A top United Nations (UN) official has come down heavily on India’s National Commission for Women (NCW), saying that its legal basis “is not in accordance with international standards”, and has suggested that it has been soft in dealing with cases of victims of communal violence in India, Pointing out that “the institution lacks foundational, functional, operational, political and financial independence”, the official, Rashida Manjoo, UN special rapporteur on violence against women, its causes and consequences, has said, “The commission is generally unable to adapt to the evolving and transformative demands of the human rights of women.”
Manjoo recently submitted to the UN. “According to section 3 of the National Commission for Women Act, 1990, the commission’s composition is determined by the Central government”, she said, adding, “A number of allegations highlighted the commission’s inability to deal with complaints effectively and undertake independent investigations into violations of women’s rights.” Thus, the commission failed to “address the causes and consequences of violence against women, including, for example, by finding that no particular religious group was targeted during the 2002 Gujarat massacre.”
Manjoo conducted an official visit to that country from April 22 to May 1, 2013 and held consultations were held with officials of the Ministry of Women and Child Development, the Ministry of Home Affairs, the Ministry of Health and Family Welfare, the Ministry of Labour and Employment, the Ministry of External Affairs and the Delhi Police, apart from meeting the chief secretaries and State officials in Rajasthan, Gujarat and Manipur.
Referring to the failure of the NCW to look into recommendations of the UN Committee on Elimination of Discrimination against Women under the Office of the High Commissioner of for Human Rights (click HERE), which in 2010 prepared “an exceptional report by India concerning the impact of the Gujarat massacres on women”, the special rapporteur said, “The recommendations of the committee have not been fully addressed as yet”. Worse, no effort was made to enact “the draft Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill” which “has been pending in Parliament for over eight years, despite the necessity for such a law.”
In fact, the top UN official said, the NCW has gone so far as to “consistently justifying sexual assault on women as a result of provocative dressing”. Worse, it has been unable, over many years, “to promote much needed law reform.” Worse, it has been denying “reports of sexual violence by security forces, including in regions governed by the Armed Forces (Special Powers) Acts.”
In its recommendations, submitted the UN, Manjoo wanted India to “harmonize the framework of the National Commission for Women Act, 1990, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), to ensure independence, transparency and accountability.”
In particular, she said, there is a need to “amend the Act to ensure a system for the nomination and selection of the commission’s members and chairperson that is transparent, democratic and non-partisan.” In fact, the Act should “apply an eligibility criteria for membership with clear requirements regarding expertise and professional experience on women’s issues; prohibit members of Parliament or state legislatures or persons connected with political parties from being appointed; apply the same selection principles as regards staff; and allow the commission more autonomy in appointing its own personnel; (ii) Further ensure that the Commission is empowered to undertake independent investigation into alleged violations of women’s rights.”
Pointing towards the need to “undertake a comprehensive qualitative review of the performance of the Commission, in particular with regard to its achievements in addressing violence against women and systemic, gender-related social, economic and legal issues pertaining to women, including accountability for crimes against women”, the UN official insisted on the need to take “appropriate measures to address the situation of irregular and domestic migrant women, including women refugees and asylum seekers.”
Calling NCW a “crucial national human rights institution” for “promoting and monitoring the effective implementation of legislation and the State’s obligations under both national and international law”, the UN official said, “The National Commission for Women has the specific mandate to review constitutional and legal safeguards for women, recommend remedial legislative measures, facilitate redress of grievances, including on violence against women, and advise the Government on all policy matters affecting women.” But it is unable to do all this because it does not have necessary power to do.
Manjoo also recommends that the Criminal Law (Amendment) Act, 2013 should be changed. It should in particular “review the provisions that provide for the death penalty in section 376A; include a definition of marital rape as a criminal offence; expand the scope of protection of the law and include other categories of women, including unmarried women, lesbian, transgender and intersex women, religious minorities and underage citizens; and define gang rape as multiple crimes requiring appropriate punishment.”
Strongly favouring the need to repeal section 377 of the Penal Code, “which criminalizes consensual same-sex behavior”, Manjoo insists on reviewing “the Immoral Traffic (Prevention) Act, 1956 that de facto criminalizes sex work and ensure that measures to address trafficking in persons do not overshadow the need for effective measures to protect the human rights of sex workers.” At the same time, she asks India to “repeal, as a matter of urgency, the Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act and ensure that criminal prosecution of members of the Armed Forces is free from legal barriers.”
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