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LAW PROTECTING WOMEN AGAINST VIOLENCE AT HOME: DOMESTIC

VIOLENCE, DOWRY HARASSMENT, SATI

Domestic violence against women figures as the top category of violence against women in
2018, according to data from the 'Crimes in India - 2018' report compiled by the National Crime
Records Bureau (NCRB).As per the data, a total of 89,097 cases related to crimes against women
was registered across India in 2018.Out of the total crimes registered under the Indian Penal
Code(IPC) against the women, the majority of the cases were registered under the 'cruelty by
husband or his relatives' at 31.9 per cent.

Protection of Women from Domestic Violence Act 2005

- right to live in violence free home

- provide legal remedies if this right is violated, civil reliefs
- no arrests can be made on a complaint filed under this Law except Section 31
- immediate support to women facing domestic violence
- women is not dependent on the police to initiate action, victim oriented

Section 3 defines Domestic Violence

- Domestic Violence can be in three important forms, abuse, harassment and threat
- Abuse, harms or injures or endangers the health, safety, life, limb or well-being, whether
mental or physical, of the aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;
- Harassment, harasses, harms, injures or endangers the aggrieved person with a view to
coerce her or any other person related to her to meet any unlawful demand for any dowry
or other property or valuable security;
- Threat, otherwise injures or causes harm, whether physical or mental, to the aggrieved
person.
- "physical abuse" means any act or conduct which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health or impair the health or development of the
aggrieved person and includes assault, criminal intimidation and criminal force
- "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades
or otherwise violates the dignity of woman
- "verbal and emotional abuse" includes- (a) insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not having a child or a male child; and (b)
repeated threats to cause physical pain to any person in whom the aggrieved person is
interested
- "economic abuse" includes- (a) deprivation of all or any economic or financial resources
to which the aggrieved person is entitled under any law or custom whether payable under
an order of a court or otherwise or which the aggrieved person requires out of necessity
including, but not limited to, household necessities for the aggrieved person and her
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children, if any, stridhan, property, jointly or separately owned by the aggrieved person,
payment of rental related to the shared household and maintenance; (b) disposal of
household effects, any alienation of assets whether movable or immovable, valuables,
shares, securities, bonds and the like or other property in which the aggrieved person has
an interest or is entitled to use by virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her children or her stridhan or any other
property jointly or separately held by the aggrieved person; and (c) prohibition or
restriction to continued access to resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic relationship including access to the
shared household.

Section 2(f) defines Domestic relationship

- domestic relationship" means a relationship between two persons who live or have, at any
point of time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage, adoption or
are family members living together as a joint family.

Section 2(a) defines aggrieved person

- "aggrieved person" means any woman who is, or has been, in a domestic relationship
with the respondent and who alleges to have been subjected to any act of domestic
violence by the respondent.
- minors are within the ambit of the definition of domestic relationship

Section 2(s) defines shared household

- "shared household" means a household where the person aggrieved lives or at any stage
has lived in a domestic relationship either singly or along with the respondent and
includes such a household whether owned or tenanted either jointly by the aggrieved
person and the respondent, or owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent or both jointly or singly have any right,
title, interest or equity and includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of whether the respondent or
the aggrieved person has any right, title or interest in the shared household.

Section 2(q) defines the respondent

- respondent means any adult male person who is, or has been, in a domestic relationship
with the aggrieved person and against whom the aggrieved person has sought any relief
under this Act.
- Provided that an aggrieved wife or female living in a relationship in the nature of a
marriage may also file a complaint against a relative of the husband or the male partner.
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The SC in Indra Sharma v VKV Sharma 2014 held that not all live in relationships are in the
nature of marriage. It laid down the following guidelines for testing the concept of live in
relationship: duration of period of relationship with sufficient focus on circumstances, shared
household, pooling of resources and financial arrangements, domestic arrangements, sexual
relationship, children, socialization in public, intention and conduct of the parties.

The Service Provider (NGO or other voluntary association) and the Protection Officer (outreach
officer of the Court) can assist the women in getting the relief under the Act.

The Domestic Incident Report, the official format in which the complaint is registered is
forwarded by the Protection Officer to the Magistrate.

The Aggrieved Person can approach the Magistrate through the Protection Officer or the Police
Station. She can also approach the Service Provider who can assist her in filing complaint with
the Protection Officer or with the Police.

Leading Case

SR Batra and Anr v Taruna Batra (2006)

Facts: Amit Batra and Taruna Batra lived with Husband’s parents in his mother’s house. H filed
for divorce. Shifted to her parent’s residence following dispute with her husband. She was
restricted from entering the household of her mother in law. She files for her right to live in H’s
mother’s house under the Protection of Women from Domestic Violence Act, 2005.

Issue: Is she entitled to live in that household?

Decision: The Court held that she was not entitled to live in that household.

Reason: She was living in the paternal home. It is not within the meaning of shared household
under the Act as it is the private property of Amit’s mother.

Question: How to interpret the word “includes” in the definition?

The Court observed, “As regards Section 17(1) of the Act, in our opinion the wife is only entitled
to claim a right to residence in a shared household, and a ‘shared household’ would only mean
the house belonging to or taken on rent by the husband, or the house which belongs to the joint
family of which the husband is a member. The property in question in the present case neither
belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which
the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of
Amit Batra. Hence it cannot be called a ‘shared household’.”

It is quite possible that the husband and wife may have lived together in dozens of places. If the
interpretation canvassed by the learned counsel for the respondent is accepted, all the houses of
the husband's relatives will be shared households and the wife can well insist in living in the all
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these houses of her husband's relatives merely because she had stayed with her husband for some
time in those houses in the past. Such a view would lead to chaos and would be absurd.

Hiral P. Harsora And Ors v. Kusum Narottamdas Harsora

Facts: Kusum Narottam Harsora and her mother Pushpa Narottam Harsora filed a complaint
under the 2005 Act against Pradeep, the brother/son, and his wife, and two sisters/daughters,
alleging various acts of violence against them. Under the provision till then, a complaint could be
made only against an “adult male”, thus insulating women from being accused of offences.

Observations:

(i) The object of the Act is to provide for a remedy under the civil law which is intended to
protect the woman from being victims of domestic violence and to prevent the occurrence of
domestic violence in the society the rights guaranteed under Articles 14, 15 and 21 of the
Constitution

(ii) When Section 3 of the Act defines domestic violence, it is clear that such violence is gender
neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse
can all be by women against other women. Even sexual abuse may, in a given fact circumstance,
be by one woman on another. Section 3, therefore, in tune with the general object of the Act,
seeks to outlaw domestic violence of any kind against a woman, and is gender neutral.

(iii) Section 17(2) makes it clear that the aggrieved person cannot be evicted or excluded from a
shared household or any part of it by the “respondent” save in accordance with the procedure
established by law. If “respondent” is to be read as only an adult male person, it is clear that
women who evict or exclude the aggrieved person are not within its coverage, and if that is so,
the object of the Act can very easily be defeated by an adult male person not standing in the
forefront, but putting forward female persons who can therefore evict or exclude the aggrieved
person from the shared household. This again is an important indicator that the object of the Act
will not be sub-served by reading “adult male person” as “respondent”.

(iv) A conspectus of many judgments also leads to the result that the microscopic difference
between male and female, adult and non-adult, regard being had to the object sought to be
achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to
the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy
judgment, the words “adult male person” are contrary to the object of affording protection to
women who have suffered from domestic violence “of any kind”. The Court, therefore, struck
down the words “adult male” before the word “person” in Section 2(q), as these words
discriminate between persons similarly situated, and far from being in tune with, are contrary to
the object sought to be achieved by the 2005 Act. Under Section 2(q) of the 2005 Act, while
defining ‘respondent’, a proviso is provided only to carve out an exception to a situation of
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“respondent” not being an adult male. Once we strike down ‘adult male’, the proviso has no
independent existence, having been rendered otiose.

Decision: The impugned judgment ultimately held that the two complaints of 2010, in which the
three female respondents were discharged finally, were purported to be revived, despite there
being no prayer in Writ Petition No.300/2013 for the same.

When this was pointed out, Ms. Meenakshi Arora very fairly stated that she would not be
pursuing those complaints, and would be content to have a declaration from the Court as to the
constitutional validity of Section 2(q) of the 2005 Act.

In India, women are able to claim maintenance under both the PWDVA and under Sec. 125 of
the Code of Criminal Procedure. Any successful claim for maintenance will usually need a
document to prove the income of the woman’s husband. If a woman is no longer living with her
partner, it is unlikely that she’ll have access to such a document and these may be impossible to
find. As the court can only rule on the evidence presented to it, maintenance orders provide far
less than the amount claimed for and arguably less than an amount to be “consistent with the
standard of living to which the aggrieved person is accustomed.” If the evidence produced before
the Court is not ‘equal’ due to the absence of documents she is unable to procure, the Court’s
decision will result in reinforcing inequality.

In the 10 years since the PWDVA came into force the biggest challenge to the law has been the
lack of proper implementation of its provisions. The appointment and notification of
functionaries under the Act remains a concern. In many states POs are other functionaries who
have just been given additional charge under the Act. Notification of Service Providers, etc
remains poor. Under-funding and under-staffing concerns are prevalent throughout the country.
Despite all these concerns however, the PWDVA has seen a manifold increase in its usage. The
challenge for the future will be to adequately train functionaries under the Act, including judges,
so that they have not only the ability and aptitude but also the orientation to implement the Act to
its fullest potential

The Dowry Prohibition Act 1961

Dowry had connections with the social status of women. The decline in social status of women
has been the first and foremost cause for evolution of dowry. The inevitable economic
ramifications of their decline in status.

In the later Vedic stage, as a consequence of Sanskritisation, certain degree of social purity was
attached to rituals, rites and social practices. Exclusivity of a class of people also arose in matters
concerning knowledge and spirituality.

Freedom of women was limited to domestic and household spheres unlike in the Early Vedic
period. Women were made to believe that marriage and child rearing was her only role.
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Queen of the household was brought down to that of slaves. Reason was the role played by men
in the economic aspect of society. Women began to be treated as chattels – objectification of
women. Since the woman was not expected to be working, she was sent to her matrimonial home
with gifts. Attempt at bridging the gaps in economic imbalance turned into the social menace of
dowry.

In the modern age, it is prevalent in many states of India and especially in the states of Bihar,
Uttar Pradesh. It leads to serious crimes against women like dowry deaths, female infanticides
and commodification of women. Consequence is the decline in sex ratio in India.

The Dowry Prohibition Act was enacted in 1961 to prohibit offence related to dowry - demand,
taking, giving of dowry was not covered under the IPC. Section 304B of the IPC was never
sufficient since the woman had to be already dead at the time.

Section 2 of this Act defines Dowry

- it should be in the form of property or valuable security e.g., deed of sale

- it should be either given or promise to be given
- given by one party/parents to other party or parents of the third person
- before/during/after the marriage in connection with marriage
- it is not applicable to those whom Muslim Personal Law is applicable (dower/mehr is
excluded)

Section 3 describes penalty for giving or taking dowry. It will be not less than 5 years and not
less than 15000 or amount of dowry. The exception is that if any gift given either to bridegroom
or bride with provision to this Law or customary in nature as per status of the parties.

Section 4 describes penalty for demanding dowry. Section 4A imposes a ban on advertisement
which give indications of asking or offering to give dowry.

Section 5 renders an agreement for giving or taking dowry to be void.

Section 6 says dowry to be given for the benefit of the wife or her heirs. It creates trust and
whoever can keep it as trustee only. If taken before marriage, must return within 3 months of
marriage. If taken during or after marriage, must return within 3 months of receipt. If taken
during minority of woman, must return within 3 months of when woman gets major. If woman
die, her heirs will get it or else her parents.

Section 8 provides that the offences under this Act will be cognizable, non bailable and non
compoundable.

Major loophole is that the indirect transactions should be understood. It is very difficult to
establish through evidence that certain circumstances amount to indirect demand for dowry.
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Considering the fact that demands for dowry are private affairs, proving the existence of
circumstances that amount to indirect demands for dowry are very difficult.

Major advantage is that the Act does not have any period of limitation. This is in sync with the
social reality of marriage in India. Section 304B of the IPC can apply only within 7 years of
marriage.

Ramifications of the Dowry Prohibition Act (i) Dowry is a significant factor in the offence of
dowry death covered under Section 304B of the IPC (ii) Likewise, demand for dowry also
amounts to matrimonial cruelty under Section 498A of the IPC

In State of Andhra Pradesh v Raj Gopal Asawa & Another, the husband, the brother in law and
the mother in law of the deceased were tried for death of the wife by suicide. Evidence was put
before the Court to show that the demands for dowry were made by the mother as well as the
brother in law. It was also shown that the husband’s role was tacit. Direct as well as indirect
demand for dowry both qualify as an offence, there is no requirement for any agreement before
marriage for dowry.

Penalty prescribed is of 5 years for the taking or giving of dowry. Section 7(3) says that
cognisance shall be taken of the circumstances under which a party had conceded to the demands
for dowry. If the consent was given under circumstances of force or duress, the protection of
Section 7(3) will be available to the victim. In Pooja Saxena v State & Another 2010, the
groom’s side had made a demand for dowry at the time of engagement. With the fear of the
engagement being called off, the bride’s side had no option but to concede to the demand of the
opposite side. Here, penalty under Section 3 was not given to them.

Significance of the legislation is that it is deeply contextualised to the social realities of India.
Economic liability resulting from the restriction of women to the domestic front was the reason.

Reasons why Dowry is still prevalent in India

(i)  it is perceived as a source of easy income by the groom’s family.

(ii) the marriage market can be described as a market of brides and grooms. While the sex ratio
tilts in favour of men, the number of desired men is still less. The bid for highly demanded men
leads to existence of dowry.

(iii) 20thcentury research done by eminent scholars such as Krishnaswamy and Sharma suggests
that in-laws show more preference towards the daughter-in-law that brings a large dowry, giving
her more autonomy and say in households matters and giving her fewer chores to do. A few
suggest that this leads to the brides themselves encouraging dowry.

(iv) An open economy fostered globalization, which in turn led to the coming in of the
consumerist attitude.Cash and household items that come in the form of dowries are for the use
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of the new couple, the clothes and jewellery may be used by the mother-in-law or the sister-in-
law, the rest of dowry might be used as a dowry for sister-in-law’s wedding.

(v) A few studies suggest that the employment status of women matters in today’s time and there
exists a negative correlation between working women and dowry. To put it in simple words,
higher the salary and more economically independent the woman, lesser the dowry price (as she
might be viewed as an asset to the groom’s family). Surprisingly, on the contrary, there are
studies that also indicate a positive relationship between how qualified a woman is and dowry.
The logic for this correlation is this– when a woman is more educated, the search for a groom as
educated as her or more qualified than she intensifies. The demand for such grooms in the
marriage market is high, leading to their ‘prices’ going higher.

Convictions against dowry deaths are generally slow and low for several reasons. One is the fear
of retaliation from the groom’s family especially if they are locally powerful. A related concern
is greater difficulty in marrying another daughter. A third reason is callousness and corruption
among the police, compounded by the difficulties in establishing a death as a dowry death
because of the prior requirement of harassment directed against the victim by the groom and in-
laws arising from the dowry.

Yet another insight into the glaring inefficiency of the judicial and police systems stems from the
nature of state political regime, especially because law and order is a state subject. Party
ideologies differ as also implementation of existing laws designed to protect women from
cruelty.

Way ahead

Using community networks, identifying change agents, and disseminating provocative messages
through the media can at least bring intimate partner violence out of the private realm into the
public eye.

Interventions that address masculinity seem to be more effective than those that ignore the
powerful influence of gender norms and systems of inequality.

Effective women-focused initiatives strengthen resilience against violence by combining

economic empowerment, relationship skills and greater awareness of women’s rights, as seen,
for example, in the Rashtriya Mahila Kosh and Swawlamban programmes. In brief, the
challenges are many but effective solutions are few.

Commission of Sati (Prevention) Act 1987

Sati is the most inhuman, barbaric, heinous custom for the description of which even words will
fail. Section 2(c) defines Sati as follows:
Sati means the burning or burying alive of
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(i) any widow alongwith the body of her deceased husband or any other relative or with
any article, object or thing associated with the husband or such relative; or

(ii) any woman alongwith the body of any of her relatives, irrespective of whether such
burning or burying is claimed to be voluntary on the part of the widow or the woman
or otherwise
Two types of Sati

(i) Sahamarna - widow was burned with the dead husband

(ii) Anumarana - widow is at a distant place from her husband, husband died in war or when the
widow is pregnant, she is expected to be burnt after her delivery

There is no text in any of the dharmasastras which has sanctioned the burning of widow. But
ancient literatures mention Sati. Sati means faithful and truthful wife. Like Jauhar, which was
mostly practiced in Rajasthan, Sati was common in Vijayanagara empire. It was common in the
Mughal period. In Akbar’s Biography, it is mentioned that 60 wives of Raja Man Singh burnt
themselves in his funeral pyre in 1614. In British period, that is in 1818, Raja Ram Mohan Roy
agitated against this inhuman custom. On 4th December 1829, Lord William Bentick prohibited
practice of Sati.

Historical Background of the Act

Roopkuvarba Kanwar was a Rajput woman who was immolated at Deorala village of Sikar

district in Rajasthan, India.After her death, Roop Kanwar was hailed as a sati mata –
a sati mother, or pure mother. The event quickly produced a public outcry in urban centres. The
incident led first to state level laws to prevent such incidents, then the central
government's Commission of Sati (Prevention) Act.A muchpublicized later investigation led to
the arrest of a large number of people from Deorala, said to have been present in the ceremony,
or participants in it.Eventually, 11 people, including state politicians, were charged with
glorification of sati. There were 3 similar incidents in the same village.
The object of the legislation was effective prevention for glorification of Sati.
Punishments
(i) Attempt to commit Sati - 1 year imprisonment
(ii) Abetment of Sati - direct or indirect attempt - punishable with death or lifetime imprisonment
(a) inducement (b) spiritual benefit (c) encouraging (d) participating or procession (e) obstruction
(iii) Glorification of Sati - 1 year imprisonment and fine of Rs 5000
Penal Provisions under IPC - Section 306 - 10 years plus fine; Section 309 - 2 years plus fine
Power of Collector - prohibit Sati, temple removal from Sati, arrest person if found glorifying
Sati
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In All India Democratic Women's Association and Janwadi Samiti v. Union of India & Ors, two
aspects were considered : (1) whether the 'Chunri' ceremony should be permitted to be performed
within the temple and (2) whether out of the amounts which are being deposited in the
nationalised bank in terms of the interim order, the expenses for maintenance of the temple
complex, performance of the daily rites as also the usual charities should not be made.

Held that it was not the stage in the proceedings for a final view of the question as to whether
performance of Chunri ceremony amounts to glorification of Sati and that the determination
must be left to the final stage.

There can be no two opinions that pending disposal of the writ petition, the temple complex has
to be maintained and out of the income earned maintenance expense must be met. There is no
provision in the statute or in any other law which would warrant such change of user the premise.
Similarly if out of the income of this institution any contribution was being made to sustain some
social institutions of utility, the support should not die out.

Held that Respondent was free to move the District Magistrate of Jhunjunu in regard to these two
aspects and in case the District Magistrate is satisfied that appropriate funds should be released
out of the deposits in the bank for one or both of the purposes indicated above he would be free
to direct such money as may be found necessary to be withdrawn from the bank for being
utilised for the purposes as may be specified by the District Magistrate in his order to be made.

REPRODUCTIVE RIGHTS

In 2015, the final year for achieving the targets set in the UN Millenium Development Goals
(MDGs), India accounted for 45000 maternal deaths, second only to Nigeria. Though India’s
maternal mortality rate has decreased over the years, today 5 women still die every hour from
largely preventable causes. Causes that contribute to preventable deaths can be attributed to
nutrition, a lack in public healthcare infrastructure, and unhygienic conditions in hospitals. While
maternal mortality is one of the primary developmental concerns in India, reproductive rights
issues are not limited to the prevention of maternal deaths and securing a right to survive
pregnancy.

Beyond maternal deaths, India’s healthcare system and public health officials routinely deny
women control over their bodies. Since 2010, India has witnessed numerous scandals involving
mass hysterectomies and forced sterilizations through coercive measures. Active control over
reproductive choices are denied to women across the country through restrictive abortion laws,
barriers to accessing contraceptives, prevalence of female sterilization, child marriage and lack
of effective maternity leave for women in informal sectors.

The Cairo International Conference on Population and Development 1994 issued a

comprehensive definition of reproductive rights:
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Reproductive rights rest on the recognition of the basic right of all couples and individuals to
decide freely and responsibly the number, spacing and timing of their children and to have the
information and means to do so, and the right to attain the highest standard of sexual and
reproductive health. They also include the right of all to make decisions concerning reproduction
free of discrimination, coercion and violence.

Reproductive Rights of Women are feebly dealt with by Law

Section 312 in The Indian Penal Code

312. Causing miscarriage - Whoever voluntarily causes a woman with child to miscarry, shall, if
such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be
punished with imprisonment of either description for a term which may extend to three years, or
with fine, or with both; and, if the woman be quick with child, shall be punished with imprison-
ment of either description for a term which may extend to seven years, and shall also be liable to
fine.

Section 313 in The Indian Penal Code

313. Causing miscarriage without woman’s consent - Whoever commits the offence defined in
the last preceding section without the consent of the woman, whether the woman is quick with
child or not, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Section 314 in The Indian Penal Code

314. Death caused by act done with intent to cause miscarriage - Whoever, with intent to cause
the miscarriage of a woman with child, does any act which causes the death of such woman,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; If act done without woman’s consent - And if the act is
done without the consent of the woman, shall be punished either with imprisonment for life, or
with the punishment above mentioned.

Laws such as the Medical Termination of Pregnancy (MTP) Act restrict women's choice.
Abortion is not really a right in India. A woman cannot go to a doctor and ask to terminate a
pregnancy. Safe legal abortions are allowed only if a physician authorises it. The MTP Act came
out as a family control measure where abortion was seen as a secondary method of population
control.

The Medical Termination Of Pregnancy Act, 1971, which is based on Shanilal Shah committee
(1964), defines certain grounds on which termination of pregnancy could be allowed. These
grounds are:
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Sec.3: When pregnancies may be terminated by registered medical practitioner.

(i) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a registered
medical practitioner shall not be guilty of any offence under that Code or under any other law for
the time being in force, if any pregnancy is terminated by him in accordance with the provisions
of this Act

This makes it clear that the provisions of the MTP Act, so far as abortion is concerned suppresses
the provisions of the Indian Penal Code. Sub-sec. (2) of Section 3: "Subject to the provisions of
sub-sec (4), a pregnancy, may be terminated by a registered medical practitioner.

(a) Where the length of the pregnancy does not exceed 12 weeks if such medical practitioner is,
or
(b) Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not
less than 2 registered medical practitioners are of opinion, formed in good faith that:

1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman, or
2. A risk of grave injury to the her physical or mental health; or
3. If the pregnancy is caused by rape; or
4. There exist a substantial risk that, if the child were born it would suffer from some physical or
mental abnormalities so as to be seriously handicapped; or
5. Failure of any device or method used by the married couple for the purpose of limiting the
number of children; or
6. Risk to the health of the pregnant woman by the reason of her actual or reasonably foreseeable
environment.

The Act does not permit termination of pregnancy after 20 weeks. The medical opinion must of
course be given in "good faith". The term good faith has not been defined in the Act but Section
52 if the IPC defines good faith to mean as act done with 'due care and caution'.

Explanations

Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the
anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental
health of the pregnant woman.
Where any pregnancy occurs as a result of failure of any device or method used by any married
woman or her husband for purpose of limiting the number of children the anguish caused by such
unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the
pregnant woman.

Consent for Abortion

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Section 3(4) of MTPA clarifies as to whose consent would be necessary for termination of
pregnancy.
(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having attained
the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her
guardian.
(b) Save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the
consent of the pregnant woman.

Does the Act Violate Women’s Reproductive Rights?

On 21 April 2014, the Supreme Court ordered the Union of India and the State of Maharashtra to
respond to fundamental rights violations resulting from implementation of The Medical
Termination of Pregnancy Act (1971).

A Writ Petition filed by the Human Rights Law Network (HRLN) argues that the outdated and
arbitrary 20-week limit on medical termination of pregnancy violates women’s fundamental
rights to life, health, dignity, and equality.

Now, with advanced technology, there is no harm in women going for abortion at any stage.
Even a committee of experts have suggested that extension will cause no mental or physical
harm, the petition argued.

Why 20-week Limit is Considered Outdated and Arbitrary:

Out of the 26 million births that occur in India every year, approximately 2-3% of the foetuses
have a severe congenital or chromosomal abnormality. With new technology, many
abnormalities can be detected only after 20 weeks.
Most countries with legal abortion allow termination post 20 weeks in the case of severe foetal
abnormalities or to protect the mental or physical health of the pregnant woman.

For years, the National Commission for Women, Federation of Obstetric and the Gynaecological
Societies of India (FOGSI), and prominent doctors have advocated for amendments to the MTP
Act that would ensure protections of women’s mental and physical health throughout their
pregnancies. Without such an exception to ensure the health of pregnant women, the MTP Act
violates fundamental and human rights guaranteed by the Constitution of India and international
law.

Maternity Benefits Act, 1964

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Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of the Act. Section 3
contains definitions. The word "child" as defined in Section 3(b) includes a 'still-born' child.
"Delivery" as defined in Section 3(c) means the birth of a child. "Maternity Benefit" has been
defined in Section 3(h), which means the payment referred to In Sub-section (1) of Section 5.
"Woman" has been defined in Clause (o) of Section 3 which means "a woman employed,
whether directly or through any agency, for wages in any establishment." "Wages" have been
defined in Clause (h) of Section 3 which provides, inter alia, as under: Wages means all
remunerations paid or payable in cash to a woman. Section 5 provides, inter alia, as under: Right
to payment of maternity benefit - Subject to the provisions of this Act, every woman shall be
entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of
the average daily wage for the period of her actual absence, that is to say, the period immediately
preceding the day of her delivery, the actual day of her delivery and any period immediately
following that day. (2) No woman shall be entitled to maternity benefit unless she has actually
worked in an establishment of the employer from whom she claims maternity benefit, for a
period of not less than eighty days in the twelve months immediately preceding the date of her
expected delivery. (3) The maximum period for which any woman shall be entitled to maternity
benefit shall be twelve weeks which not more than six weeks shall precede the date of her
expected delivery.

There are concerns that the Maternity Benefit (Amendment) Act 2017 would have a negative
impact in the labour market. There is a need for better understanding on the issue to materialise
the genuine objectives behind.

The Key Provisions of the Act

The Act extends women’s paid maternity leave from 12 to 26 weeks. Of these, up to eight weeks
can be taken pre-delivery. Enterprises with 50 or more employees must also provide crèches.
They should allow the mother four crèche visits, daily. Women with two or more children get
reduced entitlements. The costs of these benefits are to be borne solely by employers.

The Employment Concern

A recent report projects some 11 to 18 lakh job losses for women in 2018-19 alone for the 10
sectors studied. It also estimates 1.2 crore job losses across all sectors. In India, barely 6.5% of
women are in the formal sector. There is need for more jobs in the formal sector, as more young
educated women join the workforce. Given this, a further decline in hiring women would affect
the female labour participation.

The Concerns with Maternity Leave

15

The high costs of maternity leave drive companies to discriminate against women in higher-level
jobs. Childcare is treated solely as women’s responsibility. Unspecified parental leave ends up
being taken mainly by women. In India, central government employees get only 15 days of
paternity leave. Around 93% Indian women workers are in the informal sector.

The 2017 Maternity Benefit Act does not apply to them. It is also unclear about women working
on family farms, doing home-based work, urban self-employed, casual workers on contract.
Even the current entitlements under the National Food Security Act 2013 are not fully
implemented.

Even in the formal sector, the child will need care after 6 months of maternity leave. But India
largely lacks facilities where women can leave their children for care. Integrated Child
Development Services to provide nutrition and childcare up to 6 years of age, lack in quality and
coverage.

Suggestions to General Concerns

Companies are less likely to discriminate against women if government shares the cost. The
2018 ILO report emphasises the need for government to share at least 2/3rds of maternity
benefits costs. However, much of this relates largely to the formal sector.

It is better to give paternity leave or non-transferable quotas of parental leave. Nearly 55%
countries recognise father’s role and give paternity leave in varying degrees. Matching paternity
and maternity leave would create a level playing field by reducing employer discrimination.

For example, Iceland grants 9 months of parental leave with 3 reserved for the mother, 3 for the
father, and 3 to be shared between them.

