ABSTRACT

Entering into treaties and agreements with foreign nations is one of the attributes of State
Sovereignty. No state can isolate itself from other foreign nations. In India, the treaty making
power is with the union government .In U.S , Article II, Section 2 contains “Treaty Clause”
which allows the President to ratify treaties with the consent of the Senate with 2/3 majority.
Article 253 of the Indian Constitution deals with the power of Parliament to make laws giving
effect to International Convention. The Constitutional Framers have adopted this system from
Government of India Act,1935 which allowed only the federal legislature to enact laws giving
effect to international convention .This article deals exclusively with the Ratification and
Implementation of Convention to Eliminate All Forms of Discrimination Against
Women(CEDAW) which was the first convention focusing exclusively on Right to Women. It
came into force on 3rd Sep. 1981.It was ratified by India in the year 1993.There were many
legislations like National Food Security Act, Prevention of Children from sexual acts etc.,
Implemented by the government to give effect to CEDAW. The statistical data shows that the
discrimination and violence against women have reduced to greater extent in India after the
implementation of CEDAW. The UN Committe On Elimination Of Discrimination against
Women on 2nd July 2014 gave recommendations for further reforms in India to develop the
status of the women. Though these steps were implemented the government, more reforms are
needed which will be discussed in this article later.

1.INTRODUCTION

Power to conclude a treaty is one aspect of sovereignty. It has both internal and external
sovereignty with regard to external sovereignty the state can conclude treaties, enter into
alliances and send and receive envoys, acquire and cede territory , make war and peace.
Treaties are of two kinds self executing and non-self executing . In non-self executing treaty
the state party has to make legislations, policies and other measures to implement the treaty in
their country. At international level a state cannot adduce its constitution or statue as a
defence for non-performance of its obligation1.

1
Advisory Opinion on the Treatment of Polish Nationals and Other Persons of Polish Origin in the Danzig
Territory, PCIJ, Series A/B, No. 44, at p. 24. Full text of the judgment is also available at www.icj-cij.org
Further, a fact needs to be placed on record here is that, States hardly challenge the validity of a treaty on the

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In the regard of implementing of treaties , the “treaty making power” is an subject matter of
internal aspect, viz., nature scope, extent and limitations on the power provided under the
constitution or statue of the state.

2.TREATY MAKING POWER IN INDIA

2.1.HISTORY OF TREATY MAKING POWER IN INDIA

During British rule , the British adopted their practice of “executive model of treaty
making” in India. In this all the treaties were negotiated signed and ratified by the executive
and the legislative has no role. But the treaties affecting rights of citizens, cession of territory
and evolving modifications to common or statue law requires the approval o legislation.2

In the government of India act,1935, the federal government was given the power to
conclude treaties. In 1935 act, the schedule VII , list I , Item no.3 provided for “external
affairs” and section 8 of 1935 act makes the point clear that the executive authority of
federation extends to matters with respect to which the federal legislature has power to make
laws. Thus, the federal government has the power to conclude treaty but they were imposed
with stringent condition that the consent of the province is necessary in order to give effect to
treaties if the subject of the treaty falls within the domain of list II [provincial list] of VII
schedule.3

ground of some constitutional defects or deficiencies in concluding a treaty. See McNair, “The Law of
Treaties”, Clarendon Press’, Oxford, 1986, p.59. Further, Article 27 of Vienna Convention on the Law of
Treaties 1969 says “A Party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty. This rule is without prejudice to Article 46.”

2
The 1935 Act was not fully in force. The Part relating to Provincial autonomy was in force since April 1937.
The “Federation” envisaged by the Act never came into force because it was optional for the Provinces and no
province gave consent to it. The 1935 Act was unique in the sense that all the previous Government of India
Acts provided for “unitary” form of Government but this Act introduced “Federation” form of Government but
never came into existence. Dr. D.D. Basu, “Introduction to the Constitution of India”, 20th ed., Lexis Nexis-
Butterworths Wadhwa, Nagpur, 2012 (Reprint), P.9.

