Topic: Violence against Women in India
Objective: Inform the UN Special Rapporteur on violence against women, its causes and consequences; on violence against women in India pending the Rapporteur’s visit to the country.
Submitted by the Asian Human Rights Commission – Hong Kong
Researcher: Ms. Meredith McBride
Introduction:
1. Violence towards women prevents equality and hinders the personal security and dignity of individuals, contradicting Articles 1, 2, and 3 of the Universal Declaration of Human Rights. A governments’ inability to protect the rights of half its citizens[i] also hinders the state’s economic growth. This issue has come to the forefront of international discussion as current events, namely the brutal attack on Ms. Y, a young physiotherapy student on a New Delhi bus, have focused the world’s gaze to the severe issue of gender violence in India.
2. For every woman who obtains a job, two women are killed at birth, abused in childhood, burnt over dowry, or sexually harassed at work. India’s development is greatly impaired by violent crimes perpetrated against women.[ii] It follows to note that women and other minorities are disproportionately affected by the government’s failure to maintain the rule of law, and this directly violates a number of international covenants, most importantly the United Nations Convention on Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[iii]
3. The Gender Inequality Index (GII), an index based on reproductive health, empowerment, and perceived presence in the labour market ranked India as the 2nd worst place for women to live. While the GII does not include statistics on violence, it is representative of economic factors that represent women’s overall standing with society. Because of their marginalisation, women in India are more likely to experience violence and less likely to receive adequate reparation for violent crimes.
4. How can the Indian government possibly expect its’ country to progress while it ACTIVELY hinders justice for half of its citizens? The GII has an inverse relationship with the Human Development Index, indicating that as gender inequalities decrease, overall human development, and productivity increase. The study also shows that countries with a low score in the Gender Related Development Index (GI) also score low in the overall human development index. India embodied this, with a high GII and low HDI and GI.
5. In a recent survey conducted by Trust Law, a legal news source by Thomson Reuters, specialists gathered the opinions of 213 international gender specialists on gender issues and equality. The study concludes that India is the 4th worst country for women to live in, behind only Afghanistan, the Congo, and Pakistan (Danger Poll – Trust Law). India was ranked the worst out of the G20 nations as it had abuse, violence, and murder on scales unparalleled in the other G20 nations. Reasons behind this include high rates of infanticide, child marriage, forms of slavery, and exploitation.
6. Self-reported research conducted by the National Crime Records Bureau indicates that violence towards women is increasing (India NCRB).[iv] However, sources debate whether this is an adequate representation of reality. Statistical jumps in violence towards women can potentially represent the opposite: rather than an increase in crime itself, these figures could be reflecting an increase in the likelihood of women to report instances of violence, which is indicative of greater empowerment and confidence in the judiciary to bring about justice.
7. Despite an increase in the number of reported rapes, convictions have dropped by a third, indicating failure on the part of the police to conduct investigations and prosecutions.
8. Equally concerning is the judiciary’s inability to guarantee timely trials. The average wait time for the judiciary to try a rape case in India is over 600 days, with many cases taking 5-10 years to complete. As of March 2013, 24000 cases of sexual assault cases are pending before state High Courts and the Supreme Court of India.[v]
Types of violence:
9. Violence against women in India begins before birth. Dowries associated with females for marriage, the perception of males as better earners, and the desire to continue the family name have caused an increase in sex selective abortion, infanticide, and feticide. As enshrined in Article 1 of the UDHR, the right to life should be the first and foremost concern of the government in tackling this issue. Since the introduction of amniocentesis in the 1970s, the practice of sex selection abortions has become a commercial enterprise, causing India to develop some of the highest male to female ratios in the world. Estimates claim that over 20 million females have been aborted solely because of their sex.[vi] This is despite of The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 (PCPNDT Act).[vii] The 2012 United Nations Population Fund (UNFPA), indicates that after taking into account all forms of infanticide, abortion, murder and death due to malnutrition and mistreatment, over 35 million Indian women are unaccounted for in the population.[viii]
10. The male to female sex ratios in India represent a dramatic epidemic in most parts of the country. The 2011 census claims that this ratio was 940 females per every 1000 males, Chandigarh being the worst state with a rate of only 818.[ix] Even after birth, females are more likely to be underfed and malnourished, leading to diseases such as anaemia (Progress for Children, UNICEF). This becomes cyclical as anaemic women see increased likelihood of low birth rates, infant mortality, and death during childbirth. The disproportionate sex ratios have left many men without wives and families, fostering increased potential for sexual violence. This has also produced a commercial industry in “marriage trafficking”, which entails importing women from other countries to serve as wives for Indian men.