Offering flexible work time for both sexes can help with work-life balance. Large companies in
IT and e-commerce support the extended maternity leave in India. These are the sectors where
flexi-time is easy to introduce and employees can work partly from home. Companies which
allow such flexibility find increased worker productivity.

Providing good crèches and childcare centres, not just for care but also for early childhood
development, is crucial. SMEs located in close proximity could pool resources for creating
crèches, rather than each creating its own. This would benefit women across all sectors, formal
and informal.

E.g. in Japan, government’s expansion of high quality childcare centres significantly increased
women’s work participation
16

Media campaigns to change social norms, favouring childcare by fathers are essential. It should
be made known that “Children are public goods”. It is surely a joint social responsibility and not
just the mother’s. There is thus a need for more comprehensive and gender-balanced alterations
to the maternity benefit act.

Leading Case Law

Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Another, (2000)

Facts: Female workers (muster roll), engaged by the Municipal Corporation of Delhi (for short,
'the Corporation'), raised a demand for grant of maternity leave which was made available only
to regular female workers but was denied to them on the ground that their services were not
regularised.

Observations: Article 14 provides that the State shall not deny to any person equality before law
or the equal protection of the laws within the territory of India. Article 15 provides that the State
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.

Part IV talks of directive principles of policy to be followed by the State - The State shall, in
particular, direct its policy towards securing - (a) that the citizens, men and women equally, have
the right to an adequate means of livelihood; (b) & (c)... (d) that there is equal pay for equal work
for both men and women:

(e) that the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength; (f)... Articles 42 and 43 provides as under : "42, Provision for just and
humane conditions of work and maternity relief - The State shall make provision for securing
Just and humane conditions of work and for maternity relief. 43. Living wage, etc., for workers -
The State shall endeavour to secure, by suitable legislation or economic organisation or In any
other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to promote cottage industries on an
individual or co-operative basis in rural areas.

The provisions of the Act which have been set out above would indicate that they are wholly in
consonance with the Directive Principles of State Policy, as set out in Article 39 and in other
Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be
compelled to undertake hard labour as it would be detrimental to her health and also to the health
of the foetus. It is for this reason that it is provided in the Act that she would be entitled to
maternity leave for certain periods prior to and after delivery. We have scanned the different
provisions of the Act, but we do not find anything contained in the Act which entitles only
17

regular women employees to the benefit of maternity leave and not to those who are engaged on
casual basis of on muster roll on daily wage basis.

A just social order can be achieved only when inequalities are obliterated and everyone is
provided what, is legally due. When who constitute almost half of the segment of our society
have to be honoured and treated with dignity at places where they work to earn their livelihood.
Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has
to be considerate and sympathetic towards her and must realise the physical difficulties which a
working woman would face in performing her duties at the work place while carrying a baby in
the womb or while rearing up the child after birth.

Municipal Corporations or Boards have already been held to be "industry" within the meaning of
"Industrial Disputes Act". On 18th of December, 1979, the United Nations adopted the
"Convention on the Elimination of all forms of discrimination against women". Article 11 of this
Convention provides as under:

Article 11 states Parties shall take all appropriate measures to eliminate discrimination against
women in the field of employment in order to ensure, on a basis of equality of men and women.
In the meantime, the benefits under the Act shall be provided to the women (muster roll)
employees of the Corporation who have been working with them on daily wages.

PC & PNDT Act 1994

The PC & PNDT Act was enacted on 20 September 1994 with the intent to prohibit prenatal
diagnostic techniques for determination of the sex of the fetus leading to female foeticide. That is
to say the preliminary object was to put a check on female foeticide. No doubt the bare perusal of
the Act indicates that it is a draconic act from the point of its effect on radiologists/sonologists.
The Act does not offer any escape to the erring radiologist/sonologist.

But at the same time it is very simple to fulfill and abide by the requisitions of the Act. The few
basic requirements of the Act are:
 Registration under Section (18) of the PC-PNDT Act.
 Written consent of the pregnant woman and prohibition of communicating the sex of foetus
under Section 5 of the Act.
 Maintenance of records as provided under Section 29 of the Act.
 Creating awareness among the public at large by placing the board of prohibition on sex
determination.
The Courts have at all material times and in all possible manners delivered judgments indicating
therefore that the PC-PNDT Act is actually a whip to penalize those indulging in sex
determination and to serve as a deterrent to others.

Leading Case Law

18

Sabu Mathew George v. Union of India & Ors (2008 SC)

SC directed, as an interim measure, that the respondents, namely, Google, yahoo and Micro Soft
shall not advertise or sponsor any advertisement which would violate Section 22 of the PC-
PNDT Act, 1994. If any advertise is there on any search engine, the same shall be withdrawn
forthwith by therespondents. This order was further directed to be put on the policy page as also
on the page containing 'terms and conditions of service' by respondents.

The Court held that they are under obligation to see that the “doctrine of auto block” is applied
within a reasonable period of time. It is difficult to accept the submission that once it is brought
to their notice, they will do the needful. It need not be over emphasized that it has to be an in-
house procedure/method to be introduced by the Companies, and we do direct.

Vinod Soni v. UOI, 2005

The petitioners who are married couple, seek to challenge the constitutional validity of
Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994
(hereinafter referred to Sex Selection Act of 1994). The petition contains basically two
challenges to the enactment. First, it violates Article 14 of the Constitution and second, that it
violates Article 21 of the Constitution of India.

The conception is a physical phenomena. It need not take place on copulation of every capable
male and female. Even if both are competent and healthy to give birth to a child, conception need
not necessarily follow. That being a factual medical position, claiming right to choose the sex of
a child which is come into existence as a right to do or not to do something which cannot be
called a right. The right to personal liberty cannot expand by any stretch of imagination,to liberty
to prohibit coming into existence of a female foetus or male foetus which shall be for the Nature
to decide.

To claim a right to determine the existence of such foetus or possibility of such foetus come into
existence, is a claim of right which may never exist. Right to bring into existence a life in future
with a choice to determine the sex of that life cannot in itself to be a right. In our opinion,
therefore, the petition does not make even a prima facie case for violation of Article 21 of the
Constitution of India. Hence it is dismissed. In view of the fact that the petition itself is rejected,
the application for intervention is also rejected.

ECONOMIC EMPOWERMENT AND THE LAW

Women form an integral part of the Indian workforce. According to the information provided by
the office of Registrar General & Census Commissioner of India, as per Census 2011, the total
number of female workers in India is 149.8 million and female workers in rural and urban areas
are 121.8 and 28.0 million respectively. Out of total 149.8 million female workers, 35.9 million
females are working as cultivators and another 61.5 million are agricultural labourers. Of the
19

remaining females workers, 8.5 million are in household Industry and 43.7 million are classified
as other workers.

As per Census 2011, the work participation rate for women is 25.51 percent as compared to
25.63 per cent in 2001. The Work Participation Rate of Women has reduced marginally in 2011
but there is an improvement from 22.27 per cent in 1991 and 19.67 per cent in 1981. The work
participation rate for women in rural areas is 30.02 per cent as compared to 15.44 per cent in the
urban areas.

In so far as the organised sector is concerned, in March, 2011 women workers constituted 20.5
percent of total employment in organised sector in the country which is higher by 0.1 percent as
compared to the preceding year. As per the last Employment Review by Directorate General of
Employment & Training (DGE&T), on 31st March, 2011, about 59.54 lakh women workers
were employed in the organised sector (Public and Private Sector). Of this, nearly 32.14 lakh
women were employed in community, social and personal service sector.
The word ‘housewife’ is the product of the marriage between capitalism and patriarchy, where
breaking the word up yields two of the factors from each ideology which ultimately determine a
woman’s social location. ‘House’ indicates the site of labour – the private sphere, and with
‘wife’ being an ascribed status in relation to a man legally bound as a husband through the
marriage contract. Put together, the words naturalises the role of a married woman as the one to
perform unpaid domestic labour in the home.
The word also serves the essential function of devaluing domestic labour itself; by setting it up as
oppositional to ‘actual work’, it implicitly negates the use value of work performed at home in
order to make it sound logical to not have this work be paid for. If a wife’s duty, according to
gender norms, is to sustain the family, the work which she does in the house in order to do so is
her natural role and must therefore not be paid for. The naturalisation of this work also allows for
it to be viewed as unskilled work, and further contributes to the devaluation of the same.
Worldwide, the time that women and men dedicate to housework is wildly disproportionate: men
spend more time at paid work while women are those who do the unpaid work like cleaning,
cooking, grocery shopping, and taking care of children and old people. Although this housework
is both indispensable and unavoidable for a functioning society, it tends to be less socially and
economically valued than paid work.
Nevertheless, its economic value appears (and lightens our wallets) when these jobs are
outsourced, whether they be in different kinds of care centers (child care, preschool, nursing
homes, summer camp) or a particular service (house cleaning, cooks, nurses, babysitters, or pizza
delivery). There we can clearly see that the time spent on these jobs has a price, and freeing
20

oneself of them opens up the possibility of spending that time either working outside the house
or having free time.
The asymmetry in the distribution of housework is one of the greatest sources of inequality
between men and women. Because it is women who are spending more time on these unpaid
tasks, they therefore have less time to study, develop academically, or work outside the home.
They also have to accept more flexible jobs (generally more precarious and lower paying) and
they end up facing a double shift: they work both in and out of the house. This phenomenon
repeats itself in virtually every country and is not often visible because, to a greater or lesser
extent, we all assume that these domestic chores are women’s work and that they do it out of
love. Gender roles and stereotypes penalize men as well, making it necessary for them to get
better jobs with better salaries in order to support and provide for the family, and, in many cases,
it takes away the possibility of participating in and enjoying the upbringing of their children.
If we add up both paid and unpaid work on a global level, the OECD estimates that on average
women work 2.6 hours per day more than men.
In 1963 Betty Friedan published The Feminine Mystique, a revolutionary book and one that
many people signal as a trigger for a large part of the discussions that were held in the
framework of the second wave of feminism in the U.S.A woman appeared to be defined by her
relationship to others as a wife, mother, and housewife and the resolution of her conflicts would
have to be resolved within the home.
Many of these desperate housewives had dropped out of school in order to run a household, but
once they were inside that refuge they began to feel unsatisfied. Their only compensation was
their own femininity. On the opposite sidewalk, says Friedan ironically, are the neurotic women,
the ugly ones, the plain Janes and the unhappy women that want to be poets, physicists or
presidents.
The second wave of feminism raised the flag for, among other things, reproductive rights,
sharing child care responsibility, and housework. Its opponents claimed that these were all
private issues that should be worked out within the family. This is what led to the slogan “The
personal is political.” One of the main schisms that this wave provoked was that of the
idealization of the role of housewife. Education and equal working conditions would be the next
challenges.
The image of a woman limited to the confines of her house helped Silvia Federici, philosopher
and marxist activist, to outline the need for women’s struggle and for a salary for housework.
Salary, in the society in which we live, signifies being part of a social contract and it is through
our salaried work that we gain access to consumer goods which we need. The issue of domestic
work is that, in addition to not being paid, it has been imposed as a duty upon women, and it has
transformed itself into an attribute of the feminine personality: being a good housewife became,
at one point, something desirable or characteristic for girls.
21

There is a clear economic benefit in recognising domestic and other unpaid work as legitimate
work. The value of unpaid domestic and care work done by women is estimated to be 13% of
the global GDP. But in India, the value is a whopping 39% of its current GDP.
Though the government has started recognizing women’s unpaid work. The National Rural
Employment Guarantee Act (NREGA), 2005 is the first step towards empowering rural women
and tackling the problem of unpaid and underpaid agricultural work. However, we are still far
away from recognising domestic work as legitimate labour.

We need to remember that empowerment cannot be found by simply rejecting the unpaid
domestic work women have been shouldering for decades in favour of working outside the
homes. Because when women step out of the house to work, the question of ‘who will do the
housework’ still remains. And because domestic work is still gendered, the responsibility
eventually falls on women themselves. This promotes ideas like women aren’t competent
workers, or that they have other priorities beyond their work.

Equal opportunity for work cannot be just about increasing pay for women, or increasing their
participation in the workforce, but about redefining the current patriarchal definition of work.
This will un-gender domestic and care work, minimising women’s work and improving their
quality of life.

Transgender people are coming out in record numbers while increasingly demanding economic
equality. The transgender community is recognizing that without the ability to achieve economic
parity in the marketplace, social marginalization - often accompanied by
unemployment/underemployment, poverty, substance abuse, prostitution, depression and even
suicide attempts - will remain the status quo.
Unfortunately, ignorance and misconceptions about transgender people still abound throughout
society. For example, transgender unemployment is rampant in the United States. It’s difficult to
get even a minimum-wage job if one doesn’t “pass” well in public. The unemployment rate for
trans persons is approximately twice the national average. For transgender persons of color, that
rate increases to four times the national average.
For many transgender people who find themselves in a seemingly hopeless situation like this,
despondency, despair, and low self-esteem become constant companions.When people become
desperate, they do desperate things. According to “Injustice at Every Turn: A Report of the
National Transgender Discrimination Survey,” a staggering 41 percent of transgender people in
the United States have attempted to commit suicide. Even if suicide is not attempted overtly,
depressed and desperate people often engage in other life-threatening behaviors. Sadly,
alcoholism and drug abuse are common in the transgender community. Sometimes trans persons
22

are forced to turn to prostitution simply to be able to get money to eat. These destructive, soul-
killing behaviors on the part of transgender persons are often the direct result of being unable to
make a living - and it all starts with discrimination based on nonconforming gender expression.

We must press for policies in all workplaces to protect everyone - including transgender people -
from discrimination, with progressively severe penalties for repeat offenders. Those in essential
medical services should be held to the highest standards possible, with zero tolerance for refusal
to treat a trans person, or for providing subpar treatment out of ignorance and fear.Awareness
training should be mandatory in all work environments to ensure that workers not only
understand diversity and inclusion but learn about behavioral expectations and responsibilities on
the job. Managers and supervisors should receive required refresher training at least every two
years. Ending discrimination in the interviewing, hiring, training, and promotion of transgender
workers is an important step toward addressing the problem.

The four basic concepts that are invoked while determining economic entitlements of women at
the time of

divorce are - "title", "fault", "need" and "contribution". Matrimonial laws of most countries have
adopted the principle of "division of matrimonial property" at the time of divorce which
abandons the concepts of "title", "fault" and "need" and relies primarily upon "contribution". It
takes into consideration a woman's non-economic contribution in acquiring assets during the
subsistence of a marriage. In India, we lag far behind in this respect and still follow the old
English system of "separate property" (rather than the more contemporary "community of
property") where rights are based on "title" or at the most, upon economic contribution. Within
these constraints, women's economic rights revolve around the right of maintenance, the granting
of which is premised on her assessed "need" and "fault".

Securing an order of adequate maintenance can be an extremely humiliating experience for

women, as there is a high quotient of sexual morality that engulfs the question of maintenance.
Curiously, the core of what should be an economic dispute does not revolve around questions of
financial arrangements of the family unit, but hinges upon issues of sexual mores. In the context
of unequal power relations prevailing within marriages, women's economic rights are determined
within these codes. Morality dictates of a patriarchal marriage are deeply entangled with the
economic claims.

To add insult to injury, during litigation, the fact of a bigamous marriage can be used as armour
to defeat women's claims. In other words, a husband may claim that since the litigant is a second
wife his marriage to her is not legally binding and, hence, he is not obligated to pay
hermaintenance. This plea is advanced so routinely, that the Supreme Court in Vimala v.
Veeraswamy was constrained to hold that when a husband pleads that the marriage is bigamous,
the previous marriage would have to be strictly proved.
23

In post-independence India, mehr has been reduced to a token amount in most Muslim
communities. The protection offered by this provision has been corroded and instead, many
communities have accepted the Hindu custom of dowry, hence mehr has ceased to be a future
security or a deterrent against arbitrary divorce.

Additional protections and economic security in terms of matrimonial assets under Article 15 (3)
of the Constitution.

US, feminist scholar Martha Fineman, argues that one source of controversy about property
distribution rules is the existence of two competing and perhaps incompatible and unrealistic,
political visions of contemporary marriage. The first is the more modem view that marriage as an
institution has been transformed so as to be more consistent with formalistic notions of equality
between the sexes. The second is the more traditional policy stance that "family" continues to be
the solitary institution which addresses problems of dependency that inevitably arise in the
context of families, such as caring for the young, the sick and the aged and meeting these
demands as the care taker creates further "needs" for the primary care taker, which in most cases
is the woman.

Highly skeptical of the "contribution" model which is based on the assumption that marriage is a
partnership between equals, she argues for a "need-based" framework." At a conceptual level,
quality standards in the distribution of property may be linked to broader ideals of placing equal
value and promoting freedom of choice in marriage. Making equality the ongoing concept of
underlying divorce may be considered part of a series of conscious symbolic choices about how
best to ensure a more just society. But when equality rhetoric is translated into specific rules
governing distribution of property, the results must be measured and assessed in more than sym-
bolic terms. Symbolic expression may be important, but Fineman argues that care should be
taken so that as translated into legislation having direct impact on the lives of many people, the
results also meet the standards of fairness and justice.'" I end with a similar approach of
cautiousness and scepticism and urge that this must reflect in our campaigns for law reforms.

Sexual harassment has been recognized as a violation of human rights and is considered as a
crime which violates the dignity and respect of a woman. At the outset sexual harassment can be
defined as any unwanted conduct of sexual nature. Such conduct can either be in form of quid
pro quo harassment, where a sexual favor is made a condition to secure a work related benefit
like promotion, confirmation etc and denial to such favour may be met with a work related
detriment like demotion ,transfer etc or such harassment may take form of creation of a hostile
working environment where no direct sexual favours are asked for but a hostile working
conditions are created e.g display of obscene graffiti, making sexual comments, physical touches,
brushing against etc. Quid pro quo harassment is based on discrimination.
Sexual harassment at work place results in violation of the fundamental right to gender equality
and the right to live with dignity which is an essential part of Right to life and liberty.
24

The much felt need for some law in this field was answered by the Apex court in the celebrated
judgement of the Vishaka v. State of Rajasthan and ors(AIR 1997 SC 3011). The Supreme Court
took upon itself the task of preparing a comprehensive set of guidelines and norms and stressed
that such guidelines be treated as law within meaning of Article 141 of the Constitution.
After Vishaka Supreme Court came down heavily on sexual harassment of a woman by her
superior in Apparel Export Promotion Council v. A. K. Chopra (AIR 1999 SC 625). In a strongly
worded decision the court upheld the dismissal of an employee on sexual harassment charges
saying: “any lenient action in such a case is bound to have demoralizing effect on working
women. Sympathy in such cases is uncalled for any mercy is misplaced.”
In D.S Gerewal v.Vimmi Joshi (2009 2SCC 217) apex court once again reiterated its
concurrence with the Vishaka judgment. Court came down heavily on the army authorities for
not constituting a complaints committee.
Recognizing the much felt need of laws specifically dealing with the issue of sexual harassment,
legislature by The Criminal Law (Amendment) Act, 2013 introduced S.354A, dealing with
sexual harassment in Indian Penal Code, 1860 and in 2013 passed the Sexual harassment
(Prevention, Prohibition and Redressal) Act.
Section 354 of the IPC only takes in the situation where physical force is employed with an
intention to outrage the modesty of a woman. It excludes the various forms which such
harassment can take.
Section 509 of the IPC has a limited application to sexual harassment at work place. It is
confined to the acts mentioned therein like uttering any word or making any sound or showing
any object etc with an intention of insulting the modesty of a woman.
Section 354A. (1) The following acts or behaviour shall constitute the offence of sexual
harassment – (i) physical contact and advances involving unwelcome and explicit sexual
overtures; or (ii) demand or request for sexual favours; or (iii) making sexually coloured
remarks; or (iv) forcibly showing pornography; or (v)
With quick grievance redressal in mind, inducting a work environment free of sexual harassment
and protection of women from sexual harassment the legislature introduced The Sexual
Harassment Of Women At Workplace (Prevention, Prohibition and Redressal) Act in 2013.
Sexual Harassment: An inclusive definition of sexual harassment is provided under S2(n).It
includes unwelcome sexually determined behaviour, physical contact, advances, sexually
coloured remarks, showing pornography, sexual demand, request for sexual favours or any other
unwelcome conduct of sexual nature. Such harassment may include one or more of the above
mentioned acts whether done directly or impliedly. Section 3 which deals with prevention of
sexual harassment adds to the definition and makes it amply clear that both quid pro quo claims
and hostile working environment are included in the definition of sexual harassment.
25

Section 3 declares that no woman shall be subjected to sexual harassment at any workplace. The
Act provides for setting up an internal complaints committee and a local complaints committee
under Section 4(1). Section 4(2) provides for the constitution of the committee. The Committee
shall consist of a Chairperson, from amongst employees, who shall be a senior level woman,
committed to the cause of women. Committee shall also consist of atleast two members from
amongst employees committed to the cause of women or who have had experience in social
work; and one member from amongst such non governmental organizations or associations
committed to the cause of women, as may be specified. However at least fifty per cent of the
members so nominated shall be women.
The Act contains a provision for appointment of a district officer to deal with the complaints
arising out of the act. Such officer would be appointed by the appropriate government from
amongst District Magistrate or Additional District Magistrate or the Collector or Deputy
Collector as the case may be. The Act also contains a provision for a local complaints committee
as well. It provides that a local complaints committee shall be constituted by the district officer
in every district to receive the complaints of sexual harassment where an internal complaints
committee has not been constituted at the workplace as the number of employees are less than
ten, or where the complaint is against the employer himself.
Section 9 of the Act provides that an aggrieved woman may make a complaint of sexual
harassment at workplace to the Committee or the Local Committee, as the case may be, in
writing however where such complaint cannot be made in writing, the Chairperson or any
member of the Committee or the Local Committee, as the case may be, shall render all
reasonable assistance to the woman making the complaint to reduce the same in writing. Where
the aggrieved woman is not able to make a complaint on account of her physical or mental
incapacity or death or otherwise, her legal heir or such other person as may be prescribed may
make a complaint. Section 16 provides for prohibition in publication of such complaints. If any
person who is incharge of dealing with complains publishes it shall be penalized as per section
17.
Section 10 of the Act provides for conciliation. At the request of the aggrieved woman, the
complaints committee may take steps to settle the matter between her and the respondent through
conciliation.-Section 11 of the Act deals with provisions relating to Inquiry. Inquiry must be
completed within 90 days of filing the complaint, if enquiry is conducted it must be conducted as
per the service rules and in case no service rules are applicable then as per the manner prescribed
in the rules. Section 12 of The Act provides that during the pendency of the inquiry, on written
request by the aggrieved woman, the complaints committee may recommend to the employer,
transfer of the aggrieved woman or the respondent to any other workplace or to grant leave to the
aggrieved woman for a period up to three months. It must be noted that such leave would be in
addition to the other leave which such woman is entitled to avail. Section 13 further provides that
the complaints committee, after completion of the inquiry, must give a report within ten days of
such completion.
26

The Act also makes a provision for punishment in case of false and malicious complaints under
section 14. Provided that a mere inability to substantiate a complaint or provide adequate proof
shall not attract action against the complainant under this section. The malicious intent on part of
the complainant shall be established after an inquiry before any action is recommended.
Section 15 deals with quantum of punishment. Payment of compensation to the aggrieved
woman shall have regard to the mental trauma, pain, suffering and emotional distress caused to
the loss in the career opportunity, medical expenses incurred by the victim for physical or
psychiatric treatment, the income and financial status of the respondent and feasibility of such
payment in lump sum or in installments.
The Act enjoins certain duties of employer under Section 19. Section 20 provides for duties and
powers of District Officer.
CB. Muthamma v. Union of India

Facts: The petitioner was a senior member of the Indian Foreign Service. She brought this
petition against the Government on the grounds that she has been overlooked for promotion
because she was a woman and because some rules governing the employment of women in the
Service are discriminatory in nature and therefore contrary to Articles 14 and 16 of the
Constitution.

Law: Constitution of India - Article 14 (equality before the law) and Article 16 (equality of
opportunity in matters of public employment)

Legal Arguments: he petitioner argued that she had been denied promotion to Grade I of the
Indian Foreign Service on the grounds that:

1. there was a long standing practice of hostile discrimination against women

2. she had to undertake on joining the foreign service that if she got married she would resign
from her post

3. she had to face the consequences of being a woman and thus suffered discrimination

4. the members of the appointment committee were basically prejudiced as a group

She also submitted that the rules that no married woman has the automatic right to be appointed
to the Service and that a woman employee must get written permission to marry and may be
forced to resign if the Government decides that her marital commitments will hamper her work
were unconstitutional. Furthermore she set out that during the period between her first and
second evaluations, some officers junior to her had been promoted over her, adversely affecting
her career.
27

The three appeal judges presented unanimous findings. JK Iyer Krishna delivered the decision,
first commenting that: “… sex prejudice against the Indian womanhood pervades the service
rules even a third of a century after Freedom. There is some basis for the charge of bias in the
rules and this makes the ominous indifference of the executive to bring about the banishment of
discrimination in the heritage of service rules. If high officials lose hopes of equal justice under
the rules, the legal lot of the little Indian, already priced out of the expensive judicial market, is
best left to guess.” The Court then analysed the individual rules, finding that: “If a woman
member shall obtain the permission of Government before the marriage, the same risk is run by
Government if a male member contracts a marriage. If the family and domestic commitments of
a woman member of the service is likely to come in the way of efficient discharge of duties, a
similar situation may well arise in the case of a male member … If a married man has a right, a
married woman, other things being equal, stands on no worse footing. Freedom is indivisible, so
is justice.” The Court found that, since of the rules in question had been or where in the process
of deletion, there was no need to address or attack them. In addition, the petitioner had been
promoted subsequent to her complaint, so further examination of it was pointless. The Court also
noted that: “The Central Government states that although the petitioner was not found
meritorious enough for promotion some months ago, she has been found to be good now, has
been upgraded and appointed as Ambassador of India to The Hague, for what that is worth.” The
Court dismissed the petition but directed the Government to review the petitioner's case in light
of the only remaining element of her complaint – that relating to the promotion of people junior
to her. The Court emphasised the need to overhaul all service rules to remove discrimination.

Air India and others v. Nergesh Meerza

Air India, a state-owned company, required female flight attendants to retire under three
circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first
pregnancy. The Corporations submissions had emphasised the importance of appearance, youth
and glamour, as essential qualities for inflight service. The Supreme Court quashed the offending
regulation, extending the retirement age of airhostesses to 45, with further mandatory extension
for 10 years. The Court struck the rules down, holding that these requirements constituted
official arbitrariness and hostile discrimination.

From a comparison of the mode of recruitment the classification, the promotional avenues and
other matters, the Court was satisfied that the AHs from an absolutely separate category from
that of AFPs in many respects having different grades, different promotional avenues and
different service conditions.

Richa Mishra v. State of Chhattisgarh

Facts:- The Appellant (Woman Candidate) applied for the the post of Dy. S.P. and qualified each
stage of the examination. Her name was however not included in the list of successful candidates
for the said post on the ground that she had crossed the upper age limit for the said examination. 
28

Appellant challenged her non-appointment by Writ Petition in the High Court of Chattisgarh on
the ground that she was entitled to the benefit of age relaxation on account of being a
Government Servant. The Writ Petition was however dismissed on the ground that she entered
the Government job after the cut off date for the post of Dy S.P. 

The Appellant then filed a Writ Appeal and claimed the benefit of age relaxation under Madhya
Pradesh Civil Services (Special provision for appointment of women) Rules, 1997 (1997 Rules)
but didn't succeed on this ground. 1997 Rules were applicable to all posts in connection with the
affairs of the State. Rule 4 of the said rules provided for age relaxation of 10 years for women
candidates for direct appointment in all posts in the services under the State in addition to the
upper age limit prescribed under service rules or executive instructions.

The recruitment of Dy.S.P. were made as per Chattisgarh Police Executive (Gazetted) Service
Recruitment and Promotion Rules, 2000 (2000 Rules).

The Hon'ble Supreme Court of India examined the following questions:-

"1.Whether the recruitment to the post of Dy.S.P. was governed by Rules, 2005 or it was rightly
done under the Rules, 2000? 

2. Notwithstanding the fact that Rules, 2000 do not contain any provision for relaxation qua
women candidates, whether a relaxation would still be available to women candidates under
Rules, 1997? There are two incidental facets of question no. (2), which are as follows: 

(i) Whether Rules, 1997 are applicable, which make special provision for relaxation in upper age
limit by 10 years in respect of women candidates? 

(ii) Whether Examination Rules, 2003 which specifically contain a provision for applicability of
Rules, 1997 would be treated as applicable for the examination in-question?"

