
and how.
 2. Develop a proposal for the state to help it fulfill its obligation under CEDAW to
protect all rights affected in this case: what laws, policies and institutional
arrangements should be in place to avoid such a situation in future.

3. Is your proposal based on any particular model of equality? Explain the

elements that define the model/s proposed by your group.

Group 1

Presentation
Human Rights Standards Involved

Right against discrimination – people working in EPZ factories
discriminated on account of non-application of labour laws

Right to protection of health and safety in working conditions

Right to liberty

Proposal
The policy should bind the factories to provide for -
• proper working conditions
• Limited hours of work
• Leave including maternity leave
• Sanitary conditions
• Minimum wages
The policy should put in place -
• Formal procedure of conducting enquiry in case of accidents
• Compensation policy
• National labour laws should be made applicable in EP Zones

Model of Equality
The policy is based on corrective model of equality. It envisages freedom of
movement, provision for maternity benefits as women need special care during
this period.

Discussion
In the discussion the facilitator clarified the term EPZ i.e. export promotion zone.
These are investment friendly zones created in different countries where
multinational companies are allowed to set up production units. Generally labour
laws prevalent in the country do not apply to these zones. There are many such
zones in countries like Sri Lanka, China, Thailand. In the context of the case
study, the facilitator added that it involves 2 types of laws:

1. Labour laws, which are manifestations of human rights standards in a

work place.
 2. Criminal law which still applies to EPZs.

While the group focussed on the former aspect they did not discuss the criminal
laws applicable such as non-investigation and non-prosecution.

Case Study

THE BASTI - About 20,000 people live in a Basti in the north of Delhi. Many have
been there for almost 30 years. Some were brought there by government authorities
about 30 years ago following evictions from other Bastis where they were living.
Others came direct from villages, after having become landless, through river erosion
etc.

Those living in the Basti include garments workers, domestic workers, rickshaw
pullers, small shopkeepers and petty traders. Nearly a third of the households in the
basti are headed by single women. Over the years, the Basti residents have also put
their own money into building a temple. International and national NGOs run
programmes in the Basti for micro-credit, basic and reproductive health services
(including vaccination programmes and two clinics), four schools, and a crèche. The
women run a local mahila mandal that had worked hard to negotiate toilet, sanitary
facilities and the crèche facilities in the basti. The Basti is located in an up and
coming residential area, and next to various government buildings.

THE EVICTION - Suddenly, in August, doing the rainy season, the government
authorities made announcements by miking in the area for residents to leave their
homes and belongings by 10am on the next day. During the next two days,
bulldozers razed homesteads and other constructions to the ground, in the presence
of about 100 or more police from the local Police Station, including the AC, about a
100 men in red headbands, and a Magistrate. Most of the constructions were
flattened, as were all NGO operated offices, school and clinics, including the temple.
The rudimentary toilet and sanitary facilities, water tank and hand pumps have also
been destroyed.

Now many of the residents remain there in makeshift and improvised structures
braving the rain with plastic sheeting and bamboos pulled together to provide them
with some meagre shelter. A few homes are still standing. Apart from the loss of
shelter, this demolition has changed the lives of many of the residents. They have to
negotiate new terms with local mafia for basic services – involving substantial
financial costs, some cannot leave for daily work because of their belonging that now
lie exposed, the disruption of fragile water and sanitary facilities has resulted in
hardship.

The government claims that the eviction is being carried out to make the area
available for constructing a government building. The Basti dwellers claim that they
had appealed to the government earlier not to evict them without prior rehabilitation
and that this appeal is pending consideration at the Prime Minister’s Office.

Questions for Discussion

1. Evaluate India’s compliance with human rights standards particularly under

CEDAW, in relation to this eviction.

2. In relation to women develop a proposal for state intervention that fulfils its
obligation to women in terms of their right to adequate housing? What laws,
 policies and institutional arrangements should be in place.

3. Is your proposal based on any particular model of equality? Explain the

elements that define the model/s proposed by your group.

Group 2

Presentation
Human rights standards involved

Freedom to choose domicile

Right against discrimination

Right to adequate standard of living

Right to education

Right to livelihood

Proposal
The state should give adequate notice before evicting people from their place of
residence and make arrangements for their rehabilitation in a nearby place.
Within the notice period it must establish water, electricity, sanitation facilities,
health centres, schools etc. before shifting people to the new rehabilitation
colonies. Every eviction should be accompanied by a compensation package for
the people who are evicted. At the place of rehabilitation the state must create
livelihood opportunities for people at nearby places. It should also make
adequate provisions for community activities so that the social and cultural life of
the people is not disrupted.

Model of Equality
The proposal is based on the corrective model of equality. It enjoins upon the
state to take proactive measures in order to ensure that the people who are
evicted do not suffer. The measures proposed must be specifically directed to the
affected community.

Discussion
In the discussion that ensued after the presentation one of the participants
pointed out that the group questioned the process of eviction and not eviction
itself. The facilitator also added that some of the people in the case study had
been given accommodation in that basti by the government after having been
evicted from the place where they used to live earlier. This together with the fact
that they had been living in this basti for the past 30 years makes them entitled to
the land. Another participant pointed out that the proposal did not mention any
special measures envisaged in the scheme for single women.

Case Study

Rekha, a 17 year old college student, her two younger sisters, and elderly parents,
both of whom were quite physically frail, live in a small town in North India. Her
parents were keen for her to marry, and had arranged a match. Rekha did not like
this person. Instead she had developed, over the years, a relationship with Shahrukh,
a neighbour. Shahrukh and his family even approached Rekha's family to ask if he
could marry her. Her father refused and was very angry as he had not suspected his
daughter’s relationship and said that their family honour would be destroyed if a girl
married from choice and that too, a boy from a different community. After this
incident, Rekha was put under a lot of emotional pressure by her parents, claiming
that their reputation and health would be ruined if she were to marry against their
wishes.
Some days later, Rekha left home to marry Shahrukh under the Special Marriage
Act. In accordance with the law, a public notice was hung up announcing their
marriage. Some members of religious right groups saw this notice and informed
Rekha’s family.

Rekha's father then lodged an FIR with the police alleging that Rekha had been
kidnapped/ abducted and forced to marry illegally while still a minor. He named
Shahrukh’s family as the accused in the complaint.

The police found Rekha and Shahrukh. Shahrukh was arrested for abduction and
offences with a minor, including unlawful detention and rape. The police also put
Rekha into “protective custody” at a shelter home run by a small local women’s
organisation, until the investigation should be completed – however long that may
take. Staff from the women’s organisation met Rekha, and she explained the reality
of the situation.
Rekha said that she did not want to return to her family. But she knew if she did not
compromise with her father then on the one hand, he would not drop the charges and
Shahrukh would remain in jail, and on the other hand, she would lose all contact with
her family. She also heard that the religious right group was openly threatening
members of Shahrukh’s family. Finally, she was concerned that her actions might
cause her parents health to deteriorate even more severely.

Questions for Discussion

1. Whose rights are involved in this case? Which human rights are involved
here?
2. Develop a proposal that ensures fulfillment of state obligation in relation to the
above situation. What laws, policies and institutional arrangements need to be
in place to fulfill state obligations under CEDAW?
3. Is your proposal designed on any particular model of equality? Is your
proposal uniform in its approach to all women or does it include any
differentiation. Explain the elements that define the model/s proposed by your
group?

Group 3

Presentation
Whose Rights Involved

Rekha

Sharukh

Rekha’s parents

Sharukh’s parents
Human Rights Standards Involved

Right to marry

Right to choice

Right to life and liberty

Proposal

Uniform law relating to marriage for all the communities

State’s protection to family from attack by groups of fundamentalists.

Age of marriage should be fixed at 18 years and in case parents
pressurise their underage children to get married then state should offer
protection to such children.

Model of Equality
The proposal, the group claimed, was based on the corrective model of equality.
However, the group did not elaborate upon the measures which could be said to
involve affirmative action.

Discussion
In the discussions that followed, the facilitator clarified that the case study
pertains to Special Marriage Act which is a civil law on marriage between people
regardless of their religion. The real problem is the requirement of notice to be
put up before such marriage is registered. This gives an opportunity to
fundamentalist groups who look out for inter-religious marriage notices and
threaten such couples.
 Part V: From Global to Local

Session
Domestic Application of Human Rights Law: Precedents and Potential

Session 8 - Domestic Application of Human Rights Law:

Precedents and Potential

The discussions in the preceding sessions developed an understanding about

human rights norms in general and also specific norms relating to women at the
international level. In order to make these internationally recognised norms
effective in a country, their application within the country has to be ensured. This
can be done at two levels:

• At normative level through incorporation i.e. formally recognising the

applicability of the international standards in the country through
enactment of laws
• At the practical level through reliance placed upon them by the already
existing institutions like Human Rights Commissions or People’s
Campaigns.

Incorporation
The applicability of international law in the domestic courts is governed by the
kind of legal system that prevails in a country. The two approaches governing the
relationship between international and domestic law in a country are – monist and
dualist.

According to the monist approach the moment an international treaty is ratified by

a country the law enshrined in it becomes applicable in the country. These are
the countries which recognise and give precedence to international law. Not
needing specific incorporation into the domestic law the treaties under this
system are held to be self-executing. Netherlands follows this approach whereas
India follows the dualist approach. According to dualist approach treaties are not
held to be self-executing and for their application in the state their specific
incorporation into the national law through an enactment is required. The
Environment Protection Act, 1986, Juvenile justice (Care and Protection of
Children) Act, 2000 are examples of legislations enacted to incorporate
international standards into domestic law. Furthermore, notwithstanding the
difference between the approaches, ratification of an international treaty itself
raises certain presumptions. It is presumed that the states would not enact laws
inconsistent with the treaty obligations and statues would be interpreted
consistently with treaty obligations. However, in states following dualist approach
if there is an irreconcilable clash between the national law and international law
then the former prevails over the latter.
Besides incorporation into a domestic law by the legislature, judiciary can also
incorporate international standards into the domestic law through progressively
interpreting the existing law. Vishaka v. State of Rajasthan set the precedent that
where there is no express law reflecting standards of an international treaty
ratified by India, and neither any law contrary to it, the international standard may
be read into the domestic law. The principle got crystallised in the judgement of
the Supreme Court in. Thus in case of a legislative vacuum international law can
be read as part of the domestic law.

Existing Framework
The application of international norms by institutions like Human Rights
Commission and in People’s Campaigns was discussed by a panel comprising
Deepika Udagama and Mr. Shekhar Singh. The former discussed the application
of international standards by the Human Rights Commission in Sri Lanka while
the latter focussed strategies of activating right to information law by people’s
groups and organisations.

Human Rights Commission

The mandate of Human Rights Commission of Sri Lanka includes the following:

To consider complaints of violation of Constitutional Rights

To advise the government with regard to legislative reforms

To conduct suo-motu inquiries and make recommendations to the
government

To take all such measures as may be required to discharge its functions

As the Constitution of Sri Lanka does not recognise economic and social rights
the issues that fall within the purview of the Commission in the form of complaints
mainly relate to arbitrary arrest, torture, disappearances. However, since the
signing of the cease fire agreement by the government the number of such
complaints have declined. Now 75% cases pertain to discrimination at workplace
and 25% relate broadly to violations by police. The Commission thus becoming a
mechanism for the middle class, rendering invisible other issues like access to
health services, access to clean water etc. However, the Commission has been
using its power to take up issues suo-motu (on its own) to address these
problems. In the absence of Constitutional guarantees with regard to these rights,
the Commission places reliance on the International standards. It sends special
rapporteurs to inquire into the exercise of socio-economic rights by vulnerable
groups like plantation workers. It also invokes international standards while
advising government on legislative reforms, commenting upon the bills introduced
in Parliament, intervening in cases before Supreme Court and in human rights
education work undertaken by the Commission. The Commission is also working
to strengthen international mechanisms implementing, such as by monitoring
implementation of concluding observations made with respect to Sri Lanka.

Constitution of the Commission

The Human Rights Commission of Sri Lanka has gained strength over the years.
The law requires the Commission to be constituted by people with knowledge of
human rights and be representative of different ethnic communities in the
country. Since the law was silent about the gender composition of the
commission there was no female member in the first commission. The 2nd
commission had 1 woman member but now there are 3 women and 2 men as
members. The selection of the members is a long drawn out process where
nominations are invited from the parliamentarians and civil society groups and
then there is an interview for the selection of members. Unlike the system of
appointment prevalent in India, the process of selection by inviting nominations
from a diverse group is much more in tune with the Principles relating to the
Status and Functioning of the National Institutions for Protection and Promotion
of Human Rights popularly known as Paris Principles.8

People’s Campaign
Right to information cuts across all human rights issues. The Right to Information
Act, 2005 (hereinafter referred to as RTI Act) came into force on 12th Oct’ 2005.
This right has the potential to promote participatory democracy and empower the
people. The campaign and operationalisation of right to information recognised
under various state legislations enhanced people’s power to question the
government and to check mal-administration. Using the state legislations people
asked for the government records relating to distribution of food grains under the
public distribution system, muster rolls with respect to public works and work for
food programmes, bills vouchers regarding the work undertaken by the
administration. All this enabled people to compare their records with those
maintained by the government and question the government on the infringement
of their rights like right to food, work etc. The right to information thus constitutes
a formidable instrument for the realisation of basic rights.

Salient Features of the Right to Information Act, 2005

The Act provides for right to access information held by or under control of a
public authority and also information relating to any private body which can be
accessed by a public authority.9 The term public authority has been defined
broadly. It includes “any authority, body or institution of self government” and also
includes body owned, controlled or substantially financed, directly or indirectly
funded by government and non-government organisation substantially financed
(directly or indirectly) by government.10 Thus the definition not only pertains to
legislature and executive but also judiciary and certain non-government
organisations. The Act is not a very well structured but the dispersed provisions
provide for versatile and wide-ranging state accountability. The efforts to make
the right expressly available to all i.e. citizens as well as non-citizens could not
fructify.11 However, a little window was sought to be left open in this regard by
providing that the person seeking information shall not be required to furnish any
personal details other than those required for contacting him.12 There are a few
categories of information that are absolutely excluded from disclosure. Generally
8
The principles require that national institution “. . . shall be established in accordance with a
procedure which affords all necessary guarantees to ensure the pluralist representation of the
social forces (of civilian society) involved in the protection and promotion of human rights. . . “
9
Right to Information Act, 2005, 2(f) (j).
10
Ibid., section 2 (h).
11
Ibid., section 3.
12
Ibid., section 6 (2).
most of the exceptions enumerated in section 8 of the Act have a proviso which
water down the exception in view of “larger public interest.”13 RTI Act has
retrospective effect i.e. one can even ask for information pertaining to a period
before this Act came into force. In case the information sought relates to a third
party which might have supplied the information to the public authority, then the
information officer has to give a notice to the party about his intention to disclose
and require the third party to make a submission regarding whether to disclose
the information or not.14 The legislation provides for the disclosure of information
within 30 days but requires such disclosure to be made within 48 hours in case
the information sought concerns life or liberty of a person.15 The information is to
be provided by the Central or State Public Information Officers or Central or State
Assistant Public Information Officers established by public authorities.16 The Act
also establishes an appellate authority in the form of Information Commissions at
the centre and state level to appeal against the Public Information Officers.17 The
Chief Information Commissioner and other Information Commissioners
constituting the Information Commission can be removed from office by the
President or Governor as the case may be on specific grounds and only after
following a specified procedure. The significant features of the legislation include
imposition of duty on the public information officers by providing redress for
refusal of an application under the Act or malafidely refusing to furnish
information, or delaying the furnishing of information or providing incorrect
information. The redress is in the form of a penalty of Rs. 250 per day till the
information is furnished with the penalty going upto a total of Rs. 25000.