3
Section 106: Provisions as to legislation for giving effect to international agreements

(1)The Federal Legislature shall not by reason only of the entry in the Federal Legislative List relating to the
implementing of treaties and agreements with other countries have power to make any law for any Province

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2.2.CONSTITUENT ASSEMBLY DEBATES4

In draft constitution provisions in relation to “entering into treaties” and “implementing of

treaties” are Item no. 14 and 16 of list I in VII5 schedule, article 606 and 2307.

The framers of the constitution wanted two aspects, firstly the treaty making power of union
and concurrent and the restrict draft article 60 and now 73.The second was the union
parliament should have the power to implement treaty without the consent of the state
legislature the result was draft article 230 now 253.

V.T.Krishnamachari and Nazir Ahmed moved amendments that the state legislature should
be consented in cases when the treaty relates with the state subjects8.

Pannikar, Mitter , Gopasamy Ayyangar and many others spoke against this amendment
.Dr.Ambedkar told that if the treaty making power is given to state then they would cede. In
order to protect the unity this power should be with the union

2.3.CONSTITUTIONAL ANALYSIS

except with the previous consent of the Governor, or for a Federated State except with the previous consent of
the Ruler thereof. (2)So much of any law as is valid only by virtue of any such entry as aforesaid may be
repealed by the Federal Legislature and may, on the treaty or agreement in question ceasing to have effect, be
repealed as respects any Province or State by a law of that Province or State. (3)Nothing in this section applies
in relation to any law which the Federal Legislature has power to make for a Province or, as the case may be, a
Federated State, by virtue of any other entry in the Federal or the Concurrent Legislative List as well as by
virtue of the said entry.
4
The Constituent Assembly Debates (CAD) on this aspect contained in Vol. V, VII and VIII that took place on
27th August 1947, 29th & 30th December 1948 and 13th June 1949 respectively.
http://parliamentofindia.nic.in/ls/debates/. Last visited march 11,2017
5
Draft Item No.14 and 16 are currently Item No.13 and 14 in List 1 of VII Schedule of the Constitution
respectively
6
Draft Article 60 is currently Article 73 of the Constitution
7
Draft Article 230 is currently Article 253 of the Constitution.

8
Volume V CAD 25th august 1947

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Article 253 of the constitution talks about external sovereignty .article 253 of the Indian
constitution reads thus “legislation for given effect to international agreement-not
withstanding anything in the foregoing provisions of this chapter , parliament has power to
make any law for the whole or any part of the territory of India for implementing treaty ,
agreement or convention with any other country or countries or any decision made at any
international conference , association or other body.

The wordings of article 253 and entries 13 and 14 of union list may be read together.

13. Participation in the international conference associations and other bodies and
implementing of decisions made thread.

14. Entering into treaties and agreement with foreign countries and implementing of treaties,
agreement and conventions with foreign countries

Article 253 is in conformity with the object of “fostering respect to international law and
treaty obligations in the dealing organised people with one another”. By inclusion of entries
13 and 14 is in union list , the treaty making power was exclusively given to the union
government. Here arises the question whether the parliament legislate on the state list given
effect to international agreement? Article 253 empowers the union parliament to invade the
list II for the purpose of implementing international agreements. But the union government
by a legislation under article 253 cannot override fundamental rights under part III of the
constitution9.

2.4.TREATY MAKING POWER IN OTHER COUNTRIES

USA:

Article 6 of US constitution declares “the constitution and the laws of US which shall be
made in pursuance thereof, and all treaties made or which shall be made under the authority
of the US shall be the supreme law of the land. The result of this provision is that a treaty
which is made by the federal executive with the assent of the Senate must be supreme even
though it trenches upon the state

9
Maganbhai Ishwarbhai Patel V. Union Of India ;AIR 1969SC783

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CANADA:

Article 132 of the British North America act provides the parliament and government of
Canada shall have all power necessary or proper for performing the obligations of Canada or
of any provisions thereof as part of British empire , towards foreign countries, arising under
treaties between empire and such foreign countries.

AUSTRALIA:

Now here there is a separate treaty making power in the constitution of Australia. Section
51 (XXXiX) of the constitution act of Australia gives the common wealth, the power over
external affairs.

2.5.RECOMMENDATIONS OF THE NATIONAL COMMISSION TO REVIEW THE

WORKING OF THE CONSTITUTION ON TREATY MAKING POWER

The national commission to review the working of the constitution [NCRWWC] 2002 in its
report at chapter 8 titled “union and state relation”, observed that “ entering into treaties and
agreement with foreign powers is one of the attributes of state sovereignty. No state can
insulate itself from the rest of the world. Whether it be in the matter of foreign relations,
trade, commerce, economy, communications, environment or ecology. The advent of
globalisation and the enormous advance made in communication and it have rented
independent states more inter-dependent”. The NCRWC further observed that article 246(1)
R/W entry 14 of list I of seventh schedule empowers parliament to make laws with respect to
“ entering into treaties, agreement and conventions with foreign countries”. As for the
provisions contained in article 253 , parliament has not withstanding anything contained in
article 245 to 252. Power to make law for the whole or any part of the territory for
implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference , association or other body. This article
(ar.253)therefore overrides the distribution of legislative powers provided for by article 246
read with list in the seventh schedule of the Indian constitution

Accordingly NCRWC recommended that for reducing tension or friction between states
and union for expeditious decision making on important issues involving states, the

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desirability of prior consultation by union government with the inter state council may be
considered before signing any treaty vitally affecting the interest of the states regarding
matters in the state list10.

3.CEDAW

The UN General Assembly noted that in spite of UDHR, extensive discrimination against
women continued to exist around the world, hence it decided to adopt CEDAW .It came into
force in 1981.

Article 1 of the convention11 defines “discrimination against women”

The term “discrimination against women” shall mean 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.

3.1.MAIN OBJECTIVES OF CEDAW

1.To embody the principle of equality12

2.To establish legal protection of rights of the women13

3.Public authorities and other institutions shall refrain from engaging in the act of
discrimination14

4.Exercise and enjoyment of Human Rights and fundamental freedom on basis of equality
with men.15

5.The adoption of special measures aimed at protecting maternity.16

10
http://lawmin.nic.in/ncrwc/ncrwcreport.htm last visited 11march 2017
11
Convention on the Elimination of All Forms of Discrimination against Women
12
A.2(a) of CEDAW
13
A.2(c) of CEDAW
14
A.2(d) of CEDAW
15
A.3 of CEDAW

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6.Supress all form of traffic in women and exploitation of prostitution of women17.

7.Women should have

-Right to vote18

-to participate in formulation of governmental policy19

-to participate in NGOs 20

-to participate in international organisations21

8.state parties shall grant women equal rights with men with respect to the nationality of the
children22

9.Equal rights in the feild of education23 and in the field of employment24

10.To ensure right to family benefits25

11.The right to bank loans,mortagages and other forms of financial credit26

12.The right to participate in recreational activities sports and all aspects of cultural life27

13.To participate in community activities28

14.To have access to agrarian reforms29

16
A. 4(2)of CEDAW
17
A.6 of CEDAW
18
A.7(a) of CEDAW
19
A. 7(b) of CEDAW
20
A.7(c) of CEDAW

21
A.8 of CEDAW
22
A.9(2) of CEDAW
23
A.10 of CEDAW
24
A.11 of CEDAW
25
A.13(a) of CEDAW
26
A.13(b) of CEADW
27
A.13(c) of CEDAW
28
A.14(f) of CEDAW
29
A.14(g) of CEDAW

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15.TO enjoy adequate living conditions30

16.Equality of women with men before law31

17.Eliminate discrimination relating to marriage and family relations32

3.2.WAYS TO ATTAIN THE OBJECTIVES

1.Legislative and other measures including sanction33

2.By national tribunals and public institutions34

3.By modifying social and cultural patterns35

4.By ensuring family education36

5.To prevent discrimination based on marriage and maternity, state parties shall take
appropriate measures37

-To prohibit the dismissal on the grounds of pregnancy

-Ensure maternity live

-Promote child care facilities

6.Provide health care facilities38

7.Provide social security programs39

8.By organising self help group and co-operatives40

30
A.14(h) of CEDAW
31
A.15 of CEDAW
32
A.16 of CEDAW

33
A.2 of CEADAW
34
A.2(c) of CEDAW
35
A.5(a) of CEDAW
36
A.5(b) of CEDAW
37
A.11(2) of CEDAW
38
A.12 of CEDAW
39
A.14(c) of CEDAW
40
A.14(e) of CEDAW

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3.3.CEDAW AND INDIA

The convention on the elimination of all forms of Discrimination against women was ratified
by India in the year 1993.

India has adopted four strategies to achieve the objectives set by the convention

1.Legislative action

2.Training and Awareness

3.to support services , through crisis intervention and rehabilitation centre, crime against
women cells, strict enforcement of poverty eradication programmes, enhanced opportunity
for education of girls, proactive measures with enforcement machinery with participation of
NGO’s and

4.Action at social level such as encouraging NGO’s to generate public opinion on law
enforcement agencies self help group of women ,organizing gender awareness week etc41.

The statistical data that the total crime against women has marginally declined from 2.76
percent in 1999 to 2.56 percent in 200342.

4.CEDAW AND ARTICLE 253 OF THE INDIAN CONSTITUTION

Article 253 of the Indian constitution deals with the legislation giving effect to international
conventions. In this , we would be analyzing exclusively on the legislations enacted by the
Government of India giving effect to CEDAW.

1.THE PROTECTION OF WOMEN FROM DOMSTIC VIOLENCE ACT,200543

This act is to protect women from domestic violence .It protects women living in house hold
has wife, sisters, widow and mothers .According to this act abuse includes actual abuse or
threat to abuse whether physical, sexual ,verbal ,emotional or economic44.

41
http://www.un.org/womenwatch/daw/cedaw/reports.htm last visited 11 march 2017
42
http://ncrb.nic.in/ last visited 11 march 2017
43
http://www.un.org/womenwatch/daw/cedaw/reports.htm last visited 11 march 2017

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This was to fulfil the objective set in Article 6 of the convention.

2.SEXUAL HARASSMENT OF WOMEN AT WORK PLACE(PREVENTION

,PROHIBITION AND REDRESSAL) ACT, 201345

This act provides protection to women against sexual harassment both in public and private
institutions.

This was to fulfil the objective set in Article 6 of the convention.

3.THE MARRIAGE LAWS (AMENDMENT) BILL, 201046

This bill is to amend the Hindu marriage Act,1955 and Special marriage Act,1954.This
ensures the equality of women in marriage and family relations which was set as an objective
in Article 16 of the convention.

4.THE MATERNITY BENEFIT ACT ,1961(AMENDED IN 1995)47

According to this Act, Section 8 provides to every women a medical bonus during maternity
from the employer .Recently an amendment bill was introduced in the Rajya sabha in
2016.This is to give effect to objective set in Article 4 of the convention.

5.THE PROTECTION OF HUMAN RIGHTS ACT,1993(AMENDED IN 2006)48

This will ensure the women from enjoying their human rights equal to men which was said as
an objective in Article 3 of the convention.

6.JUVINILE JUSTICE (CARE AND PROTECTION ) ACT,200649

This Act provides for the recovery,care,protection and rehablitation of girls which was said as
an objective in Article 2(c) of the convention.

44
ibid
45
ibid
46
ibid
47
ibid
48
ibid
49
ibid

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7.JUVINILE JUSTICE(CARE AND PROTECTION)RULES,200750

These rules were framed for the effective functioning of the authorities based on the aforesaid
Act.

8.THE PRE-NATAL DIAGNOSTIC TECHNIQUES(REGULATION AND PREVENTION

OF MISUSE)ACT,199451

It prohibits sex selection and prevent female foeticide. This is to ensure the human rights,
equality and to prevent exploitation.

9.PROHIBITION OF CHILD MARRIAGE ACT,200652

10.PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,201253

11.PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES,201254

12.COMMISION FOR PROTECTION OF CHILD RIGHTS ACT,2005(AMENDED IN

2006)55

13.IMMORAL TRAFFIC (PREVENTION)AMENDMENT BILL,200656

This act penalises the trafficking and exploitation of women by prostitution which was set as
an objective in Article 6 of the convention.

14.LEGAL SERVICES AUTHORITIES ACT,1987(AMENDED IN 2002)57

This act provides for the free legal aid to women . this to ensure the rule of law which was set
as an objective in Article 15 of the convention.

15.NATIONAL FOOD SECURITY ACT,201358

50
ibid
51
ibid
52
ibid
53
ibid
54
ibid
55
ibid
56
ibid
57
ibid
58
ibid

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This Act was to ensure the availability of food to the people living below poverty line. This
Act makes the women as the head of the household which was to ensure the family benefits
and to enjoy the adequate living conditions which was an objective in article in Article13, 14
of the convention.

16.CRIMINAL LAW AMENDMENT ACT,201359

Offences like acid attack, stalking ,naked parading are incorporated into IPC. Definition of
rape was changed and capital punishment were made for the sexual assault crimes.

17.MANUAL SCAVENGING ACT,201360

This prevents the employment of manual scavengers and provides for Rehabilitation .This to
ensure Human rights , equality, and to prevent exploitation.

18.86TH CONSTITUTIONAL AMENDMENT ACT,200261

This added Article 21A and 51A(k) to the constitution which made the free and compulsory
education as a fundamental right for the children between 6 and 14 years of age.which was
an objective in article 10 of the convention.

19.EXTENTION TO THE SCHEDULED AREAS ACT,199662

This act is to ensure the effective participation of tribal women in the process of planning and
decision making.

20.INFORMATION TECHNOLOGY ACT,200063

This act encodes that pornography as an offence.

21.CITIZENSHIP ACT,195564

59
ibid
60
ibid
61
ibid
62
ibid
63
ibid
64
ibid

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The discriminatory provision was removed and the amendment to this act allows the child
born to Indian women to get the Indian citizenship. It was an objective in Article 9 of the
convention.

22.RIGHT OF CHILDREN TO FREE AND COMPULSARY EDUCATION ACT,2009 65

5.CONCLUSION

Thus from the analysis of the legislations made by the Government of India have fulfilled the
each and every objective set by CEDAW. But the CEDAW committee in 2014 has
recommended some more areas which should be reformed by the government of India . They
are Sign and ratify the Optional Protocol to the Convention on the Elimination of All Forms
of Discrimination against Women;

Withdraw the declarations and reservation to the Convention, or amend the declarations in
such a way that they are compatible with the object and purpose of the Convention;

Remove the exception on marital rape from the definition of rape in section 375 of the Penal
Code;

Revise sections 354 and 509 of the Penal Code to correctly identify assault as a crime against
the physical and mental integrity of the woman, not a crime against her modesty;

Immediately remove from the law the provisions on the imposition of the death penalty in
breach of international human rights law and standards, including those imposing the death
penalty for sexual assault crimes;

Repeal section 377 of the Penal Code which criminalizes consensual same-sex relations;

Pending the repeal of the Armed Forces Special Powers Act, remove the requirements for
government permission to prosecute soldiers accused of crimes involving violence against
women and other human rights abuses, and grant that permission in all pending cases;

Investigate and hold to account members of armed groups and security forces having
committed crimes against women, and take all necessary measures to combat the culture of
impunity for abuses committed by security forces;

65
ibid

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Publicly disclose information about the investigation of complaints into the alleged human
rights violations by members of the armed forces;

Take measures to prevent and address the systematic discrimination of women from
marginalized groups, including gender-based violence;

Register, investigate and prosecute all crimes involving violence against women from
marginalized group66

My opinion is that the government should take these into consideration and act in an efficient
manner for the further empowerment of the women in various fields.

66
http://www.un.org/womenwatch/daw/cedaw/reports.htm last visited 11 march 2017

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