Gender specific laws in India:

A story of celebration or dismay?

Rajashri Dasgupta

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

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

Late 70s: Women unite for change

Rape and incidences of violence galvanise contemporary womens 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

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

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 victims sexual history not allowed 2006 Sexual Assault Bill

New law, banning sex selection

New reproductive technologies for sex determination of foetus in 1980s Approx 50 million girls, women missing, in Indias population :Unicef 1994 Government passes Prohibition of SexSelection 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

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

PIL: Your flirting is hurting

1992 Bhanwari Devi raped PIL seeks framework to deal with sexual harassment Court 1997: sexual harassment at workplace violates womens rights under CEDAW recommends complaints committees by employers to ensure conducive atmosphere 2010 Bill against sexual harassment Defines sexual harassment as infringement of womens fundamental right & gender equality

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 monitoringregulation Sexual harassment : No Complaints Committee in un organised sector, rural areas

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

PIL: experience
Sporadic; focus of campaigns on law reforms Personal laws: beyond realm of Court Risk factors: depends on judges 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

Campaign:Thinking Aloud
Love-hate relationship with law Womens issues in public discourse; political parties cannot ignore womens 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?