You are on page 1of 6

The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

63-68

VIOLENCE AGAINST WOMEN: HUMAN RIGHTS PERSPECTIVE


Rajshri Narayan Kale*
Abstract: Violence against women means any act of gender based psychological harm suffering to women, including threats of such acts, coercion of arbitrary deprivation of liberty whether occurring public or private life. Violence against women is sign of discriminatory position of women in patriarchal social structure. International instruments have played important role to protect the rights of women. India, being the signatory of various international instruments such as Convention on elimination of all forms o f di scrimination against women, Declaration on the Elimination of violence against women, etc., has a lot of provisions to protect the women in all aspects of life. The Constitution of India, Supreme Law o f the Land, provides safeguards by way o f Fundamental Rights and Direct Principles and Fundamental Duties. Various legislations have been made by the Parliament of India to protect the rights of women. Further, Honble Supreme Court has also played a significant role in recognizing violence against women as a human right violation. The substantive laws relating to violence against women are inadequate and do not reflect various kinds of violence which women experiences in daily life. Similarly, procedural law suffers from various lacunae. Hence, there is urgent need to redraft the laws which are inadequate. The law is an instrument of social change, but it cannot be end in itself. Therefore, there is immediate need of effective implementation of existing laws with modification where necessary and enactment of ne w laws where law is inadequate. Key Words: Women, Violence, Hu man Rights.

Introduction: All over the world, 8th March is celebrated as International Womens Day. But, women live daily with the risk of various kinds of harm. In virtually every society, violence or the threat of violence constricts the range of choices open to women and girls in almost every areas of life, public and private at home, in school, in workplace and in most community spaces. It limits their choices and restricts their scope of activities and indirectly erodes their self-confidence and self esteem. Womens have been vulnerable to acts of violence in the family, in community and by state. Violence in the family include domestic violence, female foeticide, dowry related violence, rape and other forms of sexual assaults. Violence in the community may manifest itself in form of rape, sexual assault and harassment, cyber violence, trafficking in women, forced prostitution and mass rapes of women during rioting and ethnic strife. The state may commit violence against women in custody or during times of armed conflicts. The violence against women lies in the power imbalance between men and women and in hierarchical inequality. It is the sign of discriminatory position of womens in patriarchal social structure. In patriarchal setup, power remains with man who dominates the women. The patriarchy uses various forms of violence to dominate, subjugate the women. The phenomenon of violence against women arises from the patriarchal notion of ownership over womens body, sexuality, labour, reproduction rights, mobility and level of autonomy. It arises out of unequal gender relationship in which men overpower and dominate physically, economically, emotionally and womens are in subordinated and subjugated position within family and society at lasrge. 1 Violence against women is a gross violation of womens human right. Human rights are the rights which are possessed by all human beings irrespective of their race, cast, nationality, sex, language etc. simply because they are human beings. Lexicon meaning of term Human Right is claim asserted or those which should be or sometimes stated to be those which are legally recognized and protected to secure for each individual to fullest and freest development or personality and spiritual, moral and other independence.2

* Assistant Professor, Karmavir B hausaheb Hire Law College, Malegao, Nasik, Maharashtra, INDIA.
1 2

C. Gargi, Violence against Women. (New Delhi: National Federation of Indian Women 2005) at 1 B.N. Tripathi, Jurisprudence (Legal Theory). (Allahabad: Allahabad Law Agency 2006) at 469

