Gender Violence in India Report 2014: Rape

The World Health Organization defines rape as ‘physically forced or otherwise coerced penetration … of the vulva or anus, using a penis, other body parts or an object’.[1] Rape is a subset of sexual assault, which is defined as any sexual act (including but not limited to penetration or intercourse) committed using coercion or without the victim’s consent.[2] People of any gender can be victims of rape and sexual assault, but the majority of victims are women. The Sage Publications Multimedia Encyclopedia of Women in Today’s World notes that most legal definitions of rape involve sexual penetration through force and without consent. The Sage entry, however, also acknowledges that there remains ‘widespread disagreement regarding the meanings of “penetration,” “force,” and “consent”’; definitions and application of the laws on rape vary from country to country, and even from jurisdiction to jurisdiction within a country.[3] Rape victims may thus be left to seek justice amid confusing laws, or be faced with sceptical law enforcement personnel who doubt their claims and experiences.

Another issue related to rape and sexual assault is that of ‘victim blaming’: holding victims of sexual assault responsible for the rape or assault because of their attire, appearance or actions. In India, there have been several documented cases of victim-blaming by politicians, spiritual leaders, lawyers, police officers, and even women’s commission members.[4] A pervasive victim-blaming culture can deter women from reporting rapes, can cause them to fear further victimisation at the hands of law enforcement, and can make it difficult to successfully prosecute those rapes that are reported.

Feminists and advocates combating violence against women have argued that acts previously not recognized as rape should in fact be included in legal definitions. For instance, many countries have included an exception for marital rape, either previously or in current laws, stating that intercourse between a husband and wife cannot be deemed rape regardless of whether one party did not consent.[5] Advocates have also argued against the notion that ‘in order for an encounter to count as rape, the victim must have displayed “utmost” (or even any) physical resistance.[6] Nevertheless, ambiguity remains both in many legal definitions of rape and in enforcement of those laws.

The problem of rape is often compounded by widespread misunderstandings about the nature and incidence of rape and sexual assault. Many believe, for instance, that perpetrators are usually strangers to their victims, that women must have been ‘asking for it’ by behaving promiscuously or going out alone at night, or that lack of overt physical resistance implies consent.[7] In fact, many if not the majority of perpetrators are known to their victims; rapes can occur at any time of day in virtually any context, not just when a woman is along at night; and victims may be unable to resist or choose not to struggle out of fear of even greater violence.

The issue of rape in India has garnered much greater national and international attention in recent years, in large part due to the 2012 Delhi gang rape case that spurred mass protests and an international outcry.

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2012 Delhi Gang Rape: A Case Study

On the evening of December 16, 2012, a 23-year-old physiotherapist and her male friend caught a bus home after seeing a movie in a Delhi suburb. The six men on the bus, including the bus driver, began to taunt the pair for being out late together. The man, to protect his friend, tried to stop the teasing, upon which the situation turned violent. The man was beaten with an iron rod and gagged, while the woman was dragged to the rear of the bus, brutally raped and beaten repeatedly by the six men over the course of several hours. Finally, the men threw the two victims out of the moving bus, leaving them on the side of the road.[8]

The pair was taken to a hospital, where the man began to recover from his injuries. The woman, however, remained in critical condition for several days before dying from her injuries in a Singapore hospital on December 29, 2012.[9]

 

This incident became a watershed in spurring discussion and action on violence against women in India. It provoked national and international outcry over the status of women in India, prompting the Indian government to re-evaluate its procedures for the treatment, prosecution and compensation of gender violence. The Delhi gang rape case catalysed numerous mass demonstrations and increased activism around gender violence in general and the legal system’s handling of it in particular.[10]

In response to public pressure for a speedy trial, the Delhi High Court in December 2012 approved the creation of five fast-tracked courts to prosecute rape and sexual assault cases. It was in one of these courts that five of the men accused of the gang rape were prosecuted on charges of kidnap, rape, murder, attempted murder and destruction of evidence. The sixth man, a minor at the time of the attack, has been prosecuted in the juvenile court system.[11]

In March 2013, one of the accused committed suicide in prison while still on trial. The juvenile offender was sentenced to three years in a reform centre. The remaining four were convicted; the court issued death sentences in all four cases.[12]

In March 2014, the Delhi High Court upheld the verdict of the death sentence for all four convicts. As of mid-July 2014, the execution was stayed pending an appeal by the lawyers of the accused, who alleged that the trial had not been conducted in a ‘free and fair’ manner.[13]

In a wider response to the issue, the national government and state governments of India set up various commissions to better investigate violence against women. On December 22, 2012, the national government commissioned a judicial committee headed by former Chief Justice of India J. S. Verma, to investigate the legal framework and precedents regarding the prosecution of sexual assault as well as to make recommendations for amendments to criminal law. The Justice Verma Committee appealed to lawyers, the non-profit sector, women’s groups, the civil sector and the general public for their input and suggestions.[14] The report, released in February 2013, points to failures of government institutions and the police in recognizing and prosecuting sexual assault in a timely and constitutional manner.[15]

In April 2013, based on the recommendations given by the Justice J. S. Verma Committee, President Pranab Mukherjee gave his assent to the Criminal Law (Amendment) Act, 2013, which made changes to the Indian Penal Code and Indian Evidence Act on laws related to sexual offences.[16]

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Know the Law

The Criminal Law (Amendment) Act, 2013, introduced various amendments to existing laws on rape and sexual assault in the Indian Penal Code (IPC). The Delhi gang rape case and the resultant public outcry were a powerful impetus in amending the laws. As Indian law stands today, the Act describes rape explicitly and exclusively as committed by male perpetrators against female victims. While this does encompass the majority of rape cases, it does not account for rape that occurs between other victim-perpetrator combinations, such as the rape of a man by another man.