In order to ensure that this exceptional legislation ushers the change that it seeks
to bring about it is necessary for people to shed their cynicism but remain
cautious. For instance information which has deep rooted vested interests may
result in a backlash. Thus people must organise to prepare themselves for such.
One of the most significant contributions of the Act is to infuse a sense of
empowerment amongst people vis-a-vis the government and to fight corruption
and mal-administration. Public hearing with respect to water plant sought to be
installed in Delhi in which people discussed the issue based on the information
collected by them under the Delhi Right to Information Act (precursor to the
national legislation) is the case in point. Use of the Act led the government to
request the World Bank not to consider the disbursement of the loan for another
year. The entire campaign for the enactment of the Right to Information Act and
the subsequent efforts to ensure the exercise of the right by people for the
realisation of other rights has been very significant. The legislation has
empowered people to question the government with respect to non-fulfilment of
human rights obligations, endorsed by them even at the international level.

13
Ibid., section 8 (1) (d)(e)(j), section 8 (2).
14
Ibid., section 11.
15
Ibid., section 7(1).
16
Ibid., section 5.
17
Ibid., section 12 and 15.
 Part VI: Gender Based Violence

Sessions
Normative Framework
Gender Based Crimes in Special Contexts

Session 9 - Normative Framework

Beginning with the discussion on the meaning of gender based violence, the
participants’ responses were of two kinds: of violence that is directed against a
woman because she is a woman and violence that affects women
disproportionately. Participants expressed concern over silence in the text of
CEDAW about one of the major problems faced by women i.e. violence. In this
regard the facilitator Madhu Mehra clarified that text is just one part of a treaty.
The working of the treaty as discussed in the session on UN mechanisms is
secured through regular reporting to the respective Committees. The Committee
after considering the report and after engaging in a constructive dialogue with the
country concerned issues Concluding Observations18 which are similar to
precedents of court decisions at the national level. Committees also issues
interpretative comments known as General Recommendations on specific
provisions of the Convention that the Committee considers to be of concern. The
text of the treaty together with General Recommendations and Concluding
Observations comprise the Convention. Thus the Convention is not silent on
gender based violence as General Recommendation 19 focuses on the issue.
General Recommendation 19 was adopted by the committee in 1992. The
recommendation reflects on violence in the different contexts especially the ones
that form part of the text like violence in the context of health, rural women,
employment etc.

In 1993 United Nations General Assembly adopted Declaration on the Elimination

of Violence against Women. This was another milestone in the journey towards
recognition of gender based violence at the normative level and its affect on
women. Following this Declaration the special rapporteur on violence against
women was appointed. The special mechanism based on the activities of special
rapporteurs discussed earlier can respond instantly to the situational needs
without the govt. providing a report. Her office looks at the nature and forms of
violence prevalent against women and their long-term effects. She makes visits
to states parties and investigates instances of violence or systemic forms of
violence against women.

The rapporteur compiles country reports, issue based reports and reports back to
the General Assembly. These reports constitute enormous jurisprudence on
violence against women. The reports may be broadly viewed as pertaining to
following contexts:

18
Concluding observations are recommendations issued by the committee following the review of
reports by the states parties.
 • Peace time – systemic and structural violence experienced by women in
all societies
• Armed conflicts – in situations of militarization, armed rebellion, riots

Discussion
The understanding about gender-based violence was deepened through
application of the learning in the following context:

Case Study
There was a girls’ college A in the walled city - the girls experienced some amount of
harassment when the girls went to college or on their way home. There was also a
college, which was outside the walled city which was co-educational college - we
don’t know if the girls experienced some form of sexual harassment there. The govt.
of M.P then decided to swap the two colleges - the reason given was that Muslim
boys were eloping with Hindu girls because the girls had to go into the walled city
area, and it was very unsafe. The consequence several Muslim girls who had
struggled to go to college are now unable to attend college.

The issues put forth for discussion were:

The forms of violence

The contributory factors

Who is responsible here

State’s response to violence against women

The discussion reflected that violence perpetrated against women does not take
its colour only from the difference in gender but other factors like class and
community background act simultaneously and the form of violence is determined
by a complex interaction of all these forces. What is significant is how the entire
situation and violence are viewed and the position government takes in this
context. The government concern seems to be the elopement of Hindu women
with Muslim men and its approach is guided by its stand with respect to inter
community marriages. The swapping of colleges is reflective of paternalistic
approach of the government towards women which further manifests in the
protectionist model of equality adopted here.

Session 10 - Gender Based Crimes in Special Contexts

The discussion in the preceding session indicated that violence against women
may take different forms in different contexts and may not have identical effect on
all women with different backgrounds. It is a complex interplay of factors relating
to one’s identity, one’s context and other attributes that ultimately colour the
forms and effect of violence against women. One such context is that of war,
internal armed conflict or situations of mass violence. Internal conflict has
increasingly emerged as an arena of concern and thus international law has
begun to respond to gender-based crimes in such contexts. This significant
development is epitomised by the establishment of International Criminal Court
(hereinafter referred to as ICC) under the Rome Statute. This session facilitated
by Saumya Uma focussed on the journey that culminated in the establishment of
ICC, the crimes recognised under ICC and their significance.
After a brief interaction with the participants with regard to the forms in which
gender based violence manifests itself in situations of large scale violence like
war, genocide and crimes against humanity, the following were enumerated as
the most prevalent forms:
• Mass rape
• Sexual violence during conflicts
• Rape as a means of ethnic cleansing
• Rape for subjugation; based on race, caste, nationality etc
• Rape as punishment
• Forced pregnancy
• Forced abortions
• Violence through misuse of religion
• Displacement of women

Women have been treated as booties of war from time immemorial. License to
rape has been considered a major incentive for the soldier. The history of
violence against women during wars can be traced back to the Armenian
genocide of 1915. Mass rape and other brutalities were committed on tens of
thousands of Armenian women. They were left to die of starvation with their
children. In World War I, German soldiers marching into Belgium & France used
rape and other atrocities as a deliberate campaign of instilling terror among
civilians. After the end of World War I no prosecutions for violence against
women resulted despite the fact that the reports furnishing list of war crimes
including rape and abduction of girls and women for the purpose of enforced
prostitution advanced individual criminal responsibility of the offenders. In World
War II, rape and sexual violence against women was employed as a conscious
military strategy by both Allied & Axis powers, in Europe & Asia. Violence against
women by the Nazis included rape & sexual violence as weapons of terror,
enforced prostitution, mutilation, medical experimentation, sexual torture of
Jewish women, homosexuals, gypsies & others. In 1945, when the Soviet
soldiers captured Berlin, they raped between 800,000 and 110,000 women out of
a total population of 1.4 million women. The climax was the Nanking massacre,
1937 where over 20,000 women & girls were tortured, humiliated, raped, many of
them mutilated and killed within the first month of occupation (stated by Tokyo
Tribunal). During the war the Japanese Imperial Army systematically planned,
ordered, conscripted, established and controlled army brothels, and forcibly
abducted women from the occupied territories. Soldiers referred to them as
“public toilets” and recorded them on military supply lists as “ammunition”. The
aging women who suffered as sex slaves of the Japanese army in World War II,
known as ‘comfort women’ still demand an official apology from Japan.