Held:-

As regards the Question No 1 the Hon'ble Supreme Court held that the recruitment was governed
by Rules of 2000 for the following reason -

"However, as far as present case is concerned, the State sent the requisition specifically
mentioning that the recruitment has to be under Rules, 2000. This was so provided even in the
advertisement. The appellant never challenged the advertisement and contended that after the
promulgation of Rules, 2005 the recruitment should have been under Rules, 2005 and not Rules,
2000. Therefore, the appellant is even precluded from arguing that recruitment should have been
made under Rules, 2005"
29

As regards Question No. 2 it was observed by the Hon'ble Court that the 2000 Rules do not make
any provisions for age relaxation in so far as women candidates are concerned. 1997 Rules
provide for such relaxations. The omission to provide age relaxation to women in 2000 Rules
was rectified in Rules of 2005. 

The Hon'ble Supreme Court of India held that the 1997 Rules read with State Service
Examination Rules, 2003 would get attracted as these rules make a specific provision for
providing age relaxation upto 10 years that is to be given to women candidates. The Appellant
would be entitled to said benefit for the following reasons:-

1997 Rules are special rules framed under Article 309. Special Provision for women candidates
have been made keeping in mind Article 15 (3) of the Constitution of India. When such
affirmative actions are taken by the lawmaker, in the form of subordinate legislation, they need
to be enforced appropriately so that the purpose that is intended is suitably achieved. In this
context Rule 4 of 1997 Rule 4 of 1997 Rules (relaxation of age for women candidates)  is to be
interpreted to have universal application when it comes to women candidates seeking
appointment in Public Service and Posts in connection with affairs of the State of Chattisgarh.
Even if any doubt arises about the applicability of 1997 Rules because of absence of specific
provision in 2000 Rules, that is to be taken care of by the State Services Examination Rules,
2003. It was not disputed by the Respondents that competitive examination for recruitment to the
post of Dy.S.P. was conducted under the aforesaid rules.

Charu Khurana v. UOI

In Charu Khurana v. Union of India, a Supreme Court Bench comprising of Dipak Misra and
U.U. Lalit, JJ held that the bye-laws of Cine Costume Make-up Artists and Hair Dressers
Association (‘Association’) prohibiting women from practising as make-up artists and requiring
residency for over 5 years in Maharashtra violate fundamental rights enshrined in the
Constitution as well as statutory provisions. The Court directed the bye-laws to be quashed, and
the police administration to prevent any harassment of female artists by the Association.

Facts and Issue: The simple issue in this matter was: whether the Association can: (i) prohibit
female artists to practice as ‘make-up artists’ (Clause 4 of the Association byelaws); and (ii) have
a domicile requirement, i.e. the person should be residing in Maharasthra for past five years
(Clause 6 of the Association byelaws), to become a member of the Association. The Association
is registered as a Trade union with the Registrar of Trade Unions under the Trade Unions Act,
1926 (‘Act’).
30

Analysis: It is surprising that the Hon’ble Court entertained the petition under Article 32 instead
of invoking the doctrine of alternative remedy as it usually does. Going by precedents, there is no
reason why this case too could not have been dealt by the Bombay High Court or any other
appropriate judicial forum. Secondly, since the Association is not ‘State’ or ‘State
instrumentality’ under Article 12 of the Constitution of India, was it a fit case at all for writ
jurisdiction? The Court justifies its jurisdiction on the ground that the bye-laws of the
Association being a trade union registered under the Act must not violate the mandate of the said
Act or the constitutional commands. The Court found clause 4 of the Association bye-laws
breaching Section 21 of the Act. This reasoning is flawed for three reasons: i. Mere registration
under the Act does not change the character of an organisation from private to State and make it
automatically amenable to Writ jurisdiction unless article 17, 23 and 24 are involved. ii. If the
Association being a trade union owed an explanation to the Trade Union, even then the matter
should first go to the Registrar of Trade Union and then to the high court, if needed. The registrar
has the power of cancelling the registration of the trade union. iii. Section 21 of the Act, as an
exceptional provision, allows trade unions to have children below 15 years of age as members
who can even execute instruments. The said section clearly uses the phrase ‘subject to any rules
of the trade union to the contrary” to indicate vast freedom trade unions have got under the said
Act to frame their membership policy. No where the Act mandates compliance with Part-III or
Part-IV of the Constitution for trade unions that State is obliged to do. The Court’s reasoning that
since there is no other criterion fixed in section 21, hence there cannot be any other criterion is
flawed for the criteria is obviously not exhaustive. Instead of asking the question whether clause
4 violates the Trade Union Act in any way, the Court should have asked the question how the
Trade Union – a private union could behave as a sovereign licensing body and stop the petitioner
to practice as a make-up artist. The petitioner should have approached the Competition
Commission of India (CCI), for the rules and conduct of the Association were clearly anti-
competitive under Section 3 / 4 of the Competition Act, 2002 towards new entrants.

On the issue of Clause 6 dealing with residence in Maharashtra for a minimum period of five
years to be eligible, the Court relied upon Pradeep Jain v. Union of India where it was held that
place of residence should not be taken into account when considering admission to any
educational course, training facility, specialty or employment. It must be noted here that the
Respondent Association does not fall into any of these categories and is merely a private union.
Ideally, the Court should have referred the matter to the Competition Commission of India and in
the interim, directed the police administration to respond to the Petitioner’s complaints of
harassment by the Association, in order to ensure that the Petitioner could work freely.

Medha Kotwal v. U.O.I

The case arises against a background of the long-running attempt to tackle the problem of sexual
harassment of women at work in India, both through the courts and before the legislature. In
1997, in a landmark case before the Supreme Court of India stemming from the brutal gang rape
of a publicly employed social worker at work (Vishaka and Others v. State of Rajasthan and
31

Others (1997) 6 SCC 241), the Court stated that a woman’s Constitutional rights to life (with
dignity), to equality and to practice any profession or carry out any occupation, demanded
safeguards against sexual harassment in the workplace. In the absence of legislative safeguards,
the Court, stated that an “affective alternative mechanism” was needed to prevent violations of
these fundamental rights in the workplace. To that end, the Court established guidelines
(“Vishaka Guidelines”) with regards to the prevention and redress of sexual harassment in the
workplace. These set out a series of obligations on employers to prevent or deter acts of sexual
harassment and to remedy occasions where such acts take place. The Court stated that the
Vishaka Guidelines were to be treated as a declaration of law and to apply until relevant
protective legislation was enacted by the Parliament. Since then, the “Protection of Women
against Sexual Harassment at Workplace Bill 2010”, which seeks to provide the requisite
protection, has been passed by the Lok Sabha (the lower house of Parliament) in September
2012. It is currently pending in the Rajya Sabha (the upper house of Parliament) and so is not yet
in force. The present case arose when Medha Kotwal Lele, coordinator of Aalochana, a centre
for documentation and research on women and other women’s rights groups, together with
others, petitioned the Court highlighting a number of individual cases of sexual harassment and
arguing that the Vishaka Guidelines were not being effectively implemented. In particular, the
petitioners argued that, despite the guidelines, women continued to be harassed in the workplace
because the Vishaka Guidelines were being breached in both substance and spirit by state
functionaries who harass women workers via legal and extra legal means, making them suffer
and by insulting their dignity. The Court was specifically required to consider whether individual
state governments had made the changes to procedure and policy required by the Vishaka
Guidelines and a number of earlier orders of the Court.
Law - National laws: • Article 141 Constitution of India • The Vishaka Guidelines • Protection of
Women against Sexual Harassment Bill 2010 (the Bill) – still pending • Central Civil Service
(conduct) Rules, 1964 (CCS Rules) • Industrial Employment (Standing Orders) Rules.
International laws: • The Beijing Platform for Action
The Court recalled that the Beijing Platform for Action states that: “[V]iolence against women
both violates and impairs or nullifies the enjoyment by women of human rights and fundamental
freedoms (...) in all societies, to a greater or lesser degree, women and girls are subjected to
physical, sexual and psychological abuse that cuts across lines of income, class and culture”. It
went on to reproach the fact that India’s record on gender equality remains poor, stating: “[W]e
have marched forward substantially in bringing gender parity in local self governments but the
representation of women in Parliament and the Legislative Assemblies is dismal as the women
represent only 10-11 per cent of the total seats. India ranks 129 out of 147 countries in United
Nations Gender Equality Index (...) Our Constitution framers believed in fairness and justice for
women. They provided in the Constitution the States’ commitment of gender parity and gender
equality and guarantee against sexual harassment to women.” The Court stated that the Vishaka
Guidelines had to be implemented in form, substance and spirit in order to help bring gender
parity by ensuring women can work with dignity, decency and due respect. It noted that the
32

Vishaka Guidelines require both employers and other responsible persons or institutions to
observe them and to help prevent sexual harassment of women. The Court held that a number of
states were falling short in this regard. It referred back to its earlier findings on 17 January 2006,
that the Vishaka Guidelines had not been properly implemented by various States and
Departments in India and referred to the direction it provided on that occasion to help to achieve
better coordination and implementation. The Court went on to note that some states appeared not
to have implemented earlier Court decisions which had required them to make their legislation
compliant with the Vishaka Guidelines. It noted that some states had only amended certain
aspects of their legislations rather than carrying out all required amendments and others had
taken even less action. The Court, reiterated that there is an obligation to prevent all forms of
violence. It stated that “lip service, hollow statements and inert and inadequate laws with sloppy
enforcement are not enough for true and genuine upliftment of our half most precious population
– the women”. Accordingly, it held that the Vishaka Guidelines should not remain just symbolic
but rather shall provide direction until the legislative enactment of the Bill. Hence, holding that a
number of states had not done everything required to comply with the Guidelines, the Court
provided the following directions: States governments must make the necessary amendments to
their CCS Rules and Standing Orders within two months of the date of judgment. States
governments must ensure there is an adequate number of Complaint Committees within each
state to hear complaints and that such Committees are headed up by a woman. State functionaries
must put in place sufficient mechanisms to ensure effective implementation of the Vishaka
Guidelines. The Bar Council of India shall ensure that all bar associations in the country and
persons registered with the State Bar Councils follow the Vishaka Guidelines. Similarly, the
Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute
of Company Secretaries and other statutory Institutes shall ensure that the organisations, bodies,
associations, institutions and persons registered/affiliated with them follow the Vishaka
Guidelines. Finally, the Court stated that, in the event of non-compliance to the Vishaka
Guidelines, the Courts orders and/or directions above, aggrieved persons should approach the
High Court of the state concerned.
LGBTQH++ and Human Rights

“All human beings are born free and equal in dignity and rights.” This affirmation in the
Universal Declaration of Human Rights is the cornerstone of international human rights law, and
at the heart of the mission of the United Nations.
Non-discrimination clauses in international instruments typically require that the rights set forth
be made available to everyone without discrimination, and States ensure that their laws, policies
and programmes are not discriminatory in impact. For example, under article 2 of the
International Covenant on Civil and Political Rights, each State party to the Covenant undertakes
to respect and to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex,
33

language, religion, political or other opinion, national or social origin, property, birth or other
status.
The specific grounds of discrimination referred to in the International Covenant on Civil and
Political Rights and other human rights treaties are not exhaustive. The drafters intentionally left
the grounds of discrimination open by using the phrase “other status”. Sexual orientation and
gender identity, like disability, age and health status, are not explicitly mentioned among the
grounds listed in the International Covenant on Civil and Political Rights or the International
Covenant on Economic, Social and Cultural Rights. In 1994, in the case of Toonen v. Australia,
the Human Rights Committee held that States are obligated to protect individuals from
discrimination on the basis of their sexual orientation. This position is reflected in later decisions
of the Committee, and in general comments of the Committee on Economic, Social and Cultural
Rights, the Committee on the Rights of the Child, the Committee against Torture and the
Committee on the Elimination of Discrimination against Women.
Under article 3 of the Universal Declaration of Human Rights, “everyone has the right to life,
liberty and the security of person”. Article 6 of the International Covenant on Civil and Political
Rights affirms that “every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life.
Article 33 of the Convention relating to the Status of Refugees provides that States parties have
an obligation not to expel or return a refugee to a place where their life or freedom would be
threatened on account of race, religion, nationality, membership of a particular social group or
political opinion. In the view of UNHCR, individuals who fear persecution on account of their
sexual orientation or gender identity may be considered members of a “particular social group”.
The right to be free from torture and other cruel, inhuman or degrading treatment is absolute.
Article 5 of the Universal Declaration of Human Rights and article 7 of the International
Covenant on Civil and Political Rights provide that “no one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment”.
The right to privacy is enshrined in article 12 of the Universal Declaration of Human Rights and
article 17 of the International Covenant on Civil and Political Rights, which state that no one
should be subjected to “arbitrary or unlawful interference with his privacy, family, home or
correspondence” Articles 9 of the Universal Declaration and the Covenant further protect
individuals from “arbitrary arrest and detention”.
Since Toonen in 1994, the Human Rights Committee has held that laws used to criminalize
private, adult, consensual same-sex sexual relations violate rights to privacy and to non-
discrimination. The Committee has rejected the argument that criminalization may be justified as
“reasonable” on grounds of protection of public health or morals, noting that the use of criminal
law in such circumstances is neither necessary nor proportionate.
34

The right to be free from discrimination is included in the Universal Declaration of Human
Rights (art. 2) and core international human rights treaties, including the International Covenant
on Economic, Social and Cultural Rights (art. 2) and the Convention on the Rights of the Child
(art. 2). Article 26 of the International Covenant on Civil and Political Rights guarantees equality
before the law, requiring States to prohibit discrimination.
The Human Rights Committee has urged State parties to “guarantee equal rights to all
individuals, as established in the Covenant, regardless of their sexual orientation”, 18 and
welcomed legislation that includes sexual orientation among prohibited grounds of
discrimination.
Freedom of expression, association and peaceful assembly are enshrined in the Universal
Declaration of Human Rights (arts. 19-20) and the International Covenant on Civil and Political
Rights (arts. 19, 21-22). Under article 19 of the Universal Declaration, “everyone has the right to
freedom of thought and expression; this right includes freedom to hold opinions without
interference and to seek receive and impart information and ideas”. Under article 20 (1),
“everyone has the right to freedom of peaceful assembly and association.
Homophobic and transphobic violence has been recorded in all regions. Such violence may be
physical (including murder, beatings, kidnappings, rape and sexual assault) or psychological
(including threats, coercion and arbitrary deprivations of liberty). These attacks constitute a form
of gender based violence, driven by a desire to punish those seen as defying gender norms.
The current mandate holder recently highlighted the murders of at least 31 LGBT persons in
Honduras during an 18-month period, including a transgender person found dead in a ditch, her
body beaten and burned, showing evidence of rape and blows to her face from stoning so severe
as to render the remains virtually unrecognizable.
The Special Rapporteur on torture has noted that “members of sexual minorities are
disproportionately subjected to torture and other forms of ill-treatment because they fail to
conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual
orientation or gender identity may often contribute to the process of the dehumanization of the
victim, which is often a necessary condition for torture and illtreatment to take place.”In 2010,
the Special Rapporteur noted that, in detention facilities, there was usually a strict hierarchy, and
that those at the bottom of the hierarchy, such as gays, lesbians, bisexuals and transgender
persons, suffered double or triple discrimination.
Even in countries that recognize these grounds for asylum, practices and procedures often fall
short of international standards. Review of applications is sometimes arbitrary and inconsistent.
Officials may have little knowledge about or sensitivity towards conditions facing LGBT
people.66 Refugees are sometimes subjected to violence and discrimination while in detention
facilities and, when resettled, may be housed within communities where they experience
additional sexuality and gender related risks. Refoulement of asylumseekers fleeing such
35

persecution places them at risk of violence, discrimination and criminalization. In some cases,
they are returned with instructions to “be discreet”, an approach criticized by UNHCR.
Seventy-six countries retain laws that are used to criminalize people on the basis of sexual
orientation or gender identity. Such laws, including so called “sodomy laws”, are often relics of
colonial era legislation.The criminalization of private consensual homosexual acts violates an
individual‟s rights to privacy and to non-discrimination and constitutes a breach of international
human rights law. In Toonen v. Australia, the Human Rights Committee found that “adult
consensual sexual activity in private is covered by the concept of „privacy‟” under the
International Covenant on Civil and Political Rights.
In at least five countries the death penalty may be applied to those found guilty of offences
relating to consensual, adult homosexual conduct. In addition to violating rights to life, privacy
and non-discrimination, application of the death penalty in these circumstances violates article 6
of the International Covenant on Civil and Political Rights, which provides that, in countries that
have not abolished the death penalty, a “sentence of death may be imposed only for the most
serious crimes”.
The Working Group on Arbitrary Detention has stated that detaining someone for offences
relating to sexual orientation or gender identity, including offences not directly related to sexual
conduct, such as those pertaining to physical appearance or so-called “public scandal”, breaches
international law. ”. It concluded that the arrests were discriminatory, in violation of articles 2
and 26 of the International Covenant on Civil and Political Rights, and that the detention was
arbitrary.
The Human Rights Committee has urged State parties to “guarantee equal rights to all
individuals, as established in the Covenant, regardless of their sexual orientation.”84 States have
a “legal obligation … to ensure to everyone the rights recognized by the Covenant … without
discrimination on the basis of sexual orientation.”Both the Human Rights Committee and the
Committee on Economic, Social and Cultural Rights have called regularly on States to enact
laws prohibiting discrimination on grounds of sexual orientation and have welcomed legislation
that includes sexual orientation among the prohibited grounds of discrimination.
Fifty four States have laws prohibiting discrimination in employment based on sexual
orientation.In X v. Colombia and Young v. Australia, the Human Rights Committee found that
failure to provide pension benefits to an unmarried same-sex partner, when such benefits were
granted to unmarried heterosexual couples, was a violation of rights guaranteed by the Covenant.
Article 12 (1) of the International Covenant on Economic, Social and Cultural Rights provides
that States parties to the Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
36

In Toonen, the Human Rights Committee rejected the claim that laws criminalizing consensual
same-sex conduct were a necessary public health measure, noting that such laws risk driving
many of those at risk underground.
The right to education includes the right to receive comprehensive, accurate and age-appropriate
information regarding human sexuality in order to ensure young people have access to
information needed to lead healthy lives, make informed decisions and protect themselves and
others from sexually-transmitted infections.
Under article 19 of the International Covenant on Civil and Political Rights, “everyone shall
have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice.” The Covenant also affirms
that “everyone shall have the right to freedom of association with others...” (art. 22), and that
“the right of peaceful assembly shall be recognized” (art. 21).
While families and communities are often an important source of support, discriminatory
attitudes within families and communities can also inhibit the ability of LGBT people to enjoy
the full range of human rights. Such discrimination manifests itself in various ways, including
through individuals being excluded from family homes, disinherited, prevented from going to
school, sent to psychiatric institutions, forced to marry, forced to relinquish children, punished
for activist work and subjected to attacks on personal reputation. In many cases, lesbians,
bisexual women and transgender people are especially at risk owing to entrenched gender
inequalities that restrict autonomy in decision-making about sexuality, reproduction and family
life.
The Human Rights Committee has held that States are not required, under international law, to
allow same-sex couples to marry. Yet, the obligation to protect individuals from discrimination
on the basis of sexual orientation extends to ensuring that unmarried same-sex couples are
treated in the same way and entitled to the same benefits as unmarried opposite-sex couples.
In many countries, transgender persons are unable to obtain legal recognition of their preferred
gender, including a change in recorded sex and first name on State-issued identity documents. As
a result, they encounter many practical difficulties, including when applying for employment,
housing, bank credit or State benefits, or when travelling abroad.
The recommendations to Member States set out below, which are not exhaustive, draw on
measures recommended by United Nations human rights mechanisms.
The High Commissioner recommends that Member States: (a) Investigate promptly all reported
killings and other serious incidents of violence perpetrated against individuals because of their
actual or perceived sexual orientation or gender identity, whether carried out in public or in
private by State or non-State actors, and hold perpetrators accountable, and establish systems for
the recording and reporting of such incidents;
37

(b) Take measures to prevent torture and other forms of cruel, inhuman or degrading treatment
on grounds of sexual orientation and gender identity, to investigate thoroughly all reported
incidents of torture and ill-treatment, and to prosecute and hold accountable those responsible;
(c) Ensure that no one fleeing persecution on grounds of sexual orientation or gender identity is
returned to a territory where his or her life or freedom would be threatened, and that asylum laws
and policies recognize that persecution on account of one’s sexual orientation or gender identity
may be a valid basis for an asylum claim;
(d) Repeal laws used to criminalize individuals on grounds of homosexuality for engaging in
consensual same-sex sexual conduct, and harmonize the age of consent for heterosexual and
homosexual conduct; ensure that other criminal laws are not used to harass or detain people
based on their sexuality or gender identity and expression, and abolish the death penalty for
offences involving consensual sexual relations;
(e) Enact comprehensive anti-discrimination legislation that includes discrimination on grounds
of sexual orientation and gender identity among prohibited grounds and recognizes intersecting
forms of discrimination; ensure that combating discrimination on grounds of sexual orientation
and gender identity is included in the mandates of national human rights institutions;
(f) Ensure that individuals can exercise their rights to freedom of expression, association and
peaceful assembly in safety without discrimination on grounds of sexual orientation and gender
identity;
(g) Implement appropriate sensitization and training programmes for police, prison officers,
border guards, immigration officers and other law enforcement personnel, and support public
information campaigns to counter homophobia and transphobia among the general public and
targeted anti-homophobia campaigns in schools;
(h) Facilitate legal recognition of the preferred gender of transgender persons and establish
arrangements to permit relevant identity documents to be reissued reflecting preferred gender
and name, without infringements of other human rights.
The High Commissioner recommends that the Human Rights Council: (a) Keep regularly
informed and updated on incidents of violence and discrimination linked to sexual orientation
and gender identity; (b) Encourage existing special procedures to continue to investigate and
report on human rights violations affecting individuals on the basis of sexual orientation or
gender identity within the context of their specific mandates.
Queer theory is suggesting that the study of homosexuality should not be a study of a minority-
the making of the lesbian/gay/bisexual subject- but the study of those knowledges and social
practices that organize ‘society’ as a whole by sexualizing -heterosexualizing or
homosexualizing -bodies, desires, acts, identities, social relations, knowledges, culture and social
institutions.
 In the Indian context, the relevance of criminology to the Indian queer person is still to be
demonstrated. Indian criminology has not taken seriously the issue of hate crimes against those
38

who violate gender and sexuality norms inspite of ample evidence that gender transgression
results in brutal violence.
The story of power is also the story of resistance to power and invoking Foucault, what is
significant is how power’ attempt to define and control is resisted by the homosexual. Power by
is nature is never absolute and the homosexual resists the project of the ‘expert knowledges’ by
taking on the very identity of the homosexual as a political resistance identity. It is important to
understand the series of steps by which the homosexual is transformed from being a mute subject
of the criminal law to a vocal resister to the criminal law.
By proudly calling themselves queer, homosexual people not only re-appropriate a word
historically used as part of a language of oppression, the also reject the power of the oppressor to
judge them in the first place.
The family, medical establishment and the criminal law play different roles in regulating deviant
sexuality and thereby stabilizing heterosexuality. There is an inter-connection between these
different modes of regulation. As Nicola Lacey argues, ‘ The coercive power of the criminal law
in the public sphere are supplanted in the private sphere by the more subtle but no less
ideologically powerful dominion of the family. Seen in this way, the family is not beyond the
purview of the state, but is itself an important means of regulating sexual morality.
The importance of examining the family as a node of regulation cannot be under estimated as it
is the family which is the locus of oppression particularly when it comes to the case of lesbian
women. It is the coercion into the institution of marriage which results in the tragic phenomenon
of lesbian suicides.
The uniqueness of the criminal law as normative system of regulation is that the norm set in
place is enforced by the brute power of the state. The power of the criminal law in policing
deviant behavior lies precisely in the fact that it is backed up by the power of the state. It is the
combination of a moral and regulatory function which makes the criminal law a potent force in
gender non- conformity in terms of attitudes, identity and behavior, and thereby reinforces the
heterosexist regime.
The medical establishment regulates homosexuality through the diagnostic category of ego
dystonic homosexuality. Those who are diagnosed as ego dystonic homosexuals are medically
treated for the same. 
The reported judicial decisions under Section 377 are by and large prosecutions of non
consensual sex between men on one hand and children, women and other adult men on the
other hand.
While this may be the judicial history of Section 377, its important to note that what the judiciary
does while dealing with cases of non consensual sex is to conflate the cases within the broader
rubric of homosexuality as an offence in itself.
39

In Emperor vs Mohamed Yousif, which was a case of a young lad who was forcibly sodomized
by the accused, the court held that ‘sodomy is one of those offences for which there can be
hardly any extenuating circumstances; and even if so it cannot justify an over lenient sentence of
four months rigorous imprisonment.’

In Fazal Rab Choudary vs State of Bihar, which was also a case involving a young boy, the
court noted, ‘The offence is one under Section 377 IPC, which implies sexual perversity. No
force appear to have been used. Neither the notions of permissive society nor the fact that in
some countries homosexuality has ceased to be an offence has influenced our thinking.’

In TK Gopal vs State Karnataka, which was a case in which the accused was tried for rape
under Section 376, the judge goes on to make remarks about homosexuality. The judge notes,
‘Sexual offences, however constitute an altogether different kind of crime, which is the result of
a perverse mind. The perversity may result in homosexuality or in the commission of rape. Those
who commit rape are psychologically sadistic persons exhibiting this tendency in the rape
forcibly committed by them.