64

THE LEGAL ANALYST

[Vol. I

______________________________________________________________________________
So, human rights mean those rights of individuals which have been considered to be very basic for their full physical, mental and spiritual development. The violence against women challenges the basic principle of right to live with dignity and equality which is recognised by all civilized society. Definitional aspect of violence against Women The violence against women phrase contains two types of terms i.e. violence and against women. The term violence is complex and broad whereas, term against womens concerns with only those acts in which womens are victim. Violence: Definition and form There are various definitions available which defines violence. Violence generally defined understand as a behaviour involving physical force intended to hurt, damage or kill . 3 But, this definition suffers from inadequacy as its not including the psychological, emotional harm and material deprivation. A more accurate but cumbersome definition of violence would be, violence is the direct or indirect physical attack, injury or psychological abuse of a person or animal, or the direct or indirect destruction or damage of property or potential property. 4 It includes both aspect of violence as physical and psychological harm and includes material deprivation. There are two basic forms of violence i.e. structural and direct structural violence arises from dominant political, economic and social system, as they block means of survival for large number of people, i.e. creating economic misery, repression and alienation for larger section of society. Structural violence gives the basis to direct violence. 5 Thus, for broad definition of violence we have to consider all forms of violence i.e. physical, psychological harm and material deprivation through structural violence. So, broadly speaking and understanding violence is a behaviour in which one person takes advantage of other and abuse him / her physically, psychologically, and mentally. Violence against Women: Definition Before defining violence against women we have to understand the co- relation of gender with violence. The terms sex and gender are often used interchangeably, but they are different. The term sex is applied to that distinction between men and women, which are based on biological differences such as physiology, harmones etc. The term gender is applied to the cultural aspects of male and female roles, the behaviour, personality and other social attributes that are expected from male and females. These social attributes become the basis of masculine and feminine roles. 6 The gender is not natural or biological it is created socially. It creates the power imbalance between men and women and hierarchical inequality. Therefore, aspect of violence against women is not merely related with physical and psychological harm but co-relate with the social imbalance between men and women and hierarchical discrimination. There are different definitions of violence against women ranging from specific operational definition to which includes the structural violence i.e. material deprivation of women through organization of economy. United Nation Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) states that, violence against women as, violence against women because she is womens or which affects women disproportionately. It includes physical, mental or sexual harm or suffering, threats of such acts coercion and other deprivation of liberty.(Article-1). 7 The Declaration on the Elimination of Violence Against Women (DEVAW) states that gender violence as, Any act of gender based violence that resulted in or is likely to result in physical, sexual or

Sones Cathnerine and Stevenson Angus, Concise Oxford English Dictionary. (New Delhi: O xford University Press 2009) at 1613 4 M aclean and M ilan Alister, The Concise Dictionary of Politics. (New York: O xford University Press 2009) at 551 5 See: M acdonald and Lisa, Feminism and Socialism Putting the Peace Together. (Australia: Resistance Books 2009) at 89 6 M alik and Rawal, Law and Social Transformation in India. (Allahabad: Allahabad Law Agency 2009) at 157 7 See: Convention on the Elimination of All forms of Discrimination against Women, New York, 18 Dec.1979.

2011]

VIOLENCE AGAINST WOMEN

65

______________________________________________________________________________
psychological harm or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. (Article-2). The definition includes both sphere of life private as well as public. The Declaration defines violence against women as encompassing, but not limited to three areas: Physical, Sexual and Psychological violence occurring in the family including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices, harmful to womens, non spousal violence and violence relating to exploitation ; Physical, Sexual and Psychological violence occurring within the general community including rape, sexual abuse, sexual harassment and intimidation at work including educational institutions elsewhere, trafficking in womens and forced prostitution Physical, Sexual and Psychological violence perpetrated or condoned by state, whereas it occurs.8 Recently, The African Unions Protocol on the Right of Women in Africa recognizes the structural violence i.e. harm resulting from the impact of the organization of the economy on women lives. 9 So, the violence against women is broad base concept which includes the physical, sexual, psychological abuses and material deprivation. International Human Right Framework International agreements have great importance to the protection of life and personal liberty of an individual and emphasis on the respect for human dignity and equality status. United Nation Charter of 1945 affirms equal status to men and women. Universal Declaration of Human Right, 1948 elaborates the charters equal right precipitation and is suffused with the notion of equality. The International Covenant on Civil and Political Rights (ICCPR) and International Conventions on Economic and Social and Cultural Right (ICESCR) once again reinforce the concept of equal status between men and women. In (CEDAW), 1979 which came into force in 1981, discrimination against women defined in modest amplitude and establish monitoring body of CEDAW i.e. Committee for Elimination of Discrimination Against Women which entirely deals with issue of gender based violence and authoritatively proclaim that violence against women is serious form of gender based discrimination and that states should comment on this matter in future reports to the CEDAW committee. The major turning point is Vienna World Conference on Human Right, whose declaration and program of action states, Human Right of women and the girl child are inalienable, integral and indivisible part of universal human right. So, by this it brings the formal acknowledgement of violence against women as a human right violation. 10 This position has reaffirmed at Cairo Conference on Population and Development (1994), the World Conference on Women in Beijing (1995) as well as each of the subsequent world summits. In 1994, the United Nation appointed a Special Rapporteur on violence against women, who is attached to the office of the High Commissioner of human Rights. The Rapporteur is responsible for drawing up analyses and reports on gender based forms of violence and recommending ways of eliminating t hese practices. It is specific to mention that, the violence against women is recognised as human right violation and two United Nations mechanism were in place to deal with violence against women. In the Rome of International Criminal Court, provides international legal recognition that rape is not just a crime against personal dignity, but that it is also a war crime or crime against humanity. In addition, forced pregnancy, enforced sterilization, sexual slavery, enforced prostitution and any other form of sexual violence of comparable gravity were also included as crime against humanity.

See: Declaration on the Elimination of Violence against Women Proclaimed by General Assembly Resolution 48\104 of 20 Dec. 1993. 9 See: African Unions protocol on Right of Women in Africa, July 2003. 10 Supra note 7.

66

THE LEGAL ANALYST

[Vol. I

______________________________________________________________________________
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, considers trafficked persons as a victim than a criminal and provides some remedial measures e.g. temporary shelter and residential status, medical and psychological services.11 The International Community through these agreements/conventions recognised the violence against women as human right violation and makes the state responsible through various agencies. It is an advancement of struggle of women for the equal status and place the question of violence against women from family level to international level. Municipal Measures to deal with Violence against Women Constitutional Provisions The constitution of India safeguards womens right by putting her with man socially, politically and economically. The principle of equality in its multifarious ways incorporated in the constitution of India. Right to Equality: (Art.-14), ensures that not only equality before law but also equal protection of law to all sections of society. (Art.-15) prohibits discrimination on ground of sex and 15 (3) empowers state to make special provision for women and childrens. (Art.-16) gives equal opportunity in public service. 12 Prohibition of traffic in human beings and forced labour: (Art.-23) prohibits traffic in human beings and beggar and other similar forms of forced labour and any contravention of this provision shall be an offence punishable in accordance with law. Equal pay for equal work: (Art.-39) (c) direct the state that, it shall in particular direct its policy towards securing that there is equal pay for equal works for both men and women. Maternity relief: Art. 42 direct to state to provide just and human conditions of work and maternity relief.13 Apart from directing state, Constitution cast duty upon every citizen to abandon the derogatory practices against women. The Constitution of India by this way safeguards the interest of women and their rights. Whereas, violation of fundamental right provides with remedy under Art. 32 & 226 and reinforce the inherent equality concept between men and women. Legislative measures To protect women against violence, discrimination and to eliminate social evils, State enacted various Acts like- The Commission of Sati Prevention Act, 1987; The Indecent Representation of Women (Prohibition) Act, 1986; the Immoral Traffic (Prevention) Act, 1986; the Dowry Prohibition Act, 1961. To prevent and check female foeticide, the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 has been passed. The procedure and rules of evidence has been changed in rape offence cases through passing, the Criminal Law (Amendment) Act, 1983. 14 Domestic Violence Act, 2005 has been passed. The Working Women (Prevention of Sexual Harassment at the Work Place) Bill, 2010 has been introduced in the Parliament and is yet to be passed. Judicial Response to Violence against Women Higher Judiciary of India plays a significant role in recognising violence against women as human right violation and provides justice to victim. The Supreme Court in Bodhisatwa Gautam v. Subhra Chakraborty15 held that, rape was not merely an offence under the Penal Code, it was also violation of a womens right to live with dignity and personal freedom. It is not only a crime against the person of a woman; it is a crime against the society. It is a crime against basic human right and also violative of the victims most cherished of the Fundamental Rights, namely, the right to life contained in article 21.In Delhi Domestic Working Womens Forum v. Union of India,16 the Supreme Court suggested the formulation of a scheme for awarding compensation to rape victims at the time of convicting a person found guilty of rape. The court suggested that criminal
11 12

Supra note 8. P. Diwan, Human Rights and the Law Universal and Indian. (New Delhi: Deep and Deep Publication 1998) at 68 13 See: J.N. Pandey, The Constitution Law of India. (Allahabad: Central Law Agency 2003) 14 See: M onika Chawla, Gender Justice: Women and Law in India. (New Delhi: Deep and Deep publication 2006) 15 (1995)1 SCC 14 16 AIR 2000 SC 988

2011]

VIOLENCE AGAINST WOMEN

67

______________________________________________________________________________
Injuries Compensation Board or the Court award compensation to the victims by taking into account pain, suffering and shock. Unfortunately, there has been no response from state but, court awarded compensation to rape victims in Bodhistawa Gautam Case and Chairman, Railway Board v. Chandrima Das.17 In Rupen Deol Bajaj v. K.P.S. Gill,18 Supreme Court clarify certain issue as to what constitute the modesty and how it judge. In celebrated verdict of Vishaka and others v. State of Rajsthan,19 Supreme Court held that, sexual harassment at work place amount to violation of rights of gender equality and right to life and liberty and also set the guidelines against sexual harassment at work place. After taking note of the fact that there is no national law that provided for effective enforcement of the basic human right of gender equality, observed that, In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14,15,19(1)(g) and 21 of the constitution and give effect to the principle enunciated under article 11 and 24 of CEDAW. In Apparel Export Promotional Council v. A. K. Chopra,20 Supreme Court observed that, where there is case involving violation of human right, court must take into consideration International Convention. In C. Musilmani Mudaliar v. Idol of Sri Swaminathan Swami Thirukoil,21 Supreme Court held that, the right to elimination of gender based discrimination so as to attain economic empowerment forms part of universal human right. Thus, some of the selective pronouncements survey shows that, Indian Judiciary play very creative role in recognizing violence against women and discrimination as a gross human right violation and implement international standard within the domain of municipal law. Inspite of various protective measures provided by legislation, equal status granted by the Constitution and many glorying pronouncements of higher judiciary the realization of eradication of violence against women and goal of equal status is far from reality. The present law and implementation machinery failed to respond effectively with it. The conviction rate in crime against womens is very low. Very little efforts have done to change the law in gender sensitive manner and to provide gender sensitive administration for its implementation. Therefore, women are continuously suffering from inadequate legal system and their insensitive implementation. Some of the amendments in criminal law where done due to intense pressure from womens movement after Mathura Case.22 The substantive laws relating to violence against women are inadequate and do not reflect various kinds of violence which women experiences in daily life. Similarly, procedural law suffers from various lacunae. The lack of substantive and procedural law in these areas has been highlighted by various women groups. There is urgent need to redraft the rape law and include marital rape concept, abandon the traditional concept of penal-vaginal penetration and accept all form of penetration. Section 498 A covers physical and mental abuse, it must be included other kinds of cruelty involving psychological, economic and sexual abuses, presumption u/s 113 A of Indian Evidence Act should apply beyond seven years of marriage regarding dowry related deaths. The section 354 of IPC deals with the outraging of modesty (which does not define word modesty) provides two years imprisonment, the sexual assault not amount to penetration gets milder punishment under this provision, so provision must have to define the word modesty and the legislation have to introduce special provision of sexual assault with mightier punishment. There are many more amendments which have to be done to include newer forms of violence faced by women. Even the cases in which women reported to criminal administration system were handled with gender insensitivity and become victim of gender biased administration. So,
17 18

AIR 1996 SC 309 AIR 1998 SC 1412 19 AIR 1999 SC 625 20 (1996) 8 SCC 525 21 Tukaram v. State of Maharashtra, AIR 1979 SC 185 22 V. Vanktesan, Lacunae in Law, Frontline Vol.25, issue no.7

68

THE LEGAL ANALYST

[Vol. I

______________________________________________________________________________
remolding and redrafting various crimes and gender sensitive machinery of implementation is most essential need of time. Concluding Observation: The violence against women recognizing as a violation of Human Right is a critical forward step toward struggle of women to get equal status. Over past decades, many efforts to end violence against women have focused mainly on legal reforms. The law passed or amended by legislation shows their great concern about the violence against women but much has to be done. The gap between laws in books and implementation is more concern. There are many reasons of non implementation from corruption to patriarchal bias in implementing authorities, the lack of access to justice to the victim. There is also need to remold law relating to violence against women in gender sensitive manner. The law is an instrument of social change, but it cannot be end in itself. The law itself can not change the society; however it is effective instrument to curb abuse against women in a struggling environment. The violence against women has it cause in power imbalance between men and women and hierarchical discrimination. Therefore, gender sensitive education and participatory work with men to promote gender equality is essential. Therefore, to realise the goal of womens liberation to achieve equality there must be a radical democratic women movement against all form of discrimination in every sphere of life and effective implementation of existing law with modification as per changing condition.

You might also like