11. The families of female children are often expected to pay substantial dowries to the groom’s family upon marriage and afterwards, despite the practice being officially outlawed in 1961 by the Dowry Prohibition Act. These dowries can be astronomical, reaching over ten million rupees ($192,000 US) and in many cases much more. and drive wives’ families into debt.
12. ‘Bride burning’ is another occurrence, in which men and their families who are unsatisfied with their dowries, beat and murder their wives.[x] The NCRB admits that, 8618 dowry deaths in 2011. The real figure however is likely to be much higher.
13. ‘Cruelty by husband and relatives’, addressed in Section 498-A of the Indian Penal Code, 1860 (IPC), had an incidence of 99,135 reported cases in 2011. The stigma of divorce, lack of financial independence and shame associated with being a victim all collude to prevent Indian women from seeking alternative living situations to their abusive home.
14. Despite changing values in a new generation of young people in India, in a recent poll conducted by UNICEF, 57 per cent of Indian males between the ages of 15 to 19 believe that domestic violence against women is occasionally justified. Even more shocking is that 53 per cent of females within the age group feeling the same, on par with rates of women from older age groups (Progress for Children, UNICEF).
15. Compared to sensational stories such as the gang rape in New Delhi, domestic violence in India is underreported and marginalised. The common perception of domestic violence is that it occurs most commonly amongst poor communities, lower castes, and in sums.[xi] The reality according to recent studies, however, is that educated and working women are more likely to experience domestic violence, and this form of violence is not unique to any specific region, caste, socio-economic group, or religion. This implies that it is not lack of education that makes women more susceptible to violence, but rather the widespread acceptance of violence towards women. The “culture of silence” and accepting attitude towards violence are the most problematic parts of tackling this issue. A dramatic attitudinal change amongst both sexes is required.
16. Indian law does not extensively cover sexual harassment and assault, called eve teasing, until recently. Section 509 of the IPC states that any “word, gesture or act intended to insult the modesty of a woman” shall be punishable by either a fine, or prison sentence of up to one year, or both. However, in practice this section is rarely upheld.
17. In the final two months of 2012, the International Centre for Research on Women conducted a survey amongst New Delhi residents to determine their attitudes toward sexual violence, especially in the public sphere. Of the female respondents, an incredible 95percent reported feeling unsafe in public, due to the perceived threat of sexual violence against women. In the same survey, 75percent of New Delhi men agreed that: ‘Women provoke men by the way they dress’ (ICRW, Fact Sheet).
18. Many Indian men, including judges, legislators, and even members of government commissions constituted to protect women’s rights go as far as to blame ‘provocative clothing’ worn by women as inciting violence and sexual harassment. Furthermore, women who smoke, drink, go to bars, or are out late at night are generally seen as having ‘lose morals,’ and rape is ‘more justified’ against these women in the eyes of many Indian men. A 1996 study amongst judges in India shows that 68 percent believes that ‘provocative clothing’ is an invitation to rape (Khazan & Lakshmi).
19. Finally, trafficking in India, largely for the sex trade, continues to be a widespread issue, especially regarding women of lower income groups and castes, as well as women from neighbouring countries such as Nepal, Burma, and Bangladesh. Estimates claim that over 100 million women in India are currently involved in the sex trade.
20. Sexual violence increases the likelihood of reproductive problems, unwanted pregnancy, unsafe abortion procedures, sexually transmitted diseases, high-risk pregnancy, and psychological problems including PTSD, HIV/AIDS, and re-victimization[xii](). Additionally, inequality (even within the family structure) and limited education about contraception give women less advantage through which to protect themselves from diseases, increasing their vulnerability to STDS and AIDS (HIV/AIDS in India).
Why violent crimes against women often go unreported?
21. In 2012, over 24,000 cases of rape were reported, though realistic statistics are likely to be much higher. Despite a rise in the number of reported rapes and other violent crimes against women over the past decade, it is believed the majority of these cases go unreported. This occurs for several reasons.
22. One is the shame associated with being the victim of a sexual crime. Rape victims often feel responsible for the act, and are sometimes ostracised by family members. This shame is exacerbated by the fact that only 7percent (or less in some states) of the Indian police force are females[xiii].
23. Investigations into allegations of rape are conducted by primarily by men, whom are undereducated about the proper methods of conducting such an investigation and oftentimes insensitive to the horrific nature of such crimes. Family members, police and even politicians, whom often condone such crimes, stigmatize victims. In the recent case of the brutal gang rape and murder in New Delhi, police did not take action for 20 minutes after finding the victim, as they haggled over the proper jurisdiction for her case, leaving her naked and bleeding on the streets.
24. Lack of awareness and effective rehabilitation programs is another reason many women do not report violence to the police. This includes witness protection and counselling for women who are victims of violent crimes. Many women are uneducated about their options about reporting violent crime to the police, and many of these women are illiterate and unable to report crimes. Because so many women lack financial independence, they are not able to care for themselves should their families or spouses no longer allow them to live in the family home, a common occurrence in families that have been ‘shamed’ by sexual assault.
25. Low rates of conviction and inefficiencies of the Indian legal system also influence women’s decisions to pursue legal remedies for violent crimes. According to the National Crimes Record Bureau, there are currently over 40,000 rape cases pending in India, and these cases have a historical conviction rate of only 34.6percent.
26. Conviction rates in India remain extremely low as the culture of impunity allows for offenders to get off without fear of punishment. Of the 600 reported cases of rape in Delhi last year, there has been only 1 conviction. Justice is elusive even for the women courageous enough to report sexual assault. This effect is exacerbated if the woman happens to be from a lower caste. Even upon conviction, these offenders are often granted lighter sentences. In addition, women often must wait years before seeing justice served as the Indian Police Force does not have the workforce necessary to follow through with all reported cases of rape.
27. Another important impediment in preventing violence against women is India’s law-enforcement establishment itself. The Asian Human Rights Commission (AHRC) reports at least a dozen case each year from across the country, where the state police or other law enforcement agencies like the forest or excise officers are involved in actual commission of violence, mostly sexual offenses, against women. In states like Manipur, where the draconian Armed forces (Special Powers) Act, 1958 is enforced; these instances are alarmingly high in number.
28. Today in India there is not a single independent agency or mechanism to investigate and prosecute complaints against police. The ironical state of affairs is such that complaints against police are to be made to the police. The police in India are notorious of refusing to accept complaints. Instances where women molested and even raped whilst in police custody are not rare. In states where paramilitary units are stationed, like in Manipur, complaints against the armed units of the Union are to be filed with the police, which the police blindly refuse to register. A random interview conducted by the AHRC among women in India suggests that women are afraid to approach the police even with complaints concerning petty crimes, since they are scared that the officers would sexually violate them. Due to this, often complaints of domestic violence go unreported. Those who could afford, opt to approach the courts, thereby resulting in overcrowding of courts with cases, way beyond its capacity to effectively deal with.
29. In addition to the humiliation of having to testify to a rape in court, women are also subject to humiliating physical exams to prove a rape occurred. The controversial “two-finger” test for rape victims is a fitting example of the type of draconian thinking that occurs during the investigation of a rape. This perverted test does not fall within the WHO’s recommendations for conducting tests on sexual assault victims.[xiv]
30. Finally, many police pressure rape victims to accept financial compensation in lieu of legal remedies. Even more trying are cases in which family members encourage the victim to marry her attacker, in order to keep conflict low and keep the family’s ‘dignity’ intact. Women whom have engaged in intercourse before marriage are stigmatised, whether or not the intercourse was consensual. This can affect the possibility of finding a spouse for the woman. In a culture that places high value on marriage and child bearing, the inability to find a husband for their daughter can be a matter of deep shame for a family. Thus, a remedy is for the woman to be med to her attacker.
Causes:
31. The patriarchal history of India is the first culprit in perpetuating violence. Gender inequality and the continuation of a “culture of silence” are foremost reasons that violence in India has continued. The caste system has exacerbated this inequality, as some members of society are considered ‘untouchable’ and offenses against them are repeatedly condoned, despite the practice of the caste system being officially criminalised by Section 153 A of the IPC. Additionally, the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 specifically address the evil practice of caste based discrimination.
32. While the caste system and sex-based inequality are banned, the practice of both remains rampant. Crimes against ‘chaste’ and ‘family-oriented’ women of a higher caste affected by a lower caste male often receive much harsher sentences than crimes the ‘already dirty’ women of a lower caste.
33. Illiteracy and lack of community support also factor into the continued violence towards women, as women have no means through which to report crimes. This makes them more likely targets for sexual violence, and increases the likelihood of men to feel emboldened to act in this way. Lack of property rights and financial independence also exacerbate this issue, as often a woman has no alternative living arrangements or means of livelihood. In over 50percent of cases, the perpetrator is a family member or spouse, so the women have limited options outside her immediate family.
34. As more women become educated, they are beginning to accept positions with higher pay and higher power, which can be perceived as a threat to some men. Women are becoming more vocal on the issue of violence following an increase in awareness and understanding regarding their rights. Organizations such as 1 billion strong, and local NGOs are examples of such movements gaining momentum in India.
35. Finally, the largest perpetrator of allowing violence towards women to continue is rampant corruption. Lax enforcement of the criminal code and the low priority given to cases of violence towards women exacerbate the obstacles facing women hoping to receive legal reparation for crimes. Perpetrators either consider themselves to be above the law, or know that should the case ever be brought to court, they can buy off investigators, prosecutors, and judges in exchange for a favourable outcome. The culture of impunity is the biggest hurdle India faces.
Remedies:
36. More severe punishments are not necessarily the answer for dealing with violent crimes against women. The current nature of the Indian judiciary allows offenders to buy off prosecutors, witnesses, and even judges. Judicial corruption in India is an accepted fact, acknowledged by every single Chief Justice who has served India. Yet nothing effective has been done to end this.
37. An effective investigative process would ensure that investigators, prosecutors, and the judiciary are all separate entities free from bias from the remaining parties. However, in India, often times the police force shares a close relationship with members of the judiciary and inject partiality into the court system. Political influence is also a factor, and policy makers have little incentive to improve this situation and take away their ability to manipulate the police force.
38. A change in the extortionist and corrupt nature of the police force in India must also be implemented. The Indian police force is underpaid and understaffed, with only 130 officers for every 100,000 citizens[xv]. These police officers are underpaid, often only $100 per month, leaving them to rely primarily on bribes as a means through which to support their families. Little room for promotions and advancement exacerbate this problem.
39. Police torture also comes into play, as law enforcers often see fit to take punishment into their own hands. With the low rate of conviction, and even lower rates of punishment, law enforcers whom believe someone to have committed a crime will beat and torture the victim before trial, believing this to be a just, and in the absence of an effective judicial system, potentially only, remedy for the offense.
40. Because discrimination against women begins in the womb, a sweeping change in attitudes of both sexes in India is vital. The value of a female child must be equal to that of a male. Women must be educated regarding their rights and be informed on their options regarding health treatment and access to government welfare programs.
41. While many protestors are calling for the death penalty or chemical castration of the perpetrators in the recent New Delhi case, opponents fear that this strict punishment could cause more death amongst future victims, as rapists could murder their victims to prevent them from testifying. Intensity of punishment also runs the risk of juries and judges becoming more lenient towards offenders.