The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of

India with the objective to provide for protection of rights of transgender people, their welfare,
and other related matters. The act was introduced in the Lok Sabha, the lower house of the
Parliament, on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand
Gehlot, in light of the lapse of the Transgender Persons (Protection of Rights) Bill, 2018 (Bill
No. 210-C of 2016). 
The statutory provisions of the 2019 act prohibit discrimination against transgender people.
Under the provisions of the 2019 act, a transgender person can apply to the district magistrate for
a transgender person certificate which will give them the right to change the name on their birth
certificate and have all documents updated accordingly. The 2019 act also protects transgender
children and provides for states and institutions to come up with adequate policies to ensure the
welfare of transgender people.
Transgender people called the requirement of applications to be made to the district magistrate
for issuance of transgender certificates, the lesser punishment for crimes against transgender
people, and the absence of provisions on mandatory reservations for transgender people
regressive to the judicial mandate of the Supreme Court in 2014 in National Legal Services
Authority v. Union of India, thereby violating their right to equality and other fundamental
rights.
National Legal Services Authority v. Union of India is a landmark decision by the Supreme
Court of India, which declared transgender people to be a 'third gender', affirmed that
the fundamental rights granted under the Constitution of India will be equally applicable to
transgender people, and gave them the right to self-identification of their gender as male, female
40

or third-gender. This judgement is a major step towards gender equality in India. Moreover, the
court also held that because transgender people were treated as socially and economically
backward classes, they will be granted reservations in admissions to educational institutions and
jobs.
Facts of the Case
The case concerns legal gender recognition of transgender people, and whether the lack of legal
measures to cater for the needs of persons not identifying clearly as male or female contradicts
the Constitution. Pre-existing Indian law only recognised the binary genders of male and female,
and lacked any provision with regard to the rights of transgender people, which advocates in
India have also defined as “third gender”. The gender of a person has been assigned at birth and
would determine his or her rights in relation to marriage, adoption, inheritance, succession,
taxation and welfare. Due to the absence of legislation protecting transgender people, the
community faced discrimination in various areas of life.
Law
Domestic Law • The Constitution of India: Article 14 (equality before law), Article 15
(nondiscrimination), Article 16 (equality of opportunity in matters of public employment),
Article 19 (freedom of expression), Article 21 (right to life) International Law • International
Covenant on Civil and Political Rights (ICCPR) Article 6 (right to life), Article 7 (prohibition of
torture or cruel, inhuman or degrading treatment), Article 16 (recognition before the law), Article
17 (right to private and family life) • Universal Declaration of Human Rights (UDHR) Article 6
(right to life) • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) Article 2, Yogyakarta Principles, Principles 1 (universal enjoyment of human
rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 4
(right to life), 6 (right to privacy), 9 (right to treatment with humanity while in detention), 18
(protection from medical abuses) Also referred to (albeit not directly) • Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) Articles 11
(discrimination in employment) and 24 (commitment of State parties) • Convention for
Protection of Human Rights and Fundamental Freedoms (European Convention of Human
Rights), Article 8 (right to respect for private and family life) and 14 (non-discrimination) •
Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International
Conventions)
Legal Arguments
The petitioners were joined by a number of interveners in the case. The argument was made that
the recognition of only the binary genders of male and female under Indian law and the lack of
legal measures to cater for the needs of the represented groups contradicted a number of
constitutional rights including the rights to a dignified life, equality before the law,
nondiscrimination and freedom of expression. The state government pointed out that an “Expert
Committee on Issues Relating to Transgender” had been set up and the petitioners’ views would
41

be sought as part of that process. Various states and union territories were also represented and
argued that they had taken steps to improve the conditions and status of members of the
transgender community.
Decision
The court was constituted of two judges. The leading judgment was given by Judge K.S.
Radhakrishnan, whose judgment was endorsed by Judge A.K. Sikri. However, the latter also
gave a separate opinion providing some additional comments. We summarise below the leading
judgment. The Court noted that the transgender community (broadly defined by the Court to
include Hijras, eunuchs, Kothis, Aravanis and numerous others) has faced prejudice and
disadvantage since the eighteenth century in India. It acknowledged the discrimination that
transgender people face in areas of life including health care, employment and education, which
often leads to social exclusion. The Court declared that numerous steps were necessary in order
for centre and state governments to comply with the constitutional rights to life, equality before
the law, non-discrimination and freedom of expression. In reaching its decision, the Court stated
that gender identity is an integral part of the personality and one of the most basic aspects of self-
determination, dignity and freedom. Thus, no one can be forced to undergo medical procedures,
including sex reassignment surgery, sterilisation or hormonal therapy as a requirement for legal
recognition of their gender identity. Psychological gender is to be given priority over biological
sex. Rights have to be protected irrespective of chromosomal sex, genitals, assigned birth sex, or
implied gender role. The Court considered international human rights Conventions and norms to
be significant for the purpose of interpreting gender identity equality, and used them to shed light
on the interpretation of the Constitution. It stated that the wide discrimination faced by the
transgender community creates a “necessity to follow the international Conventions to which
India is a party and to give due respect to other non-binding international Conventions and
principles” and that any international convention not inconsistent with the fundamental rights of
the Constitution must be read into the national provisions. Accordingly, it stated that it would
recognise and follow the principles in the international covenants and the Yogyakarta principles.
The Court held that the right to choose one’s gender identity is integral to the right to lead a life
with dignity and therefore falls within the scope of the right to life (Article 21). In this regard, the
Court emphasised the need to read the provisions of the Constitution in line with present day
conditions, based on a factual and social reality that is constantly changing. Safeguarding the
rights of transgender people was especially called for due to the increasing universal recognition
and acceptance of transgender issues. The Court noted that Article 21 has been broadly
interpreted to include all aspects that make a person’s life meaningful. It protects the dignity of
human life, personal autonomy and privacy. As recognition of one’s gender identity lies at the
heart of the right to dignity and freedom, it must be protected under Article 21 of the
Constitution. 3 With regard to the right to equality before the law (Article 14), the Court recalled
that the state shall not deny “any person” equality before the law or equal protection of the laws.
Article 14, in ensuring equal protection, imposes a positive obligation on the state “to ensure
equal protection of laws by bringing in necessary social and economic changes”. Article 14 is a
42

right enjoyed by “any person” (similarly, the reference to “citizen” in Article 15 is gender-
neutral) and so applies equally to men, women and transgender people, who do not identify
clearly as male or female. Hence, transgender people are entitled to equal legal protection of the
law in all spheres, including employment, health care, education and civil rights. Discrimination
on the grounds of sexual orientation and gender identity impairs equality before the law and
equal protection of the law and violates Article 14. Articles 15 and 16 prohibit discrimination in
certain areas based on a list of grounds, including sex. The reference to “sex” is to be understood
as prohibiting all forms of gender bias and gender based discrimination, including discrimination
against transgender people. The emphasis put on tackling sex-based discrimination in the
Constitution means that people have a “fundamental right to not be treated differently for the
reason of not being in conformity with stereotypical generalisations of the binary genders”.
Furthermore, Article 15 includes a requirement to take affirmative action for the advancement of
socially and educationally disadvantaged groups. The Court notes that transgender persons have
not been afforded special provisions as envisaged under Article 15(4) for the advancement of the
socially and educationally backward. They constitute such a group and the state is bound to take
some affirmative action to remedy the injustice done to them for centuries. In addition, the Court
stated that expressing one’s gender identity through words, dress, action or behaviour is included
in the right to freedom of expression (Article 19). Privacy, self-identity, autonomy and personal
integrity are fundamental rights protected by Article 19. As gender identity lies at the core of
one’s personal identity, gender expression and presentation, it has to be protected under Article
19(1)(a) of the Constitution. Often the state and its authorities, either due to ignorance or
otherwise, fail to digest the innate character and identity of transgender persons, which it must do
in order to realise their Article 19 rights. On these bases, the Court upheld transgender persons’
right to self-identify their gender. The Constitution requires equal treatment of all people
regardless of their gender identity or expression. The Court declared that the Centre and State
governments must grant legal recognition of gender identity as male, female or third gender. A
full recognition is to be given even in the absence of any existing statutory regime. Additionally,
the Court declared that educational, social and health care issues faced by transgender people
must be addressed both at the centre and state government levels.
Arun Kumar v. Inspector General

Facts

Arunkumar got married to Sreeja, a transwoman, on 31 October 2018 at a temple in Tuticorin, as

per Hindu rites and customs. When they submitted a memorandum for registration of marriage to
the Joint Registrar No. II of Tuticorin, the Registrar refused to register the same. The petitioners
challenged this decision before the District Registrar of Tuticorin vide proceedings dated 16
43

November 2018, who in turn confirmed the Joint Registrar’s decision on 28 December 2018.
This decision was challenged before theMadras High Court.

Issue

Whether the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act (HMA) meant
only women, or included transgender persons as well, given that Sreeja was a transwoman.

Decision

The Court stated that a marriage solemnized between a male and a transwoman, both professing
Hindu religion, was a valid marriage.  The Court stated that transgender persons had the right to
decide their self-identified gender, as upheld by the Supreme Court in NALSA v Union of India,
which has been reiterated in Justice K. Puttaswamy v Union of India and again in Navtej Singh
Johar v Union of India.

The Court also held that the expression ‘bride’ in the HMA cannot have a static meaning and
must be interpreted in light of the legal system as it exists today. The Court then cited Article 16
of the Universal Declaration of Human Rights, which includes the right to marry as a human
right as well as Shafin Jahan v Asokan K.M. and Ors. where the right to marry a person of one’s
choice was held to be integral to Article 21 of the Constitution of India. The Court also went on
to cite Justice K. Puttaswamy where the Supreme Court referred to the US Supreme Court
decision in Obergefell v Hodges in which the Court had noted that it would be contradictory to
recognise a right to privacy with respect to other matters of family life and not with respect to the
decision to enter the relationship that is the foundation of the family in society. Since the
Constitution of India is an enabling document that is inviting transgender persons to join the
mainstream and they cannot be denied the benefits of social institutions that are already in place
in the mainstream.
44

The Court, therefore, held that refusal to register the marriage of Ms. Sreeja would amount to a
violation of her fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of
India and quashed the orders of the Joint Registrar No. II and the District Registrar of Tuticorin
and directed the Joint Registrar No. II to register the marriage of the Petitioners.

The Court also address a second issue on sex reassignment surgery (SRS) or Intersex Genital
Mutilation (IGM) of intersex children. The Court pointed out that according to the judgement
in S. Amutha v C. Manivanna Bhupathy consent of a parent cannot be considered as the consent
of the child and as held in NALSA no one shall be forced to undergo medical procedures as a
requirement for legal recognition of their gender identity. The Court directed the Government of
Tamil Nadu to issue a Government Order to ban SRS on intersex infants and children. The Court
also noted that since Arun Kumar, the first petitioner was from an SC community, they were
entitled to obtain financial incentives under the Dr Ambedkar Scheme for Social Integration
through Inter-Caste Marriages.

Significance

This is the first judgment in India where the right to marry under Article 21 of the constitution
has been affirmed for transgender persons and holding that ‘bride’ under the Hindu Marriage Act
would cover transgender persons who identify as women. It affirmed the inclusion of
intersex/transgender persons who identify as women, within the definition of ‘bride’.

Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice is

a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex
among adults, including homosexual sex.

Section 377 of the Indian Penal Code states- “Unnatural offences: Whoever voluntarily has
carnal intercourse against the order of nature with any man, woman or animal shall be punished
with imprisonment for life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”
45

The issue was first raised in 2009, in a case named Naz Foundation v. Government of NCT of
Delhi, where the constitutionality of section 377 IPC was challenged in Delhi High Court and it
was contended that the given section is violative of article 14,15,19 and 21 of the constitution. It
was argued that such victorian era law has no place in current society and there is a dire need to
strike it down. The law made consensual sex between two consenting adults as a punishable
offence which was not in any manner peno-vaginal.

Issue

Whether Sec 377 of The Indian Penal Code,1860 is violative of Article 14, 15, 19 and 21 of the
Constitution of India?

The judgment for the present case was pronounced on the 6th of September, 2008 where a five-
judge bench unanimously struck down Section 377 of The Indian Penal Code, as unconstitutional
to the extent it criminalized consensual sexual intercourse between two qualified adults of same-
sex. The writ petition was presented by the petitioner Navtej Singh Johar, before a three-judge
bench which felt that it was deemed fit to be considered by a larger bench. The Apex court
referred to the Suresh Kumar Koushal vs. Naz Foundation case where the court declared the
provision to be intra-vires and overturned the decision by division-bench in Naz Foundation vs.
Government NCT of Delhi.

The court broached upon disparate arguments such as social morality, determination of “order of
nature”, fundamental rights, foundations of our constitution, statistically minor community, etc.
thus giving a landmark judgment.

The case took into consideration profound questions of law and morality which had significant
implications and consequences on our society. Section 377 IPC, states that “Whoever voluntarily
has carnal intercourse against the order of nature with any man, woman, or animal, shall be
punished with imprisonment for life, or with imprisonment of either description for a term which
may extend to ten years, and shall be liable to fine”. The debated language of the provision
“carnal intercourse against the order of nature” remains to be ambiguous and vague to the extent
that no defined meaning was attributed to it. Sexual intercourse between two people of same-sex
was considered to be an “unnatural offence” which was “against the order of nature”. This
46

provision stems from the Victorian-era law which is long gone and there is no need for the
continuance of the same as they are violative of Articles 14, 15, 19 and 21 of the Constitution
(Justice Nariman). The reading down of the section did not have a retrospective effect but was to
be applied to pending matters only. The issue first arose in Naz Foundation case where it was
observed that under Article 15 of the Constitution of India, discrimination on the basis of sex
was prohibited. It was overruled in Suresh kumar koushal case by another Delhi High Court
bench holding that Section 377 IPC only regulated sexual conduct that amounted to unnatural
offence and did not concern gender identity or consent of the offender. It did not aim at
criminalizing a particular section of the society based on their sexual orientation but only acts
that constituted the commitment of a punishable act.

The constitution guarantees the citizens of India certain fundamental rights which are sacrosanct
in nature. However, one should be aware of the fact that these rights are dynamic and perennial.
It would be against the principles of ‘equality, liberty and dignity’ and foundation of our
constitution to attach a static and predetermined interpretation to them. Earlier judicial
pronouncements were based on social morality instead of constitutional morality and being the
guardian of the constitution, it is the responsibility of our judiciary to ensure that rights of the
weaker or minority sections of our society are well taken care of. Our society has undergone
progressive changes and there has been a pragmatic shift from the traditional and devout
approach. The Court relied upon the judgment in the cases National Legal Services Authority v.
Union of India (2014) 5 SCC 438 and K.S. Puttaswamy v. Union of India to recapitulate that
gender identity and sexual orientation are intrinsic to one’s personality and denying the Lesbians,
gay, bisexual and transgender the right to privacy and a right to choose a sexual partner
irrespective of their sex, would be violative of a dignified life under Article 21 of the
Constitution as sexual autonomy also falls under its ambit. It held that the provision led to an
unreasonable restriction on the right to freedom of expression since consensual sexual
intercourse was a private affair beyond the legitimate interests of the state and did not lead to
degradation of public morality and decency. The LGBT constitutes of a sexual minority objected
to humiliation and discrimination not only at the hands of the State and society but also their own
families. If the provisions continue to remain in the statute then it will cause a chilling effect that
would “violate the right under Art. 19(1)(a)”.

The principle of Transformative constitutionalism bestows upon the judicial organ a duty to
ensure the ascendancy of the Constitution with the concept of constitutional morality maintaining
the social fabric of the society. The doctrine of progressive realization of rights is a prominent
feature of constitutional law which maintains checks and balances on the economic, social and
cultural rights (Justice Dipak Misra and Justice Khanwilkar). The Court reiterated that
47

‘Homosexuality is not a mental disorder or mental illness’ as per The Mental Healthcare
Act,2017 and treating it as a mental illness that can be cured can attract grave consequences for
the mental health of the person. Homosexuality got accreditation globally, both domestic, as well
as international courts, have developed strong jurisprudence against discrimination based on
sexual orientation following theorists like Bentham and John Mill.

It does not matter if it caters to a minuscule fragment of the society, individuals from the LGBT
community are equally entitled to enjoy the right of privacy and human dignity. Justice Malhotra
affirmed that homosexuality is “not an aberration but a variation of sexuality”. It curtails a
particular community based on their gender identity as the sodomy laws overstep the right to
equality under Articles 14 and 15 of the Constitution. A State must ensure that the human rights
of LGBT individuals are guarded regardless of a majoritarian approval of the government.
Though Section 377 IPC was facially gender-neutral, its “effect was to efface identities” of the
LGBT community (Justice Chandrachud). It was observed that provision puts forward the rule
by the law instead of the rule of law. Sexual expression and intimacy of a consensual nature,
between adults in private, cannot be treated as “carnal intercourse against the order of nature”.
The stigma and social distancing faced by the LGBT Community is the outcome of social ethics
and morality and is in opposition to the essential rule of liberty. The judiciary should
undoubtedly ignore the social profound morality and maintain and ensure sacred constitutional
morality.

INTERNATIONAL INSTRUMENTS ON GENDER JUSTICE

The International Commission of Jurists and the International Service for Human Rights, on
behalf of a coalition of human rights organisations, have undertaken a project to develop a set of
international legal principles known as Yogyakarta principles on the application of international
law to human rights violations based on sexual orientation and gender identity to bring greater
clarity and coherence to States’ human rights obligations.
The Principles themselves are a lengthy document addressing legal matters. A website
established to hold the principles and make them accessible has an overview of the principles,
reproduced here in full:

The Preamble acknowledges human rights violations based on sexual orientation and gender

identity, which undermine the integrity and dignity, establishes the relevant legal framework, and
provides definitions of key terms.
48

Rights to Universal Enjoyment of Human Rights, Non Discrimination and Recognition

before the Law: Principles 1 to 3 set out the principles of the universality of human rights and
their application to all persons without discrimination, as well as the right of all people to
recognition as a person before the law without sex reassignment surgery or sterilisation.

Laws criminalising homosexuality violate the international right to non-discrimination

(decision of the UN Human Rights Committee).

Rights to Human and Personal Security: Principles 4 to 11 address fundamental rights to life,

freedom from violence and torture, privacy, access to justice and freedom from
arbitrary detention, and human trafficking.

Examples:

The death penalty continues to be applied for consensual adult sexual activity between
persons of the same sex, despite UN resolutions emphasizing that the death penalty may
not be imposed for "sexual relations between consenting adults."

Eleven men were arrested in a gay bar and held in custody for over a year. The UN
Working Group on Arbitrary Detention concluded that the men were detained in violation
of international law, noting with concern that "one of the prisoners died as a result of his
arbitrary detention".

Economic, Social and Cultural Rights: Principles 12 to 18 set out the importance of non-
discrimination in the enjoyment of economic, social and cultural rights,
including employment, accommodation, social security, education, sexual and reproductive
health including the right for informed consent and sex reassignment therapy.

Examples:

Lesbian and transgender women are at increased risk of discrimination, homelessness and

violence (report of United Nations Special Rapporteur on adequate housing).

Girls who display same-sex affection face discrimination and expulsion from educational
institutions (report of UN Special Rapporteur on the right to education).

The United Nations High Commissioner for Human Rights has expressed concern about
laws which "prohibit gender reassignment surgery for transsexuals or
require intersex persons to undergo such surgery against their will".

Rights to Expression, Opinion and Association: Principles 19 to 21 emphasise the importance

of the freedom to express oneself, one's identity and one's sexuality, without State interference
49

based on sexual orientation or gender identity, including the rights to participate peaceably in
public assemblies and events and otherwise associate in community with others.

Example:

A peaceful gathering to promote equality on the grounds of sexual orientation and gender
identity was banned by authorities, and participants were harassed and intimidated by
police and extremist nationalists shouting slogans such as "Let's get the fags" and "We'll
do to you what Hitler did with Jews" (report of the UN Special Rapporteur on
contemporary forms of racism, racial discrimination, xenophobia & related intolerance).

Freedom of Movement and Asylum: Principles 22 and 23 highlight the rights of persons to

seek asylum from persecution based on sexual orientation or gender identity.

Example:

Refugee protection should be accorded to persons facing a well-founded fear of

persecution based on sexual orientation (Guidelines of the United Nations High
Commissioner for Refugees).[3]

Rights of Participation in Cultural and Family Life: Principles 24 to 26 address the rights of

persons to participate in family life, public affairs and the cultural life of their community,
without discrimination based on sexual orientation or gender identity.

Example:

States have an obligation not to discriminate between different-sex and same-sex

relationships in allocating partnership benefits such as survivors' pensions (decision of the
UN Human Rights Committee).

Rights of Human Rights Defenders: Principle 27 recognises the right to defend and promote
human rights without discrimination based on sexual orientation and gender identity, and the
obligation of States to ensure the protection of human rights defenders working in these areas.

Examples:

Human rights defenders working on sexual orientation and gender identity issues in
countries and regions around the world "have been threatened, had their houses and
offices raided, they have been attacked, tortured, sexually abused, tormented by regular
death threats and even killed. A major concern in this regard is an almost complete lack of
seriousness with which such cases are treated by the concerned authorities." (report of the
Special Representative of the UN Secretary-General on Human Rights Defenders).
50

Rights of Redress and Accountability: Principles 28 and 29 affirm the importance of holding

rights violators accountable, and ensuring appropriate redress for those who face rights
violations.

Example:

The UN High Commissioner for Human Rights has expressed concern about "impunity
for crimes of violence against LGBT persons" and "the responsibility of the State to
extend effective protection. The High Commissioner notes that "excluding LGBT
individuals from these protections clearly violates international human rights law as well
as the common standards of humanity that define us all."

Additional Recommendations: The Principles set out 16 additional recommendations to

national human rights institutions, professional bodies, funders, NGOs, the High Commissioner
for Human Rights, UN agencies, treaty bodies, Special Procedures, and others.

Example:

The Principles conclude by recognising the responsibility of a range of actors to promote

and protect human rights and to integrate these standards into their work. A joint
statement delivered at the United Nations Human Rights Council by 54 States from four
of the five UN regions on 1 December 2006, for example, urges the Human Rights
Council to "pay due attention to human rights violations based on sexual orientation and
gender identity" and commends the work of civil society in this area, and calls upon "all
Special Procedures and treaty bodies to continue to integrate consideration of human
rights violations based on sexual orientation and gender identity within their relevant
mandates." As this statement recognises, and the Yogyakarta Principles affirm, effective
human rights protection truly is the responsibility of all.

The Yogyakarta Principles mention intersex only briefly. In a manual on Promoting and
Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex
Characteristics the Asia Pacific Forum of National Human Rights Institutions (APF) states that
"The Principles do not deal appropriately or adequately with the application of international
human rights law in relation to intersex people. They do not specifically distinguish sex
characteristics.”

These issues were addressed in the Yogyakarta Principles plus 10 update. Boris

Dittrich of Human Rights Watch comments that the new update "protects intersex children from
involuntary modification of their sex characteristics"
51

On 10 November 2017, the "Yogyakarta Principles plus 10" (The YP +10) to supplement the
Principles, formally as "Additional Principles and State Obligation on the Application of
International Human Rights Law in Relation to Sexual Orientation, Gender Expression and Sex
Characteristics to Complement the Yogyakarta Principles", emerged from the intersection of the
developments in international human rights law with the emerging understanding of violations
suffered by person on ground of sexual orientation and gender identity and the recognition of the
district and intersectional grounds of gender expression and sex characteristics.

2017 Yogyakarta Principles plus 10

Preamble: The Preamble recalls developments in international human rights law, and an

intention to regularly update the Principles. It defines gender expression and sex characteristics,
applies these grounds to the original Principles, recognizes the intersectionality of the grounds
adopted in the Principles, and their intersectionality with other grounds.

The Rights to State Protection: Principle 30 recognises the right to State protection from
violence, discrimination and harm, including the exercise of due diligence in prevention,
investigation, prosecution and remedies.

The Right to Legal Recognition: Principle 31 calls for a right to legal recognition without
reference to sex, gender, sexual orientation, gender identity, gender expression or sex
characteristics, ending the superfluous inclusion of such information in identification documents.

The Right to Bodily and Mental Integrity: Principle 32 recognizes a right to bodily and mental
integrity, autonomy and self-determination, including a freedom from torture and ill-treatment. It
calls for no-one to be subjected to invasive or irreversible medical procedures to modify sex
characteristics without their consent unless necessary to prevent urgent and serious harm.

The Right to Freedom from Criminalization and Sanction: Principle 33 recognizes a right to

freedom from indirect or direct criminalization or sanction, including in customary, religious,
public decency, vagrancy, sodomy and propaganda laws.

The Right to Protection from Poverty: Principle 34 calls for the right to protection from
poverty and social exclusion.

The Right to Sanitation: Principle 35 calls on a right to safe and equitable access to sanitation
and hygiene facilities.
52

The Right to the Enjoyment of Human Rights in Relation to Information and

Communication Technologies: Principle 36 calls for the same protection of rights online as
offline.

The Right to Truth: Principle 37 calls for the right to know the truth about human rights
violations, including investigation and reparation unlimited by statutes of limitations, and
including access to medical records.

The Right to Practise, Protect, Preserve and Revive Cultural Diversity: Principle 38 calls on
the right to practise and manifest cultural diversity.

Additional State Obligations: the YP Plus 10 set out a range of additional obligations for
States, including in relation to HIV status, access to sport, combating discrimination in prenatal
selection and genetic modification technologies, detention and asylum, education, the right to
health, and freedom of peaceful assembly and association.

Additional Recommendations: the Principles also set out recommendations for national human

rights institutions and sporting organizations.

.
The Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General
Assembly. Described as an international bill of rights for women, it was instituted on 3
September 1981 and has been ratified by 189 states.
It requires countries to eliminate discrimination against women in all areas and promotes
women’s equal rights. CEDAW is often described as the international bill of rights for women.
CEDAW is a convention or treaty, which means that it is part of international law and is legally
binding for countries that have ratified the convention. Although other international human rights
instruments, such as the International Covenant on Civil and Political Rights, prohibit
discrimination on the basis of sex, CEDAW is important because it comprehensively addresses
women’s human rights and is focused on ending all forms of discrimination against women and
girls, and guaranteeing their rights in all areas of life. CEDAW requires countries to eliminate
discrimination against women in the public as well as the private sphere, including in the family,
and recognizes that traditional gender roles and stereotypes must be eliminated in order to end all
forms of discrimination against women and girls. CEDAW seeks to achieve ‘substantive
equality’ or ‘equality of results’, which stresses that there should be equal access, equal
opportunities, and equal results for women and girls. It entails that countries are obligated to take
all necessary actions that may be required to make sure women and girls actually experience
equality in their lives.
53

The Convention includes, in a single legally binding instrument, provisions requiring the
elimination of discrimination on the basis of sex in the enjoyment of civil, political, economic,
social and cultural rights. It covers the spectrum of human rights across the lifespan of women
and girls, from education to employment to health, from political participation to family life,
from issues such as trafficking to the situation of rural women, and from laws to policy
measures. It identifies areas of discrimination that are of particular concern to women and girls
and establishes the means to eliminate discrimination in these areas. The CEDAW process is a
roadmap for transforming gender relations within countries, communities and families so that
there is equality in real life. CEDAW includes 30 articles which ratifying countries are obliged to
undertake. Articles 1 to 4 outline the nature and scope of what countries commit to do to promote
equal rights and end discrimination against women and girls. Articles 5 to 16 outline specific
forms of discrimination that must be ended, such as discrimination in education and
employment, health care, and political and public life. Articles 17 to 30 describe the processes
through which CEDAW is implemented and how this is monitored, such as how countries are
required to report on their progress every four years.

The Convention has a similar format to the Convention on the Elimination of All Forms of
Racial Discrimination, "both with regard to the scope of its substantive obligations and its
international monitoring mechanisms". The Convention is structured in six parts:

 Part I (Articles 1-6) focuses on non-discrimination, sex stereotypes, and sex trafficking.
 Part II (Articles 7-9) outlines women's rights in the public sphere with an emphasis on
political life, representation, and rights to nationality.
 Part III (Articles 10-14) describes the economic and social rights of women, particularly
focusing on education, employment, and health. Part III also includes special protections for
rural women and the problems they face.
 Part IV (Article 15 and 16) outlines women's right to equality in marriage and family life
along with the right to equality before the law.
 Part V (Articles 17-22) establishes the Committee on the Elimination of Discrimination
against Women as well as the states parties' reporting procedure.
 Part VI (Articles 23-30) describes the effects of the Convention on other treaties, the
commitment of the states parties and the administration of the Convention.

Optional Protocol The Optional Protocol introduces additional mechanisms for the
implementation of CEDAW, including an inquiry procedure for the CEDAW Committee to
address systematic violations and a way for women and girls to submit complaints directly to the
CEDAW Committee if they consider their human rights protected by CEDAW are violated.
While CEDAW and UN Security Council Resolutions 1325 and 1820 on Women, Peace and
Security are important international instruments on their own, there is also an intersection among
the three standards that can be used to enhance their implementation and impact.
54

Resolutions 1325 and 1820, and CEDAW share the following agenda on women's human rights
and gender equality.

 Demand women's participation in decision-making at all levels

 Rejection of violence against women as it impedes the advancement of women and
maintains their subordinate status
 Equality of women and men under the law; protection of women and girls through the rule
of law
 Demand security forces and systems to protect women and girls from gender-based violence
 Recognition of the fact that distinct experiences and burdens of women and girls come from
systemic discrimination
 Ensure that women's experiences, needs and perspectives are incorporated into the political,
legal and social decisions that determine the achievement of just and lasting peace
A General Comment from the CEDAW committee could strengthen women's advocacy for the
full implementation of Resolutions 1325 and 1820 at the country and community levels.
Conversely, CEDAW's relevance to conflict-affected areas will be underscored further by the
two Resolutions. In other words, all three international instruments will reinforce each other and
be much more effective if used together in leveraging women's human rights.
Often countries express reservations to certain articles in the CEDAW. Because reservations to
Article 29 are expressly allowed by the Convention itself, these reservations are not very
controversial. Article 16, concerning the equality of women in marriage and family life is subject
to twenty-three reservations. The Committee, in General Recommendation No. 28, specifically
stated that reservations to Article 2, concerning general non-discrimination, are impermissible.
However, Article 2 has seventeen reservations.
Despite evolving since the Committee on the Elimination of Discrimination Against Women was
first formed, members believe there are ways in which the committee can better meet the goals
outlined in the CEDAW. One of the committee's main goals moving forward is expanding its
information base, allowing it to more effectively deal with issues that arise concerning the
CEDAW. The committee is authorized in Article 22 of the CEDAW to invite specialized UN
agencies such as the United Nations Development Programme to deliver reports discussing
women's rights issues in the state under discussion. Another method for gathering information is
requesting reports from non governmental organizations dealing with discrimination against
women that are operating in the country under discussion. This is recommended to insure that the
committee is receiving the full, unbiased picture of affairs within the reporting state.
Another recommendation for improvement involves interpreting and clarifying the language
used in the CEDAW in order to make the document as useful as it can be. A third improvement
that has been suggested is improving the efficiency of the committee. Due to the backlog in
reports faced by the committee it has been suggested that the government officials who prepare
reports presented to the committee should be trained, in order to make all reports uniform and
55

more easily processed. A final suggestion for improvement is the implementation of a right of
petition in the CEDAW, allowing the committee to hear complaints from citizens of a state
against the state, increasing the committee's strength and direct impact on the problem of
discrimination against women
Controversy around CEDAW comes from two opposite directions: social and
religious conservatives which claim that CEDAW is seeking to impose
a liberal, progressive, feminist standard on countries, in detriment of traditional values;
and radical feminists, who are skeptical of the power, or even desire, of CEDAW to radically
transform societies and truly liberate women, and claim that CEDAW adheres to a form of
weak liberal feminism similar to other mainstream organizations. They also claim that UN
members cannot create goals which represent values of the poor, conservative, religious, or
weak, because few, if any, UN officials/staff are actually from this group for which they claim to
represent. 
CEDAW has been a key tool for advancing women’s rights and gender equality around the
world, providing the basis for judicial decisions, and constitutional, legal and policy reforms at
the country level. In many countries, CEDAW has helped strengthen provisions in constitutions
guaranteeing equality between women and men, and providing a constitutional basis for the
protection of women’s human rights. Legislation prohibiting discrimination in general, and in
regard to specific areas such as employment, has become a standard component of legal
frameworks. Countries have repealed discriminatory provisions in civil,penal and family laws to
bring them into conformity with CEDAW. Countries have adopted equal opportunity acts aimed
at improving women’s position, established quotas to increase the number of women in elected
office, and enacted new legislation and action plans to prevent and address violence against
women. All over the world, courts are increasingly developing case law on gender equality
informed and guided by CEDAW.
At the United Nations in 2015, world leaders formally adopted a new agenda for sustainable
development with goals and targets for the next 15 years with the 2030 Agenda for Sustainable
Development and the 17 Sustainable Development Goals (SDGs). The standalone goal for
gender equality, SDG 5, focuses on achieving gender equality and empowering all women and
girls, and includes ending all forms of discrimination against all women and girls everywhere as
its first target. Gender equality has been recognized as a prerequisite for achieving sustainable
development and is connected to all the other SDGs. With the SDGs and CEDAW, world leaders
have the human rights foundation, the commitments and the mechanisms for implementation and
accountability, and the timeline for achieving gender equality, empowering all women and girls,
and ending all forms of discrimination.
.
The Universal Declaration of Human Rights (UDHR) is a document adopted by the United
Nations General Assembly establishing a set of principles for the rights of individuals. The
56

doctrine was accepted by the General Assembly at its third session on 10 December 1948
as Resolution 217 at the Palais de Chaillot in Paris, France.
Some legal scholars have argued that because countries have constantly invoked the Declaration
for more than 50 years, it has become binding as a part of customary international law. However,
in the United States, the Supreme Court in Sosa v. Alvarez-Machain (2004), concluded that the
Declaration "does not of its own force impose obligations as a matter of international law."
Courts of other countries have also concluded that the Declaration is not in and of itself part of
domestic law.

Universal Declaration of Human Rights was the first expression of a global consensus that the
rights of every human being were paramount and must be respected. But remembrance, too,
because the Universal Declaration of Human Rights was a response to the horrors of the
Holocaust – the Declaration’s preamble states “… disregard and contempt for human rights have
resulted in barbarous acts which have outraged the conscience of mankind.”

Formalising human rights in a universal document for the first time, the Universal Declaration of
Human Rights has since inspired numerous international conventions and treaties, regional
instruments and domestic laws.

One of the most important legacies of this landmark document is the notion that women’s rights
are human rights.

Article 2 of the Universal Declaration of Human Rights applies all rights and freedoms equally
to men and women and prohibits discrimination on the basis of sex. These freedoms and rights
include equal pay for equal work, the right to health and the right to an education for all.

Eleanor Roosevelt, who was Chair of the United Nations Human Rights Commission and has
been heralded as the ‘First Lady of the World’. But, it was also non-western women who played
a crucial role, challenging the myth that western states were at the forefront of human rights.

Minerva Bernardino, a delegate from the Dominican Republic who led the Latin American
feminist movement, was outspoken in ensuring both ‘men and women’ featured in the document.
She was also a driving force behind the inclusion of women’s rights in the 1945 UN Charter and
the UN Commission on the Status of Women 1946.

Indian delegate Hansa Mehta, champion of women’s rights in her home country, revised the
phrase “All men are born free and equal” to “All human beings are born free and equal” in
Article 1 of the Declaration – a symbolic move beyond the gendered language that reinforces a
patriarchal system.
57

Begum Shaista Ikramullah from Pakistan fought for the inclusion of Article 16, on equal rights in
marriage, which she saw as a way to combat child marriage and forced marriage

The work of these women “made it the universalizing document that it has remained”,

The incorporation of women’s rights within the Universal Declaration is a notable legacy and
paved the way for the UN Convention on the Elimination of Violence Against Women 1993. The
Convention covers physical, sexual and psychological violence, within both the public and
private sphere, and aims to hold UN member states accountable for failing to prevent such
violence.

However, the sexual violence, harassment and discrimination that women continue to be
subjected to reveal that we still have a long way to go in realising the legacy that the Universal
Declaration sought to promote.

“The demand for equality between men and women, which was voiced in the drafting of the
Universal Declaration of Human Rights, still rings true today”, states Veronica Birga, head of the
UN Human Rights Office’s section on women’s human rights and gender.

Yet, according to new data released by the United Nations Office on Drugs and Crime, the most
dangerous place for a woman today is the home. It outlines how 58% – 50,000 – of women killed
in the world last year die at the hands of their partners or families.

At a time when intolerance and nationalism are on the rise, we should remember what disregard
and contempt for human rights can lead to, and celebrate the world’s enlightened riposte to
tyranny.

The UDHR does not spell out any rights which apply to women specifically. It does instead
emphasize in multiple places that any rights granted by it apply to men and women equally.

Article 1 says:

All human beings are born free and equal in dignity and rights.

Article 2 says:

Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, [...]
58

The word "women" only appears in Article 16, which is concerned with the right to marriage
and which mandates that men and women have the same rights in a marriage and that none may
be forced to marry against their will:

(1) Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the
intending spouses.

There is also Article 25 which spells out an entitlement to special care and assistance for
"motherhood". According to traditional gender theory, motherhood would only apply to women,
but more progressive approaches to gender theory might allow for people who not identify as
women to be considered mothers.

(2) Motherhood and childhood are entitled to special care and assistance.

So according to the UDHR, women are protected from assault and other violence in exactly the
same way as men are. The articles which offer this protection are the Articles 3 and 5:

Article 3: Everyone has the right to life, liberty and security of person.

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.

The underlying structure of the Universal Declaration was introduced in its second draft, which
was prepared by René Cassin.
The Declaration consists of a preamble and thirty articles:

 The preamble sets out the historical and social causes that led to the necessity of drafting the
Declaration.
 Articles 1–2 established the basic concepts of dignity, liberty, and equality.
 Articles 3–5 established other individual rights, such as the right to life and the prohibition
of slavery and torture.
 Articles 6–11 refer to the fundamental legality of human rights with specific remedies cited
for their defence when violated.
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 Articles 12–17 established the rights of the individual towards the community (including
such things as freedom of movement).
 Articles 18–21 sanctioned the so-called "constitutional liberties", and with spiritual, public,
and political freedoms, such as freedom of thought, opinion, religion and conscience, word,
and peaceful association of the individual.
 Articles 22–27 sanctioned an individual's economic, social and cultural rights,
including healthcare. Article 25 states: "Everyone has the right to a standard of
living adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services." It also makes additional
accommodations for security in case of physical debilitation or disability, and makes special
mention of care given to those in motherhood or childhood.[7]
 Articles 28–30 established the general ways of using these rights, the areas in which these
rights of the individual can not be applied, and that they can not be overcome against the
individual.
In its preamble, governments commit themselves and their people to progressive measures that
secure the universal and effective recognition and observance of the human rights set out in the
Declaration. Eleanor Roosevelt supported the adoption of the Declaration as a declaration rather
than as a treaty because she believed that it would have the same kind of influence on global
society as the United States Declaration of Independence had within the United States.[39] Even
though it is not legally binding, the Declaration has been adopted in or has influenced most
national constitutions since 1948. It has also served as the foundation for a growing number of
national laws, international laws, and treaties, as well as for a growing number of regional, sub
national, and national institutions protecting and promoting human rights.
For the first time in international law, the term "the rule of law" was used in the preamble of the
Declaration. The third paragraph of the preamble of the Declaration reads as follows: "Whereas
it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of law."
While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the
meaning of the words "fundamental freedoms" and "human rights" appearing in the United
Nations Charter, which is binding on all member states. For this reason, the Universal
Declaration of Human Rights is a fundamental constitutive document of the United Nations.
In addition, many international lawyers believe that the Declaration forms part of customary
international law and is a powerful tool in applying diplomatic and moral pressure to
governments that violate any of its articles. The 1968 United Nations International Conference
on Human Rights advised that the Declaration "constitutes an obligation for the members of the
international community" to all persons. The Declaration has served as the foundation for two
binding UN human rights covenants: the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights. The principles
of the Declaration are elaborated in international treaties such as the International Convention on
60

the Elimination of All Forms of Racial Discrimination, the International Convention on the

Elimination of Discrimination Against Women, the United Nations Convention on the Rights of
the Child, the United Nations Convention Against Torture, and many more. The Declaration
continues to be widely cited by governments, academics, advocates, and constitutional courts,
and by individuals who appeal to its principles for the protection of their recognised human
rights.
A number of scholars in different fields have expressed concerns with the Declaration's
alleged Western bias. These include Irene Oh, Abdulaziz Sachedina, Riffat Hassan, and Faisal
Kutty. Hassan has argued:
What needs to be pointed out to those who uphold the Universal Declaration of
Human Rights to be the highest, or sole, model, of a charter of equality and liberty
for all human beings, is that given the Western origin and orientation of this
Declaration, the "universality" of the assumptions on which it is based is – at the
very least – problematic and subject to questioning. Furthermore, the alleged
incompatibility between the concept of human rights and religion in general, or
particular religions such as Islam, needs to be examined in an unbiased way.
Irene Oh argues that one solution is to approach the issue from the perspective of comparative
(descriptive) ethics.
Kutty writes: "A strong argument can be made that the current formulation of international
human rights constitutes a cultural structure in which western society finds itself easily at
home ... It is important to acknowledge and appreciate that other societies may have equally
valid alternative conceptions of human rights.
Groups such as Amnesty International and War Resisters International have advocated for "The
Right to Refuse to Kill" to be added to the Universal Declaration. War Resisters International has
stated that the right to conscientious objection to military service is primarily derived from, but
not yet explicit in, Article 18 of the UDHR: the right to freedom of thought, conscience, and
religion.
.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) enshrines
economic, social and cultural (ESC) human rights, including the right to housing, the right to
work and to just conditions of work, the right to food, the right to the highest attainable standard
of health, the right to social security, and the right to education, amongst others. It also
recognizes “the equal right of men and women to the enjoyment of all economic, social and
cultural rights” and prohibits gender based discrimination.
While progress has been made on various fronts, for example, in relation to girls’ education,
inequality with respect to the enjoyment of ESC rights is a central fact of women’s lives and an
everyday lived reality for women in every region of the world. As UN-Women has recognized,
61

the end of poverty can only be achieved with the end of gender-based discrimination,but the
global economy is not working for women,and all too often women bear the brunt of increased
economic pressures and deteriorating social services.
Ongoing inequality in the enjoyment of ESC rights also contributes to the continuing
subordination of women and makes them especially vulnerable to violence, exploitation and
other forms of abuse. Globally, women’s earnings are 24 per cent less than men’s; in many
societies, laws and traditions bar women from accessing, controlling and inheriting important
resources like land; womenworldwide have less access to political power; and women continue
to carry an unfair burden when it comes to unpaid care work.
ICESCR provides an important normative framework for claiming and upholding ESC rights,
and it recognizes the central principle of gender equality. In particular, the principle of
substantive equality articulated by CEDAW and echoed by ICESCR is also integral to claiming
women’s ESC rights. The right to gender equality is not subject to progressive realization, rather
it is an immediate obligation of States parties under ICESCR to ensure that women are able to
enjoy their right to equality in relation to ESC rights. Immediacy of obligations can be contrasted
with the notion of progressivity, the latter of which has been described by the Committee on
Economic, Social and Cultural Rights (CESCR) as “a necessary flexibility device,” which, while
it applies to the general realization of ESC rights, cannot be said to apply to women’s right to
equality.
Substantive equality is a critical concept in women’s human rights. It understands that formal
equality (or equality in law), while important, is not enough to ensure women’s rights in reality.
Rather substantive equality (or equality in practice) understands that in order for women to enjoy
their human rights: the reality of gender inequality itself needs to be specifically acknowledged,
so that gender responsive and women centered laws and policies are enacted to combat such
inequalities; laws and policies need to take into account sex and gender specific difference in
order to explicitly remove barriers to the enjoyment of rights; laws and policies should not
inadvertently reinforce gender stereotypes and roles but should rather seek to transform societal
discrimination patterns; temporary special measures will in many cases be necessary to ensure
women’s equality; and analysis of indirect and intersectional discrimination against women is
fundamental for the realization of substantive equality.ICESCR, the body of experts which
monitors the implementation of the ICESCR has articulated important standards on substantive
ESC rights, and connected them explicitly to the experiences of women. It has said that “merely
addressing formal discrimination will not ensure substantive equality … States Parties must
therefore immediately adopt the necessary measures to prevent, diminish and eliminate the
conditions and attitudes which cause or perpetuate substantive or de facto discrimination.
While substantive equality is necessary to ensuring that rights translate into reality, formal
equality is still – while incomplete as a solution – important in its own right. Formal law within a
country must be brought into line with Covenant protections and ensure women’s rights to non-
discrimination and equality. CESCR has expressed concern in several cases where there are gaps
62

in these legal protections. For example, on Egypt (2000) it noted “considerable divergence
between constitutional provisions on one hand and national legislation … on [the] other, with
respect to societal status of women in general, women’s participation in political life, provisions
in criminal law with respect to adultery, and female genital mutilation.”
On Kuwait (2013) CESCR called upon the State party, inter alia, to: enshrine equal rights for
men and women in its Constitution; prioritize the abrogation of all discriminatory laws, including
those premised on women’s dependence on men; undertake a gender-based assessment of the
impact of all legislation; and address gender inequality in the application of law. In the case of
Nepal (2001) CESCR recommended that the State party implement more vigorously existing
legislation on gender equality and incorporate a gender equality perspective in legislation, with a
view to ensuring greater equality of men and women, especially in areas of family, employment,
labor conditions and representation in public services and administration.
Intersectionality recognizes that women are not a homogenous group and that women can be
affected by not only gender discrimination, but also various other forms of discrimination and
inequality that affect and exacerbate gender discrimination. This reality has been recognized by
CESCR on many occasions, including in its General Comment N0. 20 (2009) on non-
discrimination in economic, social and cultural rights, where CESCR highlights that “[s]ome
individuals or groups of individuals face discrimination on more than one of the prohibited
grounds, for example women belonging to an ethnic or religious minority. Such cumulative
discrimination has a unique and specific impact on individuals and merits particular
consideration and remedying.”For example, on women with disabilities, CESCR has stated that
“… the double discrimination suffered by women with disabilities is often neglected,” and urged
States parties to address their situation, with high priority being given in future to the
implementation of ESC rights-related programs
CESCR has paid a great deal of attention to women’s right to health, and has developed a rich
body of Concluding Observations in that regard, particularly in relation to women’s sexual and
reproductive health and rights. In its General Comment No. 14 (2000) on the right to the highest
attainable standard of health, in addition to addressing the issue of health generally from a gender
perspective, CESCR also specifically highlights sexual and reproductive health.
In some countries, CESCR has expressed concern that clandestine abortions remain a major
cause of death among women.In its General Comment No. 22 (2016) on the right to sexual and
reproductive health, CESCR notes the close link between sexual and reproductive health and
civil and political rights, noting that the failure to provide emergency obstetric care or abortion
services, both of which can lead to maternal mortality and morbidity can in fact constitute
violations of the right to life or security, and in certain circumstances can even amount to torture
or cruel, inhuman or degrading treatment.
Using ICESCR to uphold women’s rights in domestic litigation: Awuor & Another v. A.G. of
Kenya & 4 Others (2012)
63

The issue: Whether a Kenyan public hospital violated two patients’ right to health, human
dignity, and freedom from discrimination, violence, and cruel, inhuman and degrading treatment
by detaining them after they had just given birth because they could not pay their medical bills.
The Kenyan High Court responded to the Center’s legal arguments with a strong and robust
affirmation of the ICESCR and General Comment No. 14 by explicitly referencing the
Covenant’s provisions in the Center’s petition as legal grounds for holding Kenya accountable to
preventing abuse in state hospitals and implementing waiver programs for maternal health.The
Court used the CESCR’s General Comment No. 14 interpretation of the right to health to include
available, accessible, acceptable, and quality sexual and reproductive health services that respond
to the specific needs of vulnerable or marginalized groups.The Court upheld the state’s duty to
fulfil the rights of all persons when they are unable to realize the right themselves.The Court
found that because the petitioners’ income prevented them from paying their medical bills, “the
state was under an obligation to provide affordable reproductive health care services.
CESCR has highlighted the problem of VAW in many countries, looking at issues of domestic
violence, sexual trafficking and harmful traditional practices, and underscoring the link between
VAW and women’s ESC rights, including their rights to health, work, and education, among
others. In its General Comment No. 16 (2005) on the equal right of men and women to the
enjoyment of all ESC rights, CESCR highlighted that “Gender-based violence is a form of
discrimination that inhibits the ability to enjoy rights and freedoms, including economic, social
and cultural rights, on a basis of equality. States parties must take appropriate measures to
eliminate violence against men and women and act with due diligence to prevent, investigate,
mediate, punish and redress acts of violence against them by private actors.
CESCR has repeatedly rebuked States parties where domestic penal codes either do not consider
domestic violence as crime, or where domestic violence is not specifically defined as a distinct
criminal offence.
CESCR has expressed concern about the prevalence of traditional practices that violate the
physical integrity and human dignity of women and girls, including female genital mutilation,
polygamy, forced marriage and early marriage.Such practices harm women’s ability to realize
their ESC rights, including to health, education and work, and reinforce systems of gender
discrimination and abuse.
In some countries, CESCR has expressed concern about high numbers of trafficked women and
children who are subjected to forced labor and sexual exploitation.It has also expressed concern
about lack of reliable information, including statistics, on the extent of the problem of sexual
exploitation of women and children, including prostitution, sale and trafficking in persons.
On the right to education, the CESCR has noted that education has a vital role in empowering
women, and that States parties are obliged to remove gender and other stereotyping which
impedes the educational access of girls, women and other disadvantaged groups.CESCR has
64

raised concern in multiple countries about low rates of female literacy,and in particular amongst
rural women, which has a deep impact on the enjoyment of ESC rights.
CESCR has encouraged States parties to give particular attention to the need to prevent
discrimination in access to food or resources for food.Women in particular should be guaranteed
full and equal access to economic resources, including the right to inheritance and the ownership
of land and other property, credit, natural resources and appropriate technology. In State party
reviews, it has recommended that steps be taken to address chronic food insecurity, chronic
malnutrition and, in particular, the critical nutritional needs of pregnant women.
CESCR has continually raised concern about women’s rights at work, and about the
disproportionate burden that women throughout the world carry in terms of unpaid care work. In
several cases, CESCR has raised concern about persisting wage gaps between men and women
and high unemployment and underemployment rates among women,as well as persistent
practices that discriminate against women with respect to working conditions, vertical and
horizontal gender segregation in the labor market, unfair dismissal, and lack of employment
contracts.It has also raised concern about the low percentage of women in high ranking and high
wage positions in many professional fields.
On discrimination in the workplace, CESCR has also expressed concern over sexual harassment
and has asked States parties to enact and enforce specific legislation criminalizing sexual
harassment in the workplace.It has said that pregnancies must not constitute an obstacle to
employment and should not constitute justification for loss of employment.Rather, it has upheld
that paid maternity leave should be granted to all women and benefits should be provided for an
adequate period.
ESCR has also encouraged more equitable sharing by men and women of roles and
responsibilities within the family, thereby allowing women to enjoy their ESC rights fully,and
has asked States parties to take measures to assist men and women to reconcile professional and
family life.In this regard it has recommended increasing the capacity of childcare facilities,
promoting training measures to facilitate re-entry of women into the labor market following
parental leave, and providing incentives for use of parental leave by fathers.
Throughout the world, women face discrimination in housing and are too often denied access to
productive resources such as land, due to entrenched patterns of gender discrimination and
exclusion. This situation both reflects and deepens gender inequality, and leaves women far more
vulnerable to the multiple threats of food insecurity, violence, marginalization, and economic
impoverishment, and, in many cases, to the devastating effects of HIV/AIDS. Housing, land and
property are interconnected because there are common barriers to women’s access: barriers such
as discriminatory personal status, civil and family codes which limit women’s equal right to
property; customary practices which deny women’s ability to control housing and land; and
unequal rights within the context of marriage.
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On the right to water, the CESCR has noted that “whereas the right to water applies to everyone,
States Parties should give special attention to those individuals and groups who have
traditionally faced difficulties in exercising this right, including women … In particular, States
Parties should take steps to ensure that … women are not excluded from decision making
processes concerning water resources and entitlements. The disproportionate burden women bear
in the collection of water should be alleviated
CESCR has noted that “whereas everyone has the right to social security, States Parties should
give special attention to those individuals and groups who traditionally face difficulties in
exercising this right, in particular women,”and has called upon States parties to provide for the
“equalisation of the compulsory retirement age for both men and women; ensuring that women
receive benefits in both public and private pension schemes; and guaranteeing adequate
maternity leave for women, paternity leave for men, and parental leave for both men and women.
While women are disproportionately affected by ESC rights violations, they are often not at the
table when important economic and political decisions are made. This lack of representation at
all levels makes women’s rights too often peripheral, and even invisible, in policy making. In
many countries, CESCR has expressed concern about the low number of women in decision-
making positions,particularly over low representation of women in parliament, in senior
government positions and in the judiciary.
In the future, there are many ways in which the connections between ESC rights and gender
equality can be further strengthened using the treaty. For example, there is room to elaborate
further upon the ways in which women are impacted by taxation policy, global trade and macro
economic policies and practices, as well as by the activities of non state actors including
transnational corporations. Women’s work in the informal and care economy, as well as their
access to financial goods and services, are also areas where further development is needed.
Likewise, there is an opportunity to expand upon the application of extraterritorial obligations
under ICESCR, and to detail what these obligations entail specifically from the standpoint of
women’s ESC rights. As the impacts of climate change increase globally, advocates and CESCR
itself must also find ways to not only highlight the implications and obligations of States from an
ESC rights perspective, but also to take into account the gendered impacts and repercussions of
climate change.
.

The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United

Nations General Assembly (Resolution 2016) on 16 December 1966. As one of two international
treaties that make the ‘International Bill of Human Rights’ (along with the Universal Declaration
of Human Rights), the ICCPR provides the legal framework to protect and preserve the most
basic civil and political rights, including the right to life, freedom from slavery and the right to
equality. For this reason, most of the rights contained in the ICCPR are related to tackling VAW,
66

given that VAW is a cause and consequence of women’s unequal enjoyment of their human
rights when compared to men.

Some of the ICCPR’s articles most relevant to tackling violence against women include:

i. Article 2: right to non-discrimination and the right to an effective remedy

ii. Article 3: equal right of men and women to the enjoyment of civil and political rights in the
ICCPR
iii. Article 6: right to life
iv. Article 7: right not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment
v. Article 8: right not to be subjected to slavery or forced labour
vi. Article 9: right to liberty and security of the person
vii. Article 10: right of all persons deprived of their liberty to be treated with dignity
viii. Article 16: right to recognition before the law
ix. Article 17: right to private and family life
x. Article 24: right of children to special measures of protection
xi. Article 23: right to marry with free and full consent; equality in marriage
xii. Article 26: right to equality before the law and equal protection of the law.
xiii. Article 27: rights of individuals in minority groups.

The concept of women’s rights occupies an important position in the international human rights
law. It is widely understood that all people (irrespective of their gender) are born equal, that their
Creator invests in them certain inherent, indivisible, inalienable, non-negotiable and non-
derogable natural and fundamental rights. But a comparative study of various civilizations of the
world suggests that this truth was not universally accepted, that women were discriminated
against. In India, China, Greece, Rome, and Scandinavia, women had limited rights and
sometimes no rights at all. Women in these ‘highly civilized’ lands were treated as slaves,
subjected to and depended on men, enjoyed little freedom be it in matrimonial, social, or political
matters and possessed nominal proprietary rights.

It is interesting to note that till the late nineteenth Century there was a practice under the English
Common Law that: ‘..all real property which a wife held at the time of marriage became a
possession of her husband. He was entitled to the rent from the land and to any profit which
might be made from operating the estate during the joint life of the spouses. With the passage of
time, the English courts devised means to forbid a husband’s transferring real property without
the consent of his wife, but he still retained the right to manage it and to receive the money
which it produced. As to a wife’s personal property, the husband’s power was complete. He had
the right to spend it as he saw fit.
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This deplorable state of unchecked discriminatory treatment of women continued till 1945, when
the United Nations Organization was established by the common effort of several States who
committed themselves to the promotion and protection of human rights and fundamental
freedoms for all. Their determination found expression in the Preamble to the UN Charter (1945)
as follows: ‘to reaffirm faith in fundamental human rights, in the dignity and worth of human
person, in the equal rights of men and [w]omen and of nations large and small.’ Shortly
afterwards in 1948 the UN adopted the Universal Declaration of Human Rights, which entitles to
all in Art.2 the rights and freedoms within its scope ‘without distinction of any kind, such as
race, colour, [s]ex, language, religion, political and other opinion, national or social origin,
property, birth or other status.’ These two monumental documents laid the foundation for a series
of successive treaties on human rights including the European Convention for the Protection of
Human Rights and Fundamental Freedoms (1950) and the International Covenant on Civil and
Political Rights (1966), the subject of this essay.

Women’s rights under the ICCPR and ECHR:

Mindful of the unfair treatment of women through the ages and the atrocities perpetrated during
the two world wars and their aftermath the United Nations Organization at its formation, in its
Charter (1945), its Declaration of Human Rights (1948) and in most of the treaties concluded
under its aegis prudently devised and employed a universally acceptable all inclusive and gender
neutral language.

The United Nation’s noble intent of proposing and universally promoting and guaranteeing equal
treatment to all genders, men and women is visible in its Charter, which begins with the words
‘We the People’, is sufficient proof of its determination in creating a world free from
discrimination. Similarly, the same determination is also evident in the preamble and provisions
of the U.N. Declaration of Human Rights and in the European Convention for the Protection of
Human Rights and Fundamental Freedom (1950) [hereinafter referred to as ECHR] and the
International Covenant on Civil and Political Rights (1966).

In the aforesaid documents/instruments one can witness the all-gender encompassing language
such as ‘all human beings’, ‘everyone’, ‘no one’, ‘every human being’, ‘every citizen’ that
further substantiates the U.N.’s aims of promoting gender equity and equality.

Thus, the rights and duties promoted in the U.N. Charter and the Declaration, especially those
protected under the ECHR and the ICCPR are equally applicable to men and women, as can be
seen below.

Both the instruments guarantee to all men and women:

Right to life;
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Right to freedom from torture, inhuman and degrading treatment or punishment;

Right against slavery or servitude;

Right to Liberty and security of person, and right to compensation for unlawful arrest or
detention;

Right to a fair trial;

Right not to be punished without law;

Right of appeal in criminal matters and right not to be punished twice for the same offence;

Right to prohibition on imprisonment for non performance of a contract;

Right to respect for family and private life (privacy);

Right to freedom from thought, conscience and religion, subject to limitations prescribed by law;

Right to freedom of expression, subject to conditions and restrictions prescribed by law;

Right to freedom of assembly and association, formation and membership of trade unions,
subject to legal restrictions;

Right to equality between spouses;

Right of men and women of a marriageable age to marry and found family;

Right to equality before the law and against discrimination on grounds such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status;

Right and opportunity to conduct public affairs including adult franchise and right to be elected
in general periodic elections;

Right to property (only provided by the ECHR in its first protocol, 1952);

Right to education (only provided by the ECHR in its first protocol, 1952);

Right to freedom of movement and residence;

69

Right of those belonging to ethnic, religious, or linguistic minorities, not to be denied the right in
community with others of their group, to enjoy their own culture, to profess and practice their
own religion, or to use their own language (Art.27 ICCPR);

Duty not to abuse the rights and freedoms guaranteed by these instruments, or indulge in any
propaganda of war, or any anti-national, racial or religious hatred.

The creation of the rights enlisted above has been on the basis of the principle of equality.
Equality between men and women whether it is in the realm of family, society, religion,
education, public affairs, or any other sphere of human activity, has to be ensured for a society to
be free and fair. Unless equality is achieved the idea of rule of law will be far-fetched.

Conventional mechanisms for protection of human/women’s rights under the ICCPR and ECHR:

Both the ICCPR and the ECHR are significant early U.N. instruments on equal rights for men
and women. The instruments apart from requiring the State parties to domestically
enforce/secure the rights and freedoms guaranteed therein, provide for, as a secondary measure, a
system of State reports, communications and complaints to the Human Rights Committee (under
ICCPR), to the Human Rights Commission and the Court of Human Rights (under ECHR). The
communication or complaints for contraventions of respective conventional rights can be
individual, State, or inter-State and should be made only after exhaustion of domestic remedies.
Such communications/complaints to be admissible have to be from States that have expressly
recognized the competence of the respective bodies in such matters.

Adjudication on protection of women’s rights under the ECHR and the ICCPR:

Let us analyze by reference to the case law the extent to which women’s rights have been
recognized and protected by domestic and international forums.

In V.S.M.Broeks v.Netherlands, Broeks, a nurse drew the Human Rights Committee’s attention
to the Dutch social security laws being violative of Art.26 of the ICCPR. She was dismissed
from the services due to her illness. She was not paid unemployment benefits. According to the
Dutch social security law, a woman employee would get unemployment benefits, if she could
prove that she was the ‘only breadwinner’ in the family. This condition would not apply to men.
She applied to the committee pointing out the discrimination between men and women in the
country’s social security laws.

The Human Rights committee upheld her contention, and instructed the Netherland’s
Government to remove the relevant discriminatory provisions.
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In Lovelace v. Canada, in 1977, Sandra Lovelace submitted a communication to the U.N. Human
Rights Committee contesting the application to her of the Canadian Supreme Court’s decision
regarding Lavell, and challenging her loss of Indian status following her marriage to a Canadian.

Case Summary: Sandra Lovelace was an Indian citizen. She married a Canadian and decided to
settle down in Canada. On marriage she relinquished her Indian citizenship and took Canadian
citizenship. After some years, disputes arose between her and her husband that resulted in their
divorce. According to the Indian law, once she relinquished her citizenship, she may or may
regain it, that being dependant on the discretion of the Indian Government. She was residing in
Tobigue. She was not allowed to return to India. The Canadian Government asked her to leave
the country as she was a divorcee. She submitted an application to the Human Rights Committee
stating that the decision of the Canadian Government infringed her right under Art.27 of the
ICCPR.

The Human Rights Committee gave a decision in her favour, and asked the Canadian
Government to amend its laws.

In Shirin Aumeeruddy-Cziffra v. Mauritius, the Human Rights Committee considered a

communication wherein a Mauritian woman alleged that a certain Mauritian immigration law
discriminated against women in violation of Articles 2(1) and 3 of the ICCPR.

Brief facts: The Mauritius Government enacted the Deportation (Amendment) Act 1977.
According to this enactment, foreign men married to Mauritian women had to apply for a
residence permit, which could be refused or withdrawn at any time, by the executive. If the
permit was revoked the foreign men had to be deported from Mauritius. However, if Mauritian
men married foreign women, the foreign women automatically became entitled to residence. The
applicant challenged this rule contending that the said condition incorporated in the 1977 Act
was against the Articles 2, 3, 4, 17, 23, 25, 26 of the ICCPR.

The Human Rights Committee accepted the applicant’s argument and held that Mauritius had
indeed violated the covenant without adequate justification and instructed the Government to
amend the 1977 Act in consonance with the ICCPR.

In a famous decision of the U.S. Supreme Court in Jane roe v. Henry Wade, delivered in 1973,
the Right to Personal Liberty embracing, as it does, the Right to Privacy, has been held to be
‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’

India being a U.N. member and signatory to the Declaration of Human Rights and a party to the
ICCPR incorporated most of the rights contained in the above in Part III of its Constitution as
un-alterable ‘Fundamental Rights’. The Indian Apex Court has responded to matters relating to
71

gender justice in a favourable manner. Some of the cases significantly advance the cause and
dignity of woman.

In Nilabati Bahera @ Lalitha Bahera v. State of Orissa, The Indian Supreme Court, in
recognition of right guaranteed in Art.14 of the ICCPR as also reflected in Art.14 (Right to
equality and equal protection of the laws) and Art.21 (Right to life and personal liberty) of the
Indian Constitution, awarded compensation of INR 1,50,000 to the petitioner for the unnatural
death of her 22 years old young son in police custody.

In Mary Rose V. State of Kerala, the Supreme Court scrutinized the constitutional validity of the
inequality provisions of the Christian Succession Act,1916. The petitioner, a Keralite Christian
contended that the act infringed the right to equality by providing a lower share for women. The
Court avoiding the issue of constitutionality, held that the Indian Succession Act of 1925,
granting equal inheritance rights to men and women, governed Christians in the State.

The Apex Court has on many other occasions safeguarded women’s rights such as in the Air
Hostesses’ case (1981), where pregnancy as a disqualification to continue in public employment
was declared ultra vires Articles 14 and 16(1) of the Constitution; Gurmit Singh’s case (1996),
rape was held to be violative of the right to privacy; Vishaka v. State of Rajasthan, where
adequate safeguards to working women against sexual harassment were provided; State of A.P.
v. P.V. Vijaykumar, the Court laid down that the State has the power to give priority to women
over men Government services where they were equally qualified.

There have been a series of international cases with regard to restrictions on wearing of the
Islamic headscarves by women at Universities. It is to be noted that following cases involved
women and not school girls and therefore emphasis is to be laid on women’s right to make an
independent choice. However, most of the judgements regarded restrictions on the headscarves at
Universities as non-violations of the freedom to manifest one’s religion. The judgements were
highly contextualized, depending on the political motivation behind the proscription of
headscarves.

In Senay Karaduman v. Turkey, the European Commission of Human Rights maintained the
decisions of the Turkish courts prohibiting the wearing of headscarves on University campuses.

In the case of L. Sahin v. Turkey, the European Court of Human Rights held that ban on
religious symbols in Universities was based on the principle of secularism.

Limitations: Article 4 of ICCPR allows for certain circumstances for States Parties to derogate
from their responsibilities under the Covenant, such as during times of public emergencies.
However, State Parties may not derogate from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16
and 18.
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There are two optional protocols to the ICCPR which gives additional human rights protections.

First protocol allows victims claiming to be victims of human rights violations to be heard. The
Human Rights Committee (Committee), which is established by the Covenant, has the
jurisdiction to receive, consider and hear communications from victims. The first Optional
Protocol came into force with the Covenant. There are currently 35 signatories and 115 parties to
this protocol.

Second protocol aims to abolish the death penalty. It was entered into force on July 11, 1991 and
it currently has 37 signatories and 81 parties.

Enforcement: Article 2(2) of ICCPR provides that State Parties are to take the “necessary
steps…. to adopt such laws or other measures as may be necessary to give effect to the rights
recognized in the present Covenant.” Countries that have ratified the ICCPR must takes steps in
their own jurisdictions to recognize the acceptance of this international covenant because, in
“international law, a signature does not usually bind a State. The treaty is usually subject to a
future ratification, acceptance, approval or accession.” In Canada, the accession process involves
a series of reviews and consultation by the federal government and followed by a tabling of the
treaty in Parliament.

In addition to State Parties’ formally adopting and recognizing the ICCPR in their jurisdiction,
Article 28 of ICCPR provides for a Human Rights Committee (Committee) to be established for
monitoring the State Parties’ implementation of the Covenant. State Parties are required to
submit reports to the Committee for review, on measures used to adopt and give effect to the
rights enshrined in the ICCPR.

As mentioned above, the First Optional Protocol allows victims of human rights violation to be
heard by the Committee. However the ICCPR also provides in Article 41 that a State Party who
claims another State Party is not fulfilling its obligations to implement ICCPR, may make
written submissions to the Committee for consideration. Also, non-governmental organizations
(NGOs) may also participate in ensuring that values under the ICCPR are protected by
submitting ‘shadow reports’ and highlight areas for consideration by the Committee.

In the Human Rights Council Resolution on sexual orientation and gender identity, the High
Commissioner recommended that Member States: (a) Investigate promptly all reported killings
and other serious incidents of violence perpetrated against individuals because of their actual or
perceived sexual orientation or gender identity, whether carried out in public or in private by
State or non-State actors, and hold perpetrators accountable, and establish systems for the
73

recording and reporting of such incidents; (b) Take measures to prevent torture and other forms
of cruel, inhuman or degrading treatment on grounds of sexual orientation and gender identity, to
investigate thoroughly all reported incidents of torture and ill-treatment, and to prosecute and
hold accountable those responsible; (c) Ensure that no one fleeing persecution on grounds of
sexual orientation or gender identity is returned to a territory where his or her life or freedom
would be threatened, and that asylum laws and policies recognize that persecution on account of
one’s sexual orientation or gender identity may be a valid basis for an asylum claim; (d) Repeal
laws used to criminalize individuals on grounds of homosexuality for engaging in consensual
same-sex sexual conduct, and harmonize the age of consent for heterosexual and homosexual
conduct; ensure that other criminal laws are not used to harass or detain people based on their
sexuality or gender identity and expression, and abolish the death penalty for offences involving
consensual sexual relations; (e) Enact comprehensive anti-discrimination legislation that includes
discrimination on grounds of sexual orientation and gender identity among prohibited grounds
and recognizes intersecting forms of discrimination; ensure that combating discrimination on
grounds of sexual orientation and gender identity is included in the mandates of national human
rights institutions; (f) Ensure that individuals can exercise their rights to freedom of expression,
association and peaceful assembly in safety without discrimination on grounds of sexual
orientation and gender identity; (g) Implement appropriate sensitization and training programmes
for police, prison officers, border guards, immigration officers and other law enforcement
personnel, and support public information campaigns to counter homophobia and transphobia
among the general public and targeted anti-homophobia campaigns in schools; (h) Facilitate
legal recognition of the preferred gender of transgender persons and establish arrangements to
permit relevant identity documents to be reissued reflecting preferred gender and name, without
infringements of other human rights. 85. The High Commissioner recommends that the Human
Rights Council: (a) Keep regularly informed and updated on incidents of violence and
discrimination linked to sexual orientation and gender identity; (b) Encourage existing special
procedures to continue to investigate and report on human rights violations affecting individuals
on the basis of sexual orientation or gender identity within the context of their specific mandates.

.
What are the main indicators of Patriarchy?
The concept of Patriarchy itself is not a contribution of feminist theories. Many social scientists
in the nineteenth century wrote about it as a more civilized or complex form of organization
compared to the primitive matriarchies. Engels referred to it as the earliest system of domination
establishing that Patriarchy is “the world historical defeat of the female sex.” In this sense, it is
said that Patriarchy was a form of political organization that distributed power unequally
between men and women to the detriment of women. The Royal Academy of the Spanish
Language Dictionary defines Patriarchy as “A primitive social organization in which authority is
exercised by a male head of the family, extending this power even to distant relatives of the same
lineage.”
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Feminist theories updated and expanded the understanding of Patriarchy in the second half of the
twentieth century. In fact, the social sciences had left it behind precisely because it was
considered only to apply to and characterize ancient civilizations. But for many feminists,
Patriarchy is much more than civilizations that existed in the ancient past and goes beyond “the
unequal distribution of power between men and women in certain aspects of our societies”, as
many dictionaries still define it. On the contrary, most forms of feminism characterize Patriarchy
as a present day unjust social system that subordinates, discriminates or is oppressive to women.
As Carole Pateman writes, "The patriarchal construction of the difference between masculinity
and femininity is the political difference between freedom and subjection."
Patriarchy includes all the socio-political mechanisms, called Patriarchal Institutions, which
reproduce and exert male dominance over women. Feminist theory typically characterizes
Patriarchy as a social construction, which can be overcome by revealing and critically analyzing
its manifestations and institutions. Fixating on real and perceived biological differences between
the two recognized sexes, men justify their domination on the basis of an alleged biological
inferiority of women. Both feminist and non feminist thinkers recognize that Patriarchy has its
historical origins in the family, the leadership (legal and practical) of which is exercised. There is
now evidence that the matriarchies these scientists were talking about were not “matriarchies” in
the strict sense of the word but matrilineal or matrifocal forms of social organization. While
recognizing that there is considerable variation in the role that gender plays in human societies,
there are no known human examples of strictly matriarchal cultures. There are a number of
societies that have been shown to be matrilineal, matrifocal, matrilocal or gynocentric, especially
among indigenous tribal groups. Some huntergatherer groups have been characterized as largely
egalitarian.
Most models of Patriarchy only recognize the existence of two distinct and dichotomous
biological sexes. by the father and is projected to the entire social order – an order that is
maintained and reinforced by different mechanisms/institutions, among them the Institution of
Male Solidarity. Through this institution, men as a social category, individually and collectively
oppress all women as a social category, but also oppress women individually in different ways,
appropriating women’s reproductive and productive force and controlling their bodies, minds,
sexuality and spirituality mainly through "peaceful" means such as the law and religion.
However, often these peaceful means are reinforced through the use of physical, sexual, and/or
psychological violence. Combining all of these elements of Patriarchy, it can be defined as:
"Patriarchy is a form of mental, social, spiritual, economic and political organization/structuring
of society produced by the gradual institutionalization of sexbased political relations created,
maintained and reinforced by different institutions linked closely together to achieve consensus
on the lesser value of women and their roles. These institutions interconnect not only with each
other to strengthen the structures of domination of men over women, but also with other systems
of exclusion, oppression and/or domination based on real or perceived differences between
humans, creating States that respond only to the needs and interests of a few powerful men." By
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"gradual institutionalization" we refer to a historical process that proves Patriarchy is not natural,
has not always existed, and is not identical in all cultures and in all generations. This, in turn,
means that although men have power over women in all institutions considered important in each
society, it does not mean that women do not have any power or rights, influence or resources, nor
does it means that all women have or exert the same power. Moreover, as Patriarchy becomes
more sophisticated, more women of specific groups are allowed access to certain institutions,
although they are almost never the most powerful people within those institutions. By "sex-based
political relations", it means, as explained so well by Kate Millet, that sexual and other relations
between the two sexes recognized as such by Patriarchy, are political relations, through which
men dominate women. By "consensus on the lesser value of women", it refers to a tacit and
subconscious agreement between each member of a community that women and everything
relating to women is worth less than men and everything relating to men. We see this reflected in
the Institution of Sexist Language, which establishes the feminine as "the other" and the male as
the norm and that which represents or contains the feminine. By "consensus", we also make
reference to an ideology and its expression in language that explicitly devalues women, assigning
them, their roles, their work, their products and their social environment less worth and/or power
than that assigned to men. By "patriarchal institutions", we refer to the set of mechanisms,
practices, beliefs, myths and relationships organizing relatively stable patterns of human activity
with respect to the distribution of resources, the reproduction of individuals, and the type of
societal structures within a given Patriarchy. These institutions are closely linked with one
another, creating, maintaining and transmitting inequality from generation to generation. Most
sociologists recognize as institutions such social structures as governments, the family, human
languages, universities, hospitals, business corporations, and legal systems. These recognized
institutions can be renamed with more appropriate names such as the Institution of Androcentric
Law, the Institution of Misogynist Religion or of Sexist Language, of Malestream Media or
Malecentered Science, etc. It is also appropriate make visible other institutions which patriarchal
sociology does not recognize as such, like the Institution of Male Solidarity, of History with
Capital H, of Erotic Violence, of Woman-Blaming Myths, of Maleheteronormativity, of
Dichotomous Sexual Beings, etc. Many feminists, while not speaking of institutions per se, argue
that Patriarchy exists not only in the family but in all structures that allow for control over
women, their work and reproductive force. These structures are patriarchal institutions, because
aside from being mechanisms for the perpetuation of Patriarchy, they are also a set of beliefs,
practices, myths, relationships, etc. which make sure that Patriarchy is invisible even to those
women which suffer the most exclusion or at the most, make sure it is perceived as natural or
simply as the way things are and always will be for women. The idea of the “Institution of Male
Solidarity” is borrowed from Celia Amorós, although she does not call it this and speaks instead
of a brotherhood among men that takes place in the constitution of modern Patriarchy. The Costa
Rican composer/singer Guadalupe Urbina refers to this institution as “the Knighthood of Mutual
Praise”. Marcela Lagarde, Angela Miles, Carole Pateman and many other feminists also believe
that men create interdependence and solidarity among themselves, which enables them to
dominate women. This does not mean that there is no hierarchy among men. The "appropriation
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of women's reproductive force" and the control of their bodies and their sexuality comes from
radical feminism. For example, Shulamith Firestone discusses how human reproduction, which
happens in women's bodies, is legally appropriated and controlled by men and is used to benefit
men or to keep women at the mercy of men. Lidia Falcón considers women as a social and
economic class, insisting that it is the father and/or husband who enforce the appropriation.
Many feminists, such as Maria Meis and others, have spoken of the productive relationship
between husband and wife in the modern nuclear family, which is similar to the relationship
between a supervisor and a subordinate in the workplace. This subordination occurs in the
private space of family because whatever the husband’s produces enters the market (the
privileged area of capitalist Patriarchy), while the wife´s production is not. In this way, all of the
wife’s work in the non-privileged private space of the nuclear family is invisibilized.
Some aspects, elements or characteristics of modern Patriarchy are the following:
1. Patriarchy had a beginning and therefore can have an end. Even if we still do not know how
exactly it came into being we do know it came about after millenniums of different more
egalitarian human organizing. The earliest forms of Patriarchy only began at the most 6
millenniums ago.
2. We also know that there are different models of Patriarchy at different times and in different
cultures and places but the lower value given to women and their roles as compared to men and
their roles remains constant in all models. In other words, Patriarchy co-exists with very different
forms of government and socio religious political organizing such as empires, kingdoms,
theocracies, republics, democracies, etc. and can co-exist very well with capitalism, socialism,
etc. However, due to the globalization of neoliberal capitalism, almost all existing Patriarchies
today can be categorized as capitalist Patriarchies.
3. In all known Patriarchy negative meanings are attributed to women and their activities through
symbols and myths (not always explicitly expressed). These symbols and myths are different in
different cultures but within each culture they attribute negative meanings to women or the
feminine.
4. Patriarchy is made up of structures or institutions that exclude women from participation in, or
contact with, spaces of higher power, or what are believed to be the spaces of greatest power
economically, politically, culturally and religiously.
5. Despite the above, women are not treated identically in Patriarchy, nor are all women
excluded in the same way from spaces of power. In fact this different treatment is a mechanism
by which the lack of solidarity and competitiveness among women is promoted. This lack of
solidarity and competitiveness among women sometimes escalate to outright contempt for each
other, thus ensuring their loyalty to men and male values.
6. Patriarchy is produced by and at the same time promotes, a mindset based on dichotomous,
hierarchical and sexualized thinking. This mindset divides reality into two dichotomous
categories placing all of perceived reality either into things and acts associated with nature or
things and acts produced by culture. Furthermore, everything placed within the category
“culture” is overvalued while everything associated with nature is undervalued. By situating men
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and the masculine under the higher category of culture, and woman and the feminine under the
less valued category of nature, “man” and masculinity become the parameter, model or paradigm
of humanity, while the subordination of women is justified based on their alleged inferior
"natural roles".
7. In Patriarchy, gender roles and stereotypes may be different in each social class, age and
culture but through the mechanisms, structures and institutions mentioned previously, it makes
these roles and stereotypes seem natural and universal.
8. In any given Patriarchy all men will not enjoy the same privileges or have the same power.
Indeed, the experience of domination of men over women historically served for some men to
extend that domination over other groups of men, installing a hierarchy among men that is more
or less the same in every culture or region today. The male at the top of the patriarchal hierarchy
has great economic power; is an adult and almost always ablebodied; possesses a well-defined,
masculine gender identity and a welldefined heterosexual identity, adding a few more features by
region. For example, in Latin America, for a man to be at the top of the patriarchal hierarchy,
that man has to be white and Christian, in addition to the other characteristics shared with
Patriarchy’s counterparts across regions.
9. Across Patriarchy’s different models, women are exposed to different degrees and types of
violence, some common to all and others specific to each cultural, religious or economic model
adopted by the Patriarchy.
10. Patriarchy was the first structure of domination, subordination and exclusion which is
recognized as such by History with a capital H (recognized patriarchal history) and still remains
a basic system of domination. Ironically, while being the most powerful and enduring system of
inequality, it is hardly ever perceived as such even by women themselves. In fact, precisely
because the invisibilization of Patriarchy is one of its institutions, even some feminists deny its
existence.
.
As writer and editor Marie Shear famously wrote in 1986, "Feminism is the radical notion that
women are people." In other words, feminism is a commitment to achieving the equality of the
sexes. This radical notion is not exclusive to women: men, while benefiting from being the
dominant sex, also have a stake in overcoming the restrictive roles that deprive them of full
humanity.

Though the media has maligned feminism as a drive for selfish fulfillment by female
professionals, those who stand to gain the most are actually those who have the least. The
demand for full equality for all women is profoundly radicalizing when it addresses the
additional layers of discrimination women experience because of class, race, sexuality, disability,
and age, and also the heightened impact on women and children of war, poverty and
environmental degradation. Multi-issue feminism quickly develops into a critique of the whole
social system. As Clara Fraser, the pioneering theorist and builder of socialist feminism, wrote,
"The logic of feminism is to expand into generalized radicalism."
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As with every social movement, feminism encompasses a variety of political tendencies. There
are three main types of feminism: socialist, reformist, and radical/separatist.

- Socialist feminism (which can also be termed Marxist feminism or materialist feminism) traces
the oppression of women to inequalities that developed in connection with the class system of
private property. Socialist feminists view gender inequalities as intrinsic to the capitalist system,
which makes vast profits off women's unpaid labor in the home and underpaid labor in the
workforce. Like racism, homophobia and other forms of bigotry, sexism divides the working
class and thereby allows the capitalists to make super-profits. Because these different forms of
oppression have a common source, they also have a common solution: socialism. Socialist
feminists seek to eliminate the capitalist system and replace it with socialism, which collectively
shares the wealth created by human labor and has no economic stake in maintaining exploitation.
Socialist feminists believe that the leadership of women and other oppressed people in a worker-
run democracy will be able to root out chauvinist practices and psychology quite quickly.
- Reformist feminists believe that gender inequality can be eliminated through legislative or
electoral reforms without the need to alter the capitalist system itself. Groups such as the
National Organization for Women and NARAL/Pro-Choice America typify reformist feminism.
Because they limit their efforts to what can be achieved within the current system, they orient
primarily to more privileged white, middleclass women many of whose needs can be at least
partially or temporarily ameliorated by reforms. Their approach is single-issue and aimed at
swaying politicians and donors.

- Radical feminists target male psychology or biology as the source of women's oppression. The
most extreme form of radical feminism is separatism, which advocates a total break with men.
By posing an all-inclusive sisterhood as the solution to patriarchy, radical feminists overlook the
class differences that prevent women as a whole from having the same interests. They often
minimize the importance of solidarity between women and men of color in the fight against
racism. They tend to ignore issues that don't relate directly to a narrowly defined female
experience. The magazine off our backs and the Michigan Womyn's Music Festival are long-
established upholders of radical feminist ideology. Radical feminists are extremely bigoted
against transgender people, and actively organize against them. 
As radical feminism died out as a movement, cultural feminism got rolling.  In fact, many of the
same people moved from the former to the latter.  They carried the name "radical feminism" with
them, and some cultural feminists use that name still. Jaggar and Rothenberg don't even list
cultural feminism as a framework separate from radical feminism, but Echols spells out the
distinctions in great detail. The difference between the two is quite striking: whereas radical
feminism was a movement to transform society, cultural feminism retreated to vanguardism,
working instead to build a women's culture. Some of this effort has had some social benefit: rape
crisis centers, for example; and of course many cultural feminists have been active in social
issues (but as individuals, not as part of a movement). 
79

 
As various 1960s movements for social change fell apart or got co-opted, folks got pessimistic
about the very possibility of social change. Many of them turned their attention to building
alternatives, so that if they couldn't change the dominant society, they could avoid it as much as
possible.  That, in a nutshell, is what the shift from radical feminism to cultural feminism was
about.  These alternative-building efforts were accompanied with reasons explaining (perhaps
justifying) the abandonment of working for social change.  Notions that women are "inherently
kinder and gentler" are one of the foundations of cultural feminism, and remain a major part of
it.  A similar concept held by some cultural feminists is that while various sex differences might
not be biologically determined, they are still so thoroughly ingrained as to be intractable.
 
Eco-Feminism branch of feminism is much more spiritual than political or theoretical in nature. 
It may or may not be wrapped up with Goddess worship and vegetarianism.  Its basic tenet is that
a patriarchal society will exploit its resources without regard to long term consequences as a
direct result of the attitudes fostered in a patriarchal/hierarchical society.  Parallels are often
drawn between society's treatment of the environment, animals, or resources and its treatment of
women.  In resisting patriarchal culture, eco-feminists feel that they are also resisting plundering
and destroying the Earth.  And vice-versa.
.
Difference feminism holds that there are differences between men and women but that no value
judgment can be placed upon them and both genders have equal moral status as persons.
Difference feminism did not require a commitment to essentialism. Most strains of difference
feminism did not argue that there was a biological, inherent, ahistorical, or otherwise "essential"
link between womanhood and traditionally feminine values, habits of mind (often called "ways
of knowing"), or personality traits. These feminists simply sought to recognize that, in the
present, women and men are significantly different and to explore the devalued "feminine"
characteristics. This variety of difference feminism is also called gender feminism.
Difference feminism was developed by feminists in the 1980s, in part as a reaction to popular
liberal feminism (also known as "equality feminism"), which emphasized the similarities
between women and men in order to argue for equal treatment for women. Difference feminism,
although it still aimed at equality between men and women, emphasized the differences between
men and women and argued that identicality or sameness are not necessary in order for men and
women, and masculine and feminine values, to be treated equally. Liberal feminism aimed to
make society and law gender-neutral, since it saw recognition of gender difference as a barrier to
rights and participation within liberal democracy, while difference feminism held that gender-
neutrality harmed women "whether by impelling them to imitate men, by depriving society of
their distinctive contributions, or by letting them participate in society only on terms that favor
men".
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Difference feminism drew on earlier nineteenth-century strains of thought, for example the work
of German writer Elise Oelsner, which held that not only should women be allowed into
formerly male-only spheres and institutions (e.g. public life, science) but that those institutions
should also be expected to change in a way that recognizes the value of traditionally devalued
feminine ethics (like care). On the latter point, many feminists have re-read the phrase
"difference feminism" in a way that asks "what difference does feminism make?" (e.g. to the
practice of science) rather than "what differences are there between men and women"?
Some have argued that the thought of certain prominent second-wave feminists, like
psychologist Carol Gilligan and radical feminist theologian Mary Daly, is "essentialist". In
philosophy essentialism is the belief that "(at least some) objects have (at least some) essential
properties". In the case of sexual politics essentialism is taken to mean that "women" and "men"
have fixed essences or essential properties (e.g. behavioral or personality traits) that cannot be
changed. However, essentialist interpretations of Daly and Gilligan have been questioned by
some feminist scholars, who argue that charges of "essentialism" are often used more as terms of
abuse than as theoretical critiques based on evidence, and do not accurately reflect Gilligan or
Daly's views.
Constitutional Provisions
The Constitution of India not only grants equality to women but also empowers the State to
adopt measures of positive discrimination in favour of women for neutralizing the cumulative
socio economic, education and political disadvantages faced by them. Fundamental Rights,
among others, ensure equality before the law and equal protection of law; prohibits
discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and
guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14,
15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this
regard.
Constitutional Privileges (i) Equality before law for women (Article 14) (ii) The State not to
discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any
of them (Article 15 (i)) (iii) The State to make any special provision in favour of women and
children (Article 15 (3)) (iv) Equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State (Article 16) (v) The State to direct its
policy towards securing for men and women equally the right to an adequate means of livelihood
(Article 39(a)); and equal pay for equal work for both men and women (Article 39(d)) (vi) To
promote justice, on a basis of equal opportunity and to provide free legal aid by suitable
legislation or scheme or in any other way to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities (Article 39 A) (vii) The State to
make provision for securing just and humane conditions of work and for maternity relief (Article
42) (viii) The State to promote with special care the educational and economic interests of the
weaker sections of the people and to protect them from social injustice and all forms of
exploitation (Article 46) (ix) The State to raise the level of nutrition and the standard of living of
81

its people (Article 47) (x) To promote harmony and the spirit of common brotherhood amongst
all the people of India and to renounce practices derogatory to the dignity of women (Article
51(A) (e)) (xi) Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be
filled by direct election in every Panchayat to be reserved for women and such seats to be
allotted by rotation to different constituencies in a Panchayat (Article 243 D(3)) (xii) Not less
than one- third of the total number of offices of Chairpersons in the Panchayats at each level to
be reserved for women (Article 243 D (4)) (xiii) Not less than one-third (including the number of
seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the
total number of seats to be filled by direct election in every Municipality to be reserved for
women and such seats to be allotted by rotation to different constituencies in a Municipality
(Article 243 T (3)) (xiv) Reservation of offices of Chairpersons in Municipalities for the
Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State
may by law provide (Article 243 T (4))
Legal Provisions
To uphold the Constitutional mandate, the State has enacted various legislative measures
intended to ensure equal rights, to counter social discrimination and various forms of violence
and atrocities and to provide support services especially to working women. Although women
may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which
are directed specifically against women, are characterized as 'Crime against Women'. These are
broadly classified under two categories. (1) The Crimes Identified Under the Indian Penal Code
(IPC) (i) Rape (Sec. 376 IPC) (ii) Kidnapping & Abduction for different purposes ( Sec. 363-
373) (iii) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC) (iv)
Torture, both mental and physical (Sec. 498-A IPC) (v) Molestation (Sec. 354 IPC) (vi) Sexual
Harassment (Sec. 509 IPC) (vii) Importation of girls (up to 21 years of age) (2) The Crimes
identified under the Special Laws (SLL) Although all laws are not gender specific, the provisions
of law affecting women significantly have been reviewed periodically and amendments carried
out to keep pace with the emerging requirements. Some acts which have special provisions to
safeguard women and their interests are: (i) The Employees State Insurance Act, 1948 (ii) The
Plantation Labour Act, 1951 (iii) The Family Courts Act, 1954 (iv) The Special Marriage Act,
1954 (v) The Hindu Marriage Act, 1955 (vi) The Hindu Succession Act, 1956 with amendment
in 2005 (vii) Immoral Traffic (Prevention) Act, 1956 (viii) The Maternity Benefit Act, 1961
(Amended in 1995) (ix) Dowry Prohibition Act, 1961 (x) The Medical Termination of Pregnancy
Act, 1971 (xi) The Contract Labour (Regulation and Abolition) Act, 1976 (xii) The Equal
Remuneration Act, 1976 (xiii) The Prohibition of Child Marriage Act, 2006 (xiv) The Criminal
Law (Amendment) Act, 1983 (xv) The Factories (Amendment) Act, 1986 (xvi) Indecent
Representation of Women (Prohibition) Act, 1986 (xvii) Commission of Sati (Prevention) Act,
1987 (xviii) The Protection of Women from Domestic Violence Act, 2005.
Special Initiatives for Women
82

(i) National Commission for Women : In January 1992, the Government set-up this statutory
body with a specific mandate to study and monitor all matters relating to the constitutional and
legal safeguards provided for women, review the existing legislation to suggest amendments
wherever necessary, etc. (ii) Reservation for Women in Local Self -Government : The 73rd
Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats
for women in all elected offices in local bodies whether in rural areas or urban areas. (iii) The
National Plan of Action for the Girl Child (1991-2000) : The plan of Action is to ensure survival,
protection and development of the girl child with the ultimate objective of building up a better
future for the girl child. (iv) National Policy for the Empowerment of Women, 2001 : The
Department of Women & Child Development in the Ministry of Human Resource Development
has prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of
this policy is to bring about the advancement, development and empowerment of women.
In Radha Charon v. State, the Orissa High Court held Rule 6(2) of the Orissa Statutory Judicial
Service rules, 1963 purporting to disqualify married women from being appointed as District
Judges, was violative of Art. 15(1) as disqualification was on the ground of sex.
In Dattatreya Motiram v. State of Bombay, Chief Justice Chagla held: “As a result of the joint
operation of Article 15(1) and Article 15(3) the State could discriminate in favour of women
against men, but it could not discriminate in favour of men against women.
In State of Kerala v. K. Kunihipacky, the question of preferring female lecturers in state colleges
exclusively for women came under review. A male lecturer claimed that a female lecturer junior
to him in experience had been promoted to a professorship in the same department, violating
Article 16. The Court held that females can be given preferences over males in women’s college,
a conventional practice but, once appointed, senior male and female employees of equal caliber
should be promoted.
In Maya Devi v. State of Maharashtra, a requirement that married woman obtain her husband’s
consent before applying for public employment was challenged as violating Articles 14, 15 and
16. The Supreme Court held: “This is a matter personal between husband and wife. It is
unthinkable that in social conditions presently prevalent a husband can prevent a wife from being
independent economically just for his whim or caprice.”
In Shalini Damodar Nikam v. India United Mills and Others, the petitioner filed this petition
regarding the different retirement age for male and female employees. The issue in this case was
whether a different and differentiating system in relation to retirement age for male and female
should be rejected. The learned judge observed that a different and differentiating system in
relation to retirement age could not survive as prima facie it was obnoxious. In that view of the
fundamental issue involved on which the learned judge had a prima-facie inclination in favour of
the petitioner’s contention and directed that she shall be continued in service until further orders.
In the case of Vishaka v. State of Rajasthan, the learned Judges quoted Articles 14, 15, 19 and 21
of the Constitution of India and emphasized upon the great significant of the International
83

Conventions and norms in the formulations of guidelines to achieve the object of protection of
woman from sexual harassment and to make their fundamental rights meaningful.
Law declared by the Supreme Court in Vishaka’s Case was again reiterated in Apparel Export
Promotion Council v. A.K. Chopra, by emphasizing that the term sexual harassment as defined
in earlier case shows that sexual harassment is a form of sex discrimination projected through
unwelcome sexual advances, request for sexual favours and other verbal or physical conduct
with sexual overtones whether directly or by implication, particularly when submission to or
rejection of such a conduct by the female employee was capable of being used for effecting the
employment of the female employee and unreasonably interfering with her work performance
and had the effect of creating an intimidating or hostile working environment for her.
The issue of sexual harassment has assumed larger dimensions with the decision of Supreme
Court in Chairman Railway Board and Others v. Mrs. Chandrima Das and Others, wherein the
employer was vicariously held liable to compensate the victim of a gang rape who happened to
be a stranger and a foreigner, committed by its employees within its premises having far reaching
implications.
The Factories Act, 1948 prohibits employment of women in dangerous occupations. Section
22(2) of the Factories Act, 1948 provides that no women shall be allowed to clean, lubricate or
adjust any part of a prime mover or of any transmission machinery is in motion, or to clean,
lubricate or adjust any part of any machine if the cleaning, lubrication or adjustment thereof
would explore the women to risk of injury from any moving part either of that machine or of any
adjacent machinery.
In B.N. Gamadia v. Emperor,the Bombay High Court observed that the provisions of the Section
are not complied with if there is a door made in a partition between the two portions of the room
and if it can be opened by a woman employed although the door is shut, yet it is not locked nor
other effective means are taken to prevent its being opened by a woman. This shows that both
legislature and judiciary have shown concern about the security of women workers and every
precaution is being taken to protect them against the risks of employment.
In Air India v. Nargesh Meerza and Others, the Central Government had made a declaration by
virtue of a notification that the differences in the remuneration of air hostesses and flights
stewards were not based on sex because Section 16 clearly authorises restrictions regarding
remuneration to be paid by the employer if a declaration under it is made by the appropriate
government.The Supreme Court held that the benefit conferred on the female 504 under the Act
is not absolute and unconditional. From a comparison of the mode of recruitment, the
classification, promotional avenues and other matters, it is clear that air hostesses form an
absolutely separate category from the Assistant pursers in many respects such as different grades,
different promotional avenues and different service conditions.
.
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The “reasonable man” is a product of English, judicial, genius. He was created for justicing
convenience. Judges, attempting to unravel the mysteries of human conduct, intent and motive,
have for years turned to the Reasonable Man for guidance. Deviance and delinquency have been
determined by reference to him. The choice between condemnation and compassion have rested
on judicial expectations of what a Reasonable Man would have done.
The presence of the Reasonable Man, however, alerts us to the possible existence of the
Reasonable Woman. The phrase was never enunciated, perhaps because judges followed the
fashion of the day where legislators clubbed women, minors and the mentally incapable together,
as being deficient in reason. Perhaps it was the recognition of proprietorship of the man over
woman, which rendered reference to her reason irrelevant. Or, again, perhaps it was the relative
rarity of women accessing courts which made her a player around whom cases were fought, but
who was not bidden to contribute her perspective to the few principles that developed in her
name.
Revisiting the decisions of High Courts between 1920 and 1950 introduces us to a triumvirate of
judicial creations: the Reasonable Woman, the Reasonable Man and Reasonable Expectations.
Women, these cases tell us, are essentially of three kinds. There is the wife. The wife who is
wronged by the husband; the wife who drives her husband to desperation; the wife who is
seduced by another; the wife who is slandered.
Then there is the non-wife. In her relationship with a man, she is recognised as possessing an
autonomy and independence which is not granted to the wife. Sometimes identified as a
concubine, at others as a prostitute, there is an agency which is acknowledged in the non-wife
which is quite categorically denied to the wife. She is her own person, and not the creation and
concern of a ‘guardian’.
In a third projection, she is the criminal. There is the cold, callous criminal who kills children to
steal their ornaments. She is sent off, with equal coldness, to the death row. And there is the
victim of passion who, in attempting to hide her illegitimate infant from life itself, impels the
judges to plead for executive clemency.
A profile of the dutiful widow and her property emerges from amidst a profusion of precedents
and allusions to ancestral texts.The distinction between “legal necessity for worldly purposes”
and “the promotion of spiritual benefit of the deceased” would determine the limits of the
widow’s power of disposition.
The gift of landed property was, according to the court,on this reasoning, a reasonable
expectation, lending legitimacy to the widow’s power to alienate property - a power denied to
her in almost every other circumstance.
The economics of marriage notwithstanding, Hindu law, the courts would say, regards marriage
as a sacrament constituting a holy and indissoluble union, primarily for the propagation of
children, and also to ensure the performance of certain religious duties.Dissolving the
85

indissoluble requires both judicial will and textual support. Manu Smriti, Yagnyavalkya Smriti
and Narada Smriti are illustrative, and capable, assistants to judicial sophistry.
Divorce does not, however, deserve the support that marriage does.A divorce, however, is
against the policy of Hindu law, and no precedent has been pointed out which would justify the
court in holding that a divorce may be regarded as a legal necessity.
Are there limits to judicial tolerance of a man venting his spleen on his wife? It appears the
courts believed there was. “Small beatings” may not be legal cruelty,and if a prisoner, coming
from a poor class, had “chastised his wife moderately, but not sufficiently to do her serious
damage”, resulting in her death “probably no more would (have been) heard of the matter.”
Subbia Goundan was charged with having voluntarily caused hurt to his 20 year old wife when
he beat her, and with having injured her mother when she intervened, resulting in her death. The
episode inspired the Sessions Judge to set out what he called “the right of the husband to beat his
wife for impertinence and impudence”.
The courts did draw a line somewhere. Nose cutting was, indeed, too “vindictive and
cruel”.Disfigurement as a factor in determining the gravity of the crime and suspicions of
‘unchastity recur in the proceedings. Disfigurement of a woman could lend a complexion of
cruelty to an act, which mere beating could not always ensure. And allegations of adultery could
excite ambivalence in the court.
This jurisprudence of the husband’s right to beat his wife, and to be nominally punished when he
steps beyond the tolerable, takes one into the region of maintenance.The ground rules are “(a) the
husband must, prima facie, support his wife. This he can do by making her share his board and
house”. It is only her comfort and safety which are relevant. Maintenance has no bearing on
conjugal relations, except to the extent that such relations are rendered unsafe for the wife;
impotence is, consequently, irrelevant in a demand for maintenance.And a wife cannot insist that
she should be treated as a member of the family with a right to live in the family home. For, “she
was not entitled to be treated as a ‘wife’ but only to be maintained”. Also, an “unchaste woman
is not entitled to anything but a ‘bare’ or ‘starving’ maintenance, and even that may be forfeited
if she continues or persists in her unchaste life”. It is only wives who are entitled to maintenance
—long years of living together does not invest the woman with the incidents of being a wife.
Further, the “obligation of a husband to maintain his wife arises from the anxiety of the
legislature to protect deserted wives from the bitter necessity of earning a living by trading on
their sex.
The visible woman with, and in, the passive voice emerges while reckoning with her role as a
lawful guardian. We also see her in a state of depleted autonomy. The father and the husband
battle for the power of disposition or possession of the woman. It is in this struggle for control
that a father is charged with procuring a minor girl (Section 366-A, IPC) when he tells his
daughter to go away with him from a house where she was unhappy, and he will find her another
husband for this was an inducement, and he had induced her as the law said he shouldn’t. “It is
86

true that those provisions were enacted to give effect to the International Convention for the
Suppression of Traffic in Women and Children signed at Geneva in 1922”, the court said. “When
a married girl is unhappy with her husband and her father takes her from the husband’s house
and gives her as a wife to somebody else that can hardly be called trafficking in women. At the
same time, having regard to the provisions of the section, I am of opinion that the act of the
father would come within these provisions.
This apparent reluctance to find a woman culpable should not be mistaken to be willingness of
the court generally to protect women from punishment. We do encounter at least two instance of
the death penalty being passed on women for stealing ornaments off 12 year old children and
killing them. The youth of the convicted women - 20 and 22 - and that they had, in each case,
delivered a child while in jail, were not considered extenuating circumstances.
Possession and control of the woman by the man to whom she belongs has nurtured, in law,
notions of adultery, seduction and enticement. The woman displays “sheer contempt for the
husband”; the husband took no action for eight months after her “abduction”; she turned a
Mahomeddan and had lived for months as the wife of another man. Then the court convicted the
other man, even if it did reduce the sentence to the period already undergone.In such a case as
this, voluntariness, rejection and choice stood negatived for the woman, while the nature of
property rights over the woman and the criminality of anyone else taking over possession was
reasserted. Her autonomy was, of course, not even a possibility.
The premium on chastity brought slander and defamation into both civil and criminal
jurisdictions. There is, after all, “no reason why a slanderer of women should not be made liable
both civilly and criminally, just as, say, the driver of a motor car who runs over a woman by his
rashness and negligence”.It was “undoubtedly defamatory” to publish an article which indicates
that “an unmarried girl of the Brahmin community who is well connected, had not preserved her
virgin purity. One can hardly imagine a grosser kind of defamation.”
A woman, and of a low caste, protesting and setting the criminal law in motion, and the
complaint coming to trial and punishment, is rare enough to cause comment. Even if it was
reversed in appeal by a different perspective on caste. What the woman alleged was assault with
intent to dishonour her, and no grave and sudden provocation to explain away the dishonour.It
was thus that honour gave place to presumed piety. And the sinned against was dubbed the
sinner.
It is the status of a woman as a wife, then, that particularly attracts the notion of person as
property. The means and the motive for murder in the home appear distinct for women and men.
Men were found to have drowned,strangled or truncheoned their wives. Women were generally
brought in on charges of poisoning their husbands. Dhatura, the stuff of which the fiction of
Agatha Christie was made, was the poison most commonly used. Men were provoked by
suspicions of infidelity and by impertinence. Women were found to have been led to murder
after “a severe beating” and threats that she would be killed;150 “to recapture her husband’s
87

failing attentions” where she mistook the poison for a love potion; or “to be free to continue her
relations with her paramour”. The court’s response ranged from acquittal, to reduction of charge
from murder to causing hurt by means of poison and a consequent reduction of sentence to 6
months’ imprisonment, to the death penalty, where the court did not believe she did not realise
what she was giving him since she had a motive - another man — to commit the crime.Where
there were women-accused, the oft-iterated defence of grave and sudden provocation advanced
in crimes of violence has had to give way to a defence of ignorance of consequences, and
motives of reviving deteriorating relationships in the home.
Nestling in the creases of the cases, we find courts acknowledging the provocation of sustained
abuse. In the variations on ‘slow burn’, anger and hurt at the betrayal by the wife/mother in her
role as such wife/mother has given a reasonableness to the provocation leading to the
crime.There is the court’s statement that “(t)he appellant has been the victim of an abnormal and
unnatural environment bereft of maternal affection ...”which both implies slow burn and the
reasonable expectation of a woman, the absence of which may justify condoning violence to her
person.
The “unfortunate woman” was not a passive entity in the judicial process. It was not paternal
protection, or admonition, that reached the woman in prostitution, though there were
manifestations of disbelief about the role men played in inducting the women into prostitution,
and keeping them there. She may not find herself silenced into a passivity which is the consistent
condition of the wife. There is, instead, a certain agency recognised in her interaction with law
and with the state. Perhaps their other than ordinariness when the court referred to “dancing
women or ordinary Hindus”,and their identity as a “separate class having a legal status”gave
them a position denied to the wife in the arena of law.
The Reasonable Woman is a wife. She becomes one with the family of her husband. She is
sexually available to her husband. She doesn’t expect to be treated as a wife; only to be
maintained. She is entitled to shelter and safety, though she is not entitled to stay in her
matrimonial home. She has no marital honour, so she cannot encash her honour as her husband
can. She does not put obstacles in the path of her husband marrying another wife. She goes to
another man only when her husband does not support her. And she cannot reasonably claim to be
maintained by two men. She is chaste and keeps unsullied the bed of her lord, even when he
deserts her. She may, in the occasional case, have a share in her husband’s salary, but she cannot
use it to maintain her mother. She belongs to a man - generally her father or her husband. She is
married young. She does not exercise choice. She has no politics. She is incapable of being a
legal guardian.She does not have children; she bears her husband children. Her worth is reckoned
on the capitalised value of her usefulness to the man. She does as her husband would have her
do. She does not roam about, but stays at home, cooks and takes care of the children. She does
not complain of rape. She is incapable of being dishonoured, especially if she is of a low caste
and the assault is by a high caste man. She does not answer back. She does not retort even if she
is incorrectly and publicly accused of carrying on a relationship outside her marriage. She is not
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a cinema actress, or a singer, or a dancer : she is a dependant. An actress, not being a Reasonable
Woman, has no right to reticence in being medically examined to demonstrate her virginity. The
Prostitute Woman is a not a Reasonable Woman, and is not to be judged as a Reasonable Woman
would.
A pause at marriage before we launch into a discovery of the Reasonable Man : Marriage is a
necessity. The state is vitally interested in keeping a marriage going. It is only rare and
exceptional cases which may convince the court to accept the inevitability of divorce. In any
event, divorce is not a legal necessity.
The Reasonable Man gets married and gets a dowry for it. May be he marries again. He chastises
his wife in moderation, perhaps with small beatings. But he doesn’t cut his wife’s nose. He may
murder his wife if he catches her in adultery, but he is not to murder for one who is not his wife,
such as his mistress, concubine or one to whom he is engaged. A Reasonable Man confesses to
his wife’s infidelity, thievery and adultery. He has control over his wife, and his daughter. He
knows that he becomes a procurer if he encourages his daughter to return home from ill-
treatment and suffering with a promise to find her another husband. He demands damages from
the adulterer when his wife is in an adulterous relationship, and asserts his power of legal
possession. But he does not make profit out of his wife’s dishonour. He is entitled to custody of
his wife, even if she has not yet reached puberty. If he can’t have her in his possession, he has
her sent away from her mother into an institution. He does not steal another man’s wife; he
respects another’s property; even if he doesn’t treat his own property well. Prolonged agony may
cause him to kill.
Reasonable Expectations span the distance between the Reasonable Man and the Reasonable
Woman.
.
Although some feminists treat the dichotomy as a universal, trans-historical aril trans-cultural
feature. of human existence, feminist criticism is primarily directed at the separation and
opposition between the public and private spheres in liberal theory and practice. In short,
feminists, unlike other radicals, raise the generally neglected problem of the patriarchal character
of liberalism.

The way in which women and men are differentially located within private life and the public
world is a complex matter, but underlying a complicated reality is the belief that women's natures
are such that they are properly subject to men and their proper place is in the private, domestic
sphere.

Men properly inhabit, and rule within, both sphere.The essential feminist argument is that the
doctrine of `separate but equal', and the ostensible individualism and egalitarianism of liberal
theory, obscure the patriarchal reality of a social structure of inequality and the domination of
women by men.
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Commentators usually fail to notice that Locke's separation of the family and the political is also
a sexual division. Although he argued that natural differences between men, such as age or
talents, are irrelevant to their political equality, he agrees with Filmer's patriarchal claim that the
natural differences between men and women entail the subjection of women to men or, more
specifically, wives to husbands.' But a natural subordinate cannot at the same time be free and
equal. Thus women (wives) are excluded from the status of 'individual' and so from participating
in the public world of equality, consent and convention.

Feminists reject the claim that the separation of the private and the public follows inevitably
front the natural characteristics of the sexes. They argue that a proper tinker standing of liberal
social life is possible only when It is accepted that the two spheres, the domestic (private) and
civil society (public), held to be separate and opposed, are inextricably interrelated; they are the
two sides of the single coin of liberal patriarchalism.

One solution is to reinstate the political in public life. This is the response of Wolin or of
Haberims in his rather opaque discussion of the principles of the public sphere, where citizens
can form reasoned political judgements.

J.S. Mill wrote in the nineteenth century that the depth of the feelings surrounding the appeal to
nature was 'the most intense and most deeply-rooted of all those which gather round and protect
old institutions and customs'."

Arguments focusing on nature/culture fall into two broad categories, the anthropological and the
radical feminist.

That is, women and domestic life symbolize nature. Humankind attempts to transcend a merely
natural existence that nature is always seen as of a lower order than culture.

Culture becomes identified as the creation and the world of men because women's biology and
bodies place them closer to nature than men, and because their childrearing and domestic tasks,
dealing with un-socialized infants and with raw materials, bring them into closer contact with
nature. Women and the domestic sphere thus appear inferior to the cultural sphere and male
activities, and women are seen as necessarily subordinate to men.

The proposed solution is to eliminate natural differences (inequalities) between the sexes by
int1oducing artificial reproduction. 'Nature'-and the private sphere of the family will then be
abolished and individuals, of all ages, will interact as equals in an undifferentiated cultural (or
public) order.

The popular success of The Dialectic of Sex owes :mire to the need for women to continue to
fight for control of their bodies and reproductive capacity than to its philosophical argument. The
key assumption of the book is that women necessarily suffer from a fundamentally oppressive
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biological condition, but biology, in itself, is neither oppressive nor liberating; biology, or nature,
becomes either a source of subjection or free creativity for women only because it has meaning
within specific social relationship.

Rather, as Rosaldo argues, it is necessary to develop a feminist theoretical perspective that takes
account of the social relationships between women and men in historically specific structures of
domination and subordination; and, it might be added, within the context of specific
interpretations of the 'public' and 'private'.

The most striking difference between the early feminists and suffragists and contemporary
feminism is that almost everyone in the nineteenth century accepted the doctrine of separate
spheres. The early feminists bitterly opposed the grossly unequal position of women but the
reforms they struggled to achieve, such as an end to the legal powers of husbands that made their
wives into private property and civil non-persons, and the opportunity to obtain an education so
that single women could support themselves, were usually seen as means to equality for women
who would remain within their own private sphere.

This comes out clearly in one of the most passionately sentimental, and antifeminist, statements
of the doctrine of separate spheres.

Citizenship for women could thus be seen as an elaboration of their private, domestic tasks and
one of the suffragists' main arguments was that the vote was a necessary means to product and
strengthen women’s special sphere (an argument that gained weight at the end of the century as
legislatures increasingly interest

Much of Elshtain's argument is conducted in terms of the duality of morality and power, one way
of formulating the separation of private and public when this is located within civil society.

A different assessment of the suffrage movement is presented in recent work by DuBois, who
argues that the reason that both sides of the struggle for enfranchisement saw the vote as the key
feminist demand was that the vote gave women 'a connection with the social order not based on
the institution of the family and their subordination within it ... As citizens and voters, women
would participate directly in society as individuals, not indirectly through their subordinate
position as wives and mothers.'"

DuBois empha-sizes that the suffragists did not question women's 'peculiar suitability' for
domestic life, but the demand for the vote constituted a denial that women were naturally for
only for private life.

He states that it will generally be understood that when a woman marries she has chosen her
'career', just like a man entering a profession: 'she makes choice of the management of a
household, and the bringing up of a Family, as the first call upon her exertions. She renounces
[all occupations] not consistent with the requirements of this.
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Mill's ultimate failure to question the 'natural' sexual division of labour undermines his argument
for an equal public status for women. His argument in the subjection rests on an extension of
liberal principles to the domestic sphere - which immediately brings the separation of the private
and public, and the opposition between the principles of association in the two spheres into
question. He would not have remained Bent) and Gaus's 'exemplary' liberal theorist if he had not,
at least in part, upheld the patriarchal liberal ideology of the separation between public and
private. On the other hand, by throwing doubt on the original Lockean separation of paternal and
political power, and by arguing that the same political principles apply to the structure of family
life as to political life, Mill also raises a large question about the status of the family. The
language of 'slaves', 'masters', 'equality', 'freedom' and `justice' implies that the family is a
conventional- not a natural association. Mill would not want to draw the conclusion that the
family is political, but many contemporary feminists have done so. The most popular slogan of
today's feminist movement is 'the personal is the political', which not only explicitly rejects the
liberal separation of the private and public, but also implies that no distinction can or should be
drawn between the two spheres.

'The personal is the political' has drawn women's attention to the way in which we are
encouraged to see social life in personal terms, as a matter of individual ability or luck in finding
a decent man to marry or an appropriate place to live. Feminists have emphasized how personal
circumstances are structured by public factors, by laws about rape and abortion, by the status of
‘wife’, by policies on childcare and the allocation of welfare benefits and the sexual division of
labour in the home and workplace. ‘Personal’ problems can thus be solved only through political
means and political action.

The identification of women and the domestic sphere is now also being reinforced by the revival
of anti-feminist organizations and the 'scientific' reformulation of the argument from nature by
the socio-biologists." Women have never been completely excluded, of course, from public life;
but the way in which women arc included is grounded, as firmly is their position in the domestic
sphere, in patriarchal beliefs and practices. For example, even many anti-suffragists were willing
for women to educated, so that they could be good mothers, and for them to engage in local
politics and philanthropy because these activities could be seen, as voting could not, as a direct
extension of their domestic tasks.

Large numbers of working-class wives have always had to enter the public world of paid
employment to ensure the survival of their families, and one of the most striking features of post-
war capitalism has been the employment of a steadily increasing number of married women.
However, their presence serves to highlight the patriarchal continuity that exists between the
sexual division of labour in the family and the sexual division of labour in the workplace.
Feminist research has shown how women workers are concentrated into a few occupational areas
('women's work') in low-paid, low-status and non-supervisory jobs. Feminists have also drawn
attention to - the fact that discussions of work life, whether by laissez-faire liberals or Marxists,
always assume that it is possible to understand economic activity in abstraction from domestic
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life. It is 'forgotten' that the worker, invariably taken to be a man, can appear ready for work and
concentrate on his work free from the everyday demands of providing food, washing and
cleaning, and care of children, only because these tasks are performed unpaid by his wife. And if
she is also a paid worker she works a further shift at these 'natural' activities. A complete analysis
and explanation of the structure and operation of capitalism will be forthcoming only when the
figure of the worker is accompanied by that of the housewife.

Family is a major concern of the state and how, through legislation concerning marriage and
sexuality and the policies of the welfare state, the subordinate status of women is presupposed by
and maintained by the power of the state.

Habermas argues for public, shared communication so that substantive political problems can be
rationally evaluated, and Wolin states that the 'public' and the 'common' are 'synonyms for what
is political', so that 'one of the essential qualities of what is political ... is its relationship to what
is "public"." These critics and some feminists agree that what is not personal is public and that
what is public is political. The implication is that there is no division within civil society, which
is the realm of the public, collective, common political life of the community. The argument is
usually developed, however, without any consideration of how this conception of the public-
political sphere is related to domestic life, or any indication that such a problem arises.

Wolff has recently claimed, from a position sympathetic to feminism, that overcoming the
separation of the two spheres presents an inherently insoluble problem. To 'struggle against the
split' is pointless; the best that can be achieved is ad hoc adjustments to the existing order.

Feminists are trying to develop a theory of a social practice that, for the first time in the western
world, would be a truly general theory - including women and men equally - grounded in the
inter-relationship of the individual to collective life, or personal to political life, instead of their
separation and opposition.

This conclusion does not, as it often alleged, deny the natural biological fact that women, not
men, bear children; it does deny the patriarchal assertion that this natural fact entails that only
women can rear children. Equal parenting and equal participation in the other activities of
domestic life presuppose some radical changes in the public sphere, in the organization of
production, in what we mean by 'work', and in the practice of citizenship.

Feminist critiques imply a dialectical perspective upon social life as an alternative to the
dichotomies and oppositions of patriarchal liberalism.

Feminism looks toward a differentiated social order within which the various dimensions are
distinct but not separate or opposed, and which rests on a social conception of individuality,
which includes both women and men as biologically differentiated but not unequal creatures.
Nevertheless, women and men, and the private and the public, are not necessarily in harmony.
Given the social implications of women's reproductive capacities, it is surely Utopian to suppose
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that tension between the personal and the political, between love and justice, between
individuality and communality will disappear with patriarchal liberalism.

Rousseau, Hegel and Marx each argued that they had left behind the abstractions and
dichotomies of liberalism and retained individuality within communality. Rousseau and Hegel
explicitly excluded women from this endeavour, confining these politically dangerous beings to
the obscurity of the natural world of the family; Marx also failed to free himself and his
philosophy from patriarchal assumptions. The feminist total critique of the liberal opposition of
private and public still await its philosopher.

The distinction between sex and gender differentiates a person's sex (the anatomy of an

individual's reproductive system, and secondary sex characteristics) from that person's gender,
which can refer to either social roles based on the sex of the person (gender role) or personal
identification of one's own gender based on an internal awareness.In some circumstances, an
individual's assigned sex and gender do not align, and the person may be transgender. In other
cases, an individual may have biological sex characteristics that complicate sex assignment, and
the person may be intersex.

A working definition in use by the World Health Organization for its work is that ‘gender' refers
to the socially constructed roles, behaviours, activities, and attributes that a given society
considers appropriate for men and women" and that "'masculine' and 'feminine' are gender
categories.

The current distinction between the terms sex difference versus gender difference has been

criticized as misleading and counterproductive. These terms suggest that the behavior of an
individual can be partitioned into separate biological and cultural factors.

Diane Halpern, in her book Sex Differences in Cognitive Abilities, argued problems

with sex vs. gender terminology: "I cannot argue that nature and nurture are inseparable and
then... use different terms to refer to each class of variables. The ...biological manifestations of
sex are confounded with psychosocial variables.... The use of different terms to label these two
types of contributions to human existence seemed inappropriate in light of the biopsychosocial
position I have taken."

The term sex difference could then be re-defined as between-sex differences that are

manifestations of a sexually dimorphic adaptation (which is how many scientists use the term),
while the term gender difference could be re-defined as due to differential socialization between
the sexes of a monomorphic adaptation or byproduct. For example, greater male propensity
94

toward physical aggression and risk taking would be termed a "sex difference;" the generally
longer head hair length of females would be termed a "gender difference.

In general, the favouring of the category 'gender' over the category 'sex' is defended in terms of
the 'dangers of biological reductionism'. Additionally, it would appear that the role of prior or
current political commitment to any one of a variety of 'left' politics plays a decisive role in this
preference for 'gender'.

Freud grappled with the problem of finding a suitable definition of masculinity and femininity
and their relation to men and women in the 'Three Essays' published in 1905. However , the
authoritative source for the recent prominence of writings centring on gender is not Freud but
Robert J. Stoller, a contemporary psychoanalyst. Stoller published a book titled Sex and Gender,
in 1968, a text wherein he reports the findings and theses arising out of his research and
involvement with the Gender Identity Research Clinic at UCLA.

Stoller takes the genesis of transsexualism to be wholly social, that is, not biologically or
physically determined. He posits, as the cause of male transsexualism, the mother's attitude to the
child from birth. He report s that in all normal infants there is an initial period of symbiosis with
the mother but that this symbiosis must be broken, particularly in the case of the boy, if normal
masculinity or femininity as a separate (and in the case of the boy, different) and independent
identity is to develop.

In order for a programme of 'degendering' to be successful or even theoretically tenable, one

would have to allow the validity of at least two unargued assumptions central to the thesis put
forward by Stoller and assumed by the 'degendering feminists'. These are: i) that the body is
neutral and passive with regard to the formation of consciousness, consciousness is primary and
determinant - implicitly a rationalist view; and ii) the important effects of the historical and
cultural specificity of' one's 'lived experience' is able to be altered, definitively, by consciously
changing the material practice of the culture in question. However, the above-mentioned
assumptions warrant no such validity.

Theorists who uncritically use the mind / body distinction consistently characterize the subject as
either predominantly (or wholly) determined by biological forces, i.e. heredity or predominantly
(or wholly) determined by the influence of social or familial relations, i.e. environment.

Concerning the neutrality of the body, let me be explicit, there is no neutral body, there are at
least two kind of bodies; the male body and the female body. If we locate social practices and
behaviours as embeded in the subject, as we have with perception, rather than in consciousness'
or 'in the body' then this has important repercussions for the subject as always a sexed subject.

Identical social 'training', attitudes, or, if you will, conditioning, acquire different significances
when applied to male or female subjects. The orthodox account of the gender /sex distinction
claims that the social determination of personal identity operates at the level of ideas, the level of
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'the mind'. What this account fails to note is the obvious divergence between feminine behaviour,
experience, lived out by a female subject and feminine behaviour, experience, lived out by a
male subject (and vice versa with masculine behaviour).

I would suggest that some bodily experiences and events, though lacking any fixed significance
are likely in all social structures to be privileged sites of significance. Various anthropological,
ethological, and historical evidence would seem to support this claim. For example, menstruation
is likely to be one of these privileged sites. The fact that menstruation occurs only in (normal)
female bodies is of considerable import for this paper. Given that in this society there is a
network of relations obtaining between femininity and femaleness, that is, between the female
body and femininity, then there must be a qualitative difference between the kind of femininity
'lived ' by men.

The 'feminine male' may have experiences that are socially ascribed as 'feminine' but - and this is
the relevance of the body and its specific social value and meaning - in a way that must be
qualitatively different from female experience of the feminine. He is parasitically dependent on
the female body, more particularly the maternal body, by a process of identification. Theorists of
sexual difference do not take as their object of study the physical body, the anatomical body, the
neutral, dead body, but the body as lived, the animate body - the situated body.

It is striking that the body figures in socialization theory only as the biological anatomical or
physiological body. There is little analysis of the body as lived: of the body's morphology or of
the imaginary body. If one wants to understand sex and gender or, put another way, a person’s
biology and the social and personal significance of that biology as lived, then one needs an
analysis of the imaginary body.

Freud saw the biology of women and men to be unproblematic – the ovam is passive, the sperm
is active – the problem for him was the psychology of masculinity and femininity which 'mirrors'
this biology: the man actively penetrates the passive vagina. However, and this is the role of
cultural and historical specificity, it is not given a priori that the penis is active, the vagina
passive. This concept has to do with the imaginary anatomy, where the vagina is conceived of as
a ' hole', a 'lack' and the penis as a 'phallus'. One could just as well, given a different relational
mode between men and women, conceive of the penis as being enveloped or 'embraced' by the
active vagina. In this context an interesting addendum is provided by recent biological research
which maintains that the ovum is not as passive as it appears - it rejects some sperm and only
allows entry, or envelops, a sperm(s) of its 'choice'

To speak of 'acquiring' a particular gender is to be mistaken about the significance of gender and
its intimate relation to biology-as-lived in a social and historical context. The male transsexual,
due to his primary relations to his mother, is in the situation of being constituted in such a way
that his (primitive) ego conflicts
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with his imaginary (and biological) body, leading to his subjectivity being conceived by him as
'female-in-a-male- body'. Briefly this would involve the non-resolution of the misrecognition of
the body of the other for one's own, that is, the male transsexual's primitive (bodily) ego is
predicated upon a female body (i.e. the maternal body) and he does not develop, until
comparatively late, a separate identity from his mother. His transsexualism, in fact, is evidence
that this separation is never adequately achieved. The desire of the mother is active in this non
resolution or critically late resolution.

The case of the female transsexual cannot be symmetrical. The relation of the female infant to
the mother's body is not and cannot be problematic in the same way. This may partially explain
the relative rarity of female transsexualism. (Though the extremely common phenomenon of the
'tom-boy' is transsexualism, of a sort.) Female transsexualism is much more likely to be a
reaction against oppression, that is, against the socially required forfeit of activity that was once
enjoyed and socially tolerated. This possibly is overlaid by the desire or the mother to make a
husband-substitute of the girl and/or the mother's own resentment of the female role in
patriarchy. The transsexual knows, most clearly, that the issue is not one of gender but one of
sex. It is not masculinity per se that is valorized in our culture but the masculine male.

The problem is not the socialization of women to femininity and men to masculinity but the
place of these behaviours in the network of social meaning and the valorization of one (the male)
over the other (the female) and the resultant mischaracterization of relations of difference as
relations of superiority and inferiority. The influence of French feminism has been instrumental
in the formulation and defence of a politics of difference, which is often placed in opposition to
the politics of Marxist-feminismThe feminist campaign for the acquittal of the cases of Roberts
and Krope were argued on the grounds that the law of provocation did not take account of the, in
general, disproportionate strength' of men and women. Likewise, many feminists have pointed
out the abuse by men of the recently introduced anti -discrimination legislation. For example,
Firestone's 'cybernetic communism' proposed the literal neutering of bodies by means of the
complete technologization, and hence socialization, of the reproductive capacity. So, in effect,
the edge of sexual difference and the denial of sexual neutrality was quickly, but not effectively,
blunted by the call to neutralize the difference.

What is overlooked in this megalomaniacal phantasy, leaving aside the desirability or otherwise
of its details, is that the implied neutrality is not a neutrality at all but a 'masculinization' or
'normalization' (in a society where men are seen as the norm, the standard) of women - a making
of 'woman' into 'man'.

In addition to the naturalization of sexual difference, the sex/gender distinction lends itself to
those groups or individuals whose analyses reveal a desire to ignore sexual difference and
prioritize 'class', 'discourse', 'power', or some other 'hobby-horse'. Their accounts attempt to co-
opt or trivialize feminist struggles and feminist theory at its peak, reducing sexual politics to
gender difference and positing as primary the relations obtaining between genders and power,
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gender and discourse, or gender and class - as if women's bodies and the repression and control
of women's bodies were not a crucial stake in these struggles.

While acknowledging the need for legislation for gender equity, Jawaharlal Nehru emphatically
maintained that “legislation cannot by itself normally solve deep rooted problems. One has to
approach them in other ways too, but legislation is necessary and essential so that it may give
that push and have that educative factor as well as the legal sanctions behind it”

As observed by the CSWI, the executive branch of the government seldom makes an effort to set
up the machinery to educate the women for whose benefit many of the socio-economic
legislations were put on the statute book. For example, the amendment to the Dowry Prohibition
Act in 1986 requires a list to be made of all presents given to the bride and bridegroom which
should be signed by both the parties.

The credit for spreading the knowledge even to a limited number of CWDS, goes to the active
women’s groups but more is needed remains to be done as this can really be a preventive
measure.

After examining a large number of cases, the CSWI held the judiciary and the legal profession as
equally responsible for the dismal state of affairs, because their patriarchal attitudes and values
had, by and large, prevented them from improving the situation by providing adequate
interpretations and meaning to the constitutional mandate of equality. This comes out clearly
when the judges have to deal with the conflict between the wife’s right to employment and the
husband’s conjugal rights as perceived by them.

The Allahabad High Court made a grudging concession to the wife’s right to continue with her
employment when the income she earned was necessary for running the family.The welcome
change came in a case from Delhi where Deshpande J, as he then was decided the case of the
wife’s right to continue with her job for very different reasons. Even though this was a case
where the wife was earning much more than the husband and the latter was constantly
demanding more money from her and her family, he decided the question on the basis of the
constitutional mandate of equality of the sexes.

It would appear that patriarchal values and indifference to the constitutional mandate of equality
of sexes and social and economic justice for all, affected both the judicial and the executive
branches. The former was to interpret the new laws and the other to implement them but both
were victims of a male dominated society and laws passed to improve and change the status of
women remain unimplemented. The role of the legislative branch appeared to be only to legislate
but not to question whether the laws were being implemented and if not, to study where the
lacuna was.Nothing brings this out more clearly than the legislation dealing with the prohibition
of dowry.
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The clear demand of the women’s organisations was for changes in law and the policy which
continued to treat women as second class citizens by violating the constitutional mandate.
Repeated demands by women’s organisations, backed by facts and figures and forcible
arguments, made a definite impact on a section of the judiciary.

The most significant of the legislations brought about as a result of the women’s movement have
been in the field of criminal law. The rising violence against women - the growing incidence of
cruelty and harassment within the family, which often did not stop at physical torture, but ended
in death - reported daily, became the first rallying issue for women’s protests on a large
scale.These legislations have been to change (a) the law of rape enacted over a century ago; (b)
the Dowry Prohibition Act (1961) - which had become a classical example of a paper tiger; (c)
laws to punish cruelty to women by husbands and in laws which often drove women to commit
suicide.Certain radical changes were made in the Evidence Act also when in cases of custodial
rape, gang rape, rape on a pregnant woman the presumption would be absence of consent of the
woman. Each of these came in response to the demands of the women’s movement.

The case which triggered off a tremendous agitation by women’s organisations not only at the
national level but also covering various states was Tukaram v The State of Maharashtra15 ,
popularly known as the “Mathura Case.”It further pointed out that “no consideration was given
to the socio-economic status (of the victim). The lack of knowledge of legal rights, the age of the
victim, lack of access to legal services and the fear complex which haunts the poor and the
exploited in Indian police stations”. It requested the Court to hear the case by a larger Bench and
not “snuff out all aspirations for the protection of human rights of millions of Mathurars in the
Indian countryside.”

The Law Commission did a commendable job incorporating many of the suggestions of the four
law teachers who had opened up the debate, and women’s organisations, after detailed discussion
with many of the Delhi based women’s groups.The law was thus drastically amended, and the
concept of custodial rape as a crime more heinous than ordinary rape accepted.But so deep is the
hold of patriarchal values, that in spite of repeated demands marital rape has not been recognised
as an offence.

It would be unfair to conclude from some cases that the judiciary has not been sensitised by the
campaign both during Mathura case and later during the amendment of the law. But the attitude
has been ambivalent. Extreme sensitivity was shown in Bharwada Bhoginbhai Hirajibhai v State
of Gujarat26 where the Court states clearly that not acting on the testimony of a victim of rape
and requiring corroboration is adding insult to injury. “Why should the evidence of the girl or the
woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male
chauvinism in a male dominated society.”But when it comes to giving the sentence of rape what
is the attitude of the judge? The Court was overtaken with sympathy for the accused who had
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lost his job. The incident had occurred almost seven years ago and he “must have suffered great
humiliation in the society.”

For sexually molesting two young girls - they being friends of his daughter - the Court is moved
by his plight and gives the ridiculous sentence of months for one of the most heinous offences.he
sensitivity of the judges has extended to realise that conventional forms of resistance like marks
of injury should not be considered when the victim is a young girl faced by a much older and
stronger person. Secondly, the judges appreciated the intention behind the law that in such cases
the statement of the victim that she has been raped should not require corroboration. But when it
comes to giving the punishment it is forgotten that: “The offences against women in India has
been scaling new peaks from day to day. That is why an elaborate rescanning of the
jurisprudential sky through the lenses of logos and ethos has been necessitated.”

The judicial approach to even child rape, therefore, is neither uniform, nor necessarily humane,
intelligent or well informed in common child psychology. There are certainly problem areas
which call for special understanding by the judges, and child psychology, especially of girls used
to discrimination, subordination and repression is hardly an area of knowledge taken up by many
members of an overwhelmingly male judiciary. Far too much still depends on the individual
sensitivity of the judge trying the case.

Another area which has been of great concern to women’s groups is the rising incidence not only
of demands for dowry but also the accompanying violence.A look at the Act makes it clear that
the policy makers were oblivious of the spread and changing nature of this social evil. Dowry
was no longer confined to demands made and met at the time of the marriage, but had become a
continuous demand made at festivals, at the time of the birth of the grand child, or even to
finance the son-in-law’s business or education abroad. Lack of commitment to eradicate this
menace by strong supportive machinery made the Dowry Prohibition Act 1961 totally
ineffective, and it was difficult to find any convictions under it partly due to the fact that both the
giver and the taken were placed in the same category and punished equally.

These instances of ambiguity/ambivalence/contradiction therefore mask a malaise of which

occasional patriarchal outbursts are not the only manifestations. The reformist attempt since the
nineteenth century to project the women’s question as mainly one of social progress, not one of
economic justice and political necessity - continues to influence, or dominate the mind, of the
middle class. Members of the judiciary and police officers are still drawn mainly from this
section. Cases relating to women continue to be viewed as social and the laws relating to them -
even when they feature in the Penal law, are seen as social legislation, and their enforcement
therefore can be subordinated to the particular individual’s (judge, jury, police, others) own sense
of the social good, rather than the rule of law - which represents the collective democratic and
constitutionally valid assessment of the social good.
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Violence against women treating them as expendable commodities was not confined to killing
them for dowry, but took a bizarre form in 1987, when a young woman married barely seven
months earlier was burnt on the funeral pyre of her husband.

The Commission of Sati (Prevention) Act 1987 brought about a division in the women’s
movement. A section felt that all sati was murder and there was no need for a separate
legislation. The other section felt that Sati Regulation Act of 1829 enacted by the British Raj was
still law but ineffective though it clearly stated that burning or burying of a Hindu widow was
illegal and punishable. No distinction was sought to be made between the act being voluntary or
otherwise. But the British law did not make the widow liable for punishment but the Indian law
did. Glorification of sati which was previously not made punishable is today made punishable
but in spite of it the women’s groups have to remain vigilant every year so that worshipping does
not take place in a sati temple.

An area where the violence on women is not so direct but the effect is as adverse is in the area of
sex determination. Scientific advance has been misused as amniocentesis was a technique to
determine genetic abnormalities at the prenatal stage.

A totally different area in which the women’s groups achieved partial success was in their
demand for setting up of Family Courts.The judges often appear to think that their job is to
“protect and preserve the institute of marriage” at any cost. The result is that many times the
judges compel “a wailing and weeping wife to go with her husband” as the husband’s home is
her home. Family Court Act is thus one other legislation which is meant to benefit the woman
but has turned out to be quite the opposite.

In conclusion, one may say that the movement has not shed its excessive dependence on
legislation, a legacy from its past heritage. it has now to face up to the far stronger challenges
that threaten the rule of law itself for that section of the Movement which likes to retain its ‘non-
political’ label, the preoccupation with law has been a protective cover - which may now come in
for some battering.

Indian legal system very often finds itself at cross roads with human rights of women when
sexuality of women is in question. There has been a love hate relationship between women’s
rights and the Indian judiciary.

Adultery

In the historic judgment of Joseph Shine v. Union of India, the Supreme Court of India
decriminalized the British colonial era provision under Section 497 of the Indian Penal Code.
The Section had made adultery a punishable offence, with men committing adultery to be
punished while women were deemed to be innocent. The ipso facto unreasonable classification
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where men were considered as masters to their wives was overlooked by the judiciary for
decades.

In Yusuf Abdul Aziz v State of Bombay, the SC upheld the validity of Section 497. In Sowmithri
Vishnu v Union of India, the SC observed that Adultery is not violative of the Constitution of
India and the consent of the wife is irrelevant.

The decision in Joseph Shine v Union of India was taken in the light of precedents,
recommendations of the Law Commission and the position of Adultery in other countries. It was
held that Section 497 was in violation of Articles 14, 15 and 21 of the Constitution.

Immoral Traffic Prevention Act 1956 read with Section 370 IPC

India’s anti-sex work criminal law, SITA, was amended in 1986 to enhance penalties and
renamed the ITPA. Section 5 criminalises procurement for sex work, with or without the consent
of the person, conflating trafficking with sex work. The ITPA criminalises several aspects of sex
work but not the sale of sex per se. This ambiguous legislative, intent in permitting sex work but
not acts essential for its performance, vests enormous discretion in the police resulting in their
rent-seeking behaviour, including monetary and sexual pay-offs from them. The ITPA is,
therefore a sword dangling over the necks of sex workers, undermining their economic
bargaining power in sex work and contributing to pervasive societal discrimination against sex
workers. 

However, as efforts to amend the ITPA did not materialise, civil society groups took to public
interest litigation (PIL) as a route to achieving institutional reform. Activist Supreme Court
lawyers had already approached the courts in Vishal Jeet v Union of India 1990 and Gaurav Jain
v Union of India 1997, but through the 1990s, neo abolitionist NGOs like Prajwala, Prerana and
Shakti Vahini, and since 2010, Apne Aap and BBA followed suit.

Although feminists in the Indian women’s movement did not lobby for anti-trafficking offences
(and have stayed away from sex work and trafficking), the second longest chapter in the Justice
Verma Committee Report (after the rape) dealt with trafficking.

Ultimately, Section 370 of the Criminal Law Amendment Act, 2013, which criminalised
trafficking did not conflate it with prostitution. Although Section 370 mirrors the Palermo
Protocol’s definition of trafficking by covering trafficking for sex work and other labor sectors, it
dropped two key terms. The first was “an abuse of a position of vulnerability,” which could be
interpreted broadly to cover any economic or social coercion. The second was “forced labour,”
already interpreted expansively by the Supreme Court.

Indecent Representation of Women (Prohibition) Act, 1986

Under the 1986 Act, The term “indecent representation” has been defined in Section 2(c) in this
manner: “indecent representation of women” means the depiction in any manner of the figure of
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a woman, her form or body or any part thereof in such a way as to have the effect of being
indecent, or derogatory to, denigrating, women, or is likely to deprave, corrupt or injure the
public morality or morals.”

Under the 2012 Bill, the definition under Section 2(c) has been revised in the following words:

“Indecent representation” means (i) publication or distribution in any manner, of any material

depicting women as a sexual object or which is lascivious or appeals to the prurient interests; or
(ii) depiction, publication or distribution in any manner, of the figure of a woman, her form or
body or any part thereof in such a way as to have the effect of being indecent or derogatory to or
denigrating women or which is likely to deprave, corrupt or injure the public morality or
morals.”

The definition of the term “Indecent Representation” in the 1986 Act, in laying emphasis on
material which tends to “deprave or corrupt”, confused indecency with morality. Further, this
would also encourage moral policing of women’s bodies to the extent that any content involving
“nudity” would be disallowed or banned, irrespective of the purpose behind its publication, much
like the Breast Cancer Awareness Video which was banned by Facebook, though the social
media platform later issued an apology for the same.

As per the data available with the National Crime Records Bureau a total of 895, 453, 141, 362
and 47 cases under the Indecent Representation of Women (Prohibition) Act, 1986 have been
reported for the period spanning 2010 to 2014 respectively of all of which show a varies
understanding of “indecent representation”, which hinders effective application of the law.

When the standard of derogatory portrayal is not categorically defined, there is always a
possibility of the same being interpreted on the benchmark of an orthodox morality. Pornography
becomes a contentious issue in the discourse on decency, the term often being overlapped with
obscenity. Though a distinction is drawn between obscenity as defined under the Indian Penal
Code in Section 292 and indecency, the definition is still too vague, leaving the ground open for
misuse. A recent report by FII: “Violence” Online in India: Cyber Crimes Against Women &
Minorities on Social Media, surveyed 500 Indian internet users. The report revealed the extent to
which persons on the internet, women in particular, were subjected to sexually exploitative
material and image based sexual abuse, more commonly referred to as “Revenge Porn”.

Bobby Art International, Etc v Om Pal Singh Hoon & Ors

In 1994, Bobby Art International, a film production company, made a film titled “Bandit Queen”
which was based on a true story about a village girl who was raped and brutalized, and who
subsequently became a member of a violent criminal gang as a means of revenging herself upon
society. The film was based on the book about the incident written by Mala Sen. The film
contained explicit scenes of rape and nudity. In July 1995, the Censor Board indicated that it
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would grant the film an “A” certificate (films considered suitable for exhibition restricted to
adults only) in terms of the Cinematograph Act, 1952 (the Act) but only on the condition that
certain scenes were deleted or modified.

The Act stated that “a film shall not be certified for public exhibition if, in the opinion of the
authority competent to grant the certificate, the film or any part of it is against the interests of,
inter alia, decency”. In addition, in 1991 the Indian Government had issued guidelines in terms
of the Act which stipulated that film certification must ensure that “artistic expression and
creative freedom are not unduly curbed” and that “certification is responsive to social change”.
The guidelines also obliged the Censor Board to ensure that “human sensibilities are not
offended by vulgarity, obscenity or depravity” and that “scenes involving sexual violence against
women like attempt to rape, rape or any form of molestation or scenes of a similar nature are
avoided” and should be kept to a minimum if absolutely necessary.

The film was first screened on August 31, 1995 at a film festival and was opened for public
viewing on January 25, 1996. Om Pal Singh Hoon, a member of the specific community
portrayed in the film, filed a petition before the Delhi High Court seeking the quashing of the
“A” classification and a restraint on the exhibition of the film in India on the grounds that the
portrayal of the main character was “abhorrent and unconscionable and a slur upon the
womanhood of India.” He also claimed that the film portrayed his community in a depraved way
and lowered his self-respect. Hoon submitted that his rights under articles 14 (right to equality),
19 (right to freedom of expression) and 21 (right to life and personal liberty) of the Constitution
had been infringed.

The Court of first instance quashed the “A” classification, and ordered the Censor Board “to
consider the grant of an ‘A’ certificate to it after excisions and modifications in accordance with
his order had been made”. In addition the Court granted an injunction against the screening of
the film until a fresh certificate had been issued. Bobby Art appealed to the Division Court which
upheld the judgment of the Court of first instance, holding that “the scene of violent rape was
disgusting and revolting and it denigrated and degraded women” and that the scenes of nudity
were “indecent”.

Bobby Art then petitioned the Supreme Court.

Bharucha J delivered the judgment of the two-judge bench of the Supreme Court. The central
issue before the Court was whether the graphic nudity and obscenity in the film was a sufficient
reason to justify the infringement of Bobby Art’s freedom of expression.

Bobby Art International argued that the Tribunal was the expert body in this regard and had
determined that the film was appropriate. The film company emphasized that three of the four-
member panel of the Tribunal were women and that they had not found the film offensive.
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Hoon submitted that the courts below had been correct in quashing the certificate and prohibiting
the screening of the film because the film was abhorrent. He argued that the film violated his
own freedom of speech and expression.

Bharucha referred to the 1970 Indian case of Abbas v. Union of India where the Chief Justice
Hidayatullah held that “the standards that we set for our censors must make a substantial
allowance in favour of freedom thus leaving a vast area for creative art to interpret life and
society with some with some of its foibles along with what is good”. In that case, the Chief
Justice had noted that it would be an error to conflate sex and obscenity as “it is wrong to
classify sex as essentially obscene or even indecent or immoral.” He had noted that it was not the
“elements of rape, leprosy, sexual immorality” that should be censored but rather that “how the
theme is handled by the producer” determines the need for restriction.

Bharucha also referred to the 1980 Supreme Court case of Raj Kapoor v. State, the 1985
Supreme Court case of Samaresh Bose v. Amal M, and the 1962 Supreme Court case of State of
Bihar v. Shailabala Devi and noted that these cases had emphasized that vulgar writing is not
necessarily obscene and that consideration must be given to the writing as a whole (rather than
isolated passages or scenes).

With reference to the 1962 Supreme Court case of Sakal Papers v. Union of India and the 1992
Supreme Court case of Life Insurance Corporation of India v. Manubhai, Bharucha stressed that
the only permissible restrictions to the right to freedom of expression protected by article 19 of
the Constitution are those permitted by article 19 itself. Bharucha confirmed that the guidelines
given to the Censor Board are “broad standards” and that “[w]here the theme is of social
relevance, it must be allowed to prevail”.

In applying the jurisprudence and guidelines to the present case, Bharucha commented that
“Bandit Queen” “tells a powerful human story”. He held that the scene in which the main
character is humiliated by being stripped naked and paraded around could not have had its
intended effect in any manner other than by explicitly showing the scene depicting her
humiliation. He added that, in this film, “[r]ape and sex are not being glorified” but are used to
focus on the “trauma and emotional turmoil of the victim to evoke sympathy for her and disgust
for the rapist”. In addition, Bharucha noted that the expletives used in the movie were commonly
used and “no adult would be tempted to use them because they were used in the film”.

Bharucha referred with approval to the exampled provided by the Tribunal which had compared
this film to “Schindler’s List” in which nudity was used to tell the story and demonstrate the
stripping of the characters’ dignity.

In conclusion, Bharucha held that the message of a serious film should be recognized and the test
to be applied was whether the individual scenes advance the film’s message. If the scenes did
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advance the message Bharucha held that the scenes should not be censored and that a certificate
of an “A” rating would be sufficient caution as adult citizens could be “relied upon to
comprehend intelligently the message and react to it”. He reiterated that “a film illustrating the
consequences of social evils must necessarily show that social evil”, and that “a film that carries
the message that the social evil is evil cannot be made impermissible on the ground that it depicts
the social evil”. The Judge also stressed that the determination of whether the manner in which
the social evil is depicted is necessary to tell the story should be left to the experts within the
Tribunal.

Bharucha acknowledged that in this case the majority of the Tribunal’s members were women
and that it should not be supposed that “three women would permit a film be screened which
denigrates women, insults India womanhood or is obscene or pornographic”.

Accordingly, the Court held that the Tribunal’s classification of the film as “A” was appropriate
and that the lower Courts did not adequately consider that the use of nudity and expletives was
simply to further the telling of the story. The Court set aside the High Court’s order and
reinstated the Tribunal’s “A” classification.

Gender Analysis of the IPC

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