The charter of Nuremberg Tribunal set up after World War II for major war
criminals didn’t include violence against women despite enormous evidence.
Even at the trials, French & Soviet prosecutors introduced evidence of sexual
abuse of women under “other inhuman acts.” Still sexual violence does not
appear even once in the 179-paged judgment of the Tribunal. Violence against
women didn’t find a place in the Tokyo Charter either despite rampant use of
sexual abuse by Japanese as deliberate military policy. The silencing and turning
a blind eye to violence against women during wars continued through Vietnam
War and Bangladesh war in 1971. For the first time rape as a weapon of war & as
a tool of ethnic cleansing came to be discussed openly in the context of conflict in
erstwhile Yugoslavia. Finally International Criminal Tribunal for Rwanda (ICTR)
established in 1994 by a Security Council resolution marks a breakthrough with
respect to fastening liability for violence against women committed during armed
conflict. Jean Kambanda, Former Prime Minister of Rwanda, was the first head of
state to be convicted for crimes against humanity. Jean-Paul Akayesu, former
Mayor, was convicted for genocide & crimes against humanity. He was
sentenced upto 80 years for other violations including rape and encouraging
widespread sexual violence. The historic Akayesu judgment was the first to
recognize rape as a means of genocide.

The culture of impunity existed primarily on account of the lack of political will,
absence of explicit prohibition in non-international armed conflict and absence of
individual accountability. However, the establishment of International Criminal
Court has challenged this culture of impunity. ICC addresses violence against
women by:
• Spelling out crimes against women in detail in the statute
• Removing bias against women from evidentiary provisions
• Emphasising women’s access to justice – protection of victims &
witnesses
• Providing for participation of women in the judicial process – as officers of
the court
• Upholding the principle of no immunities and justice for all
• Providing for individual criminal responsibility

Salient features
ICC is inherently different from International Court of Justice (ICJ) as in the case
of the latter the jurisdiction of the court is determined by the parties while in case
of the former the jurisdiction is decided by ICC itself. Some of the principles
governing ICC are as follows:

 Under ICC states are not accused or prosecuted but only individuals are
proceeded against.
 The principle of complementarity embodied in the statute establishes
jurisdiction of the court in cases where the state is “unable” or “unwilling” to
prosecute individuals accused of crimes recognized under the statute. A state
may be said to be unable to prosecute an individual in case the legal system
of the state has broken down or even where the legal system is functional but
because of vested interest of the government or those in position of power the
individual is not prosecuted.
 The ratification of the statute does not have retroactive effect i.e. it becomes
applicable only prospectively, so as to bring any crime committed after its
ratification within its purview and not the crimes committed before it was
ratified. For example the crimes committed during carnage in Gujarat cannot
be tried by ICC because it had not come into existence when the carnage
occurred. Moreover, even if the carnage had happened after the Rome statute
came into force, it could have jurisdiction only if India had ratified it.
 The statute provides for non-imposition of death penalty. Although within the
national laws death penalty may continue to exist.
 There is no impunity under ICC. Statutes relating to limitation, pardons and
immunity are inapplicable.

The ICC is the court of last resort and the constitution of the court is
representative of different geographical regions of the world. The statute
incorporates gender perspective into it. The trial procedure laid down in ICC
incorporates the constituents of a fair trial including the right to defend. It also
integrates into it rights of victims and witnesses.

Jurisdiction
The ICC can assume jurisdiction in a case and prosecute if following conditions
are satisfied:

1. A crime has been committed in the territory of a state that has ratified the
Rome Treaty.
2. A crime has been committed by a citizen of a state that has ratified the
Rome Treaty.
3. A state that has not ratified the Rome Treaty has made a declaration
accepting the court’s jurisdiction over the crime.
4. When crimes have been committed that threaten or breach international
peace and security, and the UN Security Council has referred the situation
to the ICC.

There are mechanisms that can trigger the jurisdiction of ICC. The entities that
can trigger the jurisdiction of ICC in this manner are:

States that have ratified the Rome Treaty (1,2, or 3 above to be satisfied first)

Prosecutor - based on information from any source including the victim and
her / his family (1, 2 & 3 above to be satisfied first)

Security Council - under Chapter 7 of the UN Charter refers the situation to
the Prosecutor (can refer any case).
It is pertinent to note here that individuals and NGOs cannot directly bring cases
before the court. They can however, communicate to the prosecutor who can
refer the case to the ICC.

As far as subject matter is concerned ICC has jurisdiction over war crimes,
crimes against humanity, genocide, aggression (when defined). In order to better
understand as to what is included in the abovementioned categories of crimes it
is necessary to elaborate upon each one of them.

War Crimes

Grave breaches of the Geneva Conventions - include
 wilful killing
 torture or inhumane treatment, including biological experiments
 wilfully causing great suffering or serious injury to body or health

Violations of treaties (Hague Regulations, Geneva Conventions)

War crimes committed in non-international armed conflict (excluding internal
disturbances, tensions, riots, isolated and sporadic acts of violence or other
acts of a similar nature) – including common Article 3 & Protocol

Violations of international customary law

Violations / Prohibited acts include:

 attacks against civilian population
 attacks against civilian objects
 attacks on humanitarian assistance or peacekeeping missions
 attacks when it is known that it will cause incidental loss of life or injury
to civilians or damage to civilian objects.
 attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments and hospitals (provided they are
not military objectives

Violations do not expressly include use of nuclear weapons, but prohibits acts
that are consequences of its use – such as attacks against civilian populations &
objects etc

Genocide
The following five acts, if committed with the intention to destroy all or part of a
national, ethnical (linguistic & cultural), racial or religious group, may constitute
genocide:

Killing members of the group.

Causing serious bodily or mental harm to the members of the group.

Deliberately inflicting on a group, conditions of life calculated to bring about its
physical destruction.

Imposing measures intended to prevent births within a group.

Forcibly transferring children of a group to another group.

Apart from the abovementioned acts, even encouragement to, assistance in and
attempts to commit genocide are also acts of genocide. Persecutions on the
basis of gender, social or political identity are not included in the definition of
genocide. However, such acts may amount to crimes against humanity provided
the criteria for those are satisfied. Furthermore in a landmark judgment in
Akayesu’s case (ICTR) in 1998 it was held that when rape is used as a method to
destroy a protected group by causing serious bodily or mental harm to the
members of the group, it constitutes genocide.

Crimes Against Humanity

The third category of crimes within the jurisdiction of ICC is crimes against
humanity. A crime is considered to be a crime against humanity if it satisfies the
following requirements:

Committed as a part of widespread or systematic attack;

Committed pursuant to a State or organizational policy;

Directed against a civilian population; and

Perpetrator has knowledge of the general nature of the attack
The acts specifically prohibited on this account are:

murder

extermination

enslavement

deportation / forcible transfer of population

torture

sexual violence – rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization or any other form of sexual violence of
comparable gravity

persecution – including gender-based persecution

enforced disappearances

These crimes can be committed either in times of armed conflict or peace, by

state officials or private individuals

Structure and Functioning

The Presidency, registry, chambers and office of the prosecutor constitute the
International Criminal Court. The presidency consists of the President, the first
and the second vice-President. The chambers consist of 18 judges nominated
and elected by the State Parties. Only those persons belonging to those states
are eligible to become judges at ICC, which have signed the Rome statute. The
Chambers are distributed over three divisions – the appeal, trial and pre trial. The
office of the prosecutor headed by the Prosecutor and assisted by Deputy
Prosecutors. Finally the Registry is entrusted with the administration and
servicing of the court. It is headed by the Registrar. The registrar also sets up
victims and witnesses unit. This unit provides protective measures, security
arrangements, counselling and other services. Specific functions of the registry
include:

Send notice to victims or their legal representatives

Assist in legal advice & organizing representation

Assist with participation in proceedings

Gender sensitive measures

Inform victims and witness of their rights

Victims & Witness Unit must provide:

o Protective Measures
o Security Arrangements
o Counseling

Must include staff with expertise in Trauma related to crimes of sexual
violence

Must maintain confidentiality at all times

Provide trainings on trauma, sexual violence, victim and witness security

Obtain medical, psychological and other appropriate assistance

Implementation Mechanisms
Based on evidence presented by the Prosecutor, the pre-trial chamber can issue
an international arrest warrant. States Parties are then obliged to cooperate with
the ICC – by gathering and providing information and arresting and pursuing
surrender of suspects. If a case is referred to the Court by the UN Security
Council, the SC can order even non-States Parties to carry out decisions and
warrants of the Court. ICC’s judgement is not open to challenge though at a later
point of time ICC may itself modify or repeal it. ICC has no prisons of its own.
Persons convicted by the ICC will serve their sentences in the detention facilities
of States Parties that have agreed to take them. States which are not parties to
the Treaty are not obliged to cooperate with the court. However, they are bound
to do so if they have ad hoc agreements. Co-operation and assistance expected
from states for the purpose of implementation includes the following:

identifying and locating witnesses and things

taking evidence

questioning persons who are being investigated or prosecuted

serving legal documents

facilitating voluntary appearance of witnesses

examining sites and exhuming graves

conducting searches and seizures

providing documents

protecting victims and witnesses

preserving evidence

Identifying, tracing and freezing assets and instruments of crime

Group Work
After discussing briefly the three categories of crimes that are punishable under
ICC, the facilitator divided the participants into four groups. The group activity
was undertaken to deepen the understanding of the participants about the exact
nature of acts covered under different categories of offences. The group work of
the participants indicates an engagement of the participants with the definitions of
offences and an attempt to understand the purport of each of them. This being
the first exposure to ICC for most of them the presentations were followed by
lengthy discussions to clarify the ingredients of the offences. It was more so
because the crimes discussed are such which are not defined within the national
laws.

Group Activity
Definition of rape in the ICC Statute:
The perpetrator invaded* the body of a person by conduct resulting in penetration,
however slight of any part of the body of the victim or of the perpetrator with a sexual
organ, or of the anal or genital opening of the victim with any object or any other part
of the body.
The invasion was committed by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or abuse of
power, against such person or another person, or by taking advantage of a coercive
environment, or the invasion was committed against a person incapable of giving
genuine consent.**
*The concept of invasion is intended to be broad enough to be gender-neutral.
**It is understood that a person may be incapable of giving genuine consent if
affected by natural, induced or age-related incapacity. This footnote also applies to
the corresponding elements of Article 7 (1) (g) – 3, 5 and 6.

Definition of rape in section 375 Indian Penal Code

A man is said to commit rape who except in the case hereinafter excepted has
sexual intercourse with a woman under circumstances falling under any of the six
following descriptions:
First – Against her will
Secondly – Without her consent
Thirdly – With her consent when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
Fourthly – With her consent, when the man knows that he is not her husband, and
that her consent is given because she believes that he is another man to whom she
is or believes herself to be lawfully married.
Fifthly – With her consent when at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
Sixthly – With or without her consent, when she is under sixteen years of age.
Explanation – Penetration is sufficient to constitute sexual intercourse necessary to
the offence of rape.
Exception – Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.

Questions
What type of sexual conducts are covered by this definition?
Can you think of any situations (international and / or national) where particular acts
of violence against women could attract the provisions of the definition?
Please compare the definition given above with the definition of rape in section 375,
Indian Penal Code. What are the similarities and differences?

Group 1

Presentation
Sexual conducts covered by the definition of rape
The definition is broad enough to include all kinds of sexual assaults involving
penetration of any organ of the victim’s body with any sexual organ of the
perpetrator or any sexual organ of the victim with any part of the body of the
perpetrator or any object.

Situation where this provision would be attracted

Rape of women during Gujarat carnage

Atrocities on Tutsi women in Rwanda

Atrocities against women in Bangladesh by Pakistani soldiers

Rape of Kuwaiti women by Iraqi soldiers

Atrocities on women in the North east by the Indian Army
Differences between the definition of rape and under Indian Penal Code

Definition of Rape under ICC Definition of Rape under IPC

It is gender neutral It only recognises rape of a woman by
a man
It includes penetration of sexual It is limited to penile penetration of
organs with any organ or thing and vagina and does not recognise
penetration of any organ with a penetration of vagina with any other
sexual organ organ or thing. It does not even
recognise penetration of any organ of
victim with sexual organ of
perpetrator
It does not mention age of consent It mentions age of consent
The term consent is expressly defined The term consent is not defined
very broadly

Group Activity
Definition of Sexual Slavery in the ICC Statute
The perpetrator* exercised any or all of the powers attaching to the right of ownership
over one or more persons, such as by purchasing, selling, tending of bartering such a
person or persons, or by imposing on them a similar deprivation of liberty.**
The perpetrator caused such person or persons to engage in one or more acts of
sexual nature.
∗ Given the complex nature of this crime, it is recognised that its commission
could involve more than one perpetrator or as a part of a common criminal
purpose.
** It is understood that such deprivation of liberty may in some circumstance,
include exacting forced labour or otherwise reducing a person to servile
status as defined in the supplementary Convention on the Abolition of Slavery
of 1956. It is also understood that the conduct described in this element
includes trafficking in persons, in particular women and children.

Definition of Enforced Prostitution in the ICC Statue

The perpetrator caused one or more persons to engage in one or more acts of sexual
nature by force, or by threat of forced coercion, such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power, against
such person or persons or another person, or persons’ incapacity to give genuine
consent.
The perpetrator or another person obtained or expected to obtain pecuniary or other
advantage in exchange for or in connection with the acts of a sexual nature.

Questions
What type of sexual conducts are covered by these definitions?
Can you think of any situations (international and / or national) where particular acts
of violence against women could attract the provisions
Group 2

Presentation
Sexual conducts covered by the definition of sexual slavery

Trafficking in persons

Forced labour along with use as a sex object

Sexual conducts covered by the definition of enforced prostitution

Rape

Sexual violence/abuse

Trafficking

Situations in which these provisions might be attracted

The participants mentioned Gujarat carnage and Anti-Sikh riots, 1984 as
situations which might attract these provisions.

The presentation led the facilitator to clarify the exact import of the definitions.
She pointed out that sexual slavery has an element of ownership between the
perpetrator and the victim and in such a state of ownership the perpetrator
causes the victim to engage in acts of sexual nature. Whereas in case of
enforced prostitution the perpetrator causes the victim to perform acts of sexual
nature by putting the victim under threat, coercion etc and the perpetrator or
another person obtains monetary or other benefits in connection with the acts of
sexual nature. The facilitator added that these basic requirements need to be
fulfilled before a crime can be categorised as one of these offences.

Group Activity
Definition of Enforced Pregnancy in the ICC Statute
The perpetrator confined on or more women forcibly made pregnant, with the intent
of affecting the ethnic composition of any population or carrying out other grave
violations of international law.

Definition of Enforced Sterilisation in the ICC Statue

The perpetrator deprived one or more persons of biological reproductive capacity.*
The conduct was neither justified by the medical or hospital treatment of the person
or persons concerned not carried out with their genuine consent.**
* The deprivation is not intended to include birth-control measures which have a
non-permanent effect in practice.
** It is understood that “genuine consent“ does not include consent obtained through
deception.

Questions
What type of sexual conducts are covered by these definitions?
Can you think of any situations (international and / or national) where particular acts
of violence against women could attract the provisions
Group 3

Presentation
Ingredients of the offence of enforced pregnancy

Rape until pregnancy

Forced confinement/ illegal detention to avoid abortion

To replace or affect the ethnic composition of any particular group or race

Situation where this provision would be attracted

Situation where Bosnian women were raped in order to impregnate them with
Serbian babies.

