The Women's Convention, and the Standard It Sets

Articles 3 to 9

Article 3: appropriate measures in all fields, in particular the political, social, economic and cultural, to ensure the full development and advancement of women.

Article 4: temporary special measures aimed at accelerating de facto equality shall not be considered discrimination, and shall be discontinued when the objectives of equality of opportunity and treatment have been achieved; and special measures aimed at protecting maternity shall not be considered discriminatory.

Article 5: (a) modify the social and cultural patterns of conduct of men and women with a view to eliminating prejudices and customary and all other practices based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles; and (b) ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing of their children.

Article 6: all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. Article 23 of the Constitution is its Indian counterpart.

Article 7: elimination of discrimination in the political and public life of the country, ensuring on equal terms the right to vote in all elections and public referenda and to be eligible for election, to participate in the formulation of government policy and to hold public office at all levels, and to participate in non-governmental organisations concerned with public and political life.

Article 8: the opportunity to represent their Governments at the international level and to participate in the work of international organisations.

Article 9: nationality. Equal rights to acquire, change or retain nationality; the assurance that neither marriage to an alien nor a change of nationality by the husband shall automatically change the wife's nationality, render her stateless or force upon her the nationality of the husband; and equal rights with respect to the nationality of their children.

Article 9 connects this Convention to the statelessness chapters, because rendering a woman stateless by marriage is one of the classic causes of statelessness.

India's position on these articles

India ratified in 1993 with a declaration on article 5(a), that she would abide by and ensure the provision in conformity with her policy of non-interference in the personal affairs of any community without its initiative and consent.

The effect is precise. Article 5(a) is the provision that would most directly require the reform of customary practices, and article 16 is the provision that would most directly require the reform of personal law. India has qualified both. [The Convention's Substantive Articles] carries article 16.

Articles 7, 8 and 9 carry no Indian declaration. Universal adult suffrage under article 326 answered article 7's first limb from 1950, and reservation in panchayats and municipalities under articles 243D and 243T answers part of the second.

Worked example

Her Q5, and any question measuring Indian law against an international standard.

Give article 1 with its three features, and make the any other field contrast with the racial discrimination Convention.

Give article 2 with both key phrases, and say that by any person, organization or enterprise is what article 12 of the Constitution does not deliver.

Give article 4 as the counterpart of article 15(3), and note that it requires the measure to be temporary.

Give articles 6 to 9 briefly, and connect article 9 to statelessness.

Close on India's declaration to article 5(a), and say what it qualifies.

What it does NOT mean

It does not mean the Convention is enforceable in an Indian court. It is not directly; it is used as an aid to construction and as content for article 21.

It does not mean India reserved the Convention generally. Three declarations, on articles 5(a), 16(1) and 16(2).

And it does not mean article 4's measures may be permanent. The article requires discontinuation when the objectives are achieved.

Quick revision

• Article 1: any distinction, exclusion or restriction on the basis of sex having the effect or purpose of impairing equal enjoyment, irrespective of marital status, in any other field. Not confined to public life, unlike the racial discrimination Convention, so it reaches the household.
• Article 2: condemn, and pursue by all appropriate means and without delay; (a) equality in the constitution, (b) legislation with sanctions, (c) legal protection through competent national tribunals, (d) refrain, (e) measures against discrimination by any person, organization or enterprise, (f) modify or abolish discriminatory laws, customs and practices, (g) repeal discriminatory penal provisions.
• Article 4: temporary special measures are not discrimination and must be discontinued when the objective is achieved; maternity protection is not discriminatory.
• Article 5(a): modify social and cultural patterns and practices based on the inferiority or superiority of either sex or on stereotyped roles; 5(b) the common responsibility of men and women in upbringing.
• Article 6 traffic in women; 7 political and public life, vote and be eligible for election, formulate policy, hold public office; 8 international representation; 9 nationality, including that marriage to an alien shall not render a woman stateless.
• India's declaration on 5(a): non-interference in the personal affairs of any community without its initiative and consent.

Test yourself

1. How does article 1 define discrimination, and why does the definition matter in India? Article 1 provides that discrimination against women means any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Three features do work. The effect or purpose test means intention is not required, so a measure neutral on its face but discriminatory in operation is caught, which writes indirect discrimination into the treaty. The words irrespective of their marital status are deliberate and prevent a married woman's rights being treated as merged into or qualified by her husband's. And the field is any other field rather than public life, which distinguishes this Convention sharply from the Racial Discrimination Convention, whose article 1 is expressly confined to public life. That last point is the most useful single sentence available on this Convention in an Indian answer, because it means the treaty reaches the private sphere, which is exactly where article 12 of the Constitution stops: the fundamental rights bind the State, and the Convention does not.

2. What does article 2 require, and what does it require of India that Part III does not? It requires States to condemn discrimination against women in all its forms and to agree to pursue by all appropriate means and without delay a policy of eliminating it, and to that end to embody the principle of equality of men and women in their constitutions or other appropriate legislation and ensure its practical realisation; to adopt legislative and other measures including sanctions where appropriate; to establish legal protection of the rights of women on an equal basis with men and ensure effective protection through competent national tribunals and other public institutions; to refrain from any act or practice of discrimination and ensure that public authorities conform; to take all appropriate measures to eliminate discrimination by any person, organization or enterprise; to modify or abolish existing laws, regulations, customs and practices which constitute discrimination; and to repeal all national penal provisions which constitute discrimination.

Two phrases carry it. Without delay makes the obligation immediate rather than progressive, which distinguishes it from the Economic and Social Covenant's article 2(1). And by any person, organization or enterprise requires the State to act against private discrimination, which is precisely what Part III does not do: article 12 confines the fundamental rights to the State, with only four horizontal exceptions, none of which covers most of what women complain of. The Convention therefore requires of India something her constitutional scheme does not supply, and the gap has to be filled by statute.

3. What do articles 4 to 9 provide, and what has India qualified? Article 4 provides that temporary special measures aimed at accelerating de facto equality shall not be considered discrimination and shall be discontinued when the objectives of equality of opportunity and treatment have been achieved, and that special measures aimed at protecting maternity shall not be considered discriminatory; it is the international counterpart of article 15(3), with the difference that it requires the measure to be temporary while article 15(3) does not. Article 5(a) requires States to modify the social and cultural patterns of conduct of men and women with a view to eliminating prejudices and customary and all other practices based on the idea of the inferiority or superiority of either sex or on stereotyped roles, and 5(b) requires family education to include a proper understanding of maternity as a social function and recognition of the common responsibility of men and women in the upbringing of their children.

Article 6 requires all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women, and article 23 of the Constitution is its Indian counterpart. Article 7 requires elimination of discrimination in political and public life, including the right to vote in all elections and public referenda and to be eligible for election, to participate in the formulation of government policy and to hold public office at all levels, and to participate in non-governmental organisations concerned with public and political life. Article 8 requires the opportunity to represent their Governments at the international level. And article 9 requires equal rights to acquire, change or retain nationality, with the express assurance that neither marriage to an alien nor a change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband, and equal rights with respect to the nationality of children.

India ratified in 1993 and entered a declaration on article 5(a), that she would abide by and ensure the provision in conformity with her policy of non-interference in the personal affairs of any community without its initiative and consent. The effect is precise: article 5(a) is the provision that would most directly require reform of customary practices, and article 16 is the one that would most directly require reform of personal law, and India has qualified both. Articles 7, 8 and 9 carry no Indian declaration, and India's position under article 7 is strong, since universal adult suffrage under article 326 answered its first limb from the commencement of the Constitution and articles 243D and 243T answer part of its second by reserving not less than one third of panchayat and municipal seats for women. Article 9 also connects this Convention to statelessness, because rendering a woman stateless by marriage is one of the classical causes of the condition.