Article 21 of the Indian Constitution guarantees every individual the right to live with freedom and dignity. But in India, there is gender biasness when it comes to the implementation of right to live with dignity in case of women. The women in India face enormous hardships when it comes to education and removing cultural biasness.
Implementation of Right to Equality becomes inapplicable when it comes to the exercise of certain rights by the women. Violence against women has gathered considerable attention in recent years with increasing intervention of the court in reforming public policy and debates on urgent legal reforms. This paper combines the narrative theory of violence against women and the failure of Indian Legal system in providing security and justice. This paper also emphasises on the delayed and denied legal system and how increased representation in the public decision making bodies can help in the improvement of the deteriorating conditions of women.
Initially the scope of domestic violence was only limited to married couples but now court has extended its jurisdiction to couples in live in relationship as well as consanguinities. Recent cases have evidentially proved that women are not only subjected to domestic violence but also rape, sexual assault, abuse and murder. There are very few crimes against women that are reported, fewer among them are prosecuted and the negligent numbers of the accused are actually punished.
Key words: violence, women, gender biasness and Indian Legal System
India is a country of various customs, traditions and practices which is both a boom and curse to the society. Women in India have undergone violence as well as discriminatory practices done by the society. The customs of this country worships women as ‘Devi’, i.e. female Goddess giving importance to the mothers, daughters and sisters but at the same time Indians have been treating the women in the worst possible condition in the society. Certain practices like child marriage, Sati Pratha, female genital mutilation has not only deprived her independent identity, dignity and pride but has also subjected her to cruelty even by her saviours. The current position of women cannot be analysed without looking at her position in the historic times.
The ancient Indian society suggests that women held a significant position and power in destroying kingdoms and mighty rulers. For example Elango Adigal’s Sillapathigram mentioned that Madurai, the capital of Pandaya was burnt, when Pandayan ruler Nedum Chezhiyan killed a woman’s husband by mistake. The Mahabharta narrated by Veda Vyasa depicts the story of fall of the kingdom of Kauravas because they humiliated Draupadi. Even Harrappan civilisation gives traces of respect and worship of mother goddess. There have been instances of women selecting their husbands in the processes of swayambara in which the grooms assembled in the bride’s house and the bride selected her rightful spouse.
With the elapse of time the position of women experienced a great down fall in all the spheres of life. In the Vedic era women lost their political rights and became more vulnerable to society’s abuse. The Atharva Veda considered women as a source of misery. The status of women at historical times is clearly visible in extracts from Ramcharitamanas of Tulsidas like ‘Dhol, Gauwnaar, Shudra, PashuaurNari; Sakal Tadan ka Adhikari’, which means that drums, uncivilised illiterates, lower caste, animal and women are all fit to be beaten.
III. Meaning of violence
The term violence means use of one’s physical force to abuse, destroy or damage the physical as well as the mental health of another person. The World Health Organisation divides violence into 3 main categories. Self-directed violence means self-abuse or harming oneself. Collective violence means when the violence is done by a large group of society like the State or the political group and the last one is interpersonal violence where the violence is done by another individual or a small group of individuals.
Violence against women
Violence against women is an activity which leads to physical and mental suffering of women whether in public or in private. It particularly consists of domestic violence, sexual violence, female human trafficking and female genital mutilation.
a. Domestic violence is any act of abuse which is physical or psychological in nature, which a women suffers by a person connected to her by marriage, family relation or acquaintanceship. In a country like India, women are called ‘Ardhanginis’, which means half of the body but in reality such concept can only be seen in literature and has never been implemented in practical life. Almost three in every five women are subjected to domestic violence and are killed by their partners or family.
