Download In India, patriarchal perceptions of women are often the

In India, patriarchal perceptions of women are often the
cause of gender-based acts of violence. In light of this, is
CEDAW equipped to challenge these deeply entrenched
stereotypes of women in Indian society?
Elizabeth McGeown
Postgraduate HRC 2015 Working Paper No.7
Abstract
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), as a women-specific human rights instrument, purports to eradicate all forms of
discrimination against women. What remains unclear, however, is whether the Convention is
actually able to eliminate harmful stereotypes that are deeply entrenched in society, which in
itself is fundamental to eradicating all forms of discrimination against women. The
elimination of harmful stereotypes directed at women is vital for putting an end to acts of
violence being directed against them. Using India as context, the author will discuss whether
the Convention can effectively thwart harmful perceptions of women with the aim of ending
violent crimes against women there. In particular, to illustrate the extent of the problem, the
author will focus on two particular types of gender-based violence: rape and dowry-related
violence. The author too, will give recommendations as to what improvements can be made in
terms of effectively implementing the Convention in pursuit of the above aim.
Human Rights Centre
Table of Contents
Introduction and Context ........................................................................................................ 4
What is meant by harmful or gendered stereotypes? ............................................................. 5
The connection between gender stereotypes and violence against women ........................... 5
The case of India .................................................................................................................... 6
Research question and outline of what will be discussed ...................................................... 8
Chapter 1: CEDAW and the Committee ............................................................................. 10
Introduction .......................................................................................................................... 10
The aims and objectives of CEDAW ................................................................................... 11
Scope of the relevant articles: .............................................................................................. 12
CEDAW and violence against women ................................................................................. 14
The Reporting Procedure: What has the Committee said about India as regards harmful
stereotypes and violence against women? ............................................................................ 16
Is CEDAW reflected in India’s human rights law?.............................................................. 18
Problems CEDAW faces in challenging harmful stereotypes in its pursuit of a genderbased violence free India ...................................................................................................... 20
Chapter 2: Rape and Associated Problems in India ........................................................... 22
Introduction .......................................................................................................................... 22
The case of Jyoti Singh ........................................................................................................ 23
The problems with reporting rape in India ........................................................................... 25
Marital rape .......................................................................................................................... 26
The treatment of rape survivors in the courtroom ................................................................ 28
Conclusion............................................................................................................................ 30
Chapter 3: The Dowry System and Dowry-Related Violence ........................................... 32
Introduction .......................................................................................................................... 32
Law on dowry and dowry-related violence .......................................................................... 33
The connection with harmful stereotypes of women ........................................................... 34
What CEDAW provisions apply and how the Committee has contributed to confronting the
issue ...................................................................................................................................... 35
What the courts have said as regards the dowry system and dowry-related violence. ........ 36
The connection with sex-selective abortion ......................................................................... 39
Conclusion............................................................................................................................ 40
Chapter 4: The Supreme Court, CEDAW and Looking Forward.................................... 41
Introduction .......................................................................................................................... 41
2
The Supreme Court’s role in implementing CEDAW ......................................................... 41
The optional protocol question ............................................................................................. 45
Freedom from violence against women as a human right .................................................... 47
Concluding Remarks ............................................................................................................. 49
Summary .............................................................................................................................. 49
Conclusion............................................................................................................................ 49
Bibliography ........................................................................................................................... 52
Books.................................................................................................................................... 52
Cases..................................................................................................................................... 53
Indian Legislation................................................................................................................. 54
Journal articles...................................................................................................................... 54
Other ..................................................................................................................................... 55
Reports ................................................................................................................................. 56
UN Documents ..................................................................................................................... 56
Websites ............................................................................................................................... 57
3
Introduction and Context
The Charter of the United Nations, in 1945, acknowledged that every person, ‘without
distinction as to…sex’1 should possess full enjoyment of human rights and fundamental
freedoms. Following on from this, the international human rights law framework has
persistently asserted the principle of gender equality.2 Furthermore, equality wasn’t just
promised to women in terms of discrimination perpetrated by the State but within the
domestic and community setting also, which was a particularly substantial progression in
terms of women’s rights. Yet, despite these developments, the discrimination continues. At
the root of this discrimination there is often evidence of deep-seated patriarchal views of
women. Moreover, these harmful stereotypes are often the underlying cause behind the
perpetration of, arguably, the worst type of discrimination – that is, gender-based violence.
Despite admirable intentions exhibited by States in signing and ratifying international human
rights law, the reality is, as Dianne Otto points out, that ‘women fare considerably worse than
men on almost every indicator of social well-being’3 – no more so than when they are at the
receiving end of calculated violence. This evokes the question, is human rights law enough?
The
Convention
on
the
Elimination
of
All
Forms
of
Discrimination
against
Women (hereafter, ‘CEDAW’), as a women-specific human rights instrument, purports to
eradicate, as its title suggests, all forms of discrimination against women. What remains
unclear, however, is whether CEDAW is actually able to eliminate harmful stereotypes that
are deeply entrenched in society, which is in itself fundamental to eradicating all forms of
discrimination against women. If CEDAW is unable to extirpate these heavily ingrained
deleterious stereotypes, it cannot extirpate all forms of discrimination against women.
1
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 1(3)
See UN General Assembly: Universal Declaration of Human Rights, Article 2; International Covenant on Civil
and Political Rights, Articles 2(1) and 3; International Covenant on Economic, Social and Cultural Rights,
Articles 2(1) and 3
3
Dianne Otto, ‘Women’s Rights’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran (eds),
International Human Rights Law (1st edition, Oxford University Press, Oxford 2010) 345, 346
2
4
What is meant by harmful or gendered stereotypes?
Stereotyping is an inherent part of the way we interact with or view each other –
pigeonholing people, often not maliciously, into certain groups or types.4 Often, this mode of
categorising people establishes certain generalisations or biases that presume the particular
individualities or roles of people in a certain social group, which has the effect of overlooking
that person’s individual skills, what they need or wish for in life and their specific
circumstances.5 Women, of course, are not the exclusive subjects of stereotyping. Yet, Cook
and Cusack point out that stereotypes ‘often have a particularly egregious effect on women.’6
Such preconceptions of women have historical connotations, i.e. drawing on the idea that
women have traditionally been oppressed, and yet still have an effect on legal and social
structures in the 21st century.7
Stereotypes directed at women can be demeaning, especially where they are a subject to the
patriarchal view that they are subordinate to men which often manifests a devaluation of
women’s role in society. What is particularly worrying is that such stereotypes can hamper
the empowerment of women and they ‘may be socially conditioned to absorb negative
stereotypes’8 and, as a result, live up to the oppressive roles that fit the stereotype. By
contrast, if the woman is not passive, she may be ostracised or punished. When states fail to
identify or make efforts to expunge harmful prejudices and stereotypes, this engenders a
climate wherein violations of women’s rights are freely committed, which ‘enables prejudices
and wrongful gender stereotypes to fester, causing further devaluation of women.’9
The connection between gender stereotypes and violence against women
Despite violence against women only being addressed within the international human rights
legal framework relatively recently, Joachim points out that it ‘has been a global problem for
millennia.’10 Thus, the UN has had some ‘catching up’ to do in terms of tackling the problem.
4
Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of
Pennsylvania Press, Philadelphia 2010) p. 1
5
Ibid.
6
Ibid.
7
Sandra Fredman, Women and the Law (Oxford University Publishing, Oxford 1998) p. 3
8
Cooke & Cusack (n4)
9
Ibid.
10
Jutta M. Joachim, Agenda Setting, the UN, and NGOs: Gender Violence and Reproductive Rights
(Georgetown University Press, 2007 Washington, D.C.) 103
5
Gloria Steinem affirms that there is a direct connection between oppressive stereotypes of
women and violence, maintaining that in order for patriarchy to exist it needs violence or the
threat of violence.11 However, because gender-based violence has ‘been constructed as a
“normal” part of gender relations’12 society struggles in recognising that gendered stereotypes
are the root cause of such violence. Of course, as compassionate people we feel sympathy for
the ‘victim’ but fail to identify the underlying reason – that is, oppressive perceptions of
women - for gender-based violence as it is such a common occurrence. Accordingly, it is
crucial that the very heart of the problem – the stereotypes – is dealt with. Given that violence
against women was a taboo subject until recently, both internationally and domestically, it is
paramount that UN bodies, such as the CEDAW committee, over-compensate for the time
lost from the fact that the initial era of the international women’s rights’ movement failed to
address the issue.
The case of India
Ronagh McQuigg asserts that India is a ‘deeply patriarchal’13 society, whilst one member of
the UN Human Rights Committee opined in 1997 that Indian women are ‘expendable’14.
None so better exemplified by the gang-rape of a student in Delhi on 16 December, 2012.
That evening, young women, returning from the cinema with a male friend boarded a bus on
which she dragged to the back of the bus, gang-raped and brutally attacked while the vehicle
drove around the highway. The woman died from her injuries two weeks later. The attack
sparked large-scale protests across India. Cries of, ‘This is our country too. You can’t force
yourself on us’ could be heard. The government, succumbing to public pressure, quickly
formed a committee comprised of three prominent members of the legal profession to advise
it of what legal reforms to initiate. True, many of the legal reforms were observed, but
Human Rights Watch has reported, at the time of writing its 2015 world report, ‘the Indian
11
Gloria Steinem, Revolution from Within: A Book of Self-Esteem, (Bloomsbury, London 1992) p. 259-61
Cook & Cusack (n4) p. 41
13
Ronagh J. A. McQuigg, ‘How could human rights law be used by the courts to assist victims of domestic
violence? A comparative study’ The International Journal of Human Rights Law (2010) p. 346
14
Amnesty International, India: The battle against fear and discrimination (the impact of violence against
women in Uttar Pradesh and Rajasthan) (May 2001) ASA 20/016/2001 p. 8
12
6
government had yet to introduce monitoring and reporting mechanisms to track their
implementation.’15
What was more troubling were the comments made by politicians, the defence lawyers in the
subsequent trial, and one of the perpetrators themselves about the woman who had been
raped repeatedly by a group of men and violently attacked. Speaking about Ms Singh, A.P.
Singh, one of the defence lawyers for one the perpetrators said on television:
If my daughter or sister engaged in pre-marital activities and disgraced herself
and allowed herself to lose face and character by doing such things, I would
most certainly take this sort of sister and in front of my entire family, I would
put petrol on her and set her alight.
Such preconceptions of women that they are supposed to be passive and virtuous, with little
regard for their own right to self-determination, are extremely damaging, and should not be
tolerated. In the wake of the rape and hanging of two cousins, aged 12 and 14, in Uttar
Pradesh, Babulal Gaur, Home Minister for Madhya Pradesh, and therefore responsible for the
upholding of law, was reported as defining rape as a social crime, remarking it is “sometimes
right, sometimes wrong”16. Such a remark conveys the message that the subjugation of
women through such a grotesque crime is wholly permissible within certain boundaries, and
the fact that a high-ranking official made the assertion on record allows such a viewpoint to
cascade into law-enforcement and society as a whole in India.
Rashida Manjoo, the UN Special Rapporteur on violence against women, has also recognised
the dangers of persistent patriarchal attitudes in a recent report. Addressing the situation in
India, Manjoo stated:
Based on the idea of superiority of man over women, those manifestations
exacerbate women’s position of dependence and subordination and
significantly obstruct effective implementation of relevant legislative and
policy measures. Without a comprehensive effort to address them, in schools
15
Human Rights Watch, World Report 2015: Events of 2014
<https://www.hrw.org/sites/default/files/wr2015_web.pdf> (accessed 27 August 2015) p. 281
16
Sruthi Gottipati, ‘MP Minister Babulal Gaur says rape “sometimes right, sometimes wrong”’(June 5, 2014)
Available at:< http://in.reuters.com/article/2014/06/05/uk-india-rape-idINKBN0EG1EX20140605> (accessed
17 July 2015)
7
or university, at work, in the family, in the community and in printed and
electronic media, the elimination of violence against women remains a
challenge. It is essential that the authorities do not underestimate the negative
effects of this challenge in their effort to eliminate all forms of violence
against women.17
The perpetration of violence, therefore, amounts to a violation of a woman’s inherent rights
to life, liberty, dignity, security, equality, and non-discrimination.18 Not only does genderbased violence breach fundamental rights of women, it also emphasises the continuing
‘devaluation’19 of woman and not man, and is a dangerous indicator of inequality. Rape, of
course, is not the only violent indicator of harmful perceptions of women, with dowry-related
violence, sati (‘widow burning’), acid attacks20, caste-based violence against women, ‘honour
crime’21, and witch-hunting all being cited by the Committee as issues urgently requiring
attention in India.22
Research question and outline of what will be discussed
In this dissertation, the author asserts that, ‘In India, harmful and patriarchal prejudices
concerning women are often the cause of acts of gender-based violence.’ Therefore, in light
of this, the author asks, ‘Is CEDAW equipped to challenge harmful stereotypes of women
that are deeply entrenched in Indian society, in its pursuit to eradicate acts of violence against
women?’
17
UN Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and
consequences, Addendum: Mission to India, 1 April 2014, A/HRC/26/38/Add.1, para. 76
18
Shakuntla Bamal & Asha Saharan, Gender Based Violence in India – A Burning Issue Language in India Vol.
14:4 (April 2014) available at: <http://www.languageinindia.com/april2014/ashaagainstviolencefinal.pdf>
accessed 23 July 2015 pg. 9
19
Ibid.
20
In its most recent Concluding Observations concerning India, the CEDAW Committee noted, at para.10 (i),
an ‘Increasing number of acid attacks against women since 2002, the underreporting of such crimes
notwithstanding.’: UN Committee on the Elimination of Discrimination Against Women. Concluding
observations on the combined fourth and fifth periodic reports of India 24 July 2014, CEDAW/C/IND/CO/4-5
21
In November 2014 Delhi police arrested the parents of 21 year-old student Bhawna Yadav, who are alleged
to have killed their daughter for marrying outside their wishes – outside their caste – attracting significant
attention because 'honour crimes' seldom involve middle-class, urban families. See: BBC News India, ‘Bhawna
Yadav: Small dreams of Delhi 'honour killing' victim’ (21 November 2014) Available at:
<http://www.bbc.co.uk/news/world-asia-india-30141719> accessed 13 September 2015
22
UN Committee on the Elimination of Discrimination Against Women (n20) para. 10
8
Chapter 1 will discuss how, and if, the Committee, as the body responsible for overseeing the
implementation of CEDAW, has been able to address the issue of gendered prejudices and
violence against women in India within the constraints of their reporting procedure. The
author has acknowledged above that there are various forms of violence against women
perpetrated in India and, due to word constraints, has chosen to discuss two types of genderbased violence: rape, in Chapter 2; and dowry-related violence, in Chapter 3. The author
chose to discuss rape in particular as it was the gang-rape of Jyoti Singh in Delhi that sparked
the author’s interest in harmful perceptions of women in India in the first place. Further, the
author chose to discuss dowry-related violence, as it is a form of domestic violence that stems
from a tradition predominantly practised in India23. Thus the author believed it would be
insightful to draw attention to one type of violence perpetrated worldwide, and one emanating
from a system that is particular to India. Indeed, it is the author’s belief that both types of
violence, and all types, are based on the same oppressive stereotypes of women. Finally,
Chapter 4 will address some of the other ways in which CEDAW can be utilised to tackle this
issue in the mission to eradicate gender-based violence in India, particularly in terms of what
the Committee can do and what other influential bodies can do also.
