The Convention's Substantive Articles

Article 11 is the article from which the Indian workplace harassment guidelines were drawn, and [Guidelines Drawn from a Convention India Had Ratified] carries the method.

Article 12: health

Elimination of discrimination in the field of health care in order to ensure access to health care services, including those related to family planning; and appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, and adequate nutrition during pregnancy and lactation.

Article 13: economic and social life

Elimination of discrimination in other areas of economic and social life, ensuring in particular the same rights to family benefits; to bank loans, mortgages and other forms of financial credit; and to participate in recreational activities, sports and all aspects of cultural life.

The credit clause is the practically important one in Indian conditions. Access to institutional finance in a woman's own name is what separates her economic independence from her household's, and it is the point self-help group programmes are addressed to.

Article 14: rural women

Unusual among the treaties and directly relevant to India. States shall take into account the particular problems faced by rural women and the significant roles they play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall ensure the application of the Convention to them.

Article 14(2) then lists what rural women must be ensured on a basis of equality: to participate in development planning at all levels; to have access to adequate health care facilities including family planning; to benefit directly from social security programmes; to obtain all types of training and education, formal and non-formal, including functional literacy and the benefit of extension services; to organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self-employment; to participate in all community activities; to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; and to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

Article 14(2) is a list a candidate can quote almost as a programme, and it corresponds closely to what Indian rural policy claims to do.

Article 15: legal capacity

Equality with men before the law; a legal capacity identical to that of men and the same opportunities to exercise it, in particular equal rights to conclude contracts and to administer property, and equal treatment in all stages of procedure in courts and tribunals; and equal rights as regards the law relating to the movement of persons and the freedom to choose their residence and domicile.

Article 15(3) provides that all contracts and all other private instruments of any kind with a legal effect directed at restricting the legal capacity of women shall be deemed null and void.

Article 16: marriage and family relations

The same right to enter into marriage; the same right freely to choose a spouse and to enter into marriage only with free and full consent; the same rights and responsibilities during marriage and at its dissolution; the same rights and responsibilities as parents, irrespective of marital status, in matters relating to their children, the interests of the children being paramount; the same rights to decide freely and responsibly on the number and spacing of their children; the same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption; the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; and the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property.

Article 16(2): the betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

Where India's declarations bite

Two declarations, and both are on this stretch.

On articles 5(a) and 16(1): India will abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent.

On article 16(2): though India fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy.

Two observations to make, and both matter.

The first declaration is a position, not a capacity claim. It says India will not reform personal law without a community's initiative and consent, and article 16 is precisely the article that would require such reform. It corresponds exactly to article 44's treatment of a uniform civil code as a directive.

The second is a capacity claim, and it has been substantially overtaken. Marriage registration has been extended widely by State legislation and by judicial direction since 1993, so the declaration describes a difficulty that is much reduced.

Worked example

Her Q5, and any question comparing Indian law with the Convention.

Give article 11 as the employment article, and say the workplace guidelines came from it.

Give article 14 on rural women and quote two or three items from 14(2), because it is unusual and shows range.

Give article 15's identical legal capacity and the nullity of restricting instruments in 15(3).

Give article 16 fully, since it is where the Indian argument happens.

Close on both declarations, classifying the first as a position and the second as capacity.

What it does NOT mean

It does not mean India rejected articles 10 to 15. She entered no declaration on any of them.

It does not mean article 16 is unimplemented. The child marriage legislation answers 16(2)'s minimum age directly.

And it does not mean the declaration on 16(1) is a reservation to the whole Convention. It is confined to personal law.

Quick revision

• Article 10 education: same curricula, examinations, teaching staff and premises; elimination of stereotyped concepts through revision of textbooks; scholarships; continuing education; reduction of female drop-out rates; sports; family planning information.
• Article 11 employment: work as an inalienable right, same opportunities and selection criteria, free choice, equal remuneration for work of equal value, social security, and health and safety including the function of reproduction. 11(2): no dismissal for pregnancy or maternity leave, paid maternity leave without loss of seniority, child-care facilities, and protection during pregnancy in harmful work. The source of the Indian workplace guidelines.
• Article 12 health including family planning and services in pregnancy, confinement and the post-natal period, free where necessary. Article 13 family benefits, bank loans, mortgages and financial credit, and recreation.
• Article 14 rural women, including work in the non-monetized sectors, with 14(2)'s list: development planning, health care, social security, training, self-help groups and co-operatives, community activities, agricultural credit, marketing, technology and land reform, and living conditions.
• Article 15: legal capacity identical to that of men, contracts, property and procedure, and 15(3) makes instruments restricting a woman's legal capacity null and void.
• Article 16: free and full consent, equal rights during marriage and at dissolution, as parents, on the number and spacing of children, in guardianship and adoption, in family name, profession and property; 16(2) the betrothal and marriage of a child shall have no legal effect, with a minimum age and compulsory registration.
• India's declarations: on 5(a) and 16(1), non-interference in personal affairs without the community's initiative and consent, a position; on 16(2), registration not practical, a capacity claim now largely overtaken.

Test yourself

1. What do articles 10 to 13 require? Article 10 requires elimination of discrimination in education, ensuring on a basis of equality the same conditions for career and vocational guidance and for access to studies at every level, access to the same curricula, examinations, teaching staff of the same standard and premises and equipment of the same quality, the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education including through the revision of textbooks and school programmes, the same opportunities for scholarships and for continuing education including adult and functional literacy programmes, the reduction of female student drop-out rates, the same opportunities to participate in sports and physical education, and access to educational information on health and family planning. The drop-out clause is the one Indian implementation has found hardest, and it is a fair point against any answer that treats article 21A as having solved the question of girls' education.

Article 11 covers employment: the right to work as an inalienable right of all human beings, the same employment opportunities and selection criteria, free choice of profession, promotion and job security, equal remuneration including benefits and equal treatment in respect of work of equal value, social security in retirement, unemployment, sickness, invalidity and old age, and protection of health and safety in working conditions including the safeguarding of the function of reproduction. Article 11(2) prohibits dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status, requires maternity leave with pay or comparable social benefits without loss of former employment, seniority or social allowances, encourages supporting social services and in particular child-care facilities, and requires special protection during pregnancy in work proved to be harmful. It is the article from which the Indian workplace sexual harassment guidelines were drawn.

Article 12 requires elimination of discrimination in health care including services related to family planning, and appropriate services in connection with pregnancy, confinement and the post-natal period, free where necessary, with adequate nutrition during pregnancy and lactation. Article 13 requires the same rights in other areas of economic and social life, in particular to family benefits, to bank loans, mortgages and other forms of financial credit, and to participate in recreational activities, sports and all aspects of cultural life; the credit clause is the practically important one in Indian conditions, because access to institutional finance in a woman's own name is what separates her economic independence from her household's.

2. Why is article 14 unusual, and what does it require? It is unusual because no other core human rights treaty devotes an article to a group defined by where its members live. Article 14(1) requires States to take into account the particular problems faced by rural women and the significant roles they play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and to ensure the application of the Convention to them.

Article 14(2) then requires that rural women be ensured, on a basis of equality with men, the right to participate in the elaboration and implementation of development planning at all levels, to have access to adequate health care facilities including family planning, to benefit directly from social security programmes, to obtain all types of training and education whether formal or non-formal including functional literacy and the benefit of extension services, to organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self-employment, to participate in all community activities, to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes, and to enjoy adequate living conditions particularly in relation to housing, sanitation, electricity and water supply, transport and communications. That list can be quoted almost as a programme, and it corresponds closely to what Indian rural policy claims to deliver.

3. What do articles 15 and 16 require, and where do India's declarations bite? Article 15 requires equality with men before the law, a legal capacity identical to that of men and the same opportunities to exercise it, in particular equal rights to conclude contracts and to administer property and equal treatment in all stages of procedure in courts and tribunals, and equal rights as regards the law relating to the movement of persons and the freedom to choose residence and domicile; and article 15(3) provides that all contracts and other private instruments directed at restricting the legal capacity of women shall be deemed null and void.

Article 16 requires the same right to enter into marriage, freely to choose a spouse and to marry only with free and full consent, the same rights and responsibilities during marriage and at its dissolution, the same rights and responsibilities as parents irrespective of marital status with the interests of the children paramount, the same rights to decide freely and responsibly on the number and spacing of children, the same rights in guardianship, wardship, trusteeship and adoption, the same personal rights including the choice of family name, profession and occupation, and the same rights in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property. Article 16(2) provides that the betrothal and the marriage of a child shall have no legal effect and that all necessary action including legislation shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

India's two declarations both bite here. On articles 5(a) and 16(1) she declared that she would abide by and ensure those provisions in conformity with her policy of non-interference in the personal affairs of any community without its initiative and consent; that is a position rather than a claim of incapacity, it says India will not reform personal law without a community's initiative, and article 16 is precisely the article that would require such reform, so the declaration corresponds exactly to article 44's treatment of a uniform civil code as a directive principle. On article 16(2) she declared that though she fully supports the principle of compulsory registration of marriages it is not practical in a vast country like India with its variety of customs, religions and levels of literacy; that is a capacity claim, and it has been substantially overtaken, since marriage registration has been extended widely by State legislation and judicial direction since 1993.