Gender specific laws in India


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A story of celebration or dismay?

Rajashri Dasgupta

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Gender specific laws in India

  1. 1. Gender specific laws in India:A story of celebration or dismay?Rajashri Dasgupta
  2. 2. Status of women in India• Women bear burden of patriarchy in sonpreference society• Patriarchal norms operate through family &community with State concurrence• Vulnerable to discrimination and violence• State fails to provide minimum welfare:education, health, child & old age support
  3. 3. Indian women: harsh facts• Declining child sex ratio over decades• Rising incidence of violence – in family andcommunity• 50,000 women die every year during childbirth & pregnancy related incidents• Despite decadal increase in literacy by49 %, every third woman is illiterate
  4. 4. Late ’70s: Women unite for change• Rape and incidences of violence galvanisecontemporary women’s movement• Autonomous, reject male leadership and malebastion of political parties• Articulate, educated, urban activists• Some rooted in radical politics & protests• Emphasize gender equity & rights as pivotal tochange, transformation of society
  5. 5. Antiquated laws, judicial bias• Rape law: no amendments since 1860• Judiciary Bias:– Mathura is “habituated” to sex, must have given “consent”;– Rameeza Bee is a “prostitute”;– “How can an upper caste man touch or rape Bhanwari?”• Campaign Issues: Law reform– “Consent”, sexual history of rape victim,– Definition of rape &, marital rape,– judicial bias
  6. 6. “Golden era” of rape legislations• 1983: first revision in rape law since 1860– burden of proof in custodial rape on accused– minimum punishment for various types ofrape stepped up 7-10 years– In-camera rape trials• 2003 cross-examination of victim’s sexualhistory not allowed• 2006 Sexual Assault Bill
  7. 7. New law, banning sex selection• New reproductive technologies for sex determinationof foetus in 1980s• Approx 50 million girls, women “missing”, in India’spopulation :Unicef• 1994 Government passes Prohibition of Sex-Selection Act, to prevent sex selection• 2002 Act amended to outlaw pre-conception sexselection• Regulation tightened, punishment more stringent;woman no longer liable for punishment
  8. 8. PILs: justice limited• Unethical Net en contraceptive trials; 1987 PIL on groundsof safety & uniformed consent– Court bans Net en use in government hospitals– but private sector/ NGOs allowed use of injectables• Un authorised, illegal use of pellets for quinacrinesterislisation (QS) of women– 1998 Supreme Court bans QS– does not prosecute guilty– no health follow ups of women or compensation
  9. 9. PIL: “Your flirting is hurting”• 1992 Bhanwari Devi raped• PIL seeks framework to deal with sexual harassment– Court 1997: sexual harassment at workplace violateswomen’s rights under CEDAW– recommends complaints committees by employers toensure conducive atmosphere• 2010 Bill against sexual harassment– Defines sexual harassment as infringement of women’sfundamental right & gender equality
  10. 10. Law, reforms, PILs: reality check• Rape: few trials, convictions lower than 5 %• Stricter laws did not deter crime: Crimes against womenincreased by 4.1% over 2008 and by 31.0% over 2005• Child sex ratio: lowest since Independence, 914 femalesto every 1,000 males ( 2011), technology goes“underground”• Quinacrine sterilisation goes “underground”• Drug trials: absence of patient rights, weak monitoring-regulation• Sexual harassment : No Complaints Committee in unorganised sector, rural areas
  11. 11. Rape laws ineffective. Why?• Law focus on stringent punishment– not on plugging procedural loopholes, guidelines forstrict implementation, adequate compensation for victim,timely trials• Strict punishment deters conviction• Onus of proof on accused• Strict laws give more power to police; tardy investigation,forensic evidence• Trials - cumbersome, lengthy, lacks monitoring
  12. 12. PIL: experience• Sporadic; focus of campaigns on law reforms• Personal laws: “beyond realm of Court”• Risk factors: depends on judge’s orientation– activists lose control over case– depends on Court “experts” and expertise– High Courts, Supreme Court “remote” for activists– campaigns weakened, shifts energy to court– used as last resort
  13. 13. Campaign:Thinking Aloud• Love-hate relationship with law• Women’s issues in public discourse; political partiescannot ignore women’s problems• Enforcement elusive; monitoring weak• Each law vested more power in state enforcementmachinery, stringent punishment• Can advance for womens rights be in contrast toprogressive theories of civil rights? When basic attitudeof State remain anti-poor, to what extent can laws bringabout social justice?