Following the amendments introduced by the Criminal Law (Amendment) Act, 2013, Section 375 of the IPC defines rape as non-consensual intercourse, penetration using the penis or ‘any object or a part of the body’, or oral intercourse.[17] The Act also specifies circumstances where consent may be nominally given but not valid, such as: consent obtained through coercion or threats; consent obtained by falsely impersonating the victim’s husband; and consent from a victim ‘unable to understand the nature and consequences’ of what she is agreeing to due to ‘unsoundness of mind or intoxication’. When a victim is below 18 years of age, penetration or intercourse is considered rape regardless of whether consent was given.[18]

The law specifies that mere lack of physical resistance is not sufficient to be regarded as consent. However, it also states that consent may be given ‘by words, gestures or any form of verbal or non-verbal communication’, creating potential ambiguities in determining when a woman has consented to a given sexual activity and possibly making it more difficult to prosecute rape complaints.[19]

Section 376 states that rape is punishable by imprisonment of at least seven years and up to a life sentence, plus a fine.[20] In certain cases, perpetrators are required to receive harsher sentences, such as when the perpetrator is a police officer, public servant or member of the military; when he holds ‘a position of trust or authority towards the woman’; or when the victim is pregnant, disabled or a minor. In these situations, the minimum sentence is ten years, with the possibility of a life sentence, plus a fine.[21] Section 376A prescribes a minimum sentence of twenty years when a perpetrator commits rape or sexual violence that ‘causes the death of the woman or causes the woman to be in a persistent vegetative state’,[22] while under Section 376D, a perpetrator in a gang rape faces a minimum sentence of twenty years, up to life imprisonment, plus a fine.[23]

The Criminal Law (Amendment) Act, 2013, has faced criticism for ignoring the Verma Committee’s recommendations on a number of issues; for example, the Act has raised the age of consent from 16 to 18, and has failed to make changes to the Armed Forces (Special Powers) Act, which currently makes it more difficult to try members of the armed forces for gender-based crimes[24]. The Act also includes an exception for marital rape, stating that ‘sexual intercourse or sexual acts by a man with his own wife … is not rape’.[25] This means that, under Indian law, marital status takes precedence over lack of consent in determining rape and sexual assault cases. The Criminal Law (Amendment) Act, 2013, does criminalise rape committed by a husband against his wife when they are ‘living separately, whether under a decree of separation or otherwise’, and prescribes a sentence of between two and seven years’ imprisonment, plus a fine.[26] For the majority of women assaulted by their husbands, however, there is no legal avenue for a criminal prosecution. The only legal remedy available to wives is the Domestic Violence Act, 2005, which is a civil rather than criminal law that provides for domestic violence reporting mechanisms and monetary compensation for victims.[27] It does not provide for punishment of offenders. Women’s advocates have argued that the marital rape exception prevents India’s criminal laws from adequately protecting women and effectively legalises countless cases of rape and abuse that occur within marriages.

Keeping Count

The National Crime Records Bureau (NCRB) keeps track of cases of rape reported under Section 376 of the Indian Penal Code. The NCRB reported 33,707 cases of rape in 2013, an increase of 35.2% from 2012 (24,923 cases).[28] Although many rapes and sexual assaults are not reported, reports of rapes have increased in recent years as more victims have stepped forward. It is possible that growing public attention towards the issue has emboldened more women to seek justice; it has also been suggested that the actual incidence of rape is increasing, contributing to the growing number of reports.[29] One estimate suggests that in India, a woman is raped on average every 20 mintues.[30]

Table 1 and Figure 1 show the number of rape cases reported between 2009 and 2013 according to the NCRB data.

Table 1: Number of Reported Rape Cases, 2009-2013[31]

Year 2009 2010 2011 2012 2013
Number of reported rape cases 21,397 22,172 24,206 24,923 33,707

Figure 1[32]

Rape I

Note that the NCRB data only includes cases that fall under the Indian Penal Code definition of rape, not other forms of sexual assault that do not meet that definition.

The actual incidence of rape and sexual assault is difficult to determine with accuracy, as experts agree that the majority of rapes worldwide likely go unreported. Estimates of the proportion of unreported rapes vary from 54%[33] to 90%[34] of all rapes.

Of the rapes that are reported, the majority do not result in a successful prosecution. As of 2013, as many as three fourths of the perpetrators of the 24,206 rape cases brought forth in 2011 were either yet to face trial, had been acquitted or had the charges dropped.[35] Many rape and assault victims may decide not to report the assaults because of the fear of indifference or even retaliation from police officers and other law enforcement personnel. Victims have reported being asked demeaning questions by police, feeling as if the questioning procedures were like a second assault, waiting for hours to receive medical attention and being pressurized to marry their attackers or withdraw their complaints.[36]

[1] Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, World Report on Violence and Health, ed. Krug, E. G. et al, 2002, p. 149, http://whqlibdoc.who.int/hq/2002/9241545615.pdf, accessed 1st December 2014.

