This article is written by Radhika Ghosh, a law student pursuing B.A. LLB (Hons.) from Hidayatullah National Law University (HNLU). The exhaustive article talks about discrimination and violence that women face every day worldwide. It also deals with the conventions, and treaties that exist to tackle the issue, and evaluates the pros and cons if a new convention is brought in to minimize the normative gap. Lastly, the article also mentions the landmark cases in India that have brought a new perspective in this field.

Introduction

In the Early-Vedic age, women were regarded as very high in society. They were required for all the yojanas, and rituals. Good volumes of their works were mentioned during this time. The timeline-source of worshipping women deities originated from here, meaning, the strata of women in the society could be estimated to be godly. But during and from later-Vedic age, women lost their status and were camouflaged to the background because of social, political and economic changes. Many evil customs and traditions, along with overpowering patriarchy that stepped in the society which enslaved the women and tied them to the boundaries of the house. 

Since then all the statistics showed a declining sex-ratio, health status, literacy rate, work participation rate and political participation pertaining to women. While on the other hand, the spread of social evils like dowry deaths, child marriage, domestic violence, rape, sexual harassment, exploitation of women workers is rampant in different parts of India, and the world. Moreover, the number of cases is increasing day by day. 

Emergence of violence and offences against women as an international issue: a brief review

“Gender-based violence” is violence involving men and women, and in this case, the female is usually the victim. The main reason why such crimes crept in the society is from unequal power relationships between men and women. Social role-plays have taken such a concrete picture in the society that women are moulded and stereotypically defined to be less than men, and hence the societal defence is very weak when it comes to offences against women. It includes, but is not limited to physical, sexual, or psychological harm. There is violence against women and children affecting the lives of millions of women worldwide. It is not limited to a social class but is present in all socio-economic and educational classes. It prevails across the cultural and religious barriers impeding the rights of women and lowering them into a second class citizen.

Today violence against women is a universal problem of significant proportion. In the session of the Fourth World Conference on women in Beijing, Former UN Secretary-General Boutros Boutrous Ghali said that violence against women is a universal problem and that must be universally condemned. In the Platform for Action, of the Beijing conference, it was declared that- “Violence against women is an obstacle to the achievement of the objective of equality, development and peace. Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedom.”

Nowadays, violence against women is a demon in the society amongst which domestic violence is a big issue. But for millions of women in the world, home does not remain like a sweet place of refuge, and the meaning completely changes. For these women, a home is a place of intimidation, fear and violence, and being vulnerable. In fact, in every part of the world women are at higher risk of becoming of being victimised of gruesome torture in their own homes and sometimes these injuries can be deadly. Therefore, domestic violence is one of the most surreptitious and coveted forms of violence against women. It also continues to be the leading cause of mental and physical injuries to women in their homes. 

Even though domestic violence is a gender-neutral term and observed across all racial, socioeconomic, national, religious and ethnic boundaries, the majority of victims are women. It is also observed that domestic violence among lesbians, gay, bisexual and transexual individual may be comparable to domestic violence which is perpetrated against heterosexual women. 

Domestic violence as a serious human rights violation

Recently, the recognition of domestic violence as a serious human rights violation of women is being regarded as a progressive phenomenon. It is essentially violence perpetrated by persons in intimate family bonds/ home. Research from all over the world indicates that perpetrators of domestic violence are predominantly male and the violence is usually done by the male on his female sexual partner. 

Due to such humongous rate of reported crimes against women all over the world, the obligations of countries under the umbrella of International Human Rights treaties, from time to time have been elucidated by courts and other authoritative bodies as requiring signatories to abide by the principles and make sure that the State officials do not themselves get involved in gender-based violence against women. The signatory states must also draft and initiate feasible and effective measures to stop the conduct of violence and discrimination by private actors. They must also look into the cases of violence that have been coming up and penalise such actions. The primary duty of these private actors must be to provide protection and all kinds of support for the survivors of violence, be it financial, mental, and so on.

At the international level, the Committee on the Elimination of Discrimination against Women (the CEDAW Committee) has drafted the obligations and duties of States parties to the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention). This way, the elimination of violence against women, and particularly in its General recommendation 19 (1992) can be effective at the United Nations. Efforts are being put in the Human Rights Committee and the Committee against Torture, to make clear that States parties’ obligations under the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) feature out eliminating public and private violence against women. Regional bodies are also urged to comply with the same.

If the reports are taken separately from the rules and principles of the UN committees and legal bodies, they help in understanding the statutes of the implementation of laws and statistics of different states in regards to violence against women. It also influences other states which are looking to give effect to the relevant treaties. Hence, their impact should not be underestimated by focusing only on their formal legal status.

International laws and policies to prevalent offences against women

• Universal Declaration of Human Rights 

Equality on the basis of sex is the fundamental principle of international human rights law. All United Nations treaties guarantee the same rights to women as they do to men.  The Universal Declaration of Human Rights (1948) states, “All human beings are born free and equal in dignity and rights“. However, women’s freedom, dignity, and equality are constantly denied all over the world on the basis of race, custom, tradition, culture and religion in ways that men’s rights are not. As there was more and more recognition of this factor and women’s advocacy to establish that women are obviously humans and therefore they are also entitled to the enjoyment of rights accorded to all ‘human-beings’ have a long history that encompasses almost a century of struggle. 

The core documents which make up the International Bill of Human Rights are: 

1) The human rights provisions of the UN charter. 

2) The Universal Declaration of Human Rights 1948. 

3) International Covenant on Civil and Political Rights 1966 and its two optional protocols.

4) International Covenant on Economic Social and Cultural Rights, 1966. 

The Convention against Torture and Other Cruel or Degrading Treatment or Punishment is also another basic Human Rights Document under the UN.

• Convention on Elimination of all forms of Discrimination Against Women

One of the most comprehensive treaties on the rights of women, if exists, it would be the ‘United Nations (UN) Convention on the Elimination of Discrimination against Women (CEDAW)’. The convention tries to address all the forms of gender-based violence against women and condemns any form of discrimination against women and reaffirms the importance of guaranteeing equal political, economic, social, cultural and civil rights to women and men. CEDAW provides that there should be equal political, economic, social, cultural and civil rights for women regardless of their marital status. 

It requires States to enact national legislation banning discrimination as mentioned in Articles 1, 2 and 3. Article 4 talks about the convention permitting State parties to take temporary special measures to make sure as well as speed up the achievement of equality in practice between men and women without any discrimination, and Article 5 brings out the provision to take actions even if it means to amend social and cultural patterns that bring in cases of discrimination. Article 15 talks about the signatories who agreed to contracts and other private instruments that restrict the legal capacity of women “shall be deemed null and void”. In Article 10, the Convention also addresses the prior need for equal access to education of any age.

CEDAW also asks State parties to take due diligence and appropriate measures to eliminate discrimination in matters relating to marriage and family. In Article 16, it underlines the equal responsibilities of men and women in the context of family life. And Article 11 discusses that the Convention also has to emphasize the urgency and the need for childcare and women reproduction facilities and other social services that shall help women satisfy their family obligations along with other work responsibilities and legitimate participation in public life.

Article 12 talks about how CEDAW necessitates for non-discriminatory health services for women, including family planning services. Article 6 and 14 mentions special provisions are meant for the problems faced by rural women, sexual trafficking of women, and other sexual exploitation of women.

States have made numerous hesitations to CEDAW, including the fact that it aims to somehow limit the treaty’s domestic application. Most of the reservations are framed to preserve the authority of national or religious law that might contradict with CEDAW or to withdraw the State from the arbitration provision found in Article 29. However, CEDAW remains the most widely applicable human rights treaty dedicated to women’s rights.

• UN declaration on the elimination of violence against women

In 1993, the United Nations General assembly adopted The UN Declaration on the Elimination of Violence against Women. The declaration addresses all of the physical, sexual, and psychological violence as well as violence both at home and elsewhere in society.

The UN Declaration has currently taken the most widely accepted definition of violence against women in consideration, and that is:

‘Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary  deprivation of liberty, whether occurring in public or in private life.’

The Declaration also recognizes three categories of violence against women: 

1. Violence meeted out to women by the State, that is when violence against women is done  in custody, or and as part of warfare; 
2. Violence that occurs within the general periphery of the community, that might include rape, sexual harassment, trafficking in women and girls and causing intimidation at work; and 
3. Violence within the family and in the private sphere, for example, incest and selective abortions.

In accordance with the Declaration, it explains the historical origin of such gender based offences committed against women. It says that such offenses against women arise from the different dynamic of power shared in society. In this patriarchal scenario, the different social roles designated women to be the subordinate and hence allowed society to discriminate against them. As society progressed women tried to have their equal share, and thus violence against them is a crucial social mechanism in which women are forced to feel to be in a lower pedestal as compared to men. 

The declaration also mentions that the United Nations member nations are hence urged to legitimate against gender-based violence against women and work forward to bring out preventative measures so that the cause of such offences could be curbed from the root cause and the world becomes a safe place for women to live in.

Current state of international human rights law and practice in relation to violence against women 

The impact of various government bodies, courts and tribunals all over the world cannot be underrated as they play a crucial role in interpreting the UN human rights and other laws most influentially. These interpretations affect the people of their respective jurisdiction in a vast way and hence, apart from the formal legal status of a country, these outputs of the treaty body are in practice.

Before and during the 1970s when the execution of the CEDAW Convention was done, violence against women was specifically considered as a private sphere. And this means the laws and regulations of protecting women from this violence were governed by privacy laws and were not considered to be brought up in the international discussions and sphere. Moreover, the international sphere did not even consider violence against women as a human right concern even. This was even though pointed out before, it was Belgium who initiated the proposal to include ‘attacks upon the integrity of women’ in the draft Convention. After this also the treaty did not mention or include an explicit clause in order to protect women other than Article 6 which talks about trafficking and the exploitation of the prostitution of women.

Working simultaneously with the growing need of talking more about the human right issues and the fading out of boundaries and other obstacles regarding the responsibility of the State for both the public and private areas of life, initiatives on the issues of violence against women was manifested in the works of the United Nations congress on the ‘prevention of crime and the treatment of offenders.’ The world conferences on women convened in Copenhagen in 1985 and in Nairobi in 1985 and other events such as the World Assembly on Ageing started emphasising on these issues. The primal focus during the elaboration of the Convention on the Rights of the Child (CRC) put forward the abuse which children, including what girl-children experience on a daily basis in certain parts of the world. Accordingly, Article 19 of that Convention was the first human rights treaty to oblige States to take all appropriate legislative, administrative, social and educational measures to protect all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, which included sexual abuse against women as well.

UNGA

In 1985, the United Nations General Assembly addressed the issue of domestic violence against women and in its first resolution on violence against women requested the ‘Eighth United Nations Congress on the Prevention of Crime and Criminal Justice’ to highlight the same and give the issue special attention. Other intergovernmental bodies also started to realize the relation of human right violations with the crimes against women both in public and private domain. Beginning in 1986 the UN Economic and Social Council convened a number of meetings and produced publications on the subject. In 1987 the Commission on the Status of Women (CSW) identified violence against women within the boundaries of family and society.