Ingredients of the offence of enforced sterilization

Deprivation of biological reproductive capacity- must be permanent

Conduct was neither justified by medical treatment nor carried out with their
genuine consent.

The facilitator pointed out that this was the most intensely disputed definition.
This definition emerged from the Bosnian experience. There were some countries
such as Vatican and Ireland, which were afraid that prohibiting all abortions could
fall under the ambit of this section. In this regard misleading linkages were sought
to be made with the legalization of abortion.

Situations where this provision would be attracted

Forcible sterlization of men during emergency in India

In Maharashtra a direction was given that the girls in a mental asylum
should be made to undergo hysterectomy.

Group Activity
Definition of Sexual Violence in the ICC Statute
The perpetrator committed an act of a sexual nature against one or more persons or
caused such person or persons to engage in an act of a sexual nature by force or by
threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or another person,
or by taking advantage of a coercive environment, or the invasion was committed
against a person incapable of giving genuine consent.

Definition of Persecution in the ICC Statute

Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognised as impermissible under international law, in connection with
any act referred to in this paragraph or any crime within the jurisdiction of the court.
“Persecution” means the intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity of the group or collectivity.
(Article 7 (2) (g))

Questions
What type of sexual conducts are covered by these definitions?
Can you think of any situations (international and / or national) where particular acts
of violence against women could attract the provisions

Group 4

Presentation
Sexual conducts covered by the definition of sexual violence
Acts of sexual nature which do not fall under other categories mentioned in ICC
such as forced nudity.

Sexual conducts covered by the definition of persecution

Persecution on the basis of sex i.e. women may be targeted as a group

Situations where these provisions are attracted

Atrocities against Tutsi women in Rawanda

Sexual abuse of 2 lakh Bangladeshi women by Pakistani soldiers

Rape of Kuwaiti women by Iraqi soldiers

Atrocities on women in the North east by the Indian Army
 Part VII: Moot Court

Session 11: Moot Court

The last session of the workshop involved a moot court exercise. Two case
studies were given to the participants divided into 4 groups. Different guidelines
were given to the two groups working on each case study. The exercises aimed
at the application of human rights principles learnt during the training to a
particular situation. It aimed at building the capacity of the participants to
contextualize human rights standards and apply them to a concrete situation.

Case Study for Groups 1 and 3:

Shanthi (20 years old) with husband Deva (30) work as farmhands for a rich landlord in
South India. They have been working there for 5 years. They, with their 4 year and 8
month-old children live in a shanty provided for free for them and other workers by the
landlord, Ganeshan. Shanthi and Deva are members of the Dalit community.

The couple’s meager earnings can barely provide for the family’s needs. There are days
when Shanthi goes on with her work and household tasks without any food in her
stomach. In search of better livelihood opportunities, Deva left his village for Chennai,
promising to come back soon. However a year goes by and there is no word from him.
Like many other men from the village, he has joined the ranks of migrant workers who
may never return home.

After a year Shanthi goes to Ganeshan to seek a loan to look after her children.
Maintaining her family has been very difficult. Ganeshan assures Shanthi, “Don’t worry, I
will take care of you,” he says, placing his arm around Shanthi who shivers. That night,
Shanthi is summoned to Ganeshan’s outhouse. She complies with the call and has sex
with him. He also asks her to perform other “unnatural acts.” Shanthi quietly submits to
her landlord’s bidding: This is the fate of women of my caste. I should accept this. If I
say no, what will happen to me and my children?

Shanthi’s story is by no means isolated. According to an NGO report violence against

Dalits is alarming and remains largely unredressed: between 1981 and 1991 crimes
against scheduled castes went up by 23-24 per cent; in just two years (1994-96) the
number of registered cases of crimes against scheduled castes was as high as 93,349,
of which 28,114 were cases of rape.

Guidelines for Group 1:

Yours is a Human Rights group engaged to assist the Special Prosecutor appointed for
this case. You have consulted with Shanthi, women’ groups, Dalit groups and studied the
International Human Rights laws. Present your arguments supported by domestic and
relevant international law clarifying in particular the offences committed in this case.
Include arguments in anticipation of any obvious defence to this case.

Guidelines for Group 3:

Your human rights law group is working in consultation with women’s groups and dalit
groups to use this case as the basis for initiating a campaign for law reform on sexual
assault. Explain your proposal on law reform.
Group 1

Presentation
Issues Involved

Rape

Sexual Harassment at Workplace

Marginalisation of dalit women

Condition of workers in unorganised sector

Laws Involved:
1. Section 375 and Section 376 especially the issue of consent where there
is an employer-employee relationship
2. Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act,
1989 provides for severe punishment
3. Minimum Wages Act – non-payment of minimum wages creates a
coercive environment for Shanthi

International Provisions:
1. Article 1, CEDAW - definition of discrimination against women
2. Article 2 (e), CEDAW - appropriate measures to eliminate discrimination
by any person, organisation or enterprise
3. Article 2(f), CEDAW – under CEDAW state is under an obligation to take
all appropriate measures, including legislation to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination
against women
4. Article 14(2) (c) and (h), CEDAW – provisions relating to rural women
5. Article 23, UDHR - just and equitable working conditions and choice of
work
6. Article 25, UDHR – Right to adequate standard of living
7. Article 3, UDHR – Right to life, liberty and security of person

Arguments

Coercive environment at workplace vitiates the consent given by
Shanthi. She is under undue influence of the employer on whom
her and her family’s existence depends

Abolition of Atrocities against SC and ST Act must be invoked and
the abuse of dalit women be emphasised

Lack of evidence must be seen in the light of the conditions of
people from this marginalised section. The socio-economic data
coupled with the data with respect to violence against dalit women
must be used to highlight the number of atrocities committed on
them.

A possible defence casting aspersions on the character of Shanthi
and women from this community in general must be rebutted and
such a defence should not be allowed to be put forth
Group 3

Presentation
Campaign on law reform
Basic points for law reforms

She is poor, female and dalit- this makes her position vulnerable.

Need to realise right to livelihood

Empowerment of panchayats

Enforcement should be in a proper manner.

Criminal law reforms

Such instances should go only to the fast track courts. The group also
debated whether it should be bailable or non-bailable however, they could
not reach a consensus.

The onus of proof in such cases where the woman is from a dalit
community, an upper-caste perpetrator as the employer on whom the
woman’s livelihood depends, should shift to the accused.

Security measures - protection to the victim must be provided as she lives
in the same locality as the perpetrator

Financial compensation

Rehabilitation.

Enforcement

Through the panchayat

Since the landlord may try to influence, enforcement should be linked to
the block level or district level.

Remedies
The state should make laws with respect to the following and ensure their
implementation

Securing education, health facilities, livelihood opportunities for people
from the dalit community

Legal cells should be set up to offer redress at the local level

Social initiatives
Raising awareness amongst people about their rights by organizing trainings,
meetings and information material for the people from dalit community.

Discussion
The facilitator raised the following issues in the discussion that followed the
presentations of the two groups:

One needs to consider the delay involved in legal proceedings and how
castist our institutional structures are. We need to consider whether
 compensation given at the end would be of any use. State liability can be
immediate. For instance in Britain there is a criminal injuries compensation
board for women. It gives compensation immediately and there is a
separate compensation due after the offence has been proved.

Why did the campaign for law reform by the group look only at Shanthi’s
case. The exercise was to consider the question of law reform for sexual
assault. There is a need for a definition of ‘sexual assault’.

Caution must be exercised against recommending draconian provisions.

We must remain fair. It is possible to address eve teasing seriously without
categorising it as rape. There is a spectrum of offences from harassment
to rape. So there is need for strict enforcement of laws with respect to all
forms of violence against women rather than mere prescription of severe
punishment with respect to grave offences.