[2] Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, p. 149. See above note 1.

[3] Stange, M. Z., Oyster, C. K. & Sloan, J. E., ‘’Rape, legal definitions of’, The Multimedia Encyclopedia of Women in Today’s World, 2011, http://study.sagepub.com/sites/default/files/Ch09_Legal%20Definitions%20of%20Rape.pdf, accessed 1st December 2014.

[4] ‘NCW Notice to Mirje over Rape Remark’, The New Indian Express, 29th January 2014, http://www.newindianexpress.com/nation/NCW-Notice-to-Mirje-Over-Rape-Remark/2014/01/29/article2026716.ece, accessed 11th December 2014; Hullinger, Jessica, ‘India’s Deadly Gang Rape: 6 Troubling Attempts to Blame the Victim’, The Week, 9th January 2013, http://theweek.com/article/index/238542/indias-deadly-gang-grape-6-troubling-attempts-to-blame-the-victim, accessed 11th December 2014; Bhalla, Abhishek & Vishnu, G., ‘The Rapes Will Go On’, Tehelka Magazine, Vol 9, Issue 15, 14th April 2012, http://archive.tehelka.com/story_main52.asp?filename=Ne140412Coverstory.asp, accessed 11th December 2014.

[5] ‘Feminist perspectives on rape’, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/feminism-rape/#CriWhaCou, accessed 1st December 2014.

[6] See above note 5.

[7] ‘Common myths about rape’, RapeCrisis, http://www.rapecrisis.org.uk/commonmyths2.php, accessed 1st December 2014.

[8] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN, 16 December 2013, accessed 2nd December 2014.

[9] ‘Delhi gang rape: Chronology of events’, The Hindu, 10 September 2013, http://www.thehindu.com/news/national/delhi-gang-rape-chronology-of-events/article5079321.ece, accessed 2nd December 2014.

[10] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.

[11] ‘Delhi gang rape: Chronology of events’, The Hindu. See above note 9.

[12] ‘Delhi gang rape: Four sentenced to death’, BBC News India, 13th September 2013, http://www.bbc.com/news/world-asia-india-24078339, accessed 2nd December 2014.

[13] ‘Court puts off execution of two men convicted of 2012 Delhi rape’, Reuters, 14th July 2014, http://www.reuters.com/article/2014/07/14/us-india-gangrape-idUSKBN0FJ16P20140714, accessed 2nd Decemer 2014.

[14] Ed. Sanyal, P., ‘Recommendations of the Justice Verma Committee: 10-point cheat sheet’, NDTV, 24th January 2014, http://www.ndtv.com/article/cheat-sheet/recommendations-of-the-justice-verma-committee-10-point-cheat-sheet-321734, accessed 2nd December 2014.

[15] Justice (retd.) Verma, J.S., Justice (retd.) Seth., L, & Subramanium, G., ‘Report of the committee on amendments ot criminal law’, Justice Verma Committee on Amendments to Criminal Law, January 2013, http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf, accessed 2nd December 2014.

[16] Denyer, S., ‘India gang rape prompts tough new laws on sexual assault’, The Guardian, 5th February 2013, http://www.theguardian.com/world/2013/feb/05/india-gang-rape-stricter-laws, accessed 2nd December 2014.

[17] Criminal Law (Amendment) Act, 2013, Ch. 2(9), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Sec. 9 of the Act inserts Sections 375, 376 and 376A-D into the Indian Penal Code. Section 375 defines ‘rape’.

[18] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375,. See above note 17. This section defines consent and lists circumstances in which consent may be given but not held to be legally valid.

[19] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375. See above note 17.

[20] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(1). See above note 17. This section establishes sentencing rules for rape convictions.

[21] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(2). See above note 17. This section lists circumstances in which a stronger sentence is required.

[22] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376A. See above note 17.

[23] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376D. See above note 17.

[24] ‘India: Reject New Sexual Violence Ordinance’, Human Rights Watch, 12th Febuary 2013, http://www.hrw.org/news/2013/02/11/india-reject-new-sexual-violence-ordinance, accessed 11th December 2014.

[25] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375, Exception 2. See above note 17.

[26] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376B. See above note 17.

[27] Protection of Women from Domestic Violence Act, 2005, Section 3, http://wcd.nic.in/wdvact.pdf, accessed 29th October 2014.

[28] ‘Chapter 5: Crimes against Women’, Crime in India 2013, NCRB, p. 81, http://ncrb.gov.in/CD-CII2013/Chapters/5-Crime%20against%20Women.pdf, accessed 26th September 2014.

[29] Special Correspondent, ‘Majority of rape cases go unreported: MPs’, The Hindu, 27th August 2013, http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/majority-of-rape-cases-go-unreported-mps/article5063089.ece, accessed 2nd December 2014.

[30] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.

[31] ‘Chapter 5: Crimes against Women’, p. 81. See above note 26.

[32] Figure 1 was generated from the data in Table 1.

[33] Kark, M., ‘Understanding Indian and Pakistani cultural perspectives and analyzing US news coverage of Mukhtar Mai and Jyoti Singh Pandey’, University of North Texas Master’s Thesis, UNT Digital Library, p. 4, http://digital.library.unt.edu/ark:/67531/metadc271840/, accessed 2nd December 2014. Kark quotes a figure from the Rape, Abuse & Incest National Network (RAINN).

[34] Srivastava, M., ‘The iceberg of rape’, India Today, 17th June 2009, http://indiatoday.intoday.in/story/The+iceberg+of+rape/1/46911.html, accessed 2nd December 2014.

[35] Fisher, M., ‘India’s rape problem is also a police problem’, Washington Post, 7th January 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/01/07/indias-rape-problem-is-also-a-police-problem/, accessed 2nd December 2014.

[36] Fisher, M., ‘India’s rape problem is also a police problem’. See above note 33.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: ICTS & Gender Violence

With the proliferation of computers, mobile phones and the Internet, violence against women involving the use of information and communication technologies (ICTs) has become more prevalent. In her submission to the UN Special Rapporteur on Violence against Women, Bishakha Datta lists the various forms of ICT-based gender violence, which can include ‘hacking, morphing of images, fake profiles on social networking sites or circulation of images without their consent, … gendered hate mail, sexualised slurs, uncomfortable references to body, nudity, sex life, and rape threats, which are sometimes explicit and graphic’.[1] It can also include cyber-stalking, showing a woman pornography against her will and making persistent demands for sexual favours online.

Perpetrators of ICT-based gender violence can be strangers or people known to their victims. In the latter case, gender violence using ICTs can be accompanied by harassment in the ‘offline’ world, and can be used alongside offline harassment to further intimidate a victim. Datta also points out parallels between online and offline harassment, with women experiencing ‘the Internet as a street and the attendant forms of online violence as equivalent to harassment and abuse faced on the street’.[2] As with street harassment, many women are reluctant to report ICT-based harassment, because it may lead to restrictions on their own access to the Internet or raise questions about their behaviour online.

Know the Law

Certain sections of the Information Technology Amendment Act, 2008 (ITAA), may be utilised to fight ICT-based gender violence. Section 66A addresses offensive and menacing messages, and false information that aims to cause ‘annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will’, sent using ‘a computer resource or a communication device’.[3] This can be applied to women facing sexual harassment and threats online, and can result in a prison term of up to three years, in addition to a fine.[4] However, as an article for the Internet Democracy Project points out, the terminology in Section 66A is vague and open to several interpretations.[5] The article suggests that several sections of the Indian Penal Code (IPC) can be used as alternatives, including Section 499 (‘Defamation’)[6], Section 503 (‘Criminal intimidation’)[7] and Section 507 (‘Criminal intimidation by an anonymous communication’)[8], among others.[9]

Another relevant section of the ITAA is Section 66E, which criminalises the intentional capture, publication or transmission of ‘the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person’; such a privacy violation is punishable with up to three years’ imprisonment, or a fine of up to two lakh rupees, or both.[10]

Section 67 of the ITAA covers the publication or transmission in electronic form of ‘obscene material’, which is defined as ‘any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons’. It prescribes a punishment of imprisonment for up to five years, along with a fine, for first-time offenders, and imprisonment for up to ten years, with a fine, for repeat offenders.[11] Section 67A prohibits the publishing and transmission of any ‘sexually explicit act or conduct’, which is punishable with imprisonment for up to five years for first-time offenders and up to seven years for repeat offenders, along with a fine. Finally, Section 67B addresses various aspects of sexually exploiting children using ICTs.[12]

In addition to these laws, the new Criminal Law (Amendment) Act, 2013 also includes some sections that can apply to cases of ICT-based gender violence. Under Section 354A, demanding or requesting sexual favours, and showing a woman pornography against her will, are categorised as sexual harassment and are punishable with three years’ imprisonment, or a fine, or both. Section 354A also covers ‘making sexually coloured remarks’, which is punishable with imprisonment for up to one year, or a fine, or both.[13] All these offences could potentially be committed using mobile or web technology.

Section 354C criminalises ‘voyeurism’, which includes capturing or disseminating an image of a woman ‘engaging in a private act in circumstances where she would usually have the expectation of not being observed’. Crucially, this section also criminalises the distribution of images where the victim consented to the capture of the images, but not to their distribution. A ‘private act’ has been defined as occurring in a place where the victim would generally expect privacy, and when she is either nude or only wearing underwear; or using the lavatory; or engaged in ‘a sexual act that is not of a kind ordinarily done in public’. Voyeurism is punishable with between one and three years’ imprisonment for first-time offenders, and three to seven years for repeat offenders, along with a fine.[14]

Section 354D of the Criminal Law (Amendment) Act, 2013, holds that a man may be charged with stalking if he tracks a woman’s use of the Internet, or monitors her email or any other online communication. A first-time offender can be imprisoned for three years, in addition to being fined, while a repeat offender can be imprisoned for up to five years.[15]

Keeping Count

As with many other forms of gender violence, there is little data specifically about technology-related crimes against women. In India, the National Crimes Record Bureau (NCRB) has compiled data on complaints registered under the IT Act. According to the NCRB, 1,203 cases were registered in 2013 for ‘obscene publication/transmission in electronic form’, a 104.2% increase from 2012 (589 cases).[16] Moreover, 737 people were arrested for this offence in 2013, a 48.2% increase from the previous year.[17] In addition, nearly 60% of those arrested for all crimes under the IT ACT (not just transmission or publication of obscene material) were between the ages of 18 and 30.[18] However, these cases do not necessarily pertain to crimes against women alone.

Table 1 and Figure 1 below show the incidence of cases registered and arrests made under the ‘obscene publication/transmission’ provision of the IT Act between 2009 and 2013, as reported by the NCRB. Again, these cases do not deal exclusively with crimes against women, but rather serve as a proxy measure in the absence of more specific data.

Table 1: Complaints and Arrests under IT Act ‘Obscene Publication/Transmission’ Provision[19]

Year 2009 2010 2011 2012 2013
Complaints Registered 139 328 496 589 1203
Arrests

 

141 361 443 497 737

 

Figure 1[20]

ICTS I

A 2012 Times of India article mentions that Chennai’s cyber crime wing received around 80 complaints from women who said they had been ‘abused or indecently represented on websites’.[21] However, it does not indicate a time frame within which the complaints were received. The article also raises an important issue: perpetrators of these crimes can easily stay anonymous, for instance by using Internet cafes, fake profiles or proxy servers. Sometimes, they might not even be in the same country as the victim, leading to jurisdiction issues.

In spite of the dangers the Internet poses, it can also be a powerful tool for mobilising people and effecting change. Moreover, it can provide a safe space for women to share their stories of all forms of gender violence. Our anti-street harassment initiative, Hollaback! Chennai (part of the global Hollaback! movement), for example, uses mobile and web technology to allow both victims and bystander witnesses of street harassment to share their stories and engage in discussions on this issue.

Related Issues: Youth, Awareness and Barriers to Reporting

Of particular importance are patterns of Internet use and the incidence of ICT-related crimes among young people; this demographic group tends to use ICTs at higher rates, and may offer data that can enable us to predict future patterns of ICT-based gender violence.

A pilot survey of 70 persons in the age group of 18-30 years from the Tirunelveli, Tuticorin and Kanyakumari districts of Tamil Nadu, India was conducted by Halder and Jaishankar and published as a report.[22] The report studied usage of and attitudes towards cybercrimes among young adults in rural and semi-urban India. 41.4% of the respondents were male and 58.6% female, while around 74% of the respondents were in the age group 18-21 years. [23]

Survey responses regarding cybercrimes were helpful in opening avenues of further study, despite the survey’s small sample size. In awareness of cybercrimes, 17 respondents (24.3%) reported being aware that hacking was a crime; 10% were aware that identity theft was a crime; 5.7% were aware of phishing; only 2.9% were aware of the illegality of stalking.[24] This starkly low number suggests that many may not know about laws relating to ICT-based gender violence.

In terms of attitudes towards reporting cybercrimes, only 4.3% said they would report all cybercrimes they witnessed; 34.3% said they would report a crime only if they became victims of a cybercrime themselves. 27.1% revealed that they would not report a cybercrime out of fear that their family would be harassed by the police and others if they did, while 18.6% said they would not report it in order to avoid their names being mentioned in the media. 12.8% felt it unnecessary to report such crimes, while 2.9% believed the police would be ‘worthless in such cases’.[25] Overall, though the reasons varied, a total of 61.4% of respondents said they would not report cybercrimes.

Halder and Jaishankar have also investigated what they refer to as the ‘secondary victimization’ of victims of cybercrimes through the ‘trivialization of the problems by laws or criminal justice systems’.[26] They argue that legal systems are ‘trapped in the concept’ of harassment of women that only includes ‘physical assault and … workplace discrimination’.[27] In India especially, such cases are seen as ‘less-important sexual harassment’, with only 9 cases being registered in 2009 by the Mumbai city police, although women victims had brought 286 cybercrimes complaints during that year.[28] In their 2013 report ‘Use and Misuse of the Internet by Semi-Urban and Rural Youth in India’, Halder and Jaishankar found 48.6% of respondents were afraid to report cybercrimes, fearing this type of negligence or harassment by the police and media.[29]

[1] Datta, B., ‘Women and online abuse in India: Submission to Special Rapporteur on Violence Against Women’, GenderIT.org, 8th May 2013, http://www.genderit.org/resources/women-and-online-abuse-india-submission-special-rapporteur-violence-against-women, accessed 2nd September 2014

[2] See above note 1.

[3] Information Technology Amendment Act, 2008, Sec. 32(66A), p. 9, http://comtax.up.nic.in/Miscellaneous%20Act/IT%20ACT%20AMENDMENTS.pdf, accessed 25th November 2014. Section 32 of the ITAA substitutes new legislation for sections 66 and 67 of the original act.

[4] ITAA, Sec. 32(66A), p. 9-10. See above note 3.

[5] Padte, R. K. ‘Section 66A, Sexual Harassment and Women’s Rights’, Internet Democracy Project, 10th December 2012, http://www.internetdemocracy.in/2012/12/10/section-66a-sexual-harassment-and-womens-rights, accessed 2nd September 2014.

[6] Indian Penal Code, Sec. 499, http://indiankanoon.org/doc/1041742/, accessed 25th November 2014. Sec. 499 prohibits making or publishing ‘any imputation concerning any person intending to harm … the reputation of such person’, except in certain cases listed in the remainder of the act. Defamation charges could, for instance, be filed in response to false or damaging social media profiles.

[7] Indian Penal Code, Sec. 503, http://indiankanoon.org/doc/878688/, accessed 25th November 2014. Sec. 503 addresses ‘criminal intimidation’, or threatening someone ‘with any injury to his person, reputation or property … with intent to cause alarm to that person’ or coerce him or her into some action. This could be used to address online threats, including rape and sexual harassment threats.

[8] Indian Penal Code, Sec. 507, http://indiankanoon.org/doc/1255223/, accessed 25th November 2014. Sec. 507 addresses ‘criminal intimidation by an anonymous communication’, which can include anonymous messages, comments or posts on a chat threat or social media profile.

[9] See above note 5.

[10] ITAA, Sec. 32(66E), p. 10. See above note 3.

[11] ITAA, Sec. 32(67), p. 10. See above note 3.

[12] ITAA, Sec. 32(67A-B), p. 10-11. See above note 3.

[13] Criminal Law (Amendment) Act, 2013, Ch. 2(7)(354A), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014.

[14] Criminal Law (Amendment) Act, 2013, Ch. 2(7)(354C), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014.

[15] Criminal Law (Amendment) Act, 2013, Ch. 2(7)(354D), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014.

[16] ‘Chapter 18: Cyber Crimes’, Crime in India: 2013 Compendium, National Crime Records Bureau (NCRB), Ministry of Home Affairs, p. 175, http://ncrb.gov.in/CD-CII2013/compendium%202013.pdf, accessed 28th November 2014.

[17] ‘Cyber Crimes’, NCRB, p. 175. See above note 16.

[18] ‘Cyber Crimes’, NCRB, p. 176. See above note 16.

[19] ‘Cyber Crimes’, NCRB, p. 175-177. See above note 16. Data for 2010-2013 are from p. 175; data for 2009 are from p. 177.

[20] Figure 1 was generated from the data in Table 1.

[21] Selvaraj, A., ‘Women now suffer harassment online’, Times of India, 20th October 2012, http://articles.timesofindia.indiatimes.com/2012-10-20/chennai/34605436_1_internet-cafe-police-officer-websites, accessed 2nd September 2014.

[22] Halder, D. & Jaishankar, K., 2013, ‘Use and misuse of the Internet by semi-urban and rural youth in India: A baseline survey report (2013)’, Centre for Cyber Victim Counselling, http://www.cybervictims.org/CCVCresearchreport2013.pdf, accessed 30th November 2014.

[23] Halder, D. & Jaishankar, K., ‘Use and misuse’, p. 7, see above note 22.

[24] Halder, D. & Jaishankar, K., ‘Use and misuse’, p. 15, see above note 22.

[25] Halder, D. & Jaishankar, K., ‘Use and misuse’, p. 15, see above note 22.

[26] Halder, D. & Jaishankar, K., 2011, ‘Cyber gender harassment and secondary victimization: A comparative analysis of the United States, the UK, and India’, Victims and Offenders, Vol. 6 (386-398), p. 386, http://www.tandfonline.com/doi/abs/10.1080/15564886.2011.607402#.VIWZaPSUc5g, accessed 30th November 2014.

[27] Halder, D. & Jaishankar, K., ‘Cyber gender harassment’, p. 391. See above note 26.

[28] Halder, D. & Jaishankar, K., ‘Cyber gender harassment’, p. 393. See above note 26.

[29] Halder, D. & Jaishankar, K., ‘Use and misuse’, p. 15, see above note 22.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Workplace Sexual Harassment

Sexual harassment at the workplace, which India’s criminal laws often group with street harassment, is nevertheless a distinct category of gender violence. It is defined by its occurrence in a ‘workplace’, or any physical or virtual space where individuals are employed to work, either formally or informally, with or without remuneration. Under the newly passed Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the ‘workplace’ can include any public or private sector organisation; a ‘dwelling place or house’ where individuals may be employed as domestic workers; the unorganised sector; or any place that an employee may visit as part of her job, including the transportation that her employer may provide for this purpose.[1]

Workplace sexual harassment, as defined by the new law, refers to any unwelcome sexual behaviour, either directly or by implication, and includes physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.[2] The law also address sexual harassment that creates a hostile work environment, interferes with the victim’s work, affects her health or safety, or is accompanied by any implicit or explicit preferential or detrimental treatment or threats to alter her employment status.[3] Moreover, except in the case of domestic workers, a woman who files a complaint of workplace harassment does not have to be employed at the workplace where the offence has occurred. Thus, even a customer at a store or a client at a company can make a complaint of workplace harassment.[4]

Know the law

The last year has been a landmark year for gender violence legislation in India; in April 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force, legally obligating employers to address workplace harassment. This law is based on the Vishaka Guidelines, which were formulated by the Supreme Court in 1997 in response to the landmark case of Vishaka and others v. State of Rajasthan and others.[5]

The new law draws on the principles of equality and the right to life enshrined in the Indian Constitution, as well as on the right to a safe working environment while practising any profession, occupation, trade or business. In emphasising the right to work with dignity, without having to face sexual harassment, it also draws from international treaties such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which India ratified in 1993.

Under the new law, employers are expected to handle complaints of workplace harassment by setting up an Internal Complaints Committee, which should be led by a senior female employee.[6] Moreover, every district is expected to have a Local Complaints Committee to handle complaints from establishments with fewer than 10 employees, which may not have the human resources to constitute a fair and unbiased committee.[7] This law imbues Complaints Committees with the powers of a civil court.[8] If the committee finds the alleged harasser to be guilty, then it can make a recommendation to the employer (or the District Officer) to take action against that person, and can also recommend that the harasser monetarily compensate the victim. The Committee must complete its inquiry within 90 days, and the employer or District Officer must act upon the recommendations of the Committee within 60 days of receiving them.[9]

Employers are also expected to provide a safe working environment for all employees, to prominently display signs and notices detailing the consequences of workplace harassment, to organise workshops for employees on the new law, and to assist the complainant if she chooses to file a criminal case against her alleged harasser.[10] All Complaints Committees must also submit annual reports to the government. If an organisation fails to form a properly functioning Committee, it can be fined up to Rs. 50,000; if, after being fined, it has still not complied with its duties under this law, it could face the cancellation of its license or registration.[11]

The new law has attracted criticism for a number of reasons: the most troubling is the inclusion of a provision that encourages ‘conciliation’ before launching an inquiry.[12] Thus, the Committee’s first task when handling a complaint of workplace harassment may be to attempt some kind of settlement between the complainant and the alleged perpetrator, and a full inquiry will only be conducted if this is not successful.

Moreover, the new law includes a safeguard against ‘false’ complaints, giving the Complaints Committee the authority to recommend action against a woman making a malicious complaint. While it also states that the absence of proof alone is not enough reason to suspect a false complaint, and that the malicious intent of the complainant must be proved before action is taken against her, this condition may nevertheless deter victims from coming forward to report workplace harassment.[13]

In terms of criminal law, as with street sexual harassment, the newly-introduced Section 354A of the Indian Penal Code (under the Criminal Law (Amendment) Act, 2013) can be used in cases of workplace sexual harassment, with ‘physical contact and advances involving unwelcome and explicit sexual overtures’, ‘a demand or request for sexual favours’ and ‘showing pornography against the will of a woman’ being punishable with imprisonment up to three years, or a fine, or both[14]; and ‘making sexually coloured remarks’ being punishable with imprisonment for up to one year, or a fine, or both.[15]

In addition, assault or criminal force intended to ‘outrage [a woman’s] modesty’, under Section 354, is punishable with imprisonment of at least one year and up to five years, in addition to a fine[16]; offences under Section 509, including any ‘word, gesture or act intended to insult the modesty of any woman’, can be punished with imprisonment up to three years, in addition to a fine.[17]

Keeping count

There is no reliable data available as yet on the number of cases that are reported to Internal and Local Complaints Committees under the new workplace harassment law. The National Crimes Record Bureau (NCRB) has recorded the number of cases filed under Section 354 (‘assault on women with intent to outrage her modesty’, referred to in pre-2012 reports as ‘molestation’) and Section 509 (‘’insult to the modesty of women’ through words, gestures or acts, referred to in pre-2012 reports as ‘sexual harassment’). Both these sections extend beyond workplace sexual harassment to include other forms of gender violence as well, such as street harassment. Table 1, as well as Figures 1 and 2, summarize the past six years of NCRB data. These figures are also included in Prajnya’s report on street sexual harassment.

 

Table 1: Sexual Harassment and Assault Cases Filed, NCRB

Year 2008 2009 2010 2011 2012 2013
Section 354 cases filed 40413 38711 40613 38711 42968 70739
Section 509 cases filed 12214[18] 11009[19] 9961[20] 11009[21] 8570[22] 12589[23]

Figure 1                                                           

WSH I

Figure 2

WSH II

According to an opinion poll conducted by Oxfam India and the Social and Rural Research Institute, titled ‘Sexual Harassment at Workplaces in India 2011-2012’, 17% of working women in India say they have experienced workplace sexual harassment. The survey covered 400 women in Delhi, Mumbai, Bangalore, Chennai, Kolkata, Ahmedabad, Lucknow and Durgapur, across both the formal and the informal sectors. Of these, 66 respondents (17%) reported that they had faced a total of 121 incidents of workplace harassment. Of these, 102 incidents were non-physical, while the remaining 19 were cases of physical harassment.[24]

The survey was conducted prior to the passage of the new law requiring the establishment of Complaints Committees. It found that the majority of these victims did not take any formal action against their harassers, due to fear of losing their jobs, the absence of a formal complaints mechanism at their workplace, fear of stigmatization, and lack of awareness of their legal rights. The survey also found that the women most vulnerable to workplace harassment were those working as labourers (29%), followed by domestic workers (23%) and those working in small scale manufacturing (16%).[25]

Prominent cases

  1. Statesman Case

In a case going back to 2002, Rina Mukherji, a reporter at Kolkata-based newspaper The Statesman, fought to be reinstated after she was fired for alleging that the paper’s news coordinator, Ishan Joshi, had sexually harassed her. In February 2013, eleven years after the incident was reported, the Industrial Tribunal awarded her full back wages from the time of her termination, as well as reinstatement to her original position.[26]

  1. Prasar Bharati Case

In another case, two All India Radio (AIR) employees were fired and one suspended by public broadcaster Prasar Bharati in April 2013, following complaints of workplace harassment from over 25 radio jockeys (RJs). The complainants alleged that the harassment had been going on for two years, and Prasar Bharati initiated an internal inquiry into the matter.[27]

As of February 2014, in response to incidents of senior officials harassing junior female employees of the organization, Prasar Bharati has prepared a draft memorandum of understanding with the National Commission of Women. The memorandum proposes a joint action that will engage the organization’s women’s panel to train staff in acceptable behaviour, help staff distinguish between acceptable and non-acceptable behaviour and explain what sexual harassment constitutes to its 34,000-member workforce. If sealed, this will reportedly be the first attempt by a government body to sensitize its employees to sexual harassment at the workplace.[28]

  1. Sun TV Case

In March 2013, a newsreader at Sun TV in Chennai alleged that news editor V. Raja had maliciously assigned her to the early morning news slot, saying that he would only change her shift if she gave in to his sexual advances, and threatening to fire her if she tried to take action against him. She also said that Raja had tried to speak to her and text her late in the night, and that Raja’s aide, Vetrivendan, had also made advances towards her, offering her a pay raise in return. In the absence of a separate criminal law on workplace harassment, charges against Raja were filed under the Tamil Nadu Prohibition of Harassment of Women Act, which had been passed in response to the street harassment-related death of college student Sarika Shah in 1998. In March 2013, V. Raja was arrested, granted bail and reportedly permitted to return to work in spite of the police complaint against him. The complainant was reportedly suspended from work the very next day.[29] However, according to the Network of Women in Media, India, a professional network of women journalists and media persons in the country, the complainant’s ordeal did not end here; she allegedly received death threats and could not find employment for several months as media houses shunned her.[30]

In December 2013, the complainant was finally given a job at Polimer TV, a Tamil news channel, and on July 1st, 2014, a metropolitan court issued a non-bailable arrest warrant to V. Raja. The case continues to be sub-judice.[31]

[1] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, http://wcd.nic.in/wcdact/womenactsex.pdf, accessed 26th October 2013. Section 2(o) defines the ‘workplace’.

[2] See above note 1. Section 2(n) defines ‘sexual harassment’.

[3] See above note 1. Section 3(2).

[4] See above note 1. Section 2(f).

[5] Vishaka and others v. State of Rajasthan and others (JT 1997(7) SC 384). This case involved the gang-rape of Bhanwari Devi, a government-employed social worker who had attempted to prevent a mass child marriage in her village in Rajasthan, and was subsequently attacked by five men seeking revenge for her actions.

[6] See above note 1. Section 4(2)(a).

[7] See above note 1. Section 6-7.

[8] See above note 1. Section 11(3). There are some exceptions: for instance, in the case of domestic workers, the Local Complaints Committee can forward the complaint to the police, to be registered under Section 509 of the Indian Penal Code.

[9] See above note 1. Section 13(4).

[10] See above note 1. Section19.

[11] See above note 1. Section 21 outlines the reporting duties of Complaints Committiees; Section 26 lays out penalties for noncomplying employers.

[12] Vasant, K., ‘New Workplace Sexual Harassment Law “Already Out Of Date”’, India Real Time Wall Street Journal, 29th April 2013, http://blogs.wsj.com/indiarealtime/2013/04/29/new-workplace-sexual-harassment-law-already-out-of-date/, accessed 2nd September 2014. See also Sexual Harassment of Women at Workplace Act, 2013; Section 10 of the Act recommends conciliation ‘before initiating an inquiry’ (see above note 1).

[13] See above note 1. Section 14(1-2).

[14] Criminal Law (Amendment) Act, 2013, Ch. 2(7), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Section 7 of the Act inserts Section 354A into the Indian Penal Code. Section 354A(1)(i-ii) lists the offences, and Section 354A(2) lays out sentencing rules.

[15] See above note 14. Section 354A(I)(iv) lists the offence, and Section 354A(3) lays out sentencing rules.

[16] Indian Penal Code, Section 354, http://indiankanoon.org/doc/203036/, accessed 8th October 2014.

[17] Indian Penal Code, Section 509, http://indiankanoon.org/doc/68146/, accessed 8th October 2014.

[18] ‘Figures at a Glance – 2008’, Crime in India 2008, NCRB, http://ncrb.gov.in/, accessed 8th October 2014. Notes 17-22 refer to both Section 354 and Section 509 filings for the given year.

[19] ‘Figures at a Glance – 2009’, Crime in India 2009, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[20] ‘Figures at a Glance – 2010’, Crime in India 2010, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[21] ‘Figures at a Glance – 2011’, Crime in India 2011, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[22] ‘Figures at a Glance – 2012’, Crime in India 2012, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[23] ‘Figures at a Glance – 2013’, Crime in India 2013, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[24] Perappadan, B.S., ‘Sexual harassment at work place high’, The Hindu, 29th November 2012, http://www.thehindu.com/todays-paper/tp-national/sexual-harassment-at-work-place-high/article4144874.ece, accessed 2nd September 2014.

[25] See above note 24.

[26] Navya P. K., ‘Industrial Tribunal verdict raises hope’, India Together, 5th April 2013, http://indiatