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The 'second' sex ,Why laws to protect women's rights still remain unaddressed in India

No country for women

The national discourse since the December 2012 gang rape incident has largely been appreciative of the institutional response to the rape and welcomed the process of legal reform that it set in motion. But have empowering laws changed the ground reality for women?

Thanks to the documentary India’s Daughter by British film-maker Leslee Udwin, the subject of sexual violence and attitudes towards women in India is back in the national headlines. Over two years ago, when the rape of a 23-year-old paramedical student in Delhi on December 16, 2012, shook the nation’s conscience, the Union government set up a committee to amend criminal laws pertaining to sexual violence in India.
Some of the recommendations made by the committee led by Justice J.S. Verma were incorporated and stricter laws were put in place, expanding the scope of what constitutes sexual violence in India and the punishment for it. The national discourse since has largely been appreciative of the institutional response to the 2012 rape and welcomed the process of legal reform that it set in motion. But have empowering laws changed the ground reality for women, who remain vulnerable to abuse?
One of the several reasons for the outrage against the perpetrators in the 2012 case is because she was violated by strangers. However, if statistics are anything to go by, women in India are vulnerable to violence at the hands of their own family members. According to the National Crime Records Bureau (NCRB), for example, incest rape cases have increased by 36.7 per cent from 392 cases in 2012 to 536 cases in 2013. Of these, 20.1 per cent were registered in Maharashtra (108 of 536 cases), wherein 117 cases of rape by blood relatives were reported.
Flavia Agnes, women’s rights lawyer based in Mumbai, said that in several cases of incest, the complainant withdrew the case under pressure from family members or witnesses would turn hostile under pressure. She cited the rare case of an 18-year-old Mumbai girl had deposed in court against her father for sexually abusing her and her elder sister. But the man was not punished, as the case had been registered under the POCSO Act and the girl was deemed not minor at the time of the incident. Relying on the school certificate, the police had recorded her age at the time of the incident as 17 years and nine months.
But her mother had produced a birth certificate from Bihar according to which she was a major on the date of the incident, as her age was 18 years and two months. The prosecution could not prove that this was a concocted document, with the result that her father got only two years’ imprisonment for molesting the elder daughter, and after he appealed in the higher court, the sentence against him was stayed. “Now the father who abused his daughters is at home, while the girl who dared to depose in court is in a college hostel paid for by the court,” Ms. Agnes said.
Marital rape
Another area that remains unaddressed is that of marital rape. The colonial-era Indian law still permits marital rape, by providing an exception to spouses from being charged of committing rape under Sections 375 and 376 of the Indian Penal Code. Though the Verma committee report recommended that this provision be repealed, no action has been initiated. In February 2015, a marital rape victim in Delhi approached the Supreme Court challenging the constitutional validity of the exception clause. Her petition, filed by Human Rights Law Network, was rejected and withdrawn. The victim, who had medical records to prove the abuse, said both the police and lawyers were encouraging her to file for a divorce, but she wanted him to be punished. “What is the guarantee that he won’t marry again and abuse that woman too?” the victim asked.

Law is merely an instrumentality of justice, to deliver it remains in the hands of those vested with the responsibility of implementing them — the police, the courts and the lawyers.
An activist, associated with Vimochana in Bangalore, who has worked with battered women for nearly 35 years now, said (requesting anonymity) that most women hesitated to share details of sexual violence at home. This resulted in many women not coming forward to complain despite there being a provision in the Domestic Violence Act, 2005, to report sexual abuse. Most of the time they had to be persuaded by the NGO to share their stories so that help could be offered to them, she said.
An important question then arises whether the police are approachable enough for women to access justice. Jasmeen Patheja, who runs the Blank Noise project based in Bangalore, said in the past 12 years of her work, she had noticed that there was a lack of trust between the police and the public, which resulted in several incidents of violence against women going unreported.
Neha Dixit, an independent journalist, who won the Kurt Schork Awards in International Journalism for researching and writing on the subject of gender-based violence, said that in most of the cases she had researched, she found the police and the judiciary being insensitive towards victims of violence. In the case of Gudiya, a five-year-old girl who was raped in Delhi, the Station House Officer of Gandhi Nagar police station had refused to file an FIR when her father reported her as missing, she said.
Ms. Dixit narrated the story of a Dalit gang-rape victim in Sonepat, who was charged with perjury after influential upper-caste persons in her town moved the court for filing a police complaint against her perpetrators in April 2013. “The victim in this case has not been able to fight the rape case under pressure from the khap panchayat. This shows us how demanding justice alone is not enough, nor are enabling laws. The lack of focus on rehabilitative measures to help victims fight cases is a lacuna that needs to be addressed,” she said.
As Preetika Mathur, one of the members of the team of legal researchers that assisted the Justice Verma Committee with the preparation of its report, says: “Despite the outrage over rape in India, several legislative aspects of the Verma committee recommendations such as criminalising marital rape have been ignored. Support services for survivors of sexual violence are lacking and the issue of police reforms has also been ignored though it is crucial for delivering justice for women. The lack of political will in initiating action on this is deeply worrying.”

The elusive quest for freedom

While the rates of sexual violence in India — both reported in official statistics and unreported on the basis of household surveys — are towards the lower end of the global spectrum, data on women’s autonomy in India indicate that there is a hidden emergency

Having opened up a fresh conversation about the situation of women since the December 16, 2012 gang rape, has India done enough to address the roots of the hostile atmosphere it has created for women? While the rates of sexual violence in India — both reported in official statistics and unreported on the basis of household surveys — are towards the lower end of the global spectrum, data on women’s autonomy in India indicate that there is a hidden emergency.
Women’s freedom and autonomy is less well studied than crime rates, but some studies offer an insight. Through its nationwide large-sample India Human Development Survey (IHDS), the National Council for Applied Economic Research (NCAER) sheds light on the lack of women’s financial independence. The 2011-12 round of the IHDS found that less than 20 per cent of women had their names on their house’s papers, just half had their names on a bank account and just 10 per cent could take primary purchase decisions for the house.
A U.N. Women-Landesa study in Andhra Pradesh, Bihar and Madhya Pradesh found that just one in 10 women whose parents owned agricultural land inherited any, nearly 10 years after the Hindu Succession Act was amended to give sons and daughter equal inheritance rights. The majority of men interviewed for the study said that they were opposed to their sisters or daughters inheriting land.
The IHDS was able to capture the severe constraints put on women’s movement and autonomy. Sixty per cent of women respondents, both Hindu and Muslim, said they practised some form of purdah or ghunghat; this proportion rose to 96 per cent in Rajasthan and 91 per cent in Bihar and was the lowest at six per cent in Tamil Nadu. Eighty-one per cent of women said that they needed permission to go to a health centre, and one-third said that they were not permitted to go to a health centre alone. These numbers had not improved since 2004-05, when the first round of the IHDS was conducted.
Less than 20 per cent of women knew their husbands before they got married, and 40 per cent said that they had no say in their own marriage. Dowry, or bride price, was still rampant, and families paid an average of Rs. 30,000 in cash, in addition to 40 per cent giving expensive gifts such as cars and two-wheelers.
India has among the world’s lowest levels of female labour force participation — the proportion of working-age women who are either working or looking for work. Of 131 countries, India ranked 11th from the bottom in terms of women’s workforce participation in 2010, with Pakistan and Afghanistan among the countries doing worst, say data analysed by Steven Kapsos, an economist with the Employment Trends Unit of the International Labour Organisation. Between 2004-05 and 2009-10, labour force participation rates declined sharply and rose only slightly again in 2011-12; according to the latest numbers, less then 25 per cent of rural women and 15 per cent of urban women were in the workforce.
Mr. Kapsos and his colleague Andrea Silberman say the decline in women’s employment in India is for the most part explained by “occupational segregation” — the concentration of women in certain sectors of the economy. They say women are under-represented in the booming sectors of the economy and over-represented in those that are not adding many jobs. In eight of the 10 sectors that added the most jobs over the past 15 years, they found that women’s share of this employment growth was less than a third. In the other two — teaching and crafts — it was higher, but still less than half.
If political decisions on women’s autonomy are to be taken, they will be taken by a deeply male political establishment. The 16th Lok Sabha has the largest ever number of women MPs, but at 62, they still form just 11 per cent of the Lok Sabha MPs. Eight of the 66 Ministers in the Narendra Modi-led government are women, and women Ministers make up 23 per cent of the Cabinet.
Despite large increases in women’s share of the electorate and of voters over the past 50 years documented by economists Mudit Kapoor and Shamika Ravi of the Indian School of Business, Hyderabad, women’s political representation in the States remains low; less than 10 per cent of the MLAs across States are women, Bhanupriya Rao, an open data activist, found.
Nagaland, Mizoram and Puducherry have no women MLAs. Women Ministers in States are even fewer; just seven per cent of Ministers across the States are women, and eight States have no woman Minister. Just three women Ministers across the country handle the Home Ministries (two of them are Chief Ministers) and just two have been given the Finance Ministry.

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