Legal Remedies:
42. While India has made strides in equality gain for women, many patriarchal and outdated laws have yet to be adjusted to reflect the changing attitudes in India. The diction in Sections 375 and 376 of the Indian Penal Code allows for a man to rape his wife, given that the case does not amount to statutory rape. Section 375 of the IPC claims “Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
43. This provision in law, Section 375, must be amended to close loopholes. A proposed amendment currently in circulation suggests changing the amendment to “the wife not being under sixteen years of age.” Adjusting the age by only one year hardly represents forward thinking on behalf of the Indian government. Given that the legal age of assent to marriage under the IPC is eighteen years, this suggested amendment contradicts previously instated legislation against child marriage, which is notably STILL a problem in India, with a substantially large number of the population being married under the legal age of consent. This is further stipulated in Convention on the consent of marriage, minimum age of marriage age registration of marriages (1964).[xvi] If the Indian government is serious about ending violence towards women, it must categorically apply its’ laws, and not allow any ambiguity in legislation.
44. A suggested amendment to IPC Section 376B suggests that a man sexually assaulting his own wife during separation be punishable for two to seven years with a potential fine. Under IPC Section 376, the punishment for sexual assault is life in prison or ten years plus a fine. Sexual assault must have a unilateral punishment across all legislations. It is outrageous for the Indian government to categorise sexual assault based on the relationship between the perpetrator and the victim.
45. Another example of outdated legislation is the Armed Forces (Special Powers) Act 1958, , which provides impunity to soldiers and law enforcement in the conflict areas of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura, to enter private residences, fire on, kill, and arrest citizens at their discretion given limited reasons for justification. This law was implemented in 1958 in response to continued acts of violence in the border states, but has served to perpetuate violence instead. This law must be repealed as it allows for continued impunity amongst the police force, even in cases of violence against women.[xvii][xviii] In August of 2011, the AHRC posted research petitioning for the repeal of this law.[xix]
46. The definition of rape, according to Indian law, must also be changed. Currently, the law recognizes only penile penetration as an act of rape. This must be expanded to include any type of forced entry. The IPC must also be amended to categorically apply the term ‘rape’ to any act of sexual violence against women, regardless of the relationship between the woman and the perpetrator. Ms. Vrinda Grover, an Indian human rights lawyer claims that “the very definition of rape in Indian law has to be expanded and enlarged beyond vaginal rape to penetrative sexual assault by any object in any part of the body”. A current suggested amendment to IPC Section 375 expands this definition to include any means of penetration or unwanted physical contact.
47. Making it easier for women to report rape is vital in helping deter it. There are currently no effective means in India through which women can report or prove rape. Oftentimes the “two-finger” test is used to gage a woman’s ‘habituation’ to intercourse. India needs more women in law enforcement and in the judiciary. According to the National Commission for Women, more women report sex crimes if female police officers are available to the victims.[xx]
48. A proposed amendment to Section 154 of the Code of Criminal Procedure, in sub-section (1) provides that alleged victims of sexual offense should be questioned “as far as possible, by a woman police officer”. However, no definition is provided for “as far as possible,” rendering this article unenforceable.
49. Regrettably, anti-rape legislation is not enough to create change. Developing a means through which to enforce laws in India and the ending of corruption and impunity are the only ways to see effective change in India. Sexual violence in India will continue as long as it remains a low risk activity, and the issues extend into the police force itself. 76percent of women law enforcement officers claimed that their male superiors harassed them.[xxi]
50. Investigators must be educated how to effectively conduct investigations without contaminating evidence. According to a study conducted in New Delhi in August 2012 regarding 40 rape cases, over half of the acquittals that took place were due to failure on the part of the police to conduct an adequate investigation. [xxii]
51. It is important that the Indian police force be adequately instructed on how to deal with victims of assault and how to investigate these crimes. The attitude of police and investigators often compound the effects of sexual abuse, as women are made to feel as though they are the culprits, not the victims of violent crime. Law enforcement officials go through little sensitization training, and even less re-education after being appointed to a position. They rank their initial training very poorly, and 78percent of officials claim to have no refresher education.[xxiii] A mechanism must be implemented to oblige the police force perform their job maintaining rule of law, regardless of their personal attitudes and beliefs. India would also benefit from an internal review system within the police force to determine efficiency of the systems and individuals.
52. While the rape, torture, and murder of the 23-year-old physiotherapy student in New Delhi was horrific, it has become a potential impetus for change in the response of the government towards violence in India. Even China, traditionally silent on human rights issues both domestically and abroad, has called for India to act to address the growing violence towards women. As Mr. Nicholas Kristof claimed in his New York Times column, ” … If half the population in India fears taking a bus, then that’s a burden for economic development.”
53. While India has an uphill battle in terms of long term attitudinal change amongst its population, as long as the people of India continue to protest violence, the government will be required to act to avoid further international embarrassment and dissent amongst its citizens. The hollow attempts of the Indian government to at stem the protests through ineffective legislation and ‘peace talks’ are no longer satisfactory to the Indian people.
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[i] Ministry of Home Affairs, Office of the Registrar General and Census Commission of India, 2011 census data
[ii] Justice, Change and Human Rights : International Research and Responses to Domestic Violence, p7; Barbara Burton, Nata Duvvury, Nishi Varia et.al, Promoting Women in Development; ICRW & CDPA,
[iii] India ratified CEDAW on 9 July 1993
[iv] National Crime Records Bureau, Ministry of Home Affairs, 2011
[v] Statement by the Union Law Minister in the parliament. The number excludes cases pending trial.
[vi] Shoma Chatterji, No Country for Women, India Together, April 2008. Shoma Chatterji is a freelance writer based in Kolkata, and a member of NWMI. Chatterji is the author of 16 books, including ‘Kali – The Goddess of Kolkata’ and ‘Gender and Conflict’.
[vii] The 2003 PCPNDT Act is the successor of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. Among other things, the 2003 amendment was to incorporate preconception sex selection a crime under the law. The amendment also constituted two levels of supervisory boards, one at the central government and the other at the states, to verify the implementation of the Act. The amendment also enhanced the punishment for pre-natal sex determination.
[viii] Sex Imbalances at Birth: Current trends, consequences and policy implications; p.49; UNFPA, August 2012
[ix] Id. 1
[x] Dowry death: One bride burnt every hour, The Times of India, January 12, 2012
[xi] Domestic violence kills more than terror strikes, Hindustan Times, 21 September 2011
[xii] Ending Widespread Violence against Women, UNFPA
[xiii] 10 reasons why India has a sexual violence problem; Washington Post; Olga Khazan and Rama Lakshmi, 29 December 2012
[xiv] “World Report 2013: Events of 2012 (Human Rights Watch World Report).” Education Book: Almanacs & Yearbooks:. N.p., n.d. Web. 05 Mar. 2013.
[xv] Harris, Gardiner. “For Rape Victims in India, Police Are Often Part of the Problem.” The New York Times. The New York Times, 23 Jan. 2013. Web. 04 Mar. 2013
[xvi] United States. United Nations. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, New York, 10 December 1964. New York: Dept. of External Affairs, 1964. Print.
[xvii] India. Ministry of Home Affairs. The Armed Special Forces Act, 1958. N.p., n.d. Web. 4 Mar. 2013.
[xviii]http://www.satp.org/satporgtp/countries/india/document/actandordinances/armed_forces_special_power_act_1958.htm
[xix] http://www.humanrights.asia/resources/journals-magazines/article2/1003/the-armed-forces-special-powers-act-1958-in-manipur-and-other-states-of-the-northeast-of-india-sanctioning-repression-in-violation-of-india2019s-human-rights-obligations/?searchterm=india
[xx]http://ncw.nic.in/pdfreports/genderpercent20sensitizationpercent20ofpercent20policepercent20officers.pdf
[xxi] http://bprd.nic.in/writereaddata/linkimages/4812098766-april-june-21-88.pdf
[xxii] Bhalla, Nita. “Analysis: How India’s Police and Judiciary Fail Rape Victims.” Reuters.com. Reuters, 16 Jan. 2013. Web. 07 Mar. 2013.
[xxiii] http://bprd.nic.in/writereaddata/linkimages/4812098766-april-june-21-88.pdf
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