Guwahati: January 13, 2014
Interim Report: Introduction
The insanity of the vicious and tragic violence over the years in India has always been masked and at the best ‘managed’ (read suppressed) by brute force and fear. There is no dearth of evidence to speak of the grave consequences on women and children in particular. The exploitative structures of caste, patriarchy and militarization have connived in an almost venomous manner and continue to degrade, manipulate and inflict terror on women, particularly those who are powerless and vulnerable. The impact of this kind of structural violence combined with other systemic forces of state neglect and violence have only increased the risk and vulnerability in manifold ways. Hence, it is very clear that the question of human security in India is much more complex because of the existing deep-rooted multiple exclusions faced by vulnerable groups and communities. Violence against women (VAW) is often seen in terms of patriarchy alone as though our society is homogenous for all women, with all of them having similar privileges and vulnerabilities. This understanding of violence against women is very problematic. Therefore the lens of inter-sectionality of caste, class, ethnicity and gender has to be used in understanding violence against women.
Violence against women is a reflection of a deeper socio-economic-political process taking place, and cannot be confined to only the personal sphere or the framework of a man-woman relationship. Violence against women constitutes a violation of basic human rights and is an obstacle to the achievement of the objective of equality and development. Women face multiple forms of violence within the home and outside the home. Most of these forms of violence go unrecognized by the family, community and the state.
In Assam women and children are the worst victims of the slow and low intensity armed conflict and are caught in between violence by state and non-state actors. According to the National Crime Records Bureau Data in 2012, Assam had 1716 incidence of rape. This number of cases cannot be trusted due to underreporting and under recording of the violence against women. Sexual violence against women and girl child is one of the most serious problems in our society. Under the category of sexual violence the form of violence it includes are rape, molestation, sexual harassment, forced prostitution, voyeurism and cyber crimes relating to the sexuality of a woman. Sexual violence against women within the domestic spheres has been recognized by the state after the enactment of Protection of Women from Domestic Violence Act, 2005. But marital rape has not been recognized under the framework of Indian Penal Code even after amendment of 2013 but it is implicitly given u/s 376. In spite of these laws it is extremely difficult for women to raise their voice against sexual violence in our society because of the social stigma attached to it. There are various laws for women to protect them from violence but these laws are never implemented. The cases are never registered under these laws on time. It is only after severe pressure from the activist that these complaints are registered. The conviction rate under these laws is extremely low. The access to justice for women from marginalized communities is extremely difficult. There is a growing impunity of the state on the question of violence against women.
Women in Governance – India (WinG-India) is a network of women who are striving to be agents of change in a world dominated by misogynist and caste mind sets. WinG is a network of Dalit women (erstwhile untouchables) and women affected by conflict in Northeast India and other parts of the country. The members of WinG-India represent marginalized communities across India and work towards promoting leadership within local governance. WinG-India was formed in 2009 and is now emerging as a strong network within civil society organizations in India by raising issues of women-security, peace and governance in various national and international forums. The key focus area of WinG is women security (with a special focus on the implementation of UNSCR 1325), exploring customary laws and their impact on women’s lives. WinG operates as a non-political, non-religious and non-violent independent network of women activists.
Background of Cases
WinG-India has been focusing on the issues of violence against women since its inception. WinG-India has been intervening on several forms of sexual violence which include rape, molestation, sexual harassment, violence committed by state in any form, domestic violence etc. WinG-Assam has been involved in lobby and advocacy work at different levels to address issues of violence. Violence from the state actors has been creating havocs especially in states like Assam and other North Eastern states where Armed Forces Special Powers Act still prevails and is applicable. There are several instances of violence like rape , molestation, sexual harassment upon women committed by army men, police and other governmental bodies where victims mostly goes un redressed due to lack of emphasis from prosecution and government departmental biasness. WinG-Assam has been providing assistance to the survivors of violence in several ways. WinG-Assam has faced extreme challenges in addressing legal remedies for the survivors of violence.
To construct a society free from sexual violence it requires support of legal machineries at different levels to work effectively and a strong awareness in eliminating violence against women. Lacunas still persist in either of the two or both of these together. The speediness and quality of judicial procedures are still far to become a reality. Increasing occurrence sexual violence is a very disturbing trend in this society. Therefore WinG-Assam felt a strong need of conducting a public hearing on sexual violence to bring out the severity and brutality of cases in the public domain along with the discrepancies in the part of the legal machinery in our state.
WinG-Assam conducted a two day Public Hearing on 8th and 9th January in Lakhi Ram Barua Sadan, District Library Campus, Guwahati where 21 cases of sexual violence were heard publicly in front an eminent Jury comprising of Manjula Pradeep( Dalit Rights Activist), Roshmi Goswami (Women Rights Activist) Rakhee Kalita(Academician), Gayatri Singh( Human Rights Lawyer), Babloo Loitongbam ( Human Rights Activist), Henry Tipanaghe( Human Rights Activist), Sabda Rabba( Human Rights Lawyer) who gave strong recommendations on the legal mechanisms and also provided different social, economic and legal perspectives on the cases. These 21 cases ranging from gang rape, molestation, voyeurism, acid attack, marital rape, sexual assault and state induced sexual violence covered 11 districts of Assam- Cachar, Kamrup, Kokrajhar, Chirang, Tinsukia, Jorhat, Nagaon, Dibrugarh, Mangaldoi, NC Hills, Dima Hasao.
Observations of the Jury Members
- The Jury observed that the intervention by the Police Accountability seems to be fairly good; and in certain cases where assurance was given those cases have been followed up well.
- However, the jury observed with great concern that there seem to be a conspiracy between police officials, Child Welfare Committee, Legal Service Authority in silencing the victim and the inaction (purposeful neglect) which ultimately aims at protecting the accused.
- All cases highlighted the appalling laxity and apathy of all the mechanisms and systems responsible for providing relief and justice to the affected individuals.
- In most cases of sexual violence against minor girls the Child Welfare Committee has failed to address these cases to the best of their power and capacity.
- The jury observed that under the new legislations the same person was responsible for several office bearing posts such as the Probationary Officer might also be the Child Protection Officer or the Domestic Violence Officer.
- These commissions have failed to make timely interventions and further follow up of the cases. Also, they have lacked in fulfilling the roles and duties entrusted to them by the State.
- Most cases brought out the laxity on the part of the police in registering the complaints and filing of proper Sections of the Indian Penal Code in the First Information Report.
- The Legal Services Authority has failed in providing assistance to the victims and intervening as and when required.
- In some cases jury members saw the failure of the police in filing wrong sections and purposefully not adding the sections in such cases a disciplining action should be taken against the police officers.
- The medical officers were sometimes found to be in collusion with the investigating officers to protect the accused, and in at least one case the gynecologist had determined the age of the victim.
- The medical reports did not include the psychological trauma faced and the depression faced by the victims.
- The jury members were surprised to see in one case where the investigating officer sought the DNA test of the child born after the rape of a minor girl but the court said they would see in the trial. In such cases it is necessary to have the DNA test of the child done for the justice of the rape victim and also for the offspring who may need to know their roots later on.
Recommendation of the Jury Members
Investigation
- The Legal Services Authority should also direct the victim in those cases where an appeal is needed to be filed.
- The jury recommended that separate protection officers should be appointed under the new legislations.
The Jury has come across the special difficulties of investigating the cases of rape and sexual harassment by the armed forces. The jury therefore reiterates the recommendations of the Verma Committee:
- Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law;
- Special care must also be taken to ensure the safety of women who are complainants and witnesses in cases of sexual assault by armed personnel;
- There should be special commissioners – who are either judicially or legislatively appointed – for women’s safety and security in all areas of conflict in the country. These commissioners must be chosen from those who have experience with women’s issues, preferably in conflict areas. In addition, such commissioners must be vested with adequate powers to monitor and initiate action for redress and criminal prosecution in all cases of sexual violence against women by armed personnel.
- There is an imminent need to review the continuance of AFSPA and AFSPA-like legal protocols in internal conflict areas as soon as possible. This is necessary for determining the propriety of resorting to this legislation in the area(s) concerned; and
- Jurisdictional issues must be resolved immediately and simple procedural protocols put in place to avoid situations where police refuse or refrain from registering cases against paramilitary personnel.
Procedures
- The filing of case under POSCO Act ensures that the new offences of sexual assault against children are registered and a more stringent punishment is given to the accused under the law.
- There is a need for closer look at the sections and see the availability of designated special courts in all districts given by the Chief Judicial Magistrate under POSCO Act.
- The jury member saw in few cases that in the sexual assault of tribal the SC/ST (POA) was not implemented.
- It is the duty of CWC to ensure proper rehabilitation, maintenance, legal services, medical assistance, trauma counseling and find resources of a minor victim and child of victim (if any).
- Homes run by government assistance under the Swadhar Scheme are in a pathetic condition and this needs to be improved and maintained for the further safety and rehabilitation of the victims.
- It is the responsibility of Legal Service Authority to take serious note of the case and provide the victim and the victim’s family with a senior criminal prosecutor (preferably a woman) at the expense of the state.
- The Legal Service Authority is also liable to provide special assistance to a victim who is a minor and ensure proper investigation under the law.
- In all matters that are pending of sexual assault the Chief Justice of Guwahati High Court should address all the magistrates in camera proceedings to fast track all the cases under the POSCO Act, after 2012.
- It is imperative that all cases of sexual violence must be tried in the fast track court and followed through fast track courts.
- There should be specialized trainings for office holders under the Child Welfare Committee, State Commission for Protection of Child Rights, National Commission for the Protection of Child Rights, Legal Services Authority, Magistrates, Judiciary on the Protection of Sexual Offences against Children Act, 2012 and the Schedule Caste and Schedule Tribes (Prevention of Atrocity) Act, 1989.
Commission
- There has been gross negligence on the part of State Commission for the Protection of Child Rights and National Commission for the Protection of Child Rights, S/N Women Commission and the Schedule Tribe Commission in following up on the cases submitted to them.
- It is necessary that complaints should be registered against the Commission both at the State and National level as to why they have failed in proper execution of their duties and responsibilities in the specific cases.
Miscellaneous
- The jury had the occasion to see that victims were threatened after the release of the accused on bails. The accused gave serious threats to the life of victims and their families. In such cases the lawyer should file a petition for bail cancellation with support of an affidavit from the victim. Also, the judiciary should consider such bail applications and the accused should not be released unless the charge sheet is filed.
- In most cases the compensation has not been given according to the POSCO and SC/ST Act.
- In those cases where there is disappearance of the victim or their family members should be filed.
- The jury member also heard cases in which due to severe threats people have disappeared. The victims ‘and the family members of victims should be given protection.
- The jury members observed cases of sexual violence where the accused had political connections with the ruling party. Women often due to their low socio-economic status become victims of sexual violence by the men belonging to dominant communities and powerful backgrounds.
- The jury members heard two cases of aggravated sexual assault by person in authority by School Head Master and School Teacher in such cases a disciplinary inquiry should be done by the schools they belong too. Also, in similar cases in some states it had lead to the dismissal required but also to the cancellation of their basic education degree.
- In the greater interest of the long term health and care of victims-survivors, steps should be initiated to counsel them even after the legal procedures of the cases have been completed and monitor their safety as well as sustenance in later life.
This public hearing is just a small step in the journey of women in reclaiming their rights and to live with dignity.
About Women in Governance, India (WinG-India)
Background
Women in Governance – India (WinG-India) is a network of women who are striving to be agents of change in a world dominated by patriarchal traditions. WinG chose to bring in Dalit women (erstwhile untouchables) and women affected by conflict, in Northeast India and other parts of the country. The members of WinG-India represent marginalized communities across India and work towards promoting leadership within local governance. Conceived in 2009, WinG-India is now emerging as a strong network within civil society in India by raising issues of women-security and governance at various national and international forums. Key focus areas of the network include women security (with focus on the implementation of UNSCR 1325), exploring customary laws and their impact on women’s lives. WinG operates as a non-political, non-religious and non-violent independent network of women activists.
Decisions taken by WinG are made by a steering committee comprised of six members. WinG also has three working groups for its specific programmes.
Mission
Women in Governance strives towards building a world which is free from discrimination, violence and exclusion. Engagement of women leaders and transfer of power to them is aimed at creating avenues for access to justice and meaningful participation in local governance.
Programmes
Women Security
WinG believes that the concept of Human Security needs to be reexamined from the perspective of women. The reason for this is that women have always been kept out of the so called security domains but have remained the worst affected. It is now time that women come together, collectively engage and unravel the real meaning of personal security. This is possible only if women leaders build a critical consciousness and enter into decision-making bodies. This entails a process by which affected women and those who represent the affected have the capacity to influence policies and legislations that affect them.
WinG India has decided to further explore these areas and build a strategic plan on Human Security and Peace building. To take this further, WinG commissioned a study which analyzed the current security issues of women in India within a human rights framework. The study confirmed what WinG has always believed, that in all security related decision-making processes and institutions women remain on the margins despite the fact that they are major stakeholders in all security-related decision. Therefore, WinG has mandated itself to correct this situation by creating spaces for women in security-related institutions and decision-making processes and by bringing women to the negotiating table during peace talks.
Customary Law
Many tribal communities in the North East India continue to regulate themselves according to their customary laws (CL) which are considered to be part and parcel of their culture and tradition. Though each tribe has its own unique set of customary laws, many of them share some commonalities, the most important being their patriarchal nature denying women their rights of inheritance, child custody, decision making, etc. With the modernization of customary institutions an issue being discussed today is the codification of customary laws to suit the demand of gender equality. However, this discussion is fraught with many challenges.
For women, customary laws and institutions have advantages and disadvantages. On one hand, customary laws may be easily accessible and speedier for rural women and enjoy greater social legitimacy in local communities. On the other hand, customary institutions are often gender biased in composition, orientation and dispensation of justice. Very often, they are constituted by male elders alone and apply male-biased interpretation of laws. In India, the customary institutions have a tendency to exclude women from the decision-making processes. The Indian constitution, while guaranteeing the protection of women’s rights, also recognizes customary laws. Therefore, the working group on Customary Laws has been taking on this complex issue and building its own understanding and collective understanding before engaging in advocacy and action on the codification of customary laws.
Women leadership
The main task is to generate cultural perspectives and practices to bring an attitudinal change in the victims of socio-cultural injustice, especially Tribals and Dalits. The cultural action will help to shake off the inferiority complex and psychological trauma they have developed over centuries of suppression and subjugation.
Contact Information
Ms. Asha Kowtal
Convener, WinG
8/1, 2nd Floor, South Patel Nagar, Delhi
ashazech@gmail.com
Mobile: +91-9560100442