ECOSOC

In the subsequent years, ECOSOC called for consolidated efforts by intergovernmental and non-governmental organizations to get away with violence against women and requested further research on the subject to be undertaken. In its resolution on the first review and appraisal of the Nairobi Forward-looking Strategies, ECOSOC called for urgent, necessary and effective steps to eliminate the penetrating violence against women in the family and society. In the same year, it recognized that domestic violence that may cause physical and psychological harm to members of the family and requested the Secretary-General to summon a further expert group meeting to draw up guidelines on domestic violence.

Commission on the Status of Women

The Commission on the Status of Women also began to address attention to the issue and summoned an expert group meeting in 1991 to consider options to strengthen the international legal framework. While one of the proposals before the meeting was regarding the adoption of a specific convention on violence against women, this meeting concluded that a declaration would be an appropriate instrument in this context. It was done as it would further emphasize the pervasive and egregious nature of violence against women. It would also address States which had not ratified the CEDAW Convention.

The meeting also had put forward other incremental approaches: the elaboration and promotion by the CEDAW Committee of a general recommendation on violence against women; the creation and appointment of a special rapporteur on violence against women; strengthening of the communications procedure of CSW and, in the event these mechanisms proved ineffective, consideration of a substantive Optional Protocol to the Convention on violence against women. In the later years, saw the adoption of an important general recommendation on the theme by CEDAW (1992), the adoption by the UN General Assembly of the Declaration on the Elimination of Violence against Women (1993), the establishment of a special rapporteur on the subject by the UN Commission on Human Rights (1994), and the adoption of the procedural Optional Protocol to the CEDAW Convention in 1999.

Committee on the Elimination of Discrimination against Women

Alongside these developments, the work of the Committee on the Elimination of Discrimination against Women, which had commenced its work under the CEDAW Convention in 1982 also made a significant change. The Committee became conscious of the systemic nature of violence against women when it looked into the States parties’ reports and information provided by non-governmental organizations during its first decade.

In its effect, the CEDAW Committee adopted General recommendation 12 on violence against women in 1989, in which it identified articles of the Convention which imposed obligations on States parties to address and report violence against women, identified sites of such violence as within the family, the workplace and other areas of social life, and recommended that States parties report on legislation and other measures adopted to protect women against violence and provide support services. It also asks to compile statistical data on the incidence of violence. The Committee built on this in General recommendation(1990) on female circumcision, identifying this as a traditional practice harmful to women’s health and making recommendations for its eradication.

Vienna World Conference on Human Rights

In the Vienna World Conference on Human Rights, the Committee delegated part of its session to a discussion of violence against women which would reflect on Convention articles that related particularly to the issue. The outcome of which was the Committee’s General recommendation (1992). The Committee has also addressed the issue in a number of its other General recommendations, many of its decisions and its inquiry reports under the Optional Protocol, and regularly comments on the issue in its concluding observations on the reports of States parties. States parties have regularly reported under the Convention on violence against women in response to the Committee’s requests.

The practice of the CEDAW Committee, in particular General recommendation, has had a significant influence in many States on the actions of the government, the approach of courts, tribunals and national human rights institutions, and has been an important reference point for advocates. The result of the same was to be seen in the upcoming years in the effort of addressing the gaps in recording the violence against women.

Evaluation of the ‘normative gap’ argument 

The ‘normative gap’ argument 

Professor Rashida Manjoo, a leading advocate who has also been the former Special Rapporteur on violence against women said that a new measure and the existence of a ‘normative gap’ is something that needs to be looked upon. One of the important arguments related to this segment is that there is an existence of ‘normative gap’ which is related to gender-based offenses against women linking with the international human rights law. She also tries to figure out the reason for the existence of a ‘normative gap’ in relation to the gender-based offences against women and human rights. She says that due to the nonexistence of any binding legal instrument, there is a gap between acquiring such human rights and practical scenarios. She also mentioned that none of the more detailed instruments in non-binding instruments has become part of customary international law.

Although, Professor Manjoo accepts the fact that there has been quite some development in the violence against women (including under the CEDAW Convention) and elaboration of international standards relating to the same, the current norms and standards within the United Nations system originate from quasi-legal instruments, hence, it does not possess any binding power and only persuasive power. The ‘normative gap’ in relation to international human rights law raises important questions about the State responsibility to act with due sincerity and due diligence to be the lead and protect women and girls from facing violence and various other offenses and mitigate their causes and offenses.

The ‘normative gap’ argument thus places considerable value on the international legal frame, however, it has always been cornered in legal measures and conventions. The binding CEDAW does talk about gender-based offenses against women but not in a transparent and systemic way. The other outputs of CEDAW and the General Recommendations do refer to such inhumanities meeting out to women all over the world, none of the measures is legally binding to the State actors.

Even the United Nations Declaration on the Elimination of Violence against Women recognizes the flaw in the demenour of people towards women, still the clauses just have persuasive value. There are many quasi-legal instruments or ‘soft law’ documents that address the issue, including the Vienna Declaration and Programme of Action, the Declaration on the Elimination of Violence against Women, the Beijing Declaration and Platform for Action, and general comments and recommendations of treaty bodies. However, even though the soft laws may be helpful in developing norms their non-binding nature undoubtedly means that States cannot be held responsible for violations.

Accordingly, there is a ‘normative gap’ that is not effectively corrected by the existence of such a huge range of documents that talks about offences against women but are not binding. Professor Manjoo puts forward that it is important to the struggle against violence against women that there be an explicit, binding and detailed structural framework of the steps that States must take to battle against such violence — and that these should be included in a new treaty addressing the issue. Professor Manjoo emphasises on the utter importance of the States to take ‘due diligence’ towards curbing the root cause of these gender-based offences against women seriously. She also argues that it is important to have binding legal instruments at the religinal level so that it is easier to monitor the cause and in this way it shall produce a positive effect at the universal level. 

It is evident that it is the hour to take into account for the States, the development and adoption of a United Nations binding international legal instrument on violence against women and girls, with its own dedicated monitoring body such an instrumental structure or mechanism that should ensure that States are held accountable to standards that are legally binding. It should provide a clear normative skeleton for the protection of women and girls globally and should have a specific monitoring body with proper mechanisms to substantively provide in-depth analysis of both general and country-level developments. With a legally binding framework, a protective, preventive and educative structure could be established to reaffirm the commitment of the international community to its articulation that women’s rights are human rights, and that violence against women is a human rights violation, in and of itself.

Evaluation of the ‘normative gap’ argument

Even though we are at the stage of rhetorical and strategic advance regarding the arguments favouring the ‘normative gap’ has been thrown light upon, however, the hypothesis regarding the existence of the ‘normative gap’ still needs a lot of analysis. The confusion as to whether the examination of the existence of normative gap is correct or not depends a lot on how we analyse the convention, and whether we are looking from the perspective of its aims and objectives or the way the States parties implements and practices the Convention. The legal status of CEDAW’s practice in relation to violence against women: General recommendations and other practice.

As discussed earlier, the CEDAW Committee has set out its perspective with the view of mitigating all kinds of violence against women, including both in public and private arena, and for that, it addresses such mandates in its general recommendations ( especially in the General Convention 19) as well as in its asserted observations, decisions on individual communications, and reports of inquiries relating to individual States parties. It is well understood that the mandates under the United Nations Human Right treaties are basically soft laws and hence just has persuasive power in them as a matter of international law. This is the case with CEDAW’s pronouncements – they do not possess as much legally binding interpretations as of the Convention. 

Concluding the subject here, even though the ‘normatic gap’ argument has had a detailed analysis on the meaning of the CEDAW convention, it does fail to approach the accepted path of analysis of an international convention through the idea of international law. The fact that the CEDAW Committee may not have the legitimate power to issue legally binding mandates of the Convention, it does not mean that its elucidations does not hold a similar meaning as the State party’s due diligence towards its women under the treaty. The question that needs to be focussed is whether the Convention that is properly interpreted, imposes such obligations on States parties and not the formal legal status of CEDAW’s views or not. 

Potential advantages and possible drawbacks of a new convention

The fact that there may be no normative gap can never be determinative by if a new convention is utterly required or needed. The primary question is whether the new treaty will be efficient in curbing the whole evil of offences against women. Even if the obligations and duties are not brand new, it must have a different approach into keeping their views, ideas and perspectives different even when considering the ‘universal’ rights and duties. The structural framework of a separate monitoring mechanism might also help to stimulate administrative and community activity and take these issues on a wider level so that people can take about it and get help and come along for a practical change. Simultaneously, one must also weigh the assumed pros that can be taken from the new convention and compare it with the flaws that it might invite including the fact that it might undermine the already existing norms or treaties. When it comes to drawbacks, advocates have not yet analysed such cons of such a new convention and how exactly it might have affected the scenario.

Possible advantages 

A number of advantages of a new convention may be recognised:

1. Firstly, the new treaty or convention can take the opportunity to detail out the obligations and duties that the state has on them in order to curb the gender-based crimes. It can bring out all the obligations more consciously and in binding normative instruments for the states to follow. We do have binding obligations related to gender based violence against women but at this time it seems very complex. So if there exists a legal framework that directly and explicitly sets out obligations to the state actors it becomes more persuasive for government officials to follow and easier for them to use in practical scenarios. This shall give a huge opportunity for the international body to properly define what constitutes ‘gender-based violence against women’ and be more vocal on the obligations due diligence.
2. Secondly, the framing and releasing of the new convention will most likely give us a room for emphasising on activism, and advocates with a brand new tool (that has been invoked in the past for various other causes) to bring about a social and legal change. This was much needed when the scenarios were evaluated all over the world.
3. Thirdly, it shall provide the government and policy-makers with an updated and comprehensive instrument to keep as a reference point in order to strengthen the law, other policies and programmes to address gender based violence against women in a bigger platform. This shall allow more victims to come up and share their experiences in order for the world to understand what victims had to go through.

Possible drawbacks

Even though the release of a new convention will update the legal framework and invite new municipal laws based on it, the basic question is whether it will bring about a positive impact overall even after calculating the drawbacks on the making of the new convention into the struggle of fighting violence against women. 

1. Possibility of state actors to undermine the value of the existing norms and instruments: is a possible danger. There shall arise a direct conflict in between the measures mentioned in the new treaty and the already existing ones especially the clauses in CEDAW). This will lead to the state actors undermining the good causes that they have been doing (the advocates have correctly addressed the normative gap and has been giving efforts to bride it) and there are high odds for states to believe that CEDAW does not include clauses for the gender-based violence against women.
2. A need for a holistic context and addressing its analysis: A very specific convention of the gender-based violence against women can miss out the border analysis as to why such offences existing the first place. As discriminations based on gender will not be talked about, there is a high possibility that one might miss out on understanding the root of the cause of such problems in society.
3. Different normative and institutional contexts: The UN human rights treaty system on the international level is different from the regional systems. This has led to the adoption of a specific violence convention. The Council of Europe and the Organisation of American States did not have a CEDAW-equivalent convention at the time of the adoption of their violence conventions. Thus, there were only a handful of jurisprudential bodies that actually work on protecting international human rights in relation to gender-based violence and the existence of frameworks that had supplemented the already existing norms and treaties that work on pacifying gender based discriminations. 
4. Less flexibility: While a treaty is a binding legal framework, once the contents of those treaties have been written down after tallying with the then statistical reports and circumstance, it can be difficult to amend it when kinds of violence arise.
5. Dangers of the political process: In reality, the political process of drafting a new convention runs the risk of the States to understand offences as they understand what gender based violence against women is and hence eliminate clauses from any definition, or it might open up a disagreement with and challenges to the CEDAW approach in General recommendation 19.
6. Possibility of excessive duplication of bodies and, or procedures: If a new treaty has been established, a new monitoring mechanism is required. This might be and would be seen by States as an excessive duplication procedure, the Special Rapporteur on Violence against Women, and the Working Group on Discrimination against Women in Law and Practice (as well as the other UN human rights mechanisms that address gender based violence against women as a part of non-gender-specific mandates, very differenet from any local way of handling it). One way to lower the concerns on this account would be to attach any new convention very similar to the CEDAW Convention normatively and any new procedure, if made, to the CEDAW Committee institutionally. 
7. Transaction costs and diversion of resources: The detailing out of the new convention would be a very energy driven exercise and intensively resourced campaign to coax States to make a convention, and to be involved in, or get crucially in what could be a drawn-out and controversial process. And if that were successful in its approach, then a further political campaign and actions would be needed to cajole the States to be a signatory to it. Both these processes may draw energy and assets away from execution efforts based on existing duties.

Adoption of a multi-path strategy

There is a need to focus on improving execution of existing standards before its adoption and entry into force which would be years off. Parallelly, there are various options that can be looked into or instead of elaborating the new convention. These include: 

1. Building on CEDAW’s legal system, jurisprudence and practice with an established link with GBVAW; 
2. Framing on and making the jurisprudence of other UN human rights treaty bodies and its instruments stronger; 
3. Prevention of crime and the treatment of offenders; 
4. Using regional conventions and rules where available; and
5. Continuing to frame on international law standards to have an effect on domestic level decision-making procedures. 

Another option being the renewal of CEDAW of General recommendation 19. It is a process which is well under construction. Comments could be made on the CEDAW Committee when it would be releasing a draft update to General recommendation 19 on its website in late July/early August 2016. This complements and updates of the guidance to different countries have been set out in General Recommendation No. 19, and it gives further detailed clarification as to the obligations all women within their territory need to follow.

The advantage of speed when adopting the supplementary General recommendation by the CEDAW Committee is that it will produce fruitful results in a lesser amount of time compared to a treaty-making process. General recommendations, along with its ability to be amended and supplemented, are flexible ways that can actually keep the convention updated and relevant with the present time, even when amending a treaty is a much exhaustive and critical process. Whether all of the parts of the new General recommendation would put forward a binding interpretation of the Convention would depend on the focal content and also on how the signatories react to the same. In any instance, the content of the draft supplementary to the General recommendation is a calculated version or digest of the past provisions of CEDAW that has already been accepted by States parties over the last twenty-five years. It is obvious that a new or updated General recommendation must not preclude similar advocacy for a convention.

Recommendations on forming a new convention

Against the backdrop of the possible advantages and drawbacks of a new convention, this section suggests recommending principles that could be adopted in regard to whether or not to go ahead with the development of a new convention on GBVAW and, if such a goal is adopted, how it can be followed on to be more effective. These are: 

(a) Addressing the fact that we are not starting with a blank sheet

The emanating of any debates or discussions and understanding of a new convention should be that such an effort will not be framed on a blank sheet at the UN level, rather it should be adding a gender-neutral treaty to a human rights system. However, it also implies that care needs to be taken to address and acknowledge the primacy and effectiveness of existing norms and practice, and to build onto them. The treaty and convention must not look down upon them or give States any pretext for contesting or climbing down existing standards. Any new measures should highlight the role that existing international obligations and measurements have played in acknowledging and building strength to official government action, institutional change and advocacy of women’s human rights at the domestic level, It must explore ways to consolidate and mould on those achievements – including through framing the important jurisprudential work that has been critically analysed and detailed out so that it creates both negative and positive obligations on the states that are meted out by both state and non-state actors.

(b) Confirming with CEDAW and other existing obligations

Any new treaty should supplement the existing binding obligations under the CEDAW. In this way, the normative gap shall also get eliminated. Convention to take all appropriate measures to discard all forms of violences that are very extreme toward a particular gender and especially those that are committed by the state and non-state actors also. The convention must detail out as to how effectively the clauses can be applied in order to get rid of the gender-specific offences that exist and leaves no room for anything in the future. 

(c) Addressing the need for better implementation

Any new instrument must recognise that there is a significant failure of execution at the national level and that significant energy and assets need to be devoted to execution, and it can be done more efficiently when the legal documents and precedents are taken into consideration at a local or regional level. The CBVAB must have ways to explore the follow-up regarding the utility of such measures (they now have a specific section to deal with the women centric offences). That must include encouragement of and parallel empowerment for the adoption of legislation identifying and discussing GBVAB (which must also include marital rape), the adoption and implementation of national policies surrounding the same ares and addressing national mechanisms to curb gender baised crimes for checking the execution and effectiveness of the relevant municipal laws and policies, and putting GBVAW- initiatives in the fore-front in legislative and budgetary actions. 

(d) Consideration of a holistic and contextual approach to GBVAW

A holistic analysis of GBVAW must be adopted when any new international measures, including a treaty, should adopt that recognises the indivisibility of rights and an understanding of gender baised violence against women as a means to address the root cause in broader patterns of the denial of women’s right to equality and the enjoyment of all rights (as is reflected in the CEDAW Convention). 

(e) Negative retrogression

There should be no room for an erosion or degradation of any other existing treaties, or obligations or measures when this new treaty comes up.

(f) Expansive and flexible definition of violence 

One of the essential features that any new treaty must contain is the definition clause of the term ‘violence’ that is flexible, expansive, yet not vague and that it must comply with the changing of the society. But we must also check that the definition is not too broad to contain all kinds of discrimination meted out to women and considered as ‘violence against women’. 

(g) Need for lucidity relating to due diligence obligations

Any new treaty that is formed must have a conceptual clarity of the term ‘due diligence’ and how it is different from ‘obligation of due diligence’. The term ‘obligation of due diligence’ refers to the duty of the State to monitor on the non-government actors, while the other term simply means a fault or breach of a standard of conduct.

(h) Linking monitoring procedures to existing mechanisms

If any new treaty is being made or international monitoring measures are being considered, it must always be related to other existing treaties in the same area. Its previous existing treaty, or measure can either compliment or critically contradict to the new one. Hence, if a treaty were to be considered – (i) it should be a voluntary protocol to the CEDAW Convention (ii) it should focus on areas in which such a treaty might further elevate existing procedures for enhancing execution and ensuring responsibility and thus be a procedural rather than a substantive convention (iii) it must allocate any monitoring role to the CEDAW Committee; and (iv) if substantive provisions are included, they should make sure that the Convention covers all forms of gender based violences against women and should in no way fall below the existing standards existing under the Convention by the CEDAW Committee. 

(i) Avoidance of duplication or overlap

Any new treaty if made needs to see that it simply does not duplicate the clauses or initiatives that already existed in the previous treaties. For example, if it tries to initiate an individualistic communication measure or inquiry procedure, there already exists CEDAW doing the same job in the same area, that is, violence against women. and which is already open to States parties to the Convention to comply with those procedures. 

(j) Specification of a role for national institutions

Any new treaty must provide with provisions and mechanisms that specifically recognise the role of different national/ regional institutions in addressing and talking about various kinds of violences against women, that includes national human rights institutions and other state and, or public bodies with a similar or relevant mandate. It must also detail out as to how such institutions can be more efficient into tackling such crimes meted out to women.

(k) Limitation on reservations

If any new treaty, especially those ones that contain any substantive clauses, it must be checked that it should prohibit reservations that might lead to any forms of discrimination in the future.

Landmark judgments (India)

It is most often said that if one woman stands for her rights, she stands for several more. Here, in this section different Indian landmark judgements are discussed which has changed the path in which justice for women was usually looked at.

Vishakha and others vs. State of Rajasthan [AIR 1997 SC 3011]

Vishakha and others vs. State of Rajasthan was a Public Interest Litigation (PIL) which was filed in the court of law after Bhanwari Devi, a social worker in Rajasthan was inhumanly ganged raped by some Gujjar men for stopping child marriage. Bhanwari Devi, being determined to get justice, lodged a complaint against the offenders.

The accused was acquitted by a trial court, although, after this landmark case, the Supreme Court of India decided that the consideration of International Conventions and norms are significantly required for the elucidation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution of India and for the safeguard of women against sexual harassment.

Tukaram vs. State of Maharashtra (Mathura Rape Case) [AIR 1979 SC 185]

Tukaram vs. the State of Maharashtra (Mathura Rape Case) was a rape case, where Mathura, a tribal woman had developed an intimate relationship with a boy, Ashok. Mathura’s brother lodged a complaint alleging Ashok had kidnapped her. After some time, Mathura was brought into the police station at Desai Ganj to record her statements. She came along with some companions (including Ashoka and his family) who were asked to remain outside the station while her statement was recorded. The timeline was at night when only two constables (appellants) were present. They took her into the washroom, and in the dark, one of the appellants focussed the torch into her private parts and thereafter dragged her and raped her despite her protests. Mathura after some time emerged from the station and alleged that one of the constables raped her. So after the crowd became aggressive, the complaint was forcefully reported. Doctors in the report had mentioned that it had old raptures in the hymen of Mathura. The appellants were satisfied that since there was no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse, it can be inferred from the available circumstances that she did this with her passive submission.

The court held that since no marks of rapture or injury was found in Mathura’s body, it only led to the fact that the sexual intercourse was a peaceful one and the whole incident was made up by the accused and hence not true. Therefore, no offence is brought against the appellants.

However, aftermath this case, it was observed by the Apex Court in many cases that to constitute the offence of rape, injury on the body of the victim is not necessary.

Mary Roy vs. State of Kerala [1986 AIR 1011]

Mary Roy vs. State of Kerala case deals with women from the Syrian Christian community in Kerala were previously prevented from inheriting property because of patriarchal traditions. This issue was challenged by Mary Roy who was a  woman’s right activist and an educator. 

After the death of her father, she had filed a case against her own elder brother when she was not allowed to receive an equal share from the family’s inheritance. Even though the plea was denied by the lower court and the Kerala High Court, it was overruled in 1986 when the Supreme Court of India provided a landmark judgment that granted Syrian Christian women the right to enjoy an equal share in their father’s property.

Lata Singh vs. State of Uttar Pradesh [(2006) 5 SCC 475]

Lata Singh in the case of Lata Singh vs. State of Uttar Pradesh was an adult by age and ran away with her lover, who belonged to a lower caste in order to get married to him. Lata’s brother, being unhappy with the matrimonial alliance, filed a complaint to the police alleging that she has been abducted by the man. After this, three of his family members were being arrested.

Lata Singh had filed a petition in order to drop the charges which resulted in the landmark judgment by the Supreme Court that allowed an adult woman the right to marry or live with anyone of her choice. 

The court further held that the police can initiate criminal charges against people who commit violence against those who decide on inter-religious or inter-caste marriages of their own choice.

Roxann Sharma vs. Arun Sharma [2015 8 SCC 318]

In Roxann Sharma vs. Arun Sharma, Roxann was caught between an ugly child custody battle with her estranged husband. Roxann was provided with interim custody by a court in Goa. However, Arun Sharma did not allow the mother to meet up with her son.

She then went ahead to file a legal suit against him. This led to the landmark judgment pronounced by the Apex court involving children caught in a legal battle between parents.

The Supreme Court held that when a child who is below the five years of age and is seen in between custody battles between estranged parents, the custody shall always fall into the hands of the mother till at least the child of five years of age.

Tamil Nadu vs. Suhas Katti [1993 SCR (1) 405]

This particular case of Tamil Nadu vs. Suhas Katti led to the first conviction under the Information Technology Act, 2000. The victim alleged that he was being harassed by the accused, Suhas Katti only after she refused to marry him. 

The defendant used to send the women unsolicited inappropriate messages over a Yahoo social group. Her trauma began to get bitter when she started receiving inappropriate phone calls from unrecognised phone numbers. 

After the victim filed a complaint, within several months the accused was convicted. In an age of brutal and savage trolls and various other forms of online harassment from behind the screen, this judgment acts as a tool that women can use to safeguard their dignity.

Laxmi vs. Union Of India [(2014) 4 SCC 427]

In the case of Laxmi vs. Union of India in 2006, Laxmi, an acid attack victim, filed a petition asking to formulate measures to regulate the sale of acid and provide adequate damages to the victim. Taking into account the rising number of reported cases relating to acid attacks against women, the Supreme Court imposed stringent regulations on the sale of acid in 2013. 

The ruling also banned the counter sale of acid. Dealers after the ruling could sell and market acid only after providing proper identity and mentioned the actual purpose of selling/buying the acid. A detailed report needed to be provided to the police after the sale had commenced. The rule also mentioned that acid could not be sold to people of minor age.

In 2020, a Bollywood movie was also made imitating the whole incident. This way, the citizens are being made aware of the inhuman treatment that is generally meted out to women.

Centre for Enquiry into Health and Allied Themes (CEHAT) vs. Union of India [Writ Petition (civil) 301 of 2000]

The case of Centre for Enquiry into Health and Allied Themes (CEHAT) vs. Union of India saw a growing trend of aborting female fetuses was observed when with the coming of pre-natal diagnostic techniques started determining the sexual orientation of the foetus. For the sake of curtailing female foeticide, the government of India issued the PNDT Act in 1996. 

However, the provisions of the PNDT Act were not being effectively devised by the state and central government. 

The Centre for Enquiry into Health and Allied themes filed a petition which led to the Supreme court directed the Central and State governments to enact the provisions of the action immediately. This also led to the banning of all advertisements relating to pre-natal sex determination techniques.

Sudha Sandeep Devgirkr vs. Union Of India- Termination of 24-week old pregnancy permitted on account of the abnormal fetus [(2018) 13 SCC 339]

In the case of Sudha Sandeep Devgirkr vs. Union of India- Termination of 24-week old pregnancy permitted on account of the abnormal fetus, the pregnant petitioner, a rape survivor, who wished to remain unidentified, knocked the doors of the Apex  Court asking for permission to abort her 24-week abnormal baby. 

The petition actually challenged the Maternal Termination of Pregnancy Act that does not permit abortion of a fetus after 20 weeks. 

The Supreme Court ruled in favour of the pregnant petitioner after the medical board submitted a report stating that continuing with the pregnancy could put the mother’s life at risk.

Suggestions to curb the worldwide issue of violence against women

Amend and revise all laws that Discriminate against Women

It must be monitored that all forms of violence against women, including domestic violences and other forms of offences, are criminalized with its necessarily required serious penalties. The criminal justice system must be evaluated, while ensuring for the basic human rights of both the parties, to recognise any form of obstacles to women’s meaningful redress when they are victims of violence. 

Laws must necessarily be altered and taken seriously when prisoners, especially the incarcerated women prisoners face violences of all kinds of degrees. These cases are sometimes not even reported or do not surface when looked into. Character assassinations based on prejudices of prisoners are done in the daylight, and most of them coming from a marginalised class do not even get a chance to get represented justifiably.

Elimination of Mistreatment by the Police

Police officials must be very vigilant while noting down complaints of offences against women. They must comply with the rules and procedure while noting down the details of both the crimes committed against the women and the defendant’s. The police must maintain the offender’s register and be very detailed while maintaining the statistics of the number of cases reported, what are the actions taken, how many of them were actually presented before the court, the outcomes of those cases and so on. 

Apart from the generic version of reporting complaints to the Police, independent mechanisms need to be installed to loom into the ground scenarios of the respective places. If the system acts on the prejudices that exist, does not report the complaints because there is a power play involved in between the parties, harass the families of the victims, and so on, the involved officials need to be penalised due to these injustices. Some explicit and clear guidelines need to be established so that the police can look into such cases of offences against women more objectively, and what exactly must qualify under such crimes. The police officials need to be trained as to how to respond to the cases of violence against women, how to collect the report, the way to investigate into the matter, how to react to sensitive cases, how to collect and preserve the evidences, and how exactly to explain the victims and their families as to the kinds of rights and protections available to them.

The Medico-Legal System needs to Provide Women with Appropriate Diagnosis and Treatment

Women who want to report for forensic tests aftermath a physical offence has been done, they must not be constructed from such measure, and it needs to be seen that such timely availability of reports and tests results could be obtained. The medical staffs charged with such emergency wards of both government and private hospitals, other emergency forensic clinics and emergency rooms must be well trained so that they can handle such sensitive cases mixed with mental trauma. They must be capable of dealing and preserving evidence without ignoring the emergency factor of such cases.

It must be ensured that medical and forensic staff are well habituated with legal jargons, significance and medico-legal use of evidence in a courtroom. Victims of gruesome crimes against (sexual or other physical assaults) need to be treated with fairness, compassion and respect and should be able to make rational decisions after informing them on the consequences, medical counsellings and so on. Women who are in detention centres alleging of rape or other sexual violence must be examined at rape treatment centres equipped with professionals who are trained to observe sexual assault cases.

Provision of Protection from Violence

It must be ensured that there is an establishment of shelter and safe homes for women who are battered, which do not function as de facto detention centres for assaulters, but a place to refuge and stay for a certain period to feel safe and protected without losing personal dignity and freedom. 

In support of telephone hotlines for women victims of violence must be observed. These hotlines must be marketed and advertised in such a wide manner that every woman is aware of such services and counselling. Staff must also learn how and when to refer to different counsellors and departments if an offence is reported. Such services must also be confidential, free, and safe at all times. The right to privacy must be seen even when handling the accused. 

There must be civil remedies available in the cases of domestic violences. There must be a legally enforceable protection order that can be a preventive measure for any future reports of violence from the same parties. Such orders could detain the assaulter from contacting, approaching, belittling, assaulting and harming the victim any further till the case is dealt in the court of law. Such measures must be available to everyone without a gender bias, or to women who are not married, or people who were in a live-in relationship sharing or shared the same home.

There must be a regularity in collecting data regarding offences against a particular sect or gender. The kinds of violence that is being incurred rapidly, the pervasiveness, severity, where such violences is concentrated. Statistics regarding the reported cases versus the unreported cases must be taken. The way such cases are usually dealt with, the time it took to reach the court of law, the time taken to collect and present evidence, the outcomes of such cases must also be vigilantly reported. Such math must be looked upon when framing preventive measures and guidelines to such offenses. Local self-government must also take initiative in educating the masses of the consequences and guidelines in cases of such offences. 

The Perpetrators must be brought to Justice

All prosecutors/officials must be trained so that they maintain a gender-neutral approach while handling cases of domestic, and sexual violences. They must not give in the generic presumptions at the surface level. They must also be well trained in understanding the legal jargons, significance and the medico-legal terminology used in legal cases and court-rooms.

Elimination of Judicial Biases Against Women

All judges must also be trained into approaching all such cases in a gender-neutral perspective. They must understand the intricacies of forensic matters so that the gap between the hardcore medical terms and legal jargon can be bridged efficiently. Judges must also follow guidelines as to how to approach sensitive assault cases dealt in camera. 

Conclusion

All forms of violence against women have been increasingly recognised since the last two decades. It is also regarded nationally and internationally as a serious problem which immediately needed to be catered to. Archaic attitudes towards women around the world help to encourage the violence and it has been ignored or condoned, as it occurs between close relations in the privacy of their homes.

Today we have international conventions, treaties, international, regional, national legislations etc. which provides us with a range of rights and protective measures for protecting women from violence including domestic violence and other gruesome offences. However, in spite of all these initiatives, progress in the gaining of women’s rights has been very slow all over the world. The different international, regional and national conventions on women, encourage governments of all the countries of the world, research institutions, non-governmental and other organizations to promote research on the prevalence of domestic violence and its causes and consequences. It also helps in assessing the effectiveness of the legislation and provides preventive measures to the victims.

IWRAW Asia Pacific recognises that the CEDAW Convention to be q feature of its time and that, if one were composing such a convention today, violence against women would be explicitly recognised and reported, and probably in some detail. It also addresses CEDAW’s General recommendation 19 is itself archaic, even though the Committee has been able to develop its understanding of the obligations and duties in its other General recommendations and in its practice. 

IWRAW Asia Pacific also recognises that a lot needs to be done to subtract the lash of GBVAW and that international (legal) measures stronger can contribute significantly to that struggle. The question still remains as to the form that any new measures that might be taken should be approached strong-headedly but also carefully. The critical issue is how best to ensure execution of the standards and instruments of the Convention and other equality guarantees at the international, as well as national level. IWRAW Asia Pacific also estimates that any debates of a new convention needs to acknowledge what has been achieved, precisely weighing the potential positive and negative consequences of pushing for a new convention.

Many countries have some form of legislation or the other concerning violence against women, most commonly domestic violence. For example- India has the Indian Penal Code which mentions penalties for the offences against women. Some countries have specific legislation on domestic violence, and some other countries are enacting new laws and some have amended their criminal laws to include offences against women. However, it is often evaluated that these legislations and policies alone are insufficient to eradicate the violence problem from the world. 

Finally, it can be stated that women-centric offences are not simply a legal problem which can be curbed through necessary legal remedies. It is also a social and psychological problem, which can be eliminated by fundamental changes in society and in behaviour towards women and children. While penalties are an attempt to alleviate the symptoms of crimes towards women, it can do very little when it comes to tackling the main causes. For the matter of fact, in spite of various international human rights instruments and impressive economic, technological and social progress worldwide that pays heed into minimizing gender-gaps, millions of women around the world are routinely abused and are suffering from various offences and violence, a tragic crime which needs to be urgently recognised and vigorously tackled. 

References

• https://www.ohchr.org/Documents/Issues/Women/SR/Framework/2.IWRAW-AsiaPacificDiscussionPaperOptionInternationalMechnisms.pdf
• https://yourstory.com/2018/01/8-landmark-judgements-that-changed-the-course-for-women-in-india
• https://www.amacad.org/sites/default/files/publication/downloads/Daedalus_Wi20_10_Htun%20Jensenius.pdf
• https://www.hrw.org/legacy/backgrounder/wrd/fiveplus.htm
• https://projects.iq.harvard.edu/violenceagainstwomen/publications/declaration-elimination-violence-against-women

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