A story of celebration or dismay? Rajashri Dasgupta

1. Gender specific laws in India:
A story of celebration or dismay?
Rajashri Dasgupta

2. Status of women in India
• Women bear burden of patriarchy in son
preference 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. Indian women: harsh facts
• Declining child sex ratio over decades
• Rising incidence of violence – in family and
community
• 50,000 women die every year during child
birth & pregnancy related incidents
• Despite decadal increase in literacy by
49 %, every third woman is illiterate

4. Late ’70s: Women unite for change
• Rape and incidences of violence galvanise
contemporary women’s movement
• Autonomous, reject male leadership and male
bastion of political parties
• Articulate, educated, urban activists
• Some rooted in radical politics & protests
• Emphasize gender equity & rights as pivotal to
change, transformation of society

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. “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 of
rape stepped up 7-10 years
– In-camera rape trials
• 2003 cross-examination of victim’s sexual
history not allowed
• 2006 Sexual Assault Bill

7. New law, banning sex selection
• New reproductive technologies for sex determination
of foetus in 1980s
• Approx 50 million girls, women “missing”, in India’s
population :Unicef
• 1994 Government passes Prohibition of Sex-
Selection Act, to prevent sex selection
• 2002 Act amended to outlaw pre-conception sex
selection
• Regulation tightened, punishment more stringent;
woman no longer liable for punishment

8. PILs: justice limited
• Unethical Net en contraceptive trials; 1987 PIL on grounds
of 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 quinacrine
sterislisation (QS) of women
– 1998 Supreme Court bans QS
– does not prosecute guilty
– no health follow ups of women or compensation

9. PIL: “Your flirting is hurting”
• 1992 Bhanwari Devi raped
• PIL seeks framework to deal with sexual harassment
– Court 1997: sexual harassment at workplace violates
women’s rights under CEDAW
– recommends complaints committees by employers to
ensure conducive atmosphere
• 2010 Bill against sexual harassment
– Defines sexual harassment as infringement of women’s
fundamental right & gender equality

10. Law, reforms, PILs: reality check
• Rape: few trials, convictions lower than 5 %
• Stricter laws did not deter crime: Crimes against women
increased by 4.1% over 2008 and by 31.0% over 2005
• Child sex ratio: lowest since Independence, 914 females
to 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 un
organised sector, rural areas

11. Rape laws ineffective. Why?
• Law focus on stringent punishment
– not on plugging procedural loopholes, guidelines for
strict 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. 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. Campaign:Thinking Aloud
• Love-hate relationship with law
• Women’s issues in public discourse; political parties
cannot ignore women’s problems
• Enforcement elusive; monitoring weak
• Each law vested more power in state enforcement
machinery, stringent punishment
• Can advance for women's rights be in contrast to
progressive theories of civil rights? When basic attitude
of State remain anti-poor, to what extent can laws bring
about social justice?