Violence Against Women in India and Its Impact Throughout the Years: Suggested Legal and Policy Reforms
| Publication year | 2019 |
| Author | Payal Sinha* |
Payal Sinha*
The United Nations Declaration on the Elimination of Violence against Women (1993) defines violence against women as, "any act of gender-based violence that results in, or is likely to result in physical, sexual, or psychological harm and suffering to women. This includes threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life."1 Violence against women includes domestic violence in the form of physical or financial abuse, rape and sexual violence, sexual harassment, female genital mutilation, acid attacks, stalking, female feticides, exclusion and deprivation of women from medical treatment and nutrition, trafficking and sexual exploitation, forced marriage, intimidation in the workplace, honor killing, and other violent acts committed against women that affect their well-being.2
These abuses can be categorized as interpersonal violence, which means the intentional use of physical force or power by a romantic partner, spouse, or family member that has a high likelihood of resulting in injury, death, or psychological harm.3Sexual violence is considered a subcategory of interpersonal violence, and involves an act of unwanted sexual activity imposed on another person, as a result of fear, age, disability, or other similar factors.4
Interpersonal violence and sexual violence against women are considered severe human rights violations under international law and have been recognized as such since 1993 by the United Nations Declaration on the Elimination of Violence Against Women.5 They have also been widely recognized as problems of pandemic proportions.6 According to the World Health Organization, "more than 35% of women worldwide experienced either physical and/or sexual violence by a partner, or non-partner sexual violence throughout their lifetime."7The estimates of intimate partner violence range from 23.2% in developed countries to around 37.7% for countries in the South Asian region.8 Although the international community has made significant headway in addressing this issue through the enactment of legislation to prevent violence against women and to prosecute perpetrators, many challenges remain.9
This article will examine the endemic problem of interpersonal and sexual violence against women in India and discuss how it can be addressed through international and national law. Part I will provide an overview of the development of the international legal framework addressing the issue of violence against women. Part II will describe the particular challenges associated with interpersonal and sexual violence against women in India, and its historical and cultural roots, with a focus on the many overlapping forms of stratification in Indian society introduced and reinforced by religion, class, caste, and gender. Part III will discuss efforts to address this problem through India's legal system and specific issues that hinder their effectiveness. Part IV will suggest certain policy and legal reforms that may help address the problem with lasting results.
Recognizing the urgent need for the universal application of human rights to safeguard women's equality, security, liberty, integrity, and dignity, the international community has increasingly emphasized the importance of protecting against gender-based offenses. A number of international human rights treaties and other similar instruments have been established specifically to curb violence against women. The most significant of these is the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted in 1979 after nearly 10 years of debate and negotiation.10
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CEDAW marked a critical development in the protection of women's rights because it was the first treaty to recognize gender-based discrimination as a human rights violation and to define sexual violence against women as a form of discrimination.11 It also established the Committee on the Elimination of Discrimination against Women to monitor member states' compliance with the convention.12 Pursuant to CEDAW, the state parties were "to take all appropriate measures, including legislation to modify or abolish existing laws, regulations, customs and practices, which constitute discrimination against women" to ensure protection of women's personal integrity and prevention of gender-based violence.13
According to the UN Committee's General Recommendation No. 19, the definition of discrimination was expanded to incorporate gender-based violence, which includes "physical, mental or sexual harm or suffering, threats of such acts, coercion, and other deprivations of liberty."14 Furthermore, this recommendation directly addressed state responsibilities, indicating that states may be "responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence."15 It also imposed the obligation to provide compensation for such crimes.16 The adoption of this recommendation by state parties firmly established nations' accountability in case of sexual and gender-based violence.17
Since CEDAW came into force, the international community has increasingly considered violence against women—in domestic and intimate settings and in times of conflict—to be a human rights violation. International efforts to combat violence against women are evident in the Declaration on the Elimination of Violence against Women as well as in several General Assembly Resolutions focused specifically on sexual violence against women.18
The adoption of the Vienna Declaration and Program of Action (VDPA)19 at the United Nations World Conference on Human Rights in 1993 is regarded as a watershed moment in the women's rights movement. The declaration, which was the result of an interdisciplinary approach by global and local advocacy groups who were increasingly concerned that women's rights had been sidelined, affirmed that all human rights—whether civil, political, economic, social, or cultural — are indivisible and interdependent and should be treated fairly and equally.20 This led to the unequivocal acceptance of women rights as human rights by the 171 participating states at the United Nations World Conference on Human Rights.21
The VDPA led to the decision of the UN Commission on Human Rights to appoint a Special Rapporteur on violence against women, including its causes and consequences,22 and to examine the possibility of introducing an individual complaints procedure by establishing a committee which came into being in December 2000 through the Optional Protocol to the CEDAW.23
Twenty-three years after VDPA, women and girls globally face fatal consequences from the discrimination against them. Gender-related killing of women is the most widespread form of discrimination. In 2014, it was estimated that nearly 500,000 female fetuses are aborted annually in India alone.24 Moreover, an estimated 140 million women and girls worldwide were living with the consequences of female genital mutilation,25 and thousands of women are killed or injured every year in dowry deaths.26
B. Application of the International Framework in IndiaIndia acceded to the International Covenant on Civil and Political Rights (ICCPR) on April 10, 1979, and ratified CEDAW with two declarations and one reservation in 1993.27As a state party to the ICCPR and CEDAW, India is bound by these treaty provisions. However, international conventions like CEDAW are not considered effective unless they have been adopted into domestic laws. At its 58th session in July 2014, the CEDAW committee reviewed and discussed India's compliance with the convention.28 The concluding observations by the committee emphasized the importance of combating violence against women, as well as protecting women's and girls' sexual and reproductive rights.29 The committee also indicated apprehension around the continued prevalence of early and forced marriage, despite the introduction of the Prohibition of Child Marriage Act of 2006.30 Additionally, it recommended that the Indian government establish a legal framework to more effectively prevent and respond to violence against women by amending the Criminal Law (Amendment) Act to ensure that marital rape is defined as a criminal offense to more accurately reflect the realities of sexual abuse experienced by women and girls.31
Even without domestic legislation, when a state has ratified an international convention, the country's courts have a right to use the convention as an aid in interpreting national law to conform to the provisions of the convention.32 In the case of India, years of different levels of dominance by patriarchy and its influence on domestic and personal laws, which have led to many of the disadvantages and discrimination women currently face in Indian society, are also inhibiting the implementation of the convention. CEDAW's core principles of gender equality and non-discrimination are effectively nullified in India by personal laws which are bound by traditions and cultures—areas in which the Indian government does not interfere except on the initiative of a particular community.33
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For example, the federal government has shied away from making the registration of marriage compulsory on the ground that it is not feasible or practical in such a vast country with a variety of customs and religions, coupled with the low level of literacy.34 This perpetuates gender inequality because of the federal government's outsize deference to local legislatures. Only if the federal government took action would it be possible to make changes in these types of personal status laws.
In the absence of action by the legislatures, it is the...
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