Domestic violence can be physical (assaulting, hitting, slapping, shooting, stabbing and killing), verbal (abusing, criticizing), sexual (forceful intimidation, having unsafe sex) and economical (limiting financial freedom and security). Dowry is one of the vital reasons for domestic violence. In 2016, Indian National Crime Record Bureau recorded 7621 dowry death cases across the India. Honour killing is also a part of domestic violence. It is commonly seen in places like Haryana, Bihar, UP, Madhya Pradesh, Punjab and Himachal Pradesh. In 2010, the Supreme Court of India issued a notice to provide the valid explanations of this high rate of honour killing in such States. In September, 2018 Deeba Farheen accused 7 people for cruelty for the demand of dowry, one of which was her husband and others were related to him.
Majority of the Indian society is a patriarchal society, where men hold a higher stature than a woman. Women are considered as the caretaker of the house and are confined within the premises of the house. The dependency of women on her husband and other family members result in the fear of rejection from the society if she raises her voice against such intolerance.
b. Sexual violence is any sexual act or any unwanted sexual comment directed against a person by use of force or by any person regardless of the will or any relation to the victim. Such violence can be verbal, mental or physical in nature. It includes violence such as rape, marital rape, sexual harassment or abuse. In the case of Vishaka v. State of Rajasthan, the victim was sexually harassed at her work place by her co employees.
Rape includes any penetration of any object without the consent of another person or manipulating the body parts in such a way that it leads to penetration. Justice Krishna Iyer in the case of Rafiq v. State of U.P made a remark that, ‘A murderer kills the body, but a rapist kills the soul’. Banwari Devi a woman who tried to raise her voice against child marriage was brutally gang raped by 5 men in 1992. The scariest part about this heinous crime was to teach her a lesson for being an obstacle between the norms and the people of the society.
Marital rape means coercive intercourse without the consent of the spouse, consent being an essential element. In India, marital rape is not considered as a crime because in India marriage is sacred and criminalizing such can lead to chaos or destabilization in society. Also, it is not criminalized because of the high number of fraudulent cases filed against husbands. Proving rape by spouse is more difficult as the consent is difficult to establish which becomes easier in case of strangers.
c. Sexual harassment or abuse includes penetration, inappropriate touching, passing unfair comments, and unwanted physical contacts or any kind of sexual advances and stalking. Sexual harassment in the modern legal context is illegal. Mere simple teasing, offhand comments or minor isolated incidents are not considered as sexual harassment. At work place the harassment by an employer is a form of illegal employment discrimination. From the Vishaka case that was held in 1997, the Supreme Court clearly stated what constitutes sexual harassment.
d. Female human trafficking is a global as well as domestic human right issue which is defined as an illegal economic trading of women and girls through coercion, force and fraud for the purpose of labour, modern slavery and commercial sex. Traffickers lure, manipulate and control female individuals by using coercive mean. According to UN, trafficking is a hidden figure of crime as there are many cases which often go undetected and internationally it was estimated that 20-40 million people are in modern slavery till today’s date.
India is the source country as well as amongst the top ranking Countries in cases related to human trafficking, sex trafficking and forced or bonded labour. Based on the report published by Government of India, there are approximately 10 million sex workers in India, among which 3 lakhs to 5 lakhs are the women or girls who are under 18 years of age and are subjected to sex trade. Such a high extent of the trafficking within the country is itself a shocking phenomenon..
e. Female genital mutilation- In India female genital mutilation is also called ‘khatna’ which is practised by some of the Islamic groups in which a girl general 6-7 years old is involved and there is a partial or total removal of the clitoral hood. As quoted by Harinder baweja, editor of special reports:
“Imagine being taken to a room in a dark decrepit building. Imagine being pinned down on the floor. Imagine your underwear being taken off. Imagine seeing a knife being heated. Imagine the same hot knife slicing your clitoris. Imagine young girls shrieking in pain.”
This is what constitutes female genital mutilation. It is cutting or removal of the female external genital organs for non-medical purpose. This cruel practise takes place with every young girl of 6-7 years of age and they are regularly being cut in India. This practise is commonly found among the Dawoodi Bohra community and such practises are being carried out by the traditional circumcisers in unhygienic conditions. These communities are majorly settles in states like Madhya Pradesh, Gujarat, Rajasthan and Maharashtra.
The common problems faced by the victims are severe pain, excessive bleeding, infection, difficulty in urination and ulceration. This is done with a belief that such act will help the women lead a life of chastity and ensures the virginity of the women. Such violence has a serious effect on the health of women and traumatizes their life forever.
IV. Causes of violence against women
Women in India have been subjected to various types of violence for a long period of time. Such has led to the lack of awareness against them. Over 32000 murders, 19000 rapes, 7500 dowry deaths and 36500 molestation cases are reported in India against women. The main causes of violence against women are social cause and orthodox thought.
The other causes includes gender norms, patriarchal system in most part of Indian society, lack of education, lack of support system, limitations in private life of a women, too much exposure to violence and men controlling decision making.
Research and studies show that there are various reasons of violence against women in India, every person has different behavioural patterns and similar is the case in women too. The behaviour patterns developed in early child hood is very difficult is identify in early stage. The disintegration of family system and lack of parental control is the reasons for exposure of women to such violence.
The poverty and the poor economic condition is a contributing factor of increasing violence against women which results into large scale crimes against women. The children who have experienced sexual assault or any other kind of unwanted physical assault in their early childhood may develop some kind of repulsive behaviour in their mind in the growing stage of life. Past history of violence, intoxication, a person exposed to abuse from childhood, low employment levels for women, dissatisfaction in marriage has also resulted in the cause of violence against women.
Laws enacted to protect
a. The Indian Legislature has made several laws for the protection of rights granted to women. The Constitution of India under Article 14 provides that the State shall not deny any person equality before law and shall grant equal protection of law within the territory of the country. Article 15 of the Constitution prohibits the discrimination on the basis of religion, race, caste, sex or place of birth. It also gives a proviso that nothing in this Article shall prohibit the State from implementing any special provisions for woman and children. The Supreme Court upheld the service rule that 30% of the job posts preferred women in recruitment to the office of public employees.
In the case of A.P. v. P.B. Vijayakumar, and further stated:
“To say that under Article 15(3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provision for women in respect of employments or posts under the state is an integral part of Article 15(3).”
The Constitution grants equality to women empowering the state to adopt measures of positive discrimination in favour of women by providing special benefits in matters of employment to level their social stature and backwardness which arose due to years of discrimination. Article 21 of the Constitution states that no individual can be deprive of the right to live with personal liberty. The Supreme Court in the case of Maneka Gandhi V. Union of India held that right to life includes right to live with dignity and is a vital part of the Article 21.
b. Some of the most important changes brought up in the Indian legal system includes passing of stricter laws relating to sexual assault, formation of fast track courts to provide quicker remedy to the victims in rape cases, the landmark decision of decriminalising homosexual relationships under section 377 provided a huge relief to the LGBT communities. Recently four states – Rajasthan, Jammu and Kashmir, Haryana and Arunachal Pradesh – have introduced the death penalty for rapes of minors, defined as below 12 years of age.
c. In case of Visakha V. State of Rajasthan, the Supreme Court declared “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose”.
This has led to the enactment of Sexual Harassment of Women at Workplace (Prevention, Redressal and Prohibition) Act, 2013.
Despite of all these provisions, the actual position of women in the Indian society is very downhearted. The dignity of women is dependent on the position of the husband in the society. She is ill-treated by her family and is disregarded in every spheres of the society, the reasons being improper implementation of laws by mechanism of the State.
d. In 2008, the traumatizing event in Nirbhaya rape case was an awakening for the whole of India. In this case a girl was brutally raped and thrown out of the bus in the Capital City which raised a series of question regarding the safety and security of mothers and daughters of this Country. This case led to the amendments in the Juvenile Justice Act, 2012, which led to the change of definition of minor, stating that minors of 16 years of age involved in any heinous crimes will be punished in the same way as an adult.
Despite of such amendments, the same atrocious event continued to happen in the year 2019 in case of Priyanka Reddy and Unnao Rape case in which the girls were brutally gang raped and subjected to violence which led to their death. Re-occurrence of such events led to the outrageous chaos in the society, raising serious questions on the judicial system in bringing fear among the people for such crimes. Enactment of certain Acts and Laws are not putting a stop to such outrageous activities. According to NCRB reports 2017, 415786 rape cases were reported across India between 2001 and 2017, which we can say on an average 67 women were raped everyday across the country during this 17 years period.
e. The Indian Penal Code, 1860 provides various provisions for the protection of rights guaranteed to the women. Provisions such as Sections 302, 304B and 306 which deals with Murder, Dowry death, Abetment of Suicide; Sections 326A and 326B which deals with acid attack; Section 354 which deals with Outraging the modesty of women; ; Section 354A which deals with Sexual harassment; Section 354B which deals with Assault on women with intent to disrobe a woman; Section 354C which deals with Voyeurism; Section 354D which deals with Stalking; Sections 363–373 which deals with Kidnapping and abduction for different purposes; Sections 375, 376, 376A, 376B, 376C, 376D and 376E which deals with rape; Section 376/511 which deals with attempt to commit rape; Section 498A which deals with cruelty by husband and relatives; and Section 509 which deals with Word, gesture or act intended to insult the modesty of a woman.
The Indian Penal Code is not exhaustive. It does not cover all the violence that is faced by the women. It does not take into account the day to day violence in the household. It is not applicable for the unmarried widow or banishing her from her natal family. It provides protection only at the time of grievous hurt and is not applied in case when the hurt is simple and not that grievous. Thus Indian Penal Code has not seemed to have served its purpose.
f. The Indian Evidence Act, 1872 holds the husband responsible for abetting the death of his wife if she commits the suicide within the period of 7 years of her marriage (section 113-A). It also states that if such woman has been subjected to the cruelty before her suicide then it will be considered as the dowry death (section 113-B).
g. The Domestic Violence Act, 2005 ensures the protection of wife, a female live in partner or a woman living in a household like a mother or a sister from domestic violence. If a woman is subjected to cruelty by her husband or any of his relative, they shall be punished under section 498 of this Act.
h. The Criminal Procedure Code, 1973 states that the woman who has been raped has the right to record a statement before the District magistrate without any trial. She can also record her statement before any police station under the provisions of zero FIR and no police station can deny to register the complaint. Section 51(2) states that a women can be arrested or searched only by another women, Section 53(2) ensures that the medical examination of the women can be done by only female practitioner and Section 43(4) forbids the arrest of any women after a sunset.
In our society it is believed that the men are the bread winners of the family and the male member is only entitled to make any kind of decision on the matters related to the family. Maximum of the decisions taken by women depends upon the consent of her husband. The Indian law recognises a woman by the name of her father or her husband but that is not the same in case of men thus showcasing the patriarchy in the Indian society. The controlled and objected freedom of women leads to falling of self-esteem and confidence which makes her dependent upon her male partner for every bits of her life. A psychological problems suffered by a women that includes stress, lack of sleep, weight loss or gain or other clinical symptoms are a result of continuous exposure to violence. The working woman undergoes various types of exploitations and problems which are not subjected to a household woman. In the unorganised sector, she is considered as a weakest link in the labour and is underpaid for her contribution. A girl who has been sexually abused as a child is more likely to be arrested for sex crimes than a girl who has not been abused.
Even the disabled girl suffers sexual violence and it is a greater challenge for them to avoid such abuses. ‘Kanchana’ a 19 years old disabled girl of a village in West Bengal was raped multiple times by the people of same locality. She was ignorant about the fact that such rape can be reported and it was only discovered when she was 5 months pregnant. Her disability made it difficult for the police and the society to understand her condition.
Dr. B.R. Ambedkar, the father of Indian Constitution guaranteed rights such as equality before law, equal protection of law, abolition of untouchability, right against exploitation, promoting equal pay for equal work. Despite of having such rights, these are not implemented in the manner they must have been which results in crime and violence in the society. While discrimination against women have been prohibits no such provisions shall prohibit the State from making any law for the well-being of the society as a whole. The legislation has formed a series of laws which have been enacted to the benefit of the women but still the society has been rigid in accepting and implementing these changes.
The Indian judiciary has been subjected to serious criticism when it comes to giving justice guaranteed to a woman. The delay in giving judgments in cases of heinous crimes has lifted the trust of the citizens from the court. The recent judgment in Nirbhaya case which took place in 2012 has been criticized for delay of 2593 days in giving justice to ‘NIRBHAYA’. It is an urgent need for the courts to take up such matters as serious in nature and form fast track courts to gain back the confidence of the women of the society upon the judicial system.
In the biggest democracy of the world, the basic right of the women i.e. security cannot be guaranteed to them. The rule of law has turned out to be the loophole of law when it comes to the protection of rights guaranteed to women. The most debated point related to the judicial system is that it is stuck to the colonial laws and has not adapted to the changing society. India has been suffering from a failing judicial system, lack of will of the legislation to work and overburdened police system which is reluctant enough to even register an FIR.
Even the politicians are reluctant to discuss matters that are related to women safety. There have been some unfair and filthy comments that have been passed by the politicians like “The girl should not have gone out at 12 in the night. Why was she driving so late in the night? The atmosphere is not right. We need to take care of ourselves”; “if the limit of morality is crossed by women, such cases will happen”; “ladke ladke hai, galti ho hi jati hai”
Even after 70 years of independence, the Indian women are still holding the same place when it comes to exercise of power. Certain factors or indicators have proven the vulnerability of women in all sectors of the society. Women subjected to sexual abuse and violence is more likely to be depressed that not only impacts their well-being but also their participation in the society and quality of life.
Women undergoing such violence experience more risk of unwanted pregnancy, infant mortality, sexually transmitted diseases, HIV which can have short as well as long term impact on their physical and mental health. The harmful customs compromises the health of the women and increases the inequalities within the genders must be done with, so that the policies and programmes supporting the well-being of the women can have a better impact upon the society leading its way to brighter future.
Women should be considered the most valuable economic resource in such a vast population that shall help to increase the productivity in the goods and service market. The women constitutes half the population of the society and therefore no society can be free, fair and just without the equal participation of the women providing opportunities for utilising their fuller potentials. The schools, institutes and colleges needs to play an active role so as to bring the most awaited change in the society.
Society needs more women like Sarojini Naidu, Mary Kom, Geeta Phogat, who fight their way out of the odds of this male dominating society. Female activists in recent past have united over issues such as gender biasness, literacy, women safety, custodial rapes and many more such issues. Woman in India now participate in many fields like politics, sports, culture, science and technology and education. India adopted a female prime minister as the head of the state much before any western country. Indira Gandhi served for a period of 15 years as the Prime Minister which makes her World’s longest serving women Prime Minister. The self-help groups and NGO’s have been playing a major role in the development of women rights. For example in the Narmada Bachao Andolan, the environmental activists Medha Patkar played a vital role and emerged as their leader. The National Policy for the empowerment of women was passed in 2001 declaring the year as the year of ‘Swashakti’.
In Sabarimala Temple case, the bench of 5 Judges removed the ban that prevented women of 10-50 years of age from entering the temple as it was considered that this period was the menstruating age of the women. On September 2018, the Supreme Court held that “any exception placed on women because of biological differences violated the constitution”. Such laws are required that puts a full stop to such biasness and discrimination and these laws needs to be accepted by the society. As we all know that laws and society goes parallel to each other. Any law can only be implemented if it is accepted by the society. So in order to make India a better place for women, both the society and the Legislature will have to work together and create an environment which is safe for her today as well as in future.
Dr. Surendra Sahai Srivastava (rev.), Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA, 54th ed. 2017, p. 260.
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Author Details: Muskan Jain and Manpreet Singh Sabarwal (Amity University)
The views of the Author are personal only.