It is important to understand that gender issues operate in conjunction with

caste, race etc. Committee on the Elimination of Racial Discrimination has
included caste based discrimination within racial discrimination, so even
this treaty can be invoked to emphasise violence against dalit women.

Case Study for Groups 2 and 4:

Ayesha worked as a secretary in a large private corporation before she met Aman, a
young doctor. The two decided to get married. Ayesha decided to give up her job
after a year of marriage in order to have a family. In the two years that followed she
had two children. Motherhood and household responsibilities kept Ayesha at home
until her children were in their early teens. After 15 years of marriage, Aman decided
to divorce Ayesha as he was in love with another woman and wanted to marry her.

At the time of the divorce the court determined that Ayesha was entitled to one-third
of Aman’s salary, the maximum that can be provided under the law. According to the
law, Ayesha was entitled to this support until she remarried or was “unchaste”.
Ayesha discovered that during the years she was out of the labour market, computer
technology had been introduced and today every good secretarial position required
the applicant to have computer and other technological skills. Ayesha can survive at
the subsistence level on the support she received from her ex-husband. Ayesha
comes to your for advice.

Litigation Exercise for Group 2:

Your group has data on socio economic status of women in the family to show that
Ayesha’s case is not an isolated one. You therefore agree to represent her case in
court. Formulate arguments based on the substantive equality model that challenges
the existing maintenance provisions as violating Ayesha’s right to equality.

Legislative Reform Campaign for Group 4:

Your group has extensive data on women’s socio economic status and entitlements
within the family. You want to use this data and this case to build a campaign for law
reform. What are the main issues and recommendations that you would put forward
in this campaign.
Group 2

Presentation
Challenge the following provisions:

Maximum of 1/3rd of the salary to be given as maintenance

The condition that the woman should remain chaste and should not
remarry in order to be entitled for compensation

Wife’s contribution to the family in the form of care and nurturing activities
must be taken into account.

Proposal

Wife should be entitled to ½ of the total income of the husband

Maintenance should be such which enables the wife to maintain the same
living standard as she had during the subsistence of marriage

Chastity should not be a condition for continuation of maintenance. There
was a difference of opinion with regard to re-marriage in this context as
some of the participants thought that it would create difficulty in
apportionment of responsibility of each husband.

Provisions should be made to compensate the wife for mental agony
suffered by her

Group 4

Presentation
Campaign for Law Reform should focus on the following:
• After divorce wife should have an equal right over the entire property of the
husband
• The maintenance should be such that enables the wife to enjoy the same
standard of living as the husband after divorce.
• Right to compensation - the wife is confined within the four walls of the
house due to motherhood or housework so she should be adequately
compensated. Education or training of wife should be at the expense of
the husband
• Removal of chastity clause
• Immoveable property including the property to which he is succeeding
should be recorded so that the husband is not able to hide his actual
assets. The entire property to which he is succeeding should be in the joint
name of the husband and wife and any property acquired by the husband
should be jointly owned.
• Salary of the husband should be jointly owned by both husband and wife.

Discussion:
In the discussions that ensued after the presentations the facilitator flagged the
following issues for reflection:

How difficult it is to arrive at what is fair and just. When we have the power
to change the law is it appropriate to focus on one interest we represent
but ignore the others?

When we are dealing with a specific group affirmative action in its favour
needs to be justified and it shouldn’t be such which undermines other
human rights.

The facilitator said group two was to work within the existing law and the
fourth group was to change the law and propose something new. But the
latter retained the term maintenance. The term itself was not challenged.

Whether state should govern our matrimonial relationships? There is a

need to ponder upon provisions like adultery, bigamy etc. Should they
attract penal consequences or whether such situations should only attract
civil consequences like dissolution of marriage? Should the law make it
more and more difficult to get a divorce? Does it help the woman, if she is
forced to remain in an unhappy marriage?

To what extent the wife should have right over the husband’s property?
Should it extend to right over what he inherits? One must try to be just
when dealing with such issues and not just try to secure disproportionate
gain for his/her interest group while over-riding the rights of others.
Shouldn’t the joint right over property be limited to the property that is
acquired together during the subsistence of marriage and not what is
inherited. One must ensure that the model one proposes must be
responsive to extraordinary as well as general situations.
 Films and Group Discussions

Three films were screened during five day long training programme. The films
were used as a medium to stimulate discussion on certain pressing issues and
proved to be very effective. The movies screened were:

Khamosh Pani (silent waters)

Who can Speak of Men

First sex series vol. II on ‘Comfort Women’

Kiranjeet Ahluwalia

Khamosh Pani captures lives of women amidst social and political matrix and
how this matrix determines the course that their lives take. A number of issues
have been raised in the movie which portrays the life of a woman who lives in a
village in Punjab province of Pakistan and has witnessed partition of the country
in 1947 and later on the process of Islamisation under General Zia –Ul-Haq.

The movie which was screened late at night could still bind the participants
despite the fact that it did not have sub-titles in English. To make it easier for all
the participants to understand intermitent translations were provided. The
valuable discussion that it led to is a testimony to the degree to which it engaged
the viewers and the thoughts it provoked. After the screening the participants
reflected upon the following:

• How women are seen as the personification of ‘honour’ of the family and
the community and are thus sacrificed to preserve the honour especially at
the time of conflict.
• How their identity is determined through their fathers or husbands and how
at different points of time identity derived through one or the other is
considered the real identity irrespective of how women identify themselves
and what they practice.
• The emergence of fundamentalism and responses of people to the same –
some emerge as strong fundamentalists while others oppose the same
and exercise their freedom of conscience.
• The movie also infused courage and determination to stick to ones
principles and challenge the prevalent norms

The movie ‘Who can Speak of Men’ is about marginalized sexualities, lives of
people with different sexual orientation and peoples’ society’s responses to their
behaviour. Through a series of interviews it provides an insight into the lives of
these people, their struggles and challenges.
This movie challenged participants’ misconceptions and a fruitful discussion
ensued. The discussion was so effective that some of the participants were keen
to initiate discussion on it within their networks. Concern was expressed by the
participants about marginalization of people with non-heterosexual orientation,
the stress that they go through on account of the pressures from the family and
the community to conform to dominant social norms and the way they try to
negotiate and balance their desires with what is expected of them. The
discrimination against such people is rampant. There have been many instances
where the right to life, liberty, expression, shelter, work etc of same sex desiring
people have been violated.

The discussions also focused on section 377 of IPC which criminalizes

marginalized sexualities. Participants raised concern over whether the state
should intrude into matters of adult consensual sexual behaviour. The
inadequacy of this provision to address the issue of child sexual abuse was
voiced. It was felt that there is an urgent need to have a separate law which
comprehensively addresses child sexual abuse.

The discussions helped build a perspective of the participants on the issue. It

enabled the participants to distinguish between adult consensual and non-
consensual sexual behaviour. It was recognized that it is not the former but the
latter that is violative of one’s human rights. For instance on the touchstone of
basic human rights forced anal sex much like forced sex of any kind by husband
with his wife would be violative of wife’s rights while consensual anal sex
between them would not be. However, the law through sections 377 and 375 IPC
technically makes consensual anal or oral sex punishable while legalizing non-
consensual penile-vaginal sex. The law thus distinguishes between the forms of
sexual expression rather than consent.

The film on comfort women shook the conscience of the participants. The
reflections of the participants with respect to the issue were raised during session
on the International Criminal Court.

The movie Kiranjeet Ahluwalia is on the issue of domestic violence. It focussed

on the exception of ‘grave and sudden provocation’ recognised under criminal
law in cases of murder. As per the exception the punishment is lower for a person
who commits murder whilst deprived of the power of self control on account of
grave and sudden provocation caused by another person. This film is about an
Indian woman in Britain who after years of tolerating domestic violence killed her
husband. She was tried for his murder and sentenced. Thereafter there was a
campaign by the women’s groups questioning the gendered understanding of
what constitutes ‘grave and sudden provocation.’ They argued that women’s
responses to events are different from that of men, making the standard of
‘reasonable man’ to provocation, highly unjust to women. The court then
reviewed its decision and gave recognition to women’s perspective in the context
of domestic violence against immigrant women.
 Evaluation

At the end of the training the participants were given a feedback form to
document their assessment of the programme in all its aspects. The evaluation,
based on this feedback is significant for infusing new ideas, vigour into the
content of the training and make it better suited to the varying needs of the
participants. Twenty one participants filled up the feedback forms. The feedback
pertained to the following aspects of the training:

Major learning points from the workshop

Least useful sessions

Suggestions for improving the workshop

Opinion regarding:
 Duration
 Administration
 Hospitality
 Content
 Process
 Resource persons
 Communication
 Resource material

Ways in which the learnings from the workshop would be used by the
participants

Major learnings - Eight participants mentioned CEDAW as the most significant

learning, six participants liked the session on Right to Information the most
whereas four participants each held discussions on human rights principles and
UN mechanisms as the major contributions of the training programme. Many
participants liked the sessions on application of international human rights norms
at the domestic level, gender based violence in general and International Criminal
Court in particular. One participant specifically mentioned that film shows were
really thought provoking.

Least Useful Sessions - Nineteen out of twenty one participants felt that none of
the sessions in the training can be categorised as least useful. Two participants
however felt that the session on women’s human rights can be done away with
and the session on gender based crimes in special contexts need not be
discussed in detail.

Suggestions for improving the workshop - Most of the suggestions related to the
process and time allocation. The only suggestion regarding content was to
include one session on domestic violence in the agenda. Participants suggested
that more time should be allocated for open debates, group work, experience
sharing. They felt that inviting more resource persons for facilitating the sessions
coupled with some time gap between the sessions will make the training more
interesting. There was demand for a longer session on CEDAW, more group
exercises, films and more sessions like the moot court. Three participants
recommended greater use of multimedia and films in the training. One participant
also voiced the need to provide the reading material in advance so that more
informed discussions can take place. Participants also suggested that follow up
trainings should be organised and report of the training should also be provided
in a CD.

Duration, administration and hospitality offered during the training was excellent
according to four participants. Fifteen of them felt that all these arrangements
were good. A few participants however mentioned inaccessibility to internet and
STD calling facility as the drawback. It was suggested that there should be five
minutes break in between the sessions. Nineteen participants found the content
of the training good while one held it to be average. The process was average
according to 6 participants whereas fifteen held it to be good. Eighteen
participants liked the resource persons a lot. However two rated them as average
while one felt that further improvement was possible. Communication was good
according to eighteen participants one felt it was average while 2 mentioned that
lack of access to internet hampered their connection with the outside world.
Nineteen participants found resource package good; one felt it was average and
one thought that it could be improved.

Participants mentioned a number of ways in which they intended to incorporate

the learnings from the training into their work. Lawyers felt better equipped to
invoke international standards in litigation. Activists reflected a zeal to infuse the
learnings into the community based advocacy and case work. A few mentioned
incorporation of human rights principles, CEDAW and concepts of substantive
equality and non-discrimination in the awareness raising campaigns, material
production, counselling and lobbying for realisation of women’s rights. Some of
them expressed willingness to disseminate information about CEDAW in Oriya
and also translate ‘voices’ booklet on section 377 into Oriya.
 AGENDA
October 7 to 11, 2005
Anandgram, Delhi
Daily Timing for Meals and Refreshments
Breakfast from 8:00 to 9: 00am
Lunch Break daily from 1: 00 pm to 2: 00pm
Two Tea Breaks of 15 mins each at 11: 00am and 3: 00pm
Dinner from 8: 00pm to 9: 00pm

7th Oct’ 2005

9:30 – 11:00 Introduction

Part I: Human Rights

Session 1: Human Rights

11:15 – 12:30 Historical origins

12:30 – 1:00 Philosophy and the Law

Session 2: Key Concepts

2:00 – 4:00 Universality

Indivisibility
Inalienability
Inter-dependence

Session 3: Unpackaging Human Rights Law

4:00 – 5:30 Exclusion

Invisibility and Women

Part II: From Gendered Lives to Gender Justice

5:30 – 6:30
Session 4: The Journey of Women’s Human Rights: CEDAW,
Vienna and Beyond

8th Oct’ 2005

Session 5: Women’s Human Rights Framework

9:00 – 11:00 CEDAW

11:15 – 1:00 Gender Based Violence

2:00 – 5:30 Gender Based Crimes in Special Contexts
9:00 – 12:00 Film and Group Discussion

9th Oct’ 2005

Session 6: Principle Features of CEDAW

9:00 – 1:00 Equality

Non-Discrimination

2:00 – 6:00 State Obligation

Affirmative Action

9:00 – 12:00 Film and group discussion

Part III: International Implementation Mechanisms

10th Oct’ 2005

9:00 – 11:00
Session 7: UN Mechanisms

Treaty
Special

Part IV: From Global to Local

Session 8: Domestic Application of Human Rights law:

precedents and potential

11:15 – 1:00 Incorporation

2:00 – 5:30 Existing Framework

6:00 Outing

11th Oct’ 2004

Session 10:

9:30 – 1:00 Moot Court

2:00 – 4:00 Evaluation and closing
 CONTENTS OF RESOURCE PACKAGE
PART I: HUMAN RIGHTS

Universal Declaration of Human Rights, 1948

International Covenant on Economic Social and Cultural Rights, 1966

International Covenant on Civil and Political Rights, 1966

International Human Rights Law and Practice: Implications for Women by Florence
Butegwa

Human Rights and Asian Values by Yash Ghai

Attacks Against Lesbian, Gay and Bisexual People: Warning Signs of Fundamentalism?
By Anisa de Jong

PART II: FROM GENDERED LIVES TO GENDER JUSTICE

Convention on the Elimination of All Forms of Discrimination Against Women, 1979

Optional Protocol to the Elimination of All Forms of Discrimination Against Women,

2000

General Comment No. 28: Equality of Rights Between Men and Women, HRC

General Recommendation No. 25: Gender Related Dimension of Racial Discrimination,

CERD

Women’s Rights as Human Rights: Towards A Re-Vision of Human Rights by Charlotte

Bunch

CEDAW: Restoring Rights to Women, PLD’s publication (provided separately)

Levels of State Obligation, PLD

PART III: GENDER-BASED VIOLENCE

General Recommendation 19 of CEDAW, 1992

Declaration on the Elimination of Violence Against Women, 1993

Domestic Violence as an International Human Rights Issue by Kenneth Roth

Combating Impunity: A Compilation of Articles on the International Criminal Court and
Its Relevance to India compiled by Vahida Nainar and Saumya Uma (provided
separately)

PART III: INTERNATIONAL IMPLEMENTATION

MECHANISMS
Chart Showing Human Rights in the U.N. System

Chart Showing U.N. Commission on Human Rights and its Sub- Commissions

International Dimensions of Human Rights and International Obligations of India by

Naorem Sanajaoba

The Important Role of NGOs in Convention Monitoring and Implementation, IWRAW

Asia Pacific

PART IV: FROM GLOBAL TO LOCAL

Bangalore Principles, 1988

Victoria Falls Declaration of Principles for Promoting the Human Rights of Women,
1994

Hong Kong Judicial Colloquium on Women’s Rights, 1996

The Use of International Human Rights Instruments in Domestic Litigation by Andrew

Byrnes