Quick answer
Treating women and men identically on paper is not enough because discrimination can come from the effect of a rule, not only its wording. Article 1 of CEDAW (the Convention on the Elimination of All Forms of Discrimination against Women, 1979) defines discrimination as any distinction, exclusion or restriction made on the basis of sex that has the effect or purpose of impairing women's equal enjoyment of rights. Article 2(e) requires States to tackle discrimination by any person, organisation or enterprise. Article 4(1) permits temporary special measures to speed up de facto (real, actual) equality.
The law: key CEDAW Articles
- Article 1: discrimination covers both purpose and effect, irrespective of marital status, in the political, economic, social, cultural, civil or any other field.
- Article 2: States condemn discrimination and agree to eliminate it "by all appropriate means and without delay". This includes ensuring the practical realisation of equality (Article 2(a)) and taking all appropriate measures against discrimination by any person, organisation or enterprise (Article 2(e)).
- Article 4(1): temporary special measures aimed at accelerating de facto equality are not discrimination. They must end when equality of opportunity and treatment has been achieved.
- Article 4(2): special measures protecting maternity are not discriminatory.
Formal and substantive equality compared
| Point | Formal equality | Substantive equality (CEDAW approach) |
|---|---|---|
| Question asked | Does the rule treat men and women the same? | Does the rule, in practice, impair women's equal enjoyment of rights? |
| Test | Wording and intention | Purpose or effect (Article 1) |
| Private actors | Often outside the analysis | Covered through the State's duty under Article 2(e) |
| Special measures | Viewed as unequal treatment | Allowed if temporary and aimed at de facto equality (Article 4(1)) |
Example
A company requires every employee to attend meetings late in the evening. It offers no safe transport, even though it knows its women employees face serious barriers in travelling at that hour. The rule looks neutral. However, because Article 1 looks at effect, the rule may still call for legal scrutiny. Separately, Neha complains that her supervisor subjects her to unwelcome sexual behaviour. Announcing that the workplace is "open to all" does not answer her complaint. Real equality requires an effective mechanism to prevent and redress harassment.
The Indian case: Vishaka
Vishaka v. State of Rajasthan, Supreme Court of India, 13 August 1997, AIR 1997 SC 3011, (1997) 6 SCC 241 (J.S. Verma CJI, Sujata V. Manohar and B.N. Kirpal JJ.). With no domestic law on workplace sexual harassment, the Court relied on CEDAW. It held that international conventions consistent with fundamental rights may be read into Articles 14, 15, 19(1)(g) and 21. The Court described gender equality as including protection from sexual harassment and the right to work with dignity. It laid down guidelines, including a complaints committee headed by a woman, and declared them binding and enforceable until legislation was enacted.
For a full summary, see Vishaka vs State of Rajasthan (1997).
Current-law note
India signed CEDAW on 30 July 1980 and ratified it on 9 July 1993. It made declarations on Articles 5(a) and 16(1) (non-interference in the personal affairs of any community without its initiative and consent) and on Article 16(2) (compulsory registration of marriages), and a reservation to Article 29(1) (reference of disputes to arbitration or the ICJ). The field that the Vishaka guidelines covered is now governed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. According to the Ministry of Women and Child Development, the Act covers women in both the organised and unorganised sectors and sets up a redressal mechanism for complaints.
Exam point
CEDAW protects substantive equality. Article 1 covers discrimination by purpose or effect, Article 2(e) reaches private actors, and Article 4(1) allows temporary special measures. Vishaka (1997) read CEDAW into Articles 14, 15, 19(1)(g) and 21 to protect women from workplace sexual harassment.
Sources and further reading
- Convention on the Elimination of All Forms of Discrimination against Women: authentic text, UN Treaty Collection
- CEDAW: status of ratification and India's declarations, UN Treaty Collection
- Vishaka v. State of Rajasthan (1997), Supreme Court of India, Indian Kanoon
- SHe-Box: Sexual Harassment of Women at Workplace Act, 2013, Ministry of Women and Child Development