Gender-based violence and practices as well as harmful stereotypes of women are, of course,
universal problems, and it is not the author’s intention to portray India as a country where
there is only ignorance and cruelty shown towards women.24 The author has assembled this
piece of writing as a symbol of solidarity with other women, and not to offer the opinion of a
‘white saviour’ on what India should or should not be doing in terms of observing women’s
rights. Rather, the author intends to give a critical analysis of how CEDAW can be used to
challenge gender stereotypes in its mission to eradicate violence against women using the
current situation in India regarding this issue as context, and, hopefully, provide some
enlightenment as to what can be done on a global scale in the persistent endeavour against
gender-based violence.
23
Also practised in Pakistan, Bangladesh and Sri Lanka.
The documentary India’s Daughter (Leslee Udwin, BBC4) documenting the gang-rape of Jyoti Singh came
under criticism, earlier this year, by prominent Indian feminist and politician, Kavita Krishnan. She believed that
India’s struggles with misogyny and violence had been ‘overshadowed by racist profiling of Indian men’ in the
documentary and pointed out that ‘rape culture’ is a worldwide problem, not just an Indian one: Kavita
Krishnan, ‘Nirbhaya film: Solidarity is what we want , not a civilising mission’ (3 March 2015) Available at:
<http://www.dailyo.in/politics/kavita-krishnan-nirbhaya-december-16-indias-daughter-leslee-udwin-mukeshsingh-bbc/story/1/2347.html> accessed 11 September 2015
24
9
Chapter 1: CEDAW and the Committee
Introduction
Historically, women can be recognised as ‘latecomers’25 as regards being individual bearers
of human rights. Before CEDAW, there was a solid foundation of international human rights
law – the UN Charter (1945), the Universal Declaration of Human Rights (1948), the
International Covenant on Civil and Political Rights (1966) and the International Covenant on
Economic, Social and Cultural Rights (1966) – that promoted equality of the sexes and
fulfilment of their human rights. However, in order to adequately achieve gender equality and
tackle the wide range of discrimination women were facing globally, a comprehensive bill of
rights was needed to realise their individual human rights.
Following decades of discussion and debate, particularly by The Commission on the Status of
Women (hereafter ‘CSW’), CEDAW was adopted by the United Nations General Assembly
on the 18 December 1979 and entered into force in September 1981. Accordingly, by virtue
of Article 17 of CEDAW, a committee – the Committee on the Elimination of Discrimination
Against Women (hereafter ‘the Committee’) – was established to monitor the implementation
of CEDAW. CEDAW is at the forefront of the women’s rights legal framework in that it is
the only international human rights treaty to deal with women alone.26
Although it binds States that are party to it in terms of introducing equality-driven legislation,
issuing guidelines and the conduct of the State, it also calls for States Parties to block acts of
discrimination by private parties, such as within the family, the community and in the
workplace.27 CEDAW, like the earlier Declaration of the Elimination of Discrimination
Against Women (hereafter ‘DEDAW’) was drafted predominantly by women and, thus,
demonstrated an authentic comprehension of being women and the implications of being
such.28 It is one of the most widely ratified human rights treaties and thus can be looked upon
25
Hanna Beate Schöpp-Schilling, ‘The Nature and Scope of the Convention’ in Hanna Beate Schöpp-Schilling
& Cees Flinterman (eds.), The Circle of Empowerment: Twenty-Five Years of the UN Committee on the
Elimination of Discrimination Against Women (The Feminist Press, New York 2007) p.10
26
Christine Chinkin & Marsha A. Freeman, ‘Introduction’ in Marsha A. Freeman, Christine Chinkin & Beate
Rudolf (eds.), The UN Convention on the Elimination of all Forms of Discrimination Against Women: A
Commentary (Oxford University Press, Oxford, 2012) p.2
27
Ibid.
28
Ibid. p. 7
10
as a ‘milestone towards reaching the goal of standard-setting for gender based equality.’29 At
the time of writing, 193 States are party to CEDAW, with India signing it on 30 July 1980
and later ratifying it on 9 July 1993 – over a decade later.
In this chapter, the author intends to outline the aims and objectives of CEDAW, describe the
relevant CEDAW articles which purport to tackle harmful stereotypes of women, describe the
relationship between violence against women and CEDAW, what the Committee has said
about India in terms of violence against women and harmful gendered stereotypes, whether
CEDAW is reflected in law in India, and outline the problems which the Committee faces in
quashing the trend of patriarchal attitudes being used to justify the perpetration of violence
against women.
The aims and objectives of CEDAW
As outlined above, before the establishment of CEDAW, there was a solid collection of
international human rights law that promoted the equality of the sexes and ensured a range of
rights – civil, political, economic, social and cultural – to both. In the Committee’s own
words, the object and purpose of CEDAW is to, ‘…eliminate all forms of discrimination
against women with a view to achieving women’s de jure30 and de facto31 equality with men
in the enjoyment of their human rights and fundamental freedoms.’32
CEDAW has been described as ‘innovative’.33 Most notably, as Schöpp-Schilling points out,
it is the ‘first and only human rights convention that obliges State Parties to modify and
abolish social attitudes and cultural patterns and practices that are based on the idea of the
inferiority or superiority of either sex.’34 Thus, in theory, CEDAW should be adequately
equipped to eradicate harmful gender-based stereotypes that are used to justify acts of
violence against women. In addition, not only are State agents culpable for violations of
human rights but private individuals and organisations too. This is particularly useful in terms
of holding perpetrators of violence against women responsible for infringing human rights as,
29
Javaid Rehman, International Human Rights Law (2nd edition, Pearson Education Limited, Essex 2010) 520
De jure meaning ‘according to the law’.
31
De facto meaning ‘in reality’.
32
UN Committee on the Elimination of Discrimination Against Women, General Recommendation No. 25, on
article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on
temporary special measures (2004)
33
Schöpp-Schilling (n1) p. 16
34
Ibid.
30
11
all too often; such acts take place within the private sphere. In particular, CEDAW pledges to
respect, protect and fulfil a woman’s human rights in the family setting, which is a vital
element of the treaty given the nature of recorded incidences of violence against women at
the hands of her family – a patriarchal institution in India.
Although CEDAW does not have the power to impose punishment for non-compliance,
Engle Merry avers that CEDAW ‘does important cultural work’35. Merry believes CEDAW
achieves this through its ratification and the obligation for States parties to prepare, present
and discuss reports. Through these processes, the various governments have little choice but
to adopt comprehensive ‘cultural understandings of gender and violence’36. Engle Merry
points out that countries want to appear ‘human rights-compliant’37 and, thus, through this
compliancy effort, they will, undoubtedly, acquire important lessons as regards the cultural
make-up of how gender equality is perceived in their particular country and what the
consequences are as regards the perpetration of gender-based violence.
Scope of the relevant articles:
It is clear that CEDAW purports to encourage positive cultural changes in gender roles and
perceptions of women that are not susceptible to harmful stereotypes, and one of its main
aims is to alter perceptions and negative stereotypes of women that have survived tradition.
This is clear from the outset, as the Preamble states that what is needed is a ‘change in the
traditional role of women in society and in the family to achieve full equality between men
and women’38. Article 2(f) of CEDAW articulates that States Parties are required: ‘To take all
appropriate measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women’39.
35
Sally Engle Merry, Human Rights & Gender Violence: Translating International Law into Local Justice (The
University of Chicago Press, Chicago & London 2006) 72
36
Ibid. 73
37
Ibid.
38
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, Preamble
39
Ibid. art.2(f)
12
Further to this, article 5(a), in particular, demonstrates a ‘significant commitment’40 to
achieving the modification of dangerous perceptions and stereotypes of women. It stipulates
that State parties should take all appropriate measures:
To modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles for men and women41
In addition, article 10(c) requires that States Parties eliminate:
…any stereotyped concept of the roles of men and women at all levels and in
all forms of education by encouraging coeducation and other types of
education which will help to achieve this aim and, in particular, by the
revision of textbooks and school programmes and the adaption of teaching
methods.
Cusack believes that the obligations of States Parties as regards the above provisions presents
‘considerable untapped potential’42 in the effort to quash gender stereotypes. Yet, States
Parties have made little or no headway as regards implementation, despite the CSW’s view
that such stereotypes are a ‘significant challenge to the practical realization of women’s
human rights’43. True, the legal framework is in place as it was one of the ‘key issues singled
out by the framers of the CEDAW’44 but as of yet, there is little substance to it. What we
learn from the above provisions is that, in theory, CEDAW can remove harmful gender
stereotypes in its efforts to eliminate violence against women; however, whether these
provisions are working in practice is a completely different matter. These provisions, it would
appear, do not stand alone, but, rather, should be applied in connection with other rights that
are infringed upon by reason of gender stereotypes. As Cook and Cusack affirm, these
40
Rehman (n5) p. 523
UN General Assembly (n14) art.5(a)
42
Simone Cusack, ‘The CEDAW as a legal framework for transnational discourses on gender stereotyping’ in
Anne Hellum & Henriette Sinding Aasen (eds), Women’s Human Rights: CEDAW in International, Regional
and National Law(Studies on Human Rights Convention) (Cambridge University Press, Cambridge 2013) 124
43
UN Commission on the Status of Women, 54th Session, Commemorating 30 Years of the Convention on the
Elimination of All Forms of Discrimination Against Women: Moderator’s Summary (29 March 2010) UN Doc.
E/CN.6/2010/CRP.12 para. 10
44
Cusack (n18) p. 126
41
13
provisions are ‘…overarching, cross-cutting obligations that need to be read in conjunction
with other human rights and fundamental freedoms, because gender stereotyping does not
exist in isolation’45.
CEDAW and violence against women
CEDAW has been prone to criticism owing to the fact that it does not include any provisions
prohibiting violence against women. In 1993, in a bid to overcome this discrepancy, the
United Nations General Assembly adopted the Declaration on the Elimination of Violence
against Women (hereafter ‘the 1993 Declaration’).46 The 1993 Declaration interprets the term
‘violence against women’ in an inclusive way, defining it as:
Any act of gender-based violence that results in, or is likely to result in,
physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or in private life.47
The Declaration expands upon the definition of violence and includes the dowry-related
violence48 and rape49 as examples and identifies that gender-based violence is ‘one of the
crucial social mechanisms by which women are forced into a subordinate position compared
with men’.
Given that some of the language used in certain provisions is rather vague, it is not always
clear as to what a State Party’s obligations are. Most relevantly, neither the Declaration nor
CEDAW contain any provision that explicitly deals with the use of violence against women.
General Recommendations 12 and 19 claim to resolve what appears now to be a crucial
historical oversight. In fact, it has been suggested that the exclusion of any explicit reference
to violence was rather a ‘sign of the times’- in other words, it was somewhat of a taboo topic
45
Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of
Pennsylvania Press, Philadelphia 2010) p. 75
46
UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993,
A/RES/48/104
47
Ibid. Article 1
48
Ibid. Article 2(a)
49
Ibid. Article 2(a) - marital rape; Article 2(b) – rape within the community; Article 2(c) – sexual violence
perpetrated or condone by the State
14
at the time of the publication of CEDAW.50 In fact, Otto has suggested that when CEDAW
was drafted, violence was considered as ‘primarily affecting men’51 and was expected to be
dealt with at a domestic level by criminal law. It should be noted that General
Recommendations are not legally binding but, rather, are a way of presenting to States Parties
particular obligations that are not explicitly set out or explained adequately in CEDAW.
However, the Committee ‘expects States Parties to accept and implement them in good
faith.’52 In reality though this is a somewhat naïve approach by the Committee as violence
against women remains a global pandemic.53
General Recommendation No. 12 establishes that articles 2, 5, 11, 12 and 16 of CEDAW
oblige States Parties to safeguard women from violence ‘of all kinds’54 happening within the
family setting, in a work environment or in society generally. The document advises that
States Parties should outline in their periodic reports to the Committee what legislation the
State Party has in place to protect women against violence, other actions taken in efforts
against violence, information delineating any support services available to victims of violence
and statistics on the subject of violence against women.
General Recommendation 19 brings the issue of violence against women squarely within the
provisions of CEDAW. The document notes that article 1 sets out a definition of
discrimination against women and confirms that this definition is inclusive of gender-based
violence – in other words, ‘violence that is directed against a woman because she is a woman
or that affects women disproportionately.’55 Thus, such violence can be violation of any
provision contained in CEDAW, even though they do not explicitly refer to violence.
Notably, the document also makes reference to the sort of attitudes which are at issue in this
written work - that is, traditional views whereby the female is considered a subordinate of her
male counterparts.
50
Engle Merry (n11) 76
Dianne Otto, ‘Women’s Rights’ in Daniel Moeckli, Sangeetaa Shah & Sandesh Sivakumaran (eds),
International Human Rights Law (1st edition, Oxford University Press, Oxford 2010) 345, 355
52
Schöpp-Schilling (n1) p. 25
53
For facts and figures, see: UN Women, ‘Facts and Figures: Ending Violence against Women’ (last updated
October 2014) available at:< http://www.unwomen.org/en/what-we-do/ending-violence-against-women/factsand-figures> accessed 13 September 2015
54
UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation
No. 12: Violence against women , 1989
55
UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation
No. 19: Violence against women, 1992, para.6
51
15
The Committee recognises the connection between such attitudes and violence, which is
perpetrated against women and refers to the fact that these attitudes can be used to ‘justify’56
gender-based violence. The Committee stresses the dire consequences of violence brought
about by patriarchal arrogances regarding the female sex, pointing out that it ‘deprive[s] them
the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.’57
However, how are such declarations useful for Indian women on the ground? The
Committee, as in General Recommendation No. 12, sets out a number of recommendations
which could be considered useful, if implemented, in tackling patriarchal attitudes. It
suggests that ‘gender-sensitive’ training is needed within the judiciary and law-enforcement
sector58; the media should be encouraged to ‘respect and promote respect for women’59;
States Parties are obliged, in their periodic reports, to recognize the ‘nature and extent of
attitudes, customs and practices’ that allows violence against women to continue60;
accordingly, corrective measures should be effected to eradicate the aforementioned attitudes,
customs and practices by way of educational or public information programmes.61 It is
perhaps as a result of the above two General Recommendations (and the 1993 UN General
Assembly Declaration on Violence against Women, of which General Recommendation 19
was the basis for) that the issue of violence against women is now a central component of
CEDAW procedures – in country reports and at Committee hearings.62 However, such
concentration seems to be merely highlighting the extent of the problem and not tackling the
root of it – as is the case with India.
The Reporting Procedure: What has the Committee said about India as
regards harmful stereotypes and violence against women?
By virtue of Article 18 of CEDAW, States Parties are obliged to submit periodic reports
outlining their progress as regards ‘legislative, judicial, administrative or other measures
which they have adopted to give effect to the previsions of the…Convention’63. An initial
56
Ibid. para.11
Ibid.
58
Ibid. para.24(b)
59
Ibid. para.24(d)
60
Ibid. para.24(e)
61
Ibid. para.24(f)
62
Engle Merry (n11) p.76
63
UN General Assembly (n14) art. 18
57
16
report has to be made within one year of ratifying the treaty64 and at least every four years
thereafter.65 The power and significance of the reporting process ‘lies in exposure and
shaming, not force.’66 States Parties want to portray themselves as human rights compliant so
there is often the danger that they won’t want identify struggles they are having in terms of
effectively implementing women’s rights and may embellish how successful their endeavours
are. This is obviously a frustrating aspect of international human rights law, as it does not
lend itself to a genuinely constructive dialogue between State Party and the Committee.
Concluding Observations are made by the Committee in response to the reports of States
Parties and address concerns the Committee has as regards implementation of CEDAW in the
States Party at issue. Neither general recommendations nor concluding observations are
legally binding so their standing as part of the international human rights legal framework is
somewhat ambiguous.67 States Parties who do not have the motivation to extirpate violence
against women can exploit such ambiguity.
As regards India, it has yet to meet a deadline on submitting a report and has combined its
second and third, and fourth and fifth reports. The Committee has waited up until a period of
seven years for a report from India which questions both the hold the Committee has over
India in terms of being taken seriously and India’s commitment to improving its women’s
rights record. The Committee in its relatively recent (2014) Concluding Observations on
India’s Combined Fourth and Fifth Periodic Reports68 commended the State party’s attempts
to bring into force legislation with the aim of preventing the perpetration of and governing
the response to violence against women. However, despite its efforts, the Committee raised
concern over a number of pressing issues: the alarming increase in the perpetration of
violence against women, the continued legality of marital rape, the ‘…downplaying by key
State officials of the grave criminal nature of sexual violence against women and girls’69 and
the high number of recorded dowry-related deaths since 2008.
64
Ibid. art. 18(a)
Ibid. art. 18(b)
66
Engle Merry (n11) p. 81
67
Chinkin & Freeman (n2) p. 23
68
UN Committee on the Elimination of Discrimination Against Women , Concluding observations on the
combined fourth and fifth periodic reports of India 24 July 2014, CEDAW/C/IND/CO/4-5
69
Ibid. para.10(c)
65
17
In light of these concerns, the Committee had a number of recommendations for the State
party, which are relevant to this written work. The Committee suggested that the State
implement the recommendations of the Justice Verma Committee70 which was set up in the
wake of the gang rape of a student in Delhi in 2012 to formulate recommendations as regards
amending the criminal law to allow for speedier trials and heightened punishment for
perpetrators of sexual violence against women. Furthermore, the CEDAW Committee
suggested that training be provided on women’s rights to law enforcement agents, medical
practitioners and the judiciary.71 Additionally, in efforts to tackle what the author will prove
to be a very pertinent issue in India, the Committee encourages that the efficacy of the police
is improved upon, making sure that police officials ‘fulfil their duty to protect’72 women
against violence. These recommendations are not new, but rather, minor variations of what
has been recommended in previous Concluding Observations. The Committee has rightly
acknowledged the attempts to reform legal framework to protect women from gender-based
violence, but recognises that the high number of dowry-related deaths and increase in
reported rapes show that there is a disharmony between the law and what is happening on the
ground.
Notably, the Committee acknowledges its unease at the ‘persistence of patriarchal attitudes
and deep-rooted stereotypes entrenched in the social, cultural, economic and political
institutions and structures of Indian society’73. While it makes a connection between such
attitudes and ‘traditional practices’ as the dowry system, sati, sex-selective abortion, accusing
women of witchcraft and “honour killings”, the Committee does not identify the relationship
with gendered stereotypes and violence against women generally. This supports the view that
such stereotypes are only typical of ‘exotic’ types of violence and not all violence, no matter
what its particular label.
Is CEDAW reflected in India’s human rights law?
There is a lengthy tradition of women’s rights movements in India and the grassroots
campaign against dowry related deaths in the country in the 1970s was ‘one of the earliest
70
Ibid. para.11(a)
Ibid. para.11(g)
72
Ibid. para.11(e)
73
UN Committee on the Elimination of Discrimination Against Women (n44) para. 7
71
18
efforts to address the problem of violence against women in the world.’74 As regards legal
framework, India’s human rights law is predominantly found in its 1949 Constitution. This,
of course, was in the era of the adoption of the Universal Declaration of Human Rights in
1948 and it would seem that the India’s Constitution observes such a development in
international human rights law by way of its content and language. Part III of the Constitution
outlines Fundamental Rights, which includes the group ‘the right to equality’. Part IV lays
out the Directive Principles of State Police, which assert the social, economic and political
principles that should be enjoyed by the people, and it is the duty of the state, through
legislation to fulfil these principles. Positively, it has been described as ‘forward-looking’ - a
social tool to enable the protection of women.75 For instance, Article 15 of the Constitution
prohibits discrimination on the grounds of sex and Article 15(3) vests in the State power to
adopt special measures for women (and children). On the ground, however, issues such as
far-reaching corruption and a poor standard of education in India’s rural areas hamper
progress regarding the status of women.76
There have been various attempts by the legislature to eliminate violence against women in
India in the pursuit of gender equality. The Sati-Prevention Act 1987, the Protection of
Women from Domestic Violence Act in 2005, rape laws and legislation prohibiting dowry
and punishing perpetrators of dowry related violence are all examples of this. The National
Commission for Woman in India, too, was introduced by legislation77 and, notably, part of its
mandate is to ‘Investigate and examine all matters relating to the safeguards provided for
women under the Constitution and other laws’78. Most importantly, the Protection of Human
Rights Act 1993 makes CEDAW an ‘integral and enforceable part of the Constitution’79 and
has been recognised by the Supreme Court as an inherent part of the legal framework in
India.
74
Engle Merry (n11) para. 32
Arun R. Kumbhare, Women of India: Their Status Since the Vedic Times (iUniverse, Inc. , Bloomintgton
2009) p. xiv
76
Ibid. p.xv
77
By way of the National Commission for Women Act, 1990 (Act No. 20 of 1990 of Govt. of India)
75
78
National Commission for Women Act, 1990 (Act No. 20 of 1990 of Govt. of India) Section
10 (Mandate of the Commission) part 1(a)
79
Ronagh J. A. McQuigg, ‘How could human rights law be used by the courts to assist victims of domestic
violence? A comparative study’[2010] The International Journal of Human Rights 343
19
Problems CEDAW faces in challenging harmful stereotypes in its pursuit
of a gender-based violence free India
Firstly, and perhaps most importantly, CEDAW’s doesn’t have any strict enforcement
mechanisms. Its primary enforcement mechanism is the reporting procedure, which is
hampered with factual inaccuracy from States as regards their compliance and the failure of
States to publish reports on time, illustrated by the fact that the Committee has waited up to
seven years for reports from India. Reports, one might add, that have been combined with the
other reports – such is their lateness. As stated above, this questions States Parties’, and
particularly India’s, commitment to the CEDAW process and the commitment to the
fulfilment of women’s rights. Surely a lackadaisical attitude to such a fundamental part of the
CEDAW implementation procedure does not indicate a vigorous will to combat harmful
gender stereotypes.
Furthermore, India is not a party to the Optional Protocol to CEDAW, which introduced a
complaint and inquiry mechanism regarding breaches of provisions of CEDAW. Where a
State is party to the Optional Protocol, the Committee is permitted to hear complaints from
individuals or investigate ‘grave or systematic violations’ of CEDAW. Thus, owing to India’s
non-committal to the Optional Protocol, the Committee can only be held accountable for
inter-state complaints, which is provided for by article 29 of CEDAW. However, one should
be aware that in the thirty-four years since CEDAW came into force, this mechanism has not
been used once and, owing to its perceived failure, it was part of the reason the Optional
Protocol was brought about in the first place. The Committee has insisted that India ratify the
Optional Protocol but the State Party has not been receptive, claiming that it has enough
resources in place in terms of redress for violations of human rights.80
Importantly, India has made declarations regarding several articles of CEDAW. Most
notably, for the purposes of this research, it has upheld a declaration as regards article 5(a)
that is set out above. Article 5(a) appears to be the very essence of what is being discussed
here, in other words, that there are deeply entrenched patriarchal attitudes that affect women
in a discriminatory way the world over. Yet, India, an offender in this respect the same as any
80
UN Committee on the Elimination of Discrimination against Women Consideration of reports submitted by
States parties under article 18 of the Convention: Combined fourth and fifth periodic reports of States parties of
India 4 November 2013 CEDAW/C/IND/4-5/Add. 1 para. 30
20
other, has chosen to uphold a declaration regarding this article to the effect that it aims to
ensure that this provision is ‘in conformity with its policy of non-interference in the personal
affairs of any Community without its initiative and consent.’81 Such a declaration is
indicative, Rehman opines, of ‘tensions, and male hegemony within society’82.
The Committee in its most recent Concluding Observations expressed its concern as regards
this declaration (as well as is declaration regarding articles 16(1), which is discussed in
Chapter 3) and stressed that such determination in the State party’s view is not uniform with
its guarantees under the Constitution to equality and non-discrimination.83 Accordingly, the
Committee, as of its 2014 Concluding Observations is not convinced that India has done
enough to change or, better still, eradicate such stereotypes and deeply entrenched patriarchal
attitudes84 and urges India to review its standpoint on article 5(a)85. In addition, in accordance
with the State Party’s obligations under article 2(f) of CEDAW, the Committee urges the
Indian government to implement a ‘comprehensive national campaign and strategy’86 with
the view to eradicating patriarchal attitudes and stereotypes that are to the detriment of
women. Furthermore, the Committee encourages the State Party to engage in ‘awarenessraising and educational efforts’87 for the benefit of both sexes with the aim of eradicating
harmful practices considered to be traditional in some Indian communities.
The sclerotic reluctance of the Indian State to embrace article 5(a) is at odds with removing
deeply ingrained patriarchal attitudes, and the author feels that whilst commendable,
engagement in awareness-raising and educational efforts is not sufficient to eliminate
discrimination against women. These, of course, are not the only problems the Committee
faces in terms of eradicating harmful perceptions of women in its efforts to eliminate violence
against women – as will be discussed in the following chapters.
81
Ibid. para.28
Rehman (n5) p. 524
83
UN Committee on the Elimination of Discrimination Against Women (n44) para.20
84
Ibid.
85
Ibid. para.21(a)
86
Ibid. para.21(b)
87
Ibid. para.21(c)
82
21
Chapter 2: Rape and Associated Problems in India
Introduction
Rape is perhaps the most extreme manifestation of the persistent inequality between men and
women and, not only that, the continued subordination and domination of women by men.88
Rape is not a spontaneous act, rather a demonstration of a ‘deeply entrenched social
practice’89 with the aim of maintaining the power of man in an already patriarchal society and
preserving a woman’s dependence on man either to protect her or not to rape her. It is a
method of limiting a woman’s freedom in society, which can provoke feelings of anxiety and
‘encourage the self-imposition of behavioural restrictions in a quest for safety.’90 Hence, it is
clear that there is a direct relationship between the act of rape and harmful and gendered
perceptions of women. Although rape is universally committed, records in India are
‘unabashedly shameful’91 with the most recent National Crime Records Bureau data showing
that the number of reported rape cases increased from 24,923 in 2012 to 33,707 the following
year.92 It can be presumed, however, that this number is much higher due to the associated
problems with reporting rapes in India.
In the continued pursuit of discovering whether CEDAW is equipped to tackle gender
stereotypes in its mission to eradicate violence against women, the author will discuss rape,
as a particular form of gender-based violence, and its associated problems which hamper the
full realisation of women’s rights. This will involve taking a closer look at the reaction to the
gang-rape of Jyoti Singh, the issues surrounding reporting rape in India, the continued
reluctance of the Indian government to criminalise marital rape, and the ill-treatment of the
rape survivor in the courtroom. In particular, the author wishes to note that, although the
88
Shakuntla Bamal & Asha Saharan, Gender Based Violence in India – A Burning Issue Language in India Vol.
14:4 (April 2014) available at: <http://www.languageinindia.com/april2014/ashaagainstviolencefinal.pdf>
accessed 23 July 2015 p12
89
Ibid.
90
Ibid.
91
Rachana Kaushal, Women and Human Rights in India (Kaveri Books, New Delhi 2000) p. 34
92
Christin Mathew Philip, ‘93 women are being raped in India every day, NCRB data show’ (1 July 2014)
available at:
<http://timesofindia.indiatimes.com/india/93-women-are-being-raped-in-India-every-day-
NCRB-data-show/articleshow/37566815.cms> accessed 12 August 2015
22
research question discusses gendered stereotypes as causes of violence against women, it is
important to address how a woman is treated in the aftermath of the rape as it often exposes
an extra dimension to the overall picture of how a woman is be perceived in general.
The case of Jyoti Singh
When discussing rape in India, it would be difficult not to refer to the 2012 gang rape of a 23year-old physiotherapy student in Delhi. Known initially by many as Nirbhaya93 (meaning
“fearless one”), Jyoti Singh boarded a bus after a trip to the cinema and was repeatedly raped
and beaten with an iron rod by a group of five men, finally being thrown off the bus, close to
unconsciousness, with her friend. Ms Singh’s injures were catastrophic, the worst of which
involved her intestines being removed from her body. After the news was published in the
media in the days following the attack, a trend of public protests, made up of students and
progressive women’s groups, quickly began in Delhi. Kavita Krishnan, Secretary of the AllIndia Progressive Women’s Association, who was critical of the government’s inaction
following the attack and the Chief Minister of Delhi, Sheila Dixit, who appeared to deny any
responsibility and commented that Ms Singh was ‘adventurous’94, made a statement that
seemed to characterise the feelings of the protesters:
Women have every right to be adventurous. We will be adventurous. We will
be reckless. We will be rash. We will do nothing to produce safety for
ourselves. Don’t you dare tell us what to wear. Don’t tell us what time of the
day or night we may be out or how many escorts we need.95
The public protests were against the Delhi and central governments and, also, against the
failure of the police to address rape cases properly.96 On 24th December, then Prime Minister,
Manmohan Singh, made a statement declaring that rigorous actions would be taken on behalf
of the woman of India. The viciousness of the attack was revealing of severe and innate
93
Under Indian law names of people who have been raped cannot be released. Jyoti’s father released her name
stating that: ‘We want the world to know her real name. My daughter didn’t do anything wrong…Revealing her
name will give courage to other women who have survived these attacks’ (Leslee Udwin, India’s Daughter,
BBC Storyville)
94
Karin Zitzewitz, A Timeline of Events in the Delhi Gang-Rape Case (February 2, 2013) Available at:
<http://www.thefeministwire.com/2013/02/a-timeline-of-events-in-the-delhi-gang-rape-case/> accessed
1September 2015
95
Ibid.
96
Ibid
23
animosity towards women who venture beyond the social limitations imposed on them.97
Indeed, the fact that Ms Singh was out after dark with a member of the opposite sex who was
not her husband was outrageous to the perpetrators – as proven by comments, made by one of
the alleged rapists, defence lawyers of the rapists and some politicians in the aftermath of the
attack. Such comments are exemplified by one Member of Parliament’s assertion that, ‘The
rape of grown-up girls and women might be understandable’98 and the claim by one of Ms
Singh’s rapists that:
A girl is far more responsible for rape than a boy… A decent girl won’t roam
around at nine o’clock at night… Housework and housekeeping is for girls,
not roaming in discos and bars at night doing wrong things, wearing wrong
clothes.99
Such so-called daring behaviour as Ms Singh displayed is perhaps seen as reflective of the
moral standing of a woman – in other words, that she possesses the potential to engage in
‘immoral’ behaviour100 and, therefore, should be punished – such is the role of the male to
punish her, as a symbol of the utmost moral standing.
Of course, the rape, and ultimate death, of Ms Singh was not an extraordinary event in India.
In fact, many feminists argued ‘vociferously against treating this attack as exceptional in any
way’ – especially in terms of any other type of violence that suppresses women. Flavia Agnes
correctly points out that rape is only one of the ways that violence can be perpetrated against
a woman, thus we ‘need to move away from the patriarchal premise of vaginal purity…and
stop awarding a special status for peno-vaginal penetration as compared to other types of
violations.’101 Furthermore, the nature of the punishment that is often demanded to be served
on rapists, such as the death penalty or castration, serves to support the traditional view that
to be raped is to be in a state ‘worse than death’, or that one is a zinda laash – a ‘living
97
Flavia Agnes, No Shortcuts on Rape: Make the Legal System Work (January 12, 2013) Economic & Political
Weekly Vol XLVIII No 2 12, 13 Available at:
<http://www.epw.in/system/files/pdf/2013_48/02/No_Shortcuts_on_Rape.pdf> accessed 1 September 2015
98
The Times of India, ‘Rape of grown-up girls may be understandable but assault on children unimaginable: BJP
MP’ (10 January 2013) available at: <http://timesofindia.indiatimes.com/city/raipur/Rape-of-grown-up-girlsmay-be-understandable-but-assault-on-children-unimaginable-BJP-MP/articleshow/17965859.cms> (accessed
1 September 2015)
99
Maseeh Rahman, ‘India bans TV stations from showing interview with man who raped student’ (4 March
2015) available at: <http://www.theguardian.com/world/2015/mar/03/india-outraged-interview-man-convictedgang-rape-student> (accessed 1 September 2015)
100
Ibid.
101
Agnes (n11)
24
corpse’. Such punishments are not helpful in the long-term and again support the patriarchal
principle of the ‘sanctimony attached to vaginal purity’102 and thus do little to support the
view of women as strong, independent and empowered. These forms of retributive justice
confuse the view of violence against woman, making it appear to be ‘a rare aberration’103,
rather than a routine occurrence happening at every level of the public and private sphere.
The problems with reporting rape in India
Human Rights Watch reports that many women who have experienced sexual violence do not
report it to the police as they ‘fear ridicule or retribution’104, as well as fearing ‘assumptions
that victims of sexual assault are “bad,” “loose,” or otherwise responsible for the attack.’105
Once a woman reports a rape to the police, she is then brought to a hospital where a medical
examination is carried out on her – to be then submitted to the court as evidence. Very often,
what is known as a ‘finger test’ is performed on her. This involves a doctor observing
whether or not the woman’s hymen is present and the size and so-called looseness of the
vagina to gauge whether the rape survivor is a virgin or indicate how sexually active she is.
Although a hymen that has not torn can be an indicator of a woman’s virginity, it is unreliable
as a sign because in some instances sexual intercourse does not result in a tear in the hymen
or it may have been ruptured beforehand, perhaps by the woman herself.106 What is also
curious is that the fact that a woman has had sexual intercourse prior to being raped has no
relevance to the fact that she did not consent to the sex alleged to be non-consensual. Human
Rights Watch suggests that the finger test causes women additional distress and, given the
nature of the test, it could be considered a sexual assault in itself.107
Not only is the finger test unscientific and upsetting for the rape survivor, it is wholly
unnecessary as the Indian Supreme Court has concluded that such tests cannot be used as
evidence against the rape survivor and that a woman’s sexual history is of no relevance to the
fact of whether she consented to the alleged non-consensual sex or not. Despite the view of
102
Ibid. p.13
Ibid.
104
Human Rights Watch, Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting
Forensic Examinations of Rape Survivors (September 6, 2009)
<https://www.hrw.org/report/2010/09/06/dignity-trial/indias-need-sound-standards-conducting-andinterpreting-forensic> accessed 27 August 2015
105
Ibid.
106
Derek Llewellyn-Jones, Everywoman: A Gynaecological Guide for Life (3rd edition, Faber and Faber, Suffolk
1982) page 19
107
Human Rights Watch (n17)
103
25
the Indian Supreme Court (and amendments to Indian law that prohibits asking a survivor in
cross examination about their character), the procedure is still carried out in Indian hospitals.
The very use of the finger test indicates that many involved in the investigative and
adversarial process of conviction for rape do not understand ‘what constitutes rape, what
elements could help establish that rape has occurred, and what facts are irrelevant to
determining whether rape has occurred.’108 Such ignorance calls for national guidelines for
the forensic examination of rape survivors that ensure that her human rights are respected in
terms of the healthcare provided to her, the dignity that she is shown, and that the evidence
given to the courts is ‘scientific, relevant and accurate’109. Such guidelines were introduced
by the Indian government in 2014. However, these guidelines fell short in distributing the
means required for their execution, making them effectively meaningless.110 Ultimately, even
though Indian law stipulates that the perpetrator can be prosecuted on foot of the rape
survivor’s testimony, where medical evidence pertaining to ‘finger tests’ are mentioned into
the court, it could threaten what may have been a strong case towards conviction by
‘weakening the morale of the victim and causing others to question her credibility and
character’.111 This can prove fatal to the success of the trial as, often, one’s perceived virtue
prior to the act of rape can determine the success of the case.
Marital rape
As the law stands currently in India, marital rape is an offence only if the wife is under 15
years of age.112 In April of this year, India’s Home Affairs minister, Haribhai Chaudhary,
commented that the government did not plan to criminalise marital rape in the near future, in
spite of the Committee’s (and the Justice Verma Committee’s) recommendation that they do
so.113 Such a concept, the press release said, as it was recognised at an international level,
could not operate in India because of issues such as ‘illiteracy, poverty, myriad social
customs and values, religious beliefs, mindset of the society to treat the marriage as a
108
Ibid.
Ibid.
110
Human Rights Watch, World Report 2015: Events of 2014 available at:
<https://www.hrw.org/sites/default/files/wr2015_web.pdf> accessed 27 August 2014 page 281
111
Amana Fontanella-Khan, Pink Sari Revolution: A Tale of Women and Power in the Badlands of India
(Oneworld Publications, London 2013) p. 206
112
Indian Penal Code, s.375
113
Press Information Bureau, Government of India, Ministry of Home Affairs, Women Subject to Marital Rape
(29 April 2015) KSD/PK/BK/RS available at: <http://pib.nic.in/newsite/PrintRelease.aspx?relid=119938>
accessed 27 August 2015;
109
26
sacrament’114. The press release uses the 172nd Report on Review of Rape Laws submitted by
the Law Commission in 2000 which advised the continued immunity of a spouse to rape
charges as criminalisation could ‘amount to excessive interference with the marital
relationship.’115 Indeed, such an understanding of the marital relationship originates from the
out-dated belief that husbands have ownership rights over their wives.116 Leila Seth, the first
female to be appointed Chief Justice of a State High Court in India (Himachal Pradesh in
1991), commented that such an attitude characterised by the minister’s press release could go
as far as denying a woman her right to life ‘under the pretext of defending culture’117.
Not only did the government reject the recommendation by the Justice Verma Committee that
marital rape should be criminalised but also the judiciary have not been advocates for its
criminalisation either. As recently as February, 2015, India’s Supreme Court has rejected
attempts to criminalise marital rape where a woman, who had been raped by her husband,
filed a petition to have marital rape criminalised. The Court was reported as saying that it was
a “personal cause and not a public cause”118, despite the fact that in a study carried out among
124, 385 women in 29 states, as much as 10% asserted that they have been physically forced
into sex by their husbands.119 Thus proving the reluctance of the Supreme Court to recognise
marital rape for what it is – an act of sexual violence against a woman – and its ignorance
toward the extent of the issue. Kamlesh Kumar Mishra, a lawyer at the Human Rights Law
Network has stated that although the HRLN receives numerous complaints of domestic
violence, including sexual violence, from women, he feels that, “…because of the in-built
prejudice in society and the judiciary…there is no recognition of the possibility of rape on the
114
Ibid.
Law Commission of India, One Hundred and Seventy Second Report on Review of Rape Laws March, 2000
(25 March 2000) available at: <http://www.lawcommissionofindia.nic.in/rapelaws.htm> accessed 29 August
2015 para. 3.1.2.1
116
KumKum Dasgupta, Why is India dragging its heels over the criminalisation of marital rape? (17 August
2015) available at: <http://www.theguardian.com/global-development/2015/aug/17/india-martial-rape-lawcriminalisation-dragging-heels> accessed 27 August 2015
117
Vidya Venkat, Anger over Minister’s marital rape comment (1 May 2015) available at:
<http://www.thehindu.com/news/national/anger-over-ministers-marital-rape-comment/article7157945.ece>
accessed 29 August 2015
118
Bhandra Sinha, ‘SC rejects plea to make marital rape a criminal offence’ (18 February. 2015) Available at:
<http://www.hindustantimes.com/india-news/sc-rejects-plea-to-make-marital-rape-a-criminal-offence/article11317908.aspx> (accessed 2 September 2015)
119
BBC News, ‘India marital rape victims’ lonely battle for justice’ (26 May 2015) available at:
<http://www.bbc.co.uk/news/world-asia-india-32810834> (accessed 18 August 2015)
115
27
wife within marriage”120. Marital rape is indeed a mechanism by which to force a woman to
feel undermined in her marital relationship – in her own home.121
It has been argued by Mackinnon that rape, by virtue of its legal definition, is viewed as ‘a
crime against female monogamy (exclusive access by one man)’ rather than a crime against
women’s sexual dignity or intimate integrity’122. Braxi believes that this belief is
demonstrated by the Indian government’s obstinacy in refusing to make marital rape a
crime.123 As Braxi further points out, a girl can’t have consensual sex until she is sixteen, yet
it is only legally possible for her to have consensual sex with her husband after the age of
fifteen.124 Thus, India’s rape laws separate women into different categories of consent
corresponding to the relationship she has with the man who rapes her125 – the closer she is to
him, the less serious the act is and, thus, will be less likely to be considered an act of sexual
assault.
The treatment of rape survivors in the courtroom
There is evidence that medical jurisprudence and courtroom narratives of rape encourage
gender stereotypes. Flavia Agnes is particularly critical of what she describes as ‘blatantly
anti-women statements’ that are ‘disguised as neutrality’ in medical jurisprudence
textbooks.126 Of particular concern to Agnes is Modi’s Medical Jurisprudence and
Toxicology127 – a book now in its 22nd edition having been first published in 1920 – and its
approach to rape, which appears largely the same since its first edition. As regards a doctor
giving evidence at a rape trial, their role is to give an expert medical opinion concerning the
level of injuries and trauma the rape survivor endured. However, it would seem that the Modi
textbook promotes the idea that the doctor involved is playing the role of detective as to
whether the rape claim is true or false.128 It is on the basis of these assertions that Agnes feels
120
Venkat (n30)
Bamal & Saharan (n1) p. 10
122
Catherine A. McKinnon, Towards a Feminist Theory of the State (Harvard University Press, Massachusetts
1989) p. 172
123
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (1st edition, Oxford University Press, Oxford
2014) p. 5
124
Ibid.
125
Mackinnon (n35)
126
Flavia Agnes, To Whom Do Experts Testify? Ideological Challenges of Feminist Jurisprudence Economic
and Political Weekly Vol. 40 No. 18 (Apr 30 – May 6 2005) 1859
127
B.V. Subrahmanyam (Ed.), Modi's medical jurisprudence and toxicology (22nd edition, Butterworths, New
Delhi 1999)
128
Agnes (n39) p.1860
121
28
that, as the rape case plays out, the survivor’s ‘chastity, morality and virginity’129 is
essentially put on trial.
Defence lawyering in rape trials often involves intimidating the rape survivor and slandering
her character.130 This can be typified by asserting an argument of false charge if there is a
delay in reporting the rape. Of course, there are many factors which may contribute to a
woman feeling that she cannot report a rape, largely owing to the stigma attached to being the
‘victim’ of a rape and being burdened with a ‘fate worse than death’ which is the equivalent
of the ‘living corpse’ label.
Fortunately, the courts view this particular issue with the
sympathy in light of the social reality of the circumstances.131 However, such progression has
not been outlined in medical jurisprudence and Agnes makes the point that the Modi textbook
only makes reference to old English case law or Indian case law from the colonial period
when patriarchy was at its height as regards women delaying their decision to report the
crime.132 The defence lawyer will often use the results of the ‘finger test’ to their advantage
by concluding that she is ‘habituated’ to sex where the medical evidence appears to prove
that she was sexually active prior to the rape and, thus, her character is ‘questioned publicly
in the court’133. In many instances, it is on the foot of this conclusion that it is affirmed by the
defence that the rape survivor has lied about the rape.134 However, it has been held by the
Supreme Court in that ‘no self-respecting woman would come forward in a court just to make
a humiliating statement against her honour such as is involved in the commission of rape on
her.’135 Such a principle places the burden of shame on the survivor and not the rapist and
reiterates the notion that she is a now a “living corpse”. Views such as these in the wake of
perpetrations of violence are just as harmful as those which caused the violence in the first
place as they let the violence define who the women is and who she will be in the future and,
therefore, does nothing to challenge the harmful gendered perceptions ingrained in the
perpetrator.
Notably, a High Court in India stipulated that:
129
Ibid.
Baxi, (n36) p. xxxvi
131
Ibid.
132
Agnes (n39). p.1861
133
Fontanella-Khan (n24)
134
Baxi (n36). p. xxxvii
135
The State of Pubjab v. Gurmit Singh & Ors 1996 SCC (2) 384
130
29
“A rapist not only violates the victim’s privacy and personal integrity but inevitably
causes serious psychological as well as physical harm in the process. Rape is not
merely a physical assault – it is often destructive of the whole personality of the
victim… a rapist degrades the very soul of the helpless female.”
While the court should be commended for publicly emphasising the gravity of this heinous
crime, it reinforces the image of a rape survivor as weak and powerless. Rendering her
‘helpless’ implies that she is dependent on the rapist, further reinforcing entrenched
patriarchal views. It is dangerous to present a rape survivor as a victim. Women as victims, is
of course a prevalent notion worldwide, not just in India. As ‘victims’ of rape, dowry-related
violence and other acts of gender-based violence, women are presented as the central focus of
a heinous act. The perpetrator is the protagonist and should be portrayed as such.
Victimisation does not promote empowerment among women.
Conclusion
Feminist, Andrea Dworkin stated that:
All men benefit from rape, because all men benefit from the fact that women
are not free in this society; that women cower; that women are afraid; that
women cannot assert the rights that we have, limited as those rights are,
because of the ubiquitous presence of rape136
Surely, then, in light of this and the discussion above, the solution to rape lies in challenging
the harmful perceptions that men, who perpetrate rape, have of women. In light of the
plethora of issues that the rape survivor faces in the aftermath of the assault, it is paramount
to the eradication of gender stereotypes that the root cause of this sexually violent crime is
addressed. The Committee have acknowledged the ‘stark increase’ in rapes reported in India
and acknowledge the continued ‘impunity’ for the perpetration of this violent act. By way of
solving these issues, the Committee, as mentioned previously, has insisted that the
recommendations of the Justice Verma Committee pertaining to violence against women be
implemented. The Justice Verma Committee comprised a comprehensive report after it
received approximately 80,000 recommendations, consulted with NGOs in India, and
136
Andrea Dworkin, Letters from a War Zone (Dutton Publishing, New York 1989) p. 142
30
referred to laws and developments as regards violence against women from an extensive
number of countries. On foot of the recommendations, offences against women such as
different degrees of sexual harassment137, forcibly trying to disrobe a woman138 and
stalking139 are now some of the ‘new’ offences specifically prohibited. Nonetheless, marital
rape remains legal. As mentioned above, the Justice Verma Committee was also instrumental
in the establishment of a new court that intends to hear rape case within two months of the
assault being reported. Not only this but there are now criminal sanctions in place for
‘misogynist’ policemen who do not register complaints – as often appears to be the case in
India. While law reforms are a positive step towards reducing crime, and statistics show a
greater percentage of women reporting rapes (a 15% rise between 2013 and 2014140), it is too
soon to tell what the long-term effects will be in terms of reducing violence against women.
Criminalising more offences against women and enacting tougher sanctions for perpetrators
of sexual violence cannot be considered as the solution to eliminating the harmful gendered
stereotypes of women that cause these crimes in the first instance.
137
Indian Penal Code, s354A
Ibid. 342B
139
Ibid. 354D
140
Shelly Walia, ‘Two years since the Delhi gang rape, here’s what’s changed – and what hasn’t’ (15
December, 2014) available at:< http://qz.com/312738/two-years-since-the-delhi-gang-rape-heres-whatschanged-and-what-hasnt/> (accessed 20 August 2015)
138
31
Chapter 3: The Dowry System and Dowry-Related Violence
Introduction
In some pockets of India, when a woman enters into a new family by way of marriage, she
brings with her a dowry and this involves money or chattels that are gifted from her family to
the groom’s family. The concept of dowry is considered by many, academic and otherwise,
as a social evil. But despite its illegality, many still are ‘boldly pursuing this chronic evil to
fulfil their greedy desires.’141 In many cases the dowry is at the centre of a dispute that it is
not large enough and the bride may fall victim to violence or be killed. In some instances, the
woman may make the decision to take her own life or what was actually a murder by the
woman’s husband or in-laws will be made to look like suicide. Although traditionally a
custom of the upper-caste Hindu society, dowry is now a practice observed across an array of
castes and communities.142 The most recently published figures of India’s National Crime
Records Bureau have shown that there were 8,233 recorded dowry related deaths in 2012.143
In reality, however, it is thought that the figure could be as high as 25, 000 per year.144 Many
of these women are ‘soaked in kerosene by their husbands or in-laws and then set alight.’145
The Dowry Prohibition Act 1961 made requesting dowry illegal, with amendments in 1984
and 1986 enacting punishment for the giving and taking of dowry payments. Despite the
legislation and society’s outrage as regards the ‘brutality of dowry to which women are
subjected in their homes’146, the dowry system, and deaths relating to it, still occurs in parts
of Indian society. What the author intends to discuss in this chapter is the law on dowry and
dowry related violence, the connection between harmful stereotypes and both dowry-related
violence and the dowry system itself, what CEDAW provisions apply and how the
Committee has contributed to confronting the issue, what the courts have said as regards the
dowry system and dowry related violence, and the connection with sex-selective abortion.
141
Charu Walikhanna & Nandita Rao (eds.), Supreme Court & High Court judgments relating to Women &
Children (Serials Publications, New Delhi 2005) p. 207
142
Geetanjali Gangoli, Indian Feminisms: Law, Patriarchies and Violence in India (Ashgate Publishing Group,
Hampshire 2007) p. 3
143
National Crime Records Bureau Figures At a Glance – 2012 < http://ncrb.nic.in/CD-CII2012/cii2012/figure%20at%20a%20glance.pdf> accessed 25 August 2015
144
Arun R. Kumbhara, Women of India: Their Status Since the Vedic Times (iUniverse, Bloomington 2009)
p.135
145
Mala Sen, Death by Fire: Sati, Dowry Death and Female Infanticide in Modern India (Weidenfeld &
Nicolson, London 2001) p. 51
146
Wlkikhanna & Rao (n1)
32
In addition, the author wishes to point out that dowry-related violence does, indeed, fall under
the banner of ‘domestic violence’ and just because there is monetary gain involved and it is
not explicitly called domestic violence does not make it a type of ‘exotic phenomenon’147
exclusive to India. Dowry related violence is the same as any other type of domestic violence
(in terms of domestic violence perpetrated by a man against a woman): calculated physical
abuse perpetrated against a woman based on the need to exert power over her. Whether the
man believes the woman to be weak or is, in fact, fearful of how powerful she can be, it is a
physical manifestation of patriarchy. With this in mind, the author will refer to the violence
below as dowry related violence, or dowry death, as, although it is domestic violence, it is
related to the particularly Indian system of dowry, which the author believes is a type of
gender-based discrimination in itself.
Law on dowry and dowry-related violence
As mentioned above, the dowry system is prohibited by the Dowry Prohibition Act 1961 but
in spite of the legislation doing little to completely eradicate the system, reports of dowryrelated violence and dowry deaths were not taken seriously in the past. In 1983, in response
to campaigning and pressure from the anti-dowry movement, the Indian Evidence Act was
amended to contain a presumption of abetted suicide in section 113A148. This means that a
court may presume abetment (encouragement or support) of a suicide by the husband or his
family if his wife takes her own life within seven years of getting married – that is, if she was
exposed to cruelty on their part. Section 113B states that it ‘shall’ be presumed that a dowry
death has taken place where there is an instance of unnatural death of a woman within 7 years
of marriage, where prior to her death either the husband or his relatives exposed the woman
to harassment or cruelty.149 The rationale behind such a presumption is so the unnatural death
of a women does not go unnoticed and a police investigation can be launched or an inquest
by the Magistrate into the cause of death.150
147
Madhu Purnima Kishwar & Manushi Strategies for Combating the Culture of Dowry and Domestic Violence
in India (UN Division for the Advancement of Women 2005) available at:
<http://www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/kishwar.dowry.pdf> accessed 12
September 2015
148
1872 (inserted by Act 46 of 1983)
149
(inserted by Act 43 of 1986)
150
Law Reform Commission Ninety first report (1983) p.4
33
The Indian Penal Code (hereafter, ‘the IPC’), too, was amended explicitly to tackle the issue
of dowry-related violence. Most significantly, section 304B penalizes a husband or his
relatives where a woman has died within seven years of getting married. ‘Dowry death’ is
also defined in this section and describes it as ‘the unnatural death of a woman following
harassment or cruelty by her husband or his relatives in connection with a demand for
dowry.’151 As such, this definition can include homicides and suicides. Furthermore, section
498A of the IPC prohibits harassment of a woman by her in-laws. The amendments in the
law show a trend by the Indian government to respond positively by way of legal reform in
response to public outcry. This was exemplified also by the response by the government
following the public protests after the Delhi gang rape in 2012. What is at issue then is
whether these laws protecting women are a sincere effort to eradicate violence against
women when one knows that the statistics still prove that dowry-related violence still exists
in high numbers.
The connection with harmful stereotypes of women
Not only do patriarchal perceptions of women cause dowry-related violence, the very concept
of the dowry system is based on gendered prejudices of women that their role is in the home
and she is ill equipped to take care of herself – ultimately, that she is a burden on the new
family she enters into. As Oldenburg points out, ‘Seldom has there been so firm a consensus
on a social issue in India as the one among scholars, journalists, feminists, politicians,
legislatures… that the custom of dowry has a causal relationship to prejudice and
violence.’152
It is argued that the raison d’être for taking dowry is greed but, undoubtedly, beyond the wish
for financial gain is a belief that a woman is disposable, that her life is cheap. This is
demonstrated by the fact that very often where the demands for dowry, or a larger dowry, are
not fulfilled she is harassed, killed or driven to take her own life. Often, where dowry is
involved the marriage is not a ‘love marriage’ and is arranged, in which case the woman is
merely the passive subject of a financial transaction. Despite the illegality of the procedure, it
is taken for granted that the father of the bride will give something to the groom and the
151
Indian Penal Code 1860, s. 304B (inserted by Act 43 of 1986)
Veena Talwar Oldenburg, Dowry murder: The Imperial Origins of a Cultural Crime (Oxford University
Press, Oxford; New York 2002) p. 3
152
34
implications for not providing adequate dowry can be sinister.153 Accordingly, it is the new
bride that pays the price. As well as emotional harassment and restrictions on her movement,
she can be subjected to physical harassment which can culminate in murder, often referred to
as “bride burning”, and staged in such a way that they look like an accident.154 Dowry death,
ultimately, preserves the ‘inferior status’155 of women in society. Not only this, but the dowry
system itself achieves this also, treating her as a property to be bargained with. Through the
dowry system, families are effectively paying to acquire husbands for their daughters. What
is perhaps the most internationally persistent gendered prejudice is ‘the stereotyping of
women as mothers and housewives in a way that limits their opportunities to participate in
public life’. This prejudice is one that enables the dowry system to continue and, as a result,
allows dowry related violence to persist as well.
What CEDAW provisions apply and how the Committee has contributed to
confronting the issue
In the Committee’s most recent concluding observations concerning a periodic report
submitted by India, it noted concern about the rising amount of dowry deaths since 2008
(when the Committee had last published concluding observations concerning India)156 but did
not provide any specific recommendations as to how to deal with this persistent problem. The
situation is slightly different for the dowry system itself. In interpreting the implications of
Article 16(1) (b) the Committee has, however, expressed unease as regards the ‘economic
aspects of marriage formation that discriminate against women’157 and such ‘gendered role
expectations’ pressurise women into marrying, without respect for her own ideas and
ambitions. Article 16 deals with a woman’s right to marry and 16(1) (b) specifically asserts
that a woman should have the equal right to freely choose her spouse and to enter into a
marriage only with her full and free consent. The Committee has interpreted this article to
include the dowry system as infringing upon this specific right. What is particularly
problematic in terms of India, therefore, is that they have made a declaration as regards
153
Ibid.
Ibid.
155
Katerina Standish, ‘Understanding cultural violence and gender: honour killings; dowry murder; the zina
ordinance and blood feuds’ (2014) 23(2) Journal of Gender Studies 111, 112
156
UN Committee on the Elimination of Discrimination Against Women Concluding observations on the
combined fourth and fifth periodic reports of India 24 July 2014, CEDAW/C/IND/CO/4-5 para. 10(e)
157
Marsha A. Freeman, ‘Article 16’ in Marsha A. Freeman, Christine Chinkin & Beate Rudolf (eds.), The UN
Conventiion on the Elimination of all Forms of Discrimination Against Women: A Commentary (Oxford
University Press, Oxford, 2012) 409, 424
154
35
Article 16(1), to the effect that it aims to ensure that its pursuit of rights under article 16(1)
conform with its ‘policy of non-interference in the personal affairs of any Community’158.
Thus, by virtue of its non-committal attitude to Article 16(1), India demonstrates its
reluctance to interfere with the patriarchal institute of the Indian family which leaves doubt as
to how committed it is to enforce its own domestic laws. Of course, the Committee cannot
force India to withdraw its declarations to 16(1) (or 5(a), but it seems to question the entire
spirit of CEDAW if States Parties are able to qualify the rights they have supposedly signed
up to – especially where it is a particular area of concern for a State Party – as is the case
here. Thus, it can be said with confidence that the Committee has been able to contribute little
practical work insofar as encouraging India to address the patriarchal nature of the dowry
system and eliminating the gender stereotypes that are embodied through the continued
violence directed at women in the pursuit of larger dowries.
What the courts have said as regards the dowry system and dowry-related
violence.
It is particularly insightful to this discussion to examine how the courts are interpreting laws
that purport to protect women, especially the dowry-related legislation which has been
referred to as ‘social legislation’159. In addition, it has been pointed out that such social
legislation ‘must be backed by social awareness and must match the letter and spirit of
law’160. Thus, one way in which social awareness can be created is through an ‘activist’
approach by the courts which demonstrates its potential as an authentic beacon of justice.
In Ram Kishan and Others v. State of Madya Pradesh161, the High Court recognised that
delays in reporting a matter of dowry-related violence to the police are often because:
…the woman who has been subjected to cruelty and her parents are place in a
dilemma. They very well realise that in case they knock at the door of the
police station, the doors of the matrimonial home of the Woman would be
158
UN Committee on the Elimination of Discrimination against Women Consideration of reports submitted by
States parties under article 18 of the Convention: Combined fourth and fifth periodic reports of States parties of
India 4 November 2013 CEDAW/C/IND/4-5/Add. 1, para. 28
159
Dr. Nehaluddin Ahmad, 'Dowry Deaths (bride burning) in India and Abetment of Suicide: A Socio-Legal
Appraisal' (2008) Journal of East Asia and International Law p.278
160
Ibid.
161
II [2000] DMC 628
36
closed forever… They [the woman’s parents] suffer and still they do not
hasten to the police station in the hope that good sense would prevail upon the
husband and his relatives and the woman would be taken back and the passage
of time would heal the wounds.
The High Court is clearly sympathetic in terms of the plight of the woman who has been
subjected to dowry-related violence or harassment and recognises the reluctance of a woman
to report acts of violence to the police (a factor common to every type of gender-based
violence owing to the male-dominated police force and their notoriety for misogyny).
However, the Court is portraying the woman as completely reliant on her husband’s family,
placing the burden on her to bare the social consequences of her actions – perhaps hinting
that these are more shaming than the criminal consequences of her the actions of her in-laws.
Nonetheless, the Court is presenting the social reality of a woman who is embroiled in the
dowry system and, clearly, isn’t condoning it. More hopefully, however, the Court went on to
refer to a Supreme Court decision that stressed the importance of awareness building among
men and women so as to ensure the eradication of the practice and the fulfilment of women’s
rights:
Awakening of the collective consciousness is the need of the day. Change of
heart and attitude is needed. A wider social movement not only of educating
women of their rights but all of the men folk to respect and recognise the basic
human values is essentially needed to bury this pernicious social evil.162
In light of this, the Supreme Court asserted that it has a significant role to play, admitting that
it was the responsibility of the courts to be ‘expected to deal with such cases in a realistic
manner so as to further the object of the courts.’163 Although no explicit reference to
CEDAW is made here, both Courts (the Supreme Court directly and the High Court by
indirectly by reference to the Supreme Court decision) demonstrate a commitment to apply
the legislation in such a way so to fulfil women’s rights. This bodes well for eliminating
harmful perceptions of women as it shows a commitment to gender equality – the very
essence of CEDAW.
162
163
S. Gopal Reddy v. State of Andhra Pradesh [1996] SCC (4) 596
Ibid.
37
Conversely, in a later case, there seems to be little progression as to how the Court chooses to
refer to a woman who has been subject to the dowry system or its related violence – that is, as
the unfortunate recipient of gendered and harmful stereotypes and views which are being
allowed to thrive in the patriarchal institute of the family. In State of Karnataka v. M.V.
Manjunathegowda and Another164 the Court noted that:
When a woman enters into wedlock she has many salutary expectations. She
would expect happy conjugal life, she would then expect to be a mother oneday, then she would expect to be mother-in-law and grandmother and so on.
All these expectations are shattered by the cruel hand of dowry related death.
Here, the Supreme Court clearly acknowledges the cruelty of dowry related death and is,
notably sympathetic, but, ultimately fails to acknowledge the discriminatory practice of
dowry itself which is the cause of said dowry related death. Instead, it trivialises the woman’s
role in the home, further reinforcing stereotypes not in the least way helpful towards her
empowerment. Of course, some may argue that this is not a culturally sensitive view of
women in India, the majority of which live in rural poverty where education and employment
aspects are limited. Surely then, the CEDAW Committee’s focus, given that that the
overriding principle of CEDAW is gender equality, should be enabling women and young
girls who will be, or are, affected by dowry to reach a level of financial independence by way
of attaining a minimum level of education that gives them the confidence to define their own
role in life. Further, raising awareness as to how such a system does not allow them to reach
full enjoyment of their rights as women and ensuring that the implications of the laws in
place are known is fundamental to allowing women, themselves, to challenge stereotypes and
harmful gendered perceptions directed at them. Furthermore, in eradicating violence against
women, UN Women recognises that prevention is the best policy by way of identifying the
‘root and structural causes’165 of acts of gender-based violence. It believes that prevention
should begin at a young age, educating children to encourage relationships between one
another that respect gender equality. Childhood and young adult hood are important times in
one’s life in terms of developing views and perceptions of the world, therefore, such
awareness building should be encouraged by the CEDAW Committee.
164
[2003] (1) SCALE 30
UN Women, Focusing on Prevention to Stop the Violence (undated) available at: <
http://www.unwomen.org/en/what-we-do/ending-violence-against-women/prevention> (accessed 11 September
2015)
165
38
The connection with sex-selective abortion
Some scholars believe that the burden of dowry for the woman’s family is a reason for
instances of female infanticide and sex-selective abortion, leaving the female doomed from
conception. Daughters are viewed as somewhat of an ‘economic liability’166 to their families
and, thus, the dowry system is considered the main, perhaps only, reason for sex-selective
abortions and the neglect of female babies which can lead to their death.167 Abortions in India
are legal under the Medical Termination of Pregnancy Act of 1975 and, although
reproductive rights (including abortion) should be enjoyed by women, terminating a
pregnancy because it is female could certainly be described as harmful gender discrimination,
which is based on the perception that daughters are a burden to their families. Gender ratios
between men and women indicate that are many women “missing” from the Indian
population. As a preventative measure, the Prenatal Diagnostic Techniques (Prohibition of
Sex Selection) Act 1994 (amended in 2003) prohibits sex determination unless in the case of
medical emergency but without interaction with medical professionals, implementation of the
Act is hard to gauge.168 The Committee has, however, expressed concern that this legislation
criminalises a woman who may have been coerced into pursuing a sex-selective abortion169
and, therefore, does not get to the root of the problem. The Committee noted in its most
recent Concluding Observations concerning India the falling girl child sex ratio from 962 per
1,000 in 1981 to 914 per 1,000 in 2011170 and has urged India to ‘take urgent measures to
adopt a national plan of action for improving the girl child sex ratio’171. The evidence of
female infanticide and sex-selective abortion demonstrates how the gender discrimination has
come full circle – a vicious cycle of gender-based violence borne out of stereotypes that have
no place in the era of women’s rights.
166
Rita Patel, ‘The Practice of Sex Selective Abortion in India: May You Be the Mother of a Hundred Sons’
(The University Centre for International Studies, University of North Carolina 1996) available at:
<http://cgi.unc.edu/uploads/media_items/the-practice-of-sex-selective-abortion-in-india-may-you-be-themother-of-a-hundred-sons.original.pdf> (accessed 12 September 2015)
167
Oldenburg (n12) p. 1
168
Bharati Ray & Aparna Basu, From Independence Towards Freedom (Oxford University Press),
169
UN Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding observations
on the combined second and third periodic reports of India 2 February 2007, CEDAW/C/IND/CO/3 para. 38
170
UN Committee on the Elimination of Discrimination Against Women (n10) para. 10(e)
171
Ibid. para. 11(j)
39
Conclusion
It is felt a payment of dowry is needed to ‘keep’ a woman – a compensation of sorts. The
view that she cannot be financially independent or at least contribute in some monetary way
belittles her skills and abilities. Law or no law, all of society needs to be of the belief that
dowry is an evil in order for it to be eradicated. Despite the clear element of greed, the author
believes there is an inherently patriarchal element to the practice. Indeed, as Sharma points
out, ‘Behind the violence is a mentality of possession, of ownership, of a belief that men
know what is good for women, that women must silently obey – or
face the
consequences’172. Indeed, in order to allow the law to work, people should be aware of it and
recognise the patriarchal nature of the dowry system.
There should be a dedicated movement to ensuring that women are aware of their rights and
the implications of those rights. Of course, it is not a woman’s responsibility to ensure that
acts of violence are not perpetrated against her, but education paves the way for
empowerment. Most importantly, men should be educated to identify and appreciate
fundamental human rights so that patriarchal views of women do not continue to fester in
order to eradicate this malicious social evil. Accordingly, this is the task set out for the
Committee in adequately using CEDAW – a tool for the achievement of gender equality – to
eradicate gendered stereotypes of women in the pursuit of the complete elimination of acts of
violence being perpetrated against women.
172
K. Sharma, ‘Not Born to Rule’ (December 2003) available at: <http://indiatogether.org/equality-op-ed>
(accessed 23 August 2015)
40
Chapter 4: The Supreme Court, CEDAW and Looking Forward
Introduction
The author has illustrated in the previous chapters that CEDAW is not being implemented
adequately and effectively in terms of eradicating harmful perceptions of women that are
deeply entrenched in society with the view to the complete abolition of acts of violence
against women. By now the author has illustrated that the provisions to enable the elimination
of gendered stereotypes are very much present in CEDAW but they are not being
implemented in practice. What the author intends to do in this chapter is offer some insight as
to how CEDAW could be and is, as is the case in the Supreme Court, implemented asides
from how it is being applied by the Committee through its reporting procedure. Such insight
will also involve some recommendations as to how to further heighten the attempt to
eradicate gender-based violence issues and eliminate harmful stereotypes of women once and
for all.
The Supreme Court’s role in implementing CEDAW
Although the courts have received somewhat ‘mixed reviews’ in the previous chapters, the
Supreme Court in India has largely demonstrated willingness to apply CEDAW’s spirit of
gender equality and anti-discrimination into its decisions. What remains to be seen, however,
is whether it explicitly recognises the dangers of gender stereotypes within its society
hampering the full implementation of CEDAW. Indeed, the Court has demonstrated progress
in its interpretation of women’s rights in the past few decades, which indicates that it can
keep doing so. In fact, it was a case in the 1970s that initiated the anti-rape movement in
India when the Supreme Court acquitted two policemen accused of raping a 16 year old girl
in the police station on the grounds that as the girl had no injuries she might have given
consent.173 In addition, the Court asserted that since the child had eloped and was not a
virgin, she could not have been a victim of rape. The campaign recognised the courts as ‘the
institutional site’ that normalised that act of violence against women by way of interpreting
rape testimony as evidence of consensual sex.174 However, since then, the Supreme Court as
173
Tukaram & Anr. v. State of Maharashtra [1979] 2 SCC 143
Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (1st edition, Oxford University Press, Oxford
2014)cp. 3
174
41
assumed a ‘generally activist approach’175, interpreting CEDAW, amongst other human rights
treaties such as the ICCPR, as tantamount to their decisions concerning discrimination
against women.
Although not a case concerning gender-based violence, in C. Masilamani Mudaliar & Ors v.
Idol of Sri Swaminatha Swami Thirukoil176, the Supreme Court confirmed that, under Article
2 of the Convention, India is obligated to forbid all forms of gender-based discrimination.
The decision goes into an in-depth analysis of various articles of CEDAW whilst highlighting
the plight of the Indian woman as one of ‘self-sacrifice and self-denial’ in the face of
‘inequities, indignities, inequality and discrimination.’177 The Court asserts that, by virtue of
the Protection of Human Rights Act 1993, the principles represented by CEDAW
of….became fundamental elements of the Constitution and, thus, enforceable by the Court.178
Similarly, the approach of the Indian Supreme Court to pursue the fulfilment of women’s
rights was demonstrated in Hariharan v. Reserve Bank of India179:
The message of international instruments – Convention on the Elimination of
All Forms of Discrimination Against Women (“CEDAW”) and the Beijing
Declaration, which directs al state parties to take appropriate measures to
prevent discrimination of all forms against women is quite clear. India is a
signatory to CEDAW having accepted and ratified it in June 1993.
Thus, in the above case, the Supreme Court of India demonstrated its dedication to promote
and implement women’s rights and, by explicitly referring to the Convention, confirmed a
commitment to using the international convention to interpret India’s domestic laws. In this
way, the Court enhanced the scope of the Convention to potentially allow it to have wide
reaching effect in India. In Apparel Export Promotion Council v AK Chopra180the Supreme
Court overruled a High Court decision to reinstate a man who had been suspended from his
top after trying to molest a colleague. The Supreme Court criticised the lower court as it felt it
175
Ronagh, McQuigg, 'How could human rights law be used by the courts to assist victims of domestic
violence? A comparative study' (2010) 14(3) International Journal of Human Rights p. 347
176
[1996] 8 SCC 525
177
Ibid.
178
Ibid.
179
[1999] 1 LR1 353
180
[1999] 1 LRI 13
42
had disregarded international conventions. With explicit reference to CEDAW, the Supreme
Court asserted that:
The message of international instruments such as the Convention on the
Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW)
and the Beijing Declaration which directs all State parties to take appropriate
measures to prevent discrimination of all forms against women besides taking
steps to protect the honour and dignity of women is loud and clear…In cases
involving violation of human rights, the Courts must for ever remain alive to
the international instruments and conventions and apply the same to a given
case when there is no inconsistency between the international norms and the
domestic law occupying the field.181
The above case is yet a further example of the credence that the Supreme Court in India gives
to international human rights law and, in particular, CEDAW. This indicates that awareness
and respect human rights – and especially women’s rights - are strife in the judicial system
(in the Supreme Court at least).
However, a problematic case in the efforts to identify the Supreme Court as an effective
supporter of women’s rights is the controversial case Mohammed Ahmed Khan v. Shah Bano
Begum.182 Here, the Supreme Court defied Muslim personal laws183 in favour of womenfriendly maintenance law. However, due to pressure and campaigning from the Muslim
Personal Law Board, the woman who the Court decision favoured was coerced into publicly
rejecting the judgment. In addition, the Congress Party (the ruling party at the time) enacted a
law that effectively overturned the judgment. Although the case is indicative of the activist
nature of the Supreme Court and its commitment to the rights and welfare of women in India,
Shah Bano demonstrates that this commitment ‘will be unfruitful if the option of the general
public or of the legislature is contrary to the views of the court.’184
181
Ibid. para. 25
[1985] 2 SCC 556
183
‘Personal laws’ are given great credence in India and are present in the Muslim and Hindu religions. The
government, in particular, is reluctant to interfere with such laws even where they are discriminatory towards
women.
184
McQuigg (n3) p. 350
182
43
Ronagh McQuigg points out that the public/ private dichotomy has been the source of
significant upset for the development of international human rights law.185 The concept of
human rights was initially established in such a way that it generated a divide between the
public and private sphere, in that the human rights were maintained in the former – that is,
in matters that concerned the state – but not the latter.186 Accordingly, the public/private
dichotomy has been identified as a significant problem as far as women’s rights and the
perpetration of violence against women are concerned in that the dichotomy ‘places many
forms of violence against women beyond the protective scope of human rights
instruments.’187 It does not need to be stressed that instances of rape and dowry-related death
will take place in the private sphere, within the community and family setting. Accordingly,
as a norm, the international human rights legal framework did not protect violence committed
within these settings, as the perpetrator is not the state.188 Through its decisions, the Indian
Supreme Court has not been afraid to disregard the public/private dichotomy, which has
traditionally been an obstacle in applying international human rights (this is in contrast with
India’s declaration under 16(1) as regards not wanting to interfere with Communities as
regards a women’s right to marriage with her full and free consent). The Shah Bano case,
however, indicates that ‘even with a dynamic judiciary, a litigation strategy will not result in
change unless such transformation is supported by the legislature and the public.’189
Furthermore, in Vishaka & Ors. v. State of Rajasthan & Ors190 the Court held here that
provisions of international human rights treaties, like CEDAW, can be integrated into the
Constitution ‘in order to make the constitutional guarantees as broad as possible.’191 Thus,
this demonstrates a willingness to assimilate the rights enjoyed under CEDAW into domestic
law, which could have very positive implications for the full realisation of women’s rights in
India if this willingness is further utilized in the future.
However, as Epp points out ‘the judicial process is costly and slow and produces changes in
the law only in small increments.’192 This, obviously hampers the potential far-reaching
185
Ibid. p. 348
Ibid.
187
Anthony P. Ewing, ‘Establishing State Responsibility for Private Acts of Violence against Women under the
American Convention on Human Rights’ [1995] Colum. Hum. Rts. L. Rev. 751, 753
188
McQuigg (n3) p.344
189
Ibid.
190
[1997] 6 SCC 241
191
McQuigg (n3) p. 349
192
C.R. Epp, The Rights Revolution (University of Chicago Press, Chicago and London 1998) p.3
186
44
effect of CEDAW given that only a small proportion of cases involving the physical
discrimination of women get to the Supreme Court or, indeed, due to the stigma attached to
being a ‘victim’ of gender-based crime and the faults in the reporting system, many potential
cases never see the inside of a courtroom. Perhaps though with the establishment of a special
court in India on foot of Justice Verma to aid the speedy hearing of rape trials, greater
credence will be given to CEDAW in a primarily women-centred court.
It has been pointed out that the judiciary have to limit themselves to addressing the issues at
hand in the case set out before them, which ‘places limitations on the role that litigation can
play in promoting change.’193. Thus, even where a decision is particularly innovative and
reflective of a need for social progress, this will have little influence if the legislature is not in
harmony with the court.194 Courts therefore depend on the support of politicians in order to
effect any sort of social change or reform.
The optional protocol question
In 1993, during the Vienna World Conference on Human Rights, the on-going role of the
Committee and the CSW to establish methods of implementation to achieve women’s
equality and human rights was emphasised. In particular, it was suggested that a ‘right to
petition’ be introduced by means of an optional protocol to the Convention.195 After much
effort and deliberation by the CSW, a Working Group mandated (by CSW) to draft the
Optional Protocol and, indeed, the Committee, the Optional Protocol to the Convention
entered into force on 22 December, 2000. Although 85 States of the 185 States Parties to the
Convention have ratified it, India has yet to even sign it and has refused to do so when urged
by the Committee.196 The Optional Protocol offers an individual complaints procedure and is
based largely on similar systems contained in other international human rights instruments,
such as the International Covenant on Civil and Political Rights. Like other United Nations
individual petition procedures, it can only be used once all domestic remedies have been
exhausted and offers non-binding specific and general recommendations if the State Party is
193
McQuigg (n3) p. 345
Ibid.
195
United Nations General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF,
available at:< http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx> (accessed 9 September 2015)
para. 40
196
UN Committee on the Elimination of Discrimination Against Women, Concluding observations on the
combined fourth and fifth periodic reports of India 24 July 2014, CEDAW/C/IND/CO/4-5 para. 42
194
45
considered to be infringing the human rights of the petitioner.197 What is particularly original
about the Optional Protocol to the Convention, however, is that it allows groups of
individuals, as well as individuals alone, to enter a communication asserting to be on the
receiving end of an infringement of Convention rights.198 In addition a complaint can be
entered on behalf of an individual or group of individuals. However, this can only be done if
the complainant has received their consent or can justify why they do not have their consent.
Evidently, there is an extensive range of women that benefit from the individual
communications procedure, thus, proving it as a far-reaching document for the States that
have ratified it.
What is also innovative about the Optional Protocol is that reservations are prohibited199, thus
the whole range of rights protected by the Convention – civil, political, economic, social and
cultural – are further enforced by the option of making a communication to the Committee in
the event of infringement. However, a State Party, at the time of signing or ratifying the
Optional Protocol, can ‘opt-out’, whereby it declares that it does not ‘recognize the
competence of the Committee to initiate and conduct an inquiry’200 but such a declaration can
be withdrawn. Though if the history of the Optional Protocol is any indication, this is not a
popular option with States Parties as only three States have availed of the opt-out clause –
Bangladesh, Belize and Columbia.
The author feels that India is doing a disservice to its female population by not ratifying the
Protocol as it transfers the dialogue between State and Committee to a direct dialogue
between the individual – or group of individuals – who is the subject of the human right
violation and the Committee. Indeed, no one can better represent what is going on ‘on the
ground’ in terms of human rights violations than those who experience it on a daily basis.
Certainly, India claims that women have direct access to the Supreme Court as regards rights
issues, but if the rejection of a woman seeking to criminalise marital rape (as mentioned in
Chapter 3) is any indication, the Supreme Court is not receptive to individual cases of human
rights violations.
197
Cees Flinterman, ‘Strengthening Women’s Human Rights Through Individual Complaints’ in Hanna Beate
Schöpp-Schilling & Cees Flinterman (eds.), The Circle of Empowerment: Twenty-Five Years of the UN
Committee on the Elimination of Discrimination Against Women (The Feminist Press, New York 2007) p. 288
198
UN General Assembly, Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women, 6 October 1999, United Nations, Treaty Series, vol. 2131, p.83 art. 2
199
Ibid. art. 17
200
Ibid. art. 10
46
What has increasingly become apparent is that the Committee falls extremely short as regards
strict enforcement mechanisms, which limits the scope of CEDAW considerably –
particularly in terms of challenging deeply patriarchal views that are entrenched in society.
What the author would suggest is that Optional Protocols to CEDAW should be
automatically binding by virtue of being a State Party to the CEDAW itself. This does not
seem an unreasonable recommendation, given that the spirit of CEDAW and its Protocol is
the achievement of gender equality – a pursuit which one would like to presume, however
naively, that all States Parties to CEDAW are following.
Freedom from violence against women as a human right
As mentioned in Chapter 2, violence against women is interpreted by the Committee as a
form of sex discrimination and not as a human rights violation in its own right. This begs the
question of whether it is time for a second Optional Protocol to CEDAW – the so-called
international bill on women’s rights - on the issue of violence against women. As one can
decipher from the discussions in previous chapter, gender-based violence is a most complex
issue based on confused and harmful perceptions of women that are deeply embedded in the
social and cultural make-up of society. True, the Committee acknowledges such stereotypes
and condemns them but, given the level of work the Committee has to deal with in a short
space of a time and the extent of women’s rights that are discussed in State reports, violence
against women as a complex issue in itself is not given the attention it deserves. The InterAmerican Convention on the Prevention, Punishment and Eradication of Violence Against
Women (CPPEVAW), for example, typifies this approach. This document offers a broad
definition of violence and does not categorise it as a type of sex-discrimination. Rather, it
recognises violence against women as a human rights violation within itself ‘without the need
for a male comparator’201 – as is the case when defining violence against women as a type of
sex discrimination.
One can see, therefore, that if violence against women was recognised as a human rights
violation, as its own right at an international level, there would be more scope for elaboration
as to its causes and corresponding remedies. Of course, in light of the subject of this
dissertation, continued reference would need to be made to the element of gendered
201
Dianne Otto, ‘Women’s Rights’ in Daniel Moeckli, Sangeetaa Shah & Sandesh Sivakumaran (eds),
International Human Rights Law (1st edition, Oxford University Press, Oxford 2010) 345, 356
47
stereotypes and harmful stereotypes as a prime contributor to the perpetration of violence
against women. Violence against women was central to the discussion at the Vienna World
Conference on Human Rights in 1993 and it was its declaration that called for the drafting of
DEVAW. Again at the Beijing Women’s Conference in 1995, violence against women was a
key part of its Platform for Action with specific reference to the need to take measures to:
…modify the social and cultural patterns of conduct of men and women, and
to eliminate prejudices, customary practices and all other practices based on
the idea of the inferiority or superiority of either of the sexes and on
stereotyped roles for men and women202
Thus, in light of these soft-law developments and continued stated commitment by UN
bodies to the elimination of violence against women and recognising that it is connected to
harmful perceptions of women, a binding protocol to CEDAW, with strict enforcement
mechanisms is clearly needed.
202
United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on
Women, 27 October 1995 para. 124(k)
48
Concluding Remarks
Summary
At the outset of this dissertation, the author asserted that harmful and patriarchal prejudices
concerning women are often the cause of acts of gender-based violence in India. In light of
this assertion, the author wished to discuss whether CEDAW is equipped to challenge
harmful stereotypes of women, which are deeply entrenched in Indian society, in its pursuit to
eradicate acts of violence against women.
In Chapter 1, CEDAW was examined in terms of how it works in practice and the scope of
the relevant articles to the research question. It was outlined how India does not fare well in
front of the Committee – both in terms of failures as regards women’s rights and not filing
reports on time. It was asserted that CEDAW doesn’t actually specifically address violence
against women, rather it was left to the General Recommendations to do this. In Chapter 2,
the author discussed the prevalence of rape and the associated problems that women face
after being assaulted; particularly striking was the treatment of rape survivors in the
courtroom. Chapter 3 concerned the dowry system, dowry related-violence and their
connection with gendered stereotypes of women. Finally, Chapter 4 examined CEDAW’s
role in Supreme Court decisions and posed some recommendations in terms of maximising
the effectiveness of CEDAW.
Conclusion
In this work, the author has illustrated that the elimination of harmful gender stereotypes is
fundamental to the permanent end of acts of violence against women and, in a broader sense,
the eradication of all forms of violence against women. Furthermore, the author has observed
and shown that, not only is the CEDAW Committee falling short in this aim, but also
CEDAW itself undermines the mission somewhat in its failure to explicitly recognise that the
perpetration of violence against women is a violation of human rights law in itself.
However, the author believes, despite the shortcomings, there is a lot of effective work that
can be done on the part of the Committee in eradicating harmful stereotypes of women in the
pursuit of elimination of violence against women. With the election of a new government in
49
May 2014, headed by Narendra Modi of the Bharatiya Janata Party (BJP), Modi promised
that, under the new government, steps would be taken to protect women from violence. One
wonders if he will hold true to that promise. Until such time that these promises are fulfilled,
it is the role of the Committee to use its international standing to effectively apply CEDAW
but without strict enforcement mechanisms it is difficult to predict how this can be done
without a strong political will of the government being at factor in the Committee’s mission.
Furthermore, the Committee must call upon the Supreme Court to further advocate the
integral role CEDAW has in law in India.
Despite most laws in India as regards violence against women being supportive of the
fulfilment of their human rights, the implementation of such laws is hampered by the
‘patriarchal
family structures’203 where a woman’s role as mother, daughter and sister
overshadows her right to self-determine her role, needs and wishes in life. Ghosh claims that
the ‘typical’ girl in India is indoctrinated to effectively ignore “scandalous incidences’ - such
as rape – that she may be subjected to.204 As a result, not only does this cause under-reporting
of acts of violence against women in India, Ghosh asserts that it gives the perpetrator the
power to do as he pleases.205 Ultimately, it highlights the role of women as subordinate,
which is detrimental to the enjoyment of her human rights.206 Thus, it is the Committee’s role
to ensure men and women are educated in such a way that quashes the notion of particular
stereotypes that are harmful to the perception of women in society.
Despite criticisms, the author is of the view that CEDAW is a solid foundation for an
international women’s rights discourse. What is needed, however, is a ‘makeover’ in terms of
what are rights are relevant to women today. None so better exemplified by the fact that
violence against women is not a right infringement in itself. Thus, the suggestion that an
Optional Protocol specifically dedicated to the elimination of violence against women seems
like a practical solution.
The author notes that in the Jyoti Singh case the perpetrators were sentenced to the death
penalty by a fast-track court set up to hear rape trials specifically. The High Court upheld this
203
Joanna Liddle & Rama Joshi, Daughters of Independence: Gender, Caste and Class in India (Zed Books
Limited, London 1986) p. 75
204
Biswajit Ghosh, ‘How does the legal framework protect victims of dowry and domestic violence in India? A
critical review’ in Aggression and Violent Behaviour 18 (2013) 409, 410
205
Ibid.
206
Ibid.
50
decision but the case is still pending in the Supreme Court. Notably, the death penalty is only
permissible in India where the circumstances are exceptional. The author then asks, what was
so exceptional about this brutal gang rape than any other brutal gang rape? What was
exceptional was the furore that ensued on the streets after the news broke about her rape and
the pressure put on the government to do something. In light of this, what was particularly
insightful about the India’s Daughter documentary was the impassioned comments made by
the young wife of one of the perpetrators. She asked:
Am I not a daughter of this country? ...A woman is protected by her husband. If he’s
dead, who will protect her and for whom will she live?...My son, is a child, he
understands nothing. I will strangle him to death. What else can I do?207
It seemed as if she was mourning, not for the loss of her husband, but for the loss of her sense
of ‘self’, which she lost when her husband was jailed and she was left alone. One could not
help but feel that an injustice was being dealt on her, in that she was a product of the very
stereotype that is expected of her, and now, as a result, she felt helpless and hopeless without
her husband. Although she was not subject to an act of violence, she clearly had fell ‘victim’
to the stereotypes Indian society had expected of her. Indeed, some feel justice will not be
served until the perpetrators are hanged. The author feels, however, that justice will be not be
served until women not only in India, but indeed women everywhere, are free from
perpetrations of violence against them. Accordingly, it is CEDAW’s role, as the international
women’s rights treaty, to oversee this justice.
207
Leslee Udwin, India’s Daughter (BBC Storyville 2015)
51
Bibliography
Books
Cook, Rebecca J. & Cusack, Simone, Gender Stereotyping: Transnational Legal Perspectives
(University of Pennsylvania Press, Philadelphia 2010)
Dworkin, Andrea, Letters from a war zone (Lawrence Hill Books, Brooklyn, N.Y. 1993;
1988).
Engle-Merry, Sally, Human Rights & Gender Violence: Translating International Law into
Local Justice (The University of Chicago Press, Chicago and London 2006)
Epp, C.R. The Rights Revolution (University of Chicago Press, Chicago and London 1998)
Fontanella-Khan, Amana, Pink Sari Revolution: A Tale of Women and Power in the Badlands
of India (Oneworld Publications, London 2013)
Fredman, Sandra, Women and the law (Oxford monographs on labour law, Clarendon Press,
Oxford 1997)
Hellum, Anne and Aasen, Henriette Sinding, Women’s Human Rights: CEDAW in
International, Regional and National Law (Studies on Human Rights Conventions)
(Cambridge University Press, Cambridge 2013)
Kausal, Rachana, Women and human rights in India (Kaveri Books, New Delhi 2000).
Kumbhare, Arun R. Women of India: Their Status Since the Vedic Times (iUniverse, Inc.,
Bloomintgton 2009)
Liddle, Joanna and Rama Joshi, Daughters of independence: gender, caste and class in
India (Zed, London 1986).
Llewellyn-Jones, Derek, Everywoman: A Gynaecological Guide for Life (3rd edition, Faber
and Faber, Suffolk 1982)
MacKinnon, Catharine A., Toward a feminist theory of the state (Harvard University Press,
Cambridge, Mass.; London 1989).
Moeckli, Daniel, Sangeeta Shah and Sandesh Sivakumaran, International human rights
law (Oxford University Press, Oxford 2010).
Oldenburg, Veena Talwar, Dowry murder (Oxford University Press, Oxford; New York
2002)
52
Ray, Bharati and Aparna Basu, From independence towards freedom :Indian women since
1947 (Gender studies from Oxford University Press, India, Oxford University Press, New
Delhi; New York 1999).
Rehman, Javaid, International human rights law (2nd edn Longman, Harlow 2010).
Rudolf, Beate, Marsha A. Freeman and Christine Chinkin, The UN Convention on the
Elimination of all Forms of Discrimination against Women :a commentary (Oxford
commentaries on international law, Oxford University Press, Oxford 2012).
Schöpp-Schilling, Hanna Beate & Flinterman, Cees (eds.), The Circle of Empowerment:
Twenty-Five Years of the UN Committee on the Elimination of Discrimination Against
Women (The Feminist Press, New York 2007)
Sen, Mala, Death by fire: sati, dowry death and female infanticide in modern
India (Weidenfeld & Nicolson, London 2001).
Steinem, Gloria, Revolution from within: a book of self-esteem (Bloomsbury, London 1992)
Subrahmanyam, B.V., (Ed.), Modi's medical jurisprudence and toxicology (22nd edition,
Butterworths, New Delhi 1999)
Cases
Apparel Export Promotion Council v AK Chopra [1999] 1 LRI 13
C. Masilamani Mudaliar & Ors v. Idol of Sri Swaminatha Swami Thirukoil [1996] 8 SCC
525
Hariharan v. Reserve Bank of India [1999] 1 LR1 353
Mohammed Ahmed Khan v. Shah Bano Begum. [1985] 2 SCC 556
Ram Kishan and Others v. State of Madya Pradesh II [2000] DMC 628
S. Gopal Reddy v. State of Andhra Pradesh [1996] SCC (4) 596
State of Karnataka v. M.V. Manjunathegowda and Another [2003] (1) SCALE 30
The State of Pubjab v. Gurmit Singh & Ors 1996 SCC (2) 384
The State of Pubjab v. Gurmit Singh & Ors 1996 SCC (2) 384
Tukaram & Anr. v. State of Maharashtra [1979] 2 SCC 143
Vishaka & Ors. v. State of Rajasthan & Ors [1997] 6 SCC 241
53
Indian Legislation
Indian Evidence Act (1872)
National Commission for Women Act, 1990 (Act No. 20 of 1990 of Govt. of India)
The Dowry Prohibition Act (1961)
The Indian Penal Code (1860)
Journal articles
Agnes, Flavia, No Shortcuts on Rape: Make the Legal System Work in Economic & Political
Weekly Vol XLVIII No 2 (January 12, 2013) 12
Agnes, Flavia, 'To Whom Do Experts Testify? Ideological Challenges of Feminist
Jurisprudence' in Economic & Political Weekly Vol. 40, No. 18 (2005) 1859.
Ahmad, Nehaluddin, 'Dowry Deaths (bride burning) in India and Abetment of Suicide: A
Socio-Legal Appraisal' in Journal of East Asia and International Law (2008) 275.
Bamal, Shakuntla & Saharan, Asha, Gender Based Violence in India – A Burning Issue in
Language in India Vol. 14:4 (April 2014)
Belur, Jyoti and others, 'The social construction of ‘dowry deaths’' (2014) 119 Soc Sci Med 1
Ewing, Anthony P., ‘Establishing State Responsibility for Private Acts of Violence against
Women under the American Convention on Human Rights’ [1995] Colum. Hum. Rts. L. Rev.
751
Fatah, Sonya, 'What Rape Crisis?' (2015) 128(12) Maclean's 34
Gangoli, Geetanjali, Indian feminisms (Ashgate, Aldershot, Hampshire, England; Burlington,
VT. 2007)
Ghosh, Biswajit, 'How does the legal framework protect victims of dowry and domestic
violence in India? A critical review' in Aggression & Violent Behavior (2013) 18(4) 409
Girma, Meiraf, 'Violence against Women: Inadequate Remedies under the CEDAW' in
(2009) 351
Kanekar, Suresh and Maharukh B. Kolsawalla, 'Factors affecting responsibility attributed to a
rape victim' (1981) 113(2) J Soc Psychol 285.
54
Kumar, Sachil and others, 'Intentional and non-intentional burn related deaths: A comparative
study of socio-demographic profile' (2015) 41 Burns 265
McQuigg, Ronagh J. A., 'How could human rights law be used by the courts to assist victims
of domestic violence? A comparative study' in International Journal of Human Rights (2010)
14(3) 343
Patel, Rita, ‘The Practice of Sex Selective Abortion in India: May You Be the Mother of a
Hundred Sons’ (The University Centre for International Studies, University of North Carolina
1996)
Roy, Sanchari, 'Empowering women? Inheritance rights, female education and dowry
payments in India' (2015) 114 J Dev Econ 233
Sitaraman, B., 'Law as ideology: women, courts and 'dowry deaths' in India' (1999) 27(3) Int
J Sociol Law 287
Standish, Katerina, 'Understanding cultural violence and gender: honour killings; dowry
murder; the zina ordinance and blood-feuds' (2014) 23(2) Journal of Gender Studies 111
Van Willigen, John and V. Channa, 'Law, custom, and crimes against women: The problem
of dowry death in India' (1991) 50(4) Hum Organ 369.
Walikhanna, Charu and Nandita Rao, Supreme Court and High Court judgements relating to
women and children (Serials Publications, Delhi 2005).
Other
Law Commission of India, One Hundred and Seventy Second Report on Review of Rape
Laws March, 2000 (25 March 2000) available at:
http://www.lawcommissionofindia.nic.in/rapelaws.htm
Udwin, Leslee, India’s Daughter, (2015) BBC Storyville
Press Information Bureau, Government of India, Ministry of Home Affairs, Women Subject
to Marital Rape (29 April 2015) KSD/PK/BK/RS
National Crime Records Bureau Figures At a Glance – 2012 < http://ncrb.nic.in/CDCII2012/cii-2012/figure%20at%20a%20glance.pdf>
Organisation of American States, Inter-American Convention on the Prevention, Punishment
and Eradication of Violence Against Women (1994)
55
Reports
Amnesty International, India: The battle against fear and discrimination (the impact of
violence against women in Uttar Pradesh and Rajasthan) (May 2001) ASA 20/016/2001
High Level Committee on the Status of Women Executive Summary: Report on the Status of
Women in India (2015) Available at:
<http://wcd.nic.in/Executive%20Summary%20150623%20_1_.pdf
Human Rights Watch, Dignity on Trial: India’s Need for Sound Standards for Conducting
and Interpreting Forensic Examinations of Rape Survivors (September 6, 2009)
<https://www.hrw.org/report/2010/09/06/dignity-trial/indias-need-sound-standardsconducting-and-interpreting-forensic>
Human Rights Watch, World Report 2015: Events of 2014
<https://www.hrw.org/sites/default/files/wr2015_web.pdf>
UN Documents
Madhu Purnima Kishwar & Manushi Strategies for Combating the Culture of Dowry and
Domestic Violence in India (UN Division for the Advancement of Women 2005) available
at: <http://www.un.org/womenwatch/daw/egm/vaw-gp2005/docs/experts/kishwar.dowry.pdf>
UN Commission on the Status of Women, 54th Session, Commemorating 30 Years of the
Convention on the Elimination of All Forms of Discrimination Against Women: Moderator’s
Summary (29 March 2010) UN Doc. E/CN.6/2010/CRP.12
UN Committee on the Elimination of Discrimination Against Women, General
Recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of
All Forms of Discrimination against Women, on temporary special measures (2004)
UN Committee on the Elimination of Discrimination Against Women, CEDAW General
Recommendation No. 19: Violence against women, 1992
UN General Assembly, Convention on the Elimination of All Forms of Discrimination
Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249
UN General Assembly, Declaration on the Elimination of Violence against Women, 20
December 1993, A/RES/48/104
56
UN General Assembly, Optional Protocol to the Convention on the Elimination of All Forms
of Discrimination Against Women, 6 October 1999, United Nations, Treaty Series, vol. 2131,
p.83
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III)
UN Women, ‘Facts and Figures: Ending Violence against Women’ (last updated October
2014) < http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-andfigures>
UN Women, Focusing on Prevention to Stop the Violence (undated)
<http://www.unwomen.org/en/what-we-do/ending-violence-against-women/prevention>
United Nations Human Rights Council, Report of the Special Rapporteur on violence against
women, its causes and consequences, Addendum: Mission to India, 1 April
2014, A/HRC/26/38/Add.1
United Nations Committee on the Elimination of Discrimination Against Women,
Concluding observations on the combined fourth and fifth periodic reports of India 24 July
2014, CEDAW/C/IND/CO/4-5
United Nations General Assembly, International Covenant on Civil and Political Rights, 16
December 1966, United Nations, Treaty Series, vol. 999, p. 171
United Nations General Assembly, International Covenant on Economic, Social and Cultural
Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3
United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World
Conference on Women, 27 October 1995
United Nations, Charter of the United Nations (24 October 1945) 1 UNTS XVI
Websites
BBC News, ‘India marital rape victims’ lonely battle for justice’ (26 May 2015)
<http://www.bbc.co.uk/news/world-asia-india-32810834>
Bhandra Sinha, ‘SC rejects plea to make marital rape a criminal offence’ (18 February.
2015) Available at: <http://www.hindustantimes.com/india-news/sc-rejects-plea-to-makemarital-rape-a-criminal-offence/article1-1317908.aspx>
57
Christin Mathew Philip, ’93 women are being raped in India every day, NCRB data show’ (1
July 2014) <http://timesofindia.indiatimes.com/india/93-women-are-being-raped-in-Indiaevery-day-NCRB-data-show/articleshow/37566815.cms>
Dasgupta, KumKum, ‘Why is India dragging its heels over the criminalisation of marital
rape?’ (17 August 2015) <http://www.theguardian.com/globaldevelopment/2015/aug/17/india-martial-rape-law-criminalisation-dragging-heels>
Gottipati, Sruthi, ‘MP Minister Babulal Gaur says rape “sometimes right, sometimes wrong”’
(June 5, 2014) <http://in.reuters.com/article/2014/06/05/uk-india-rapeidINKBN0EG1EX20140605>
Krishnan, Kavita, ‘Nirbhaya film: Solidarity is what we want, not a civilising mission’ (3
March 2015) <http://www.dailyo.in/politics/kavita-krishnan-nirbhaya-december-16-indiasdaughter-leslee-udwin-mukesh-singh-bbc/story/1/2347.html>
Maseeh Rahman, ‘India bans TV stations from showing interview with man who raped
student’ (4 March 2015) <http://www.theguardian.com/world/2015/mar/03/india-outragedinterview-man-convicted-gang-rape-student>
The Times of India, ‘Rape of grown-up girls may be understandable but assault on children
unimaginable: BJP MP’ (10 January 2013) available at:
<http://timesofindia.indiatimes.com/city/raipur/Rape-of-grown-up-girls-may-beunderstandable-but-assault-on-children-unimaginable-BJP-MP/articleshow/17965859.cms>
Venkat, Vidya, ‘Anger over Minister’s marital rape comment’ (1 May 2015)
<http://www.thehindu.com/news/national/anger-over-ministers-marital-rapecomment/article7157945.ece>
Walia, Shelly ‘Two years since the Delhi gang rape, here’s what’s changed – and what
hasn’t’ (15 December, 2014) available at: < http://qz.com/312738/two-years-since-the-delhigang-rape-heres-whats-changed-and-what-hasnt/>
Zitzewitz, Karin, A Timeline of Events in the Delhi Gang-Rape Case (February 2, 2013)
<http://www.thefeministwire.com/2013/02/a-timeline-of-events-in-the-delhi-gang-rapecase/>
58
59