CEDAW, CRC and the Torture Convention: India's Status

Beyond the two Covenants, the UN has adopted specialised treaties protecting particular groups and addressing particular abuses. Together with the Covenants, they make up the nine core human rights treaties. This note covers India's status under each, and examines in detail the conventions on women, children and torture, which are most often tested, with the conventions on disability, race and enforced disappearance.

1. The Core Treaties and India

Figure 1: India's status under the nine core treaties

2. CEDAW, 1979

• Definition, Article 1. 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, on a basis of equality with men, of human rights and fundamental freedoms in any field.
• Key obligations. Pursue a policy of eliminating discrimination, including by legislation (Article 2); temporary special measures are not discrimination (Article 4); modify social and cultural patterns based on stereotypes (Article 5); equal rights in nationality (Article 9), education (10), employment (11), health (12), and marriage and family (16)
• Committee and recommendations. A Committee of 23 experts reviews state reports; General Recommendation No. 19 (1992), updated by No. 35 (2017), treats gender-based violence as discrimination; the Optional Protocol, 1999 allows individual complaints, but India is not a party.
• India's declarations. On Articles 5(a) and 16(1), India will act in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent; on Article 16(2), it supports compulsory registration of marriages in principle but finds it impractical in a vast country; it does not accept Article 29(1) on referral of disputes to the ICJ.
• Vishaka v State of Rajasthan (1997). CEDAW and the Beijing commitments were read into Articles 14, 15, 19 and 21 to frame guidelines against sexual harassment at work, later replaced by the POSH Act, 2013.
• Githa Hariharan v Reserve Bank of India (1999). The word after in section 6 of the Hindu Minority and Guardianship Act was read to mean in the absence of the father, so a mother can act as natural guardian, consistently with CEDAW.
• Seema v Ashwani Kumar (2006). The Supreme Court directed compulsory registration of marriages of all citizens, noting India's commitment under Article 16(2)

3. Convention on the Rights of the Child, 1989

• Scope. A child is every human being below eighteen years unless majority is attained earlier under applicable law (Article 1); the most widely ratified human rights treaty.
• Optional Protocols. On the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography (both 2000), to which India is a party; and on a communications procedure (2011), to which it is not.
• Indian implementation. The Juvenile Justice (Care and Protection of Children) Act, 2015, the Right of Children to Free and Compulsory Education Act, 2009 and the Protection of Children from Sexual Offences Act, 2012 draw on the Convention; courts rely on the best interests principle in custody and adoption cases.

Figure 2: Four general principles of the CRC

4. Convention against Torture, 1984

Figure 3: Core provisions

• Monitoring. The Committee against Torture reviews reports and, where states accept, individual complaints; the Optional Protocol, 2002 set up the Subcommittee on Prevention of Torture and national preventive mechanisms.
• India's position. India signed on 14 October 1997 but has not ratified; the Prevention of Torture Bill, 2010 passed the Lok Sabha but lapsed; the Law Commission's 273rd Report (2017) recommended ratification and a domestic law; in 2019, the Supreme Court declined to direct Parliament to legislate.
• Domestic protection. Article 21 protects against torture and custodial violence; in D.K. Basu v State of West Bengal (1997), the Court laid down safeguards on arrest and detention, and in Nilabati Behera (1993) it awarded compensation for custodial death.
• Consequences. Non-ratification has been cited by foreign courts when considering extradition requests from India, given Article 3 risks.

5. Other Conventions

• CRPD, 2006. India ratified the Convention on the Rights of Persons with Disabilities in 2007 and enacted the Rights of Persons with Disabilities Act, 2016 to implement it; the Supreme Court has relied on it, for example on reasonable accommodation in Vikash Kumar v UPSC (2021)
• ICERD, 1965. India ratified in 1968; the Committee has treated discrimination based on descent as including caste (General Recommendation No. 29, 2002), a view India does not accept.
• CED, 2006. The Convention for the Protection of All Persons from Enforced Disappearance was signed by India in 2007 but not ratified.

6. Frequently Asked Questions

Has India ratified the Convention against Torture?

No. India signed it on 14 October 1997 but has not ratified it. The Law Commission recommended ratification and a domestic anti-torture law in its 273rd Report (2017), but no such law has been enacted.

How have Indian courts used CEDAW?

To fill gaps and interpret laws consistently with gender equality: in Vishaka (1997) to frame guidelines on sexual harassment, in Githa Hariharan (1999) to recognise the mother as natural guardian, and in Seema v Ashwani Kumar (2006) to direct compulsory registration of marriages.

7. Related Topics

• Topic 14: Law of Treaties II. India's reservations and declarations.
• Topic 44: International Human Rights Law. The Covenants and UN machinery.
• Topic 46: Human Rights in India. Courts and the 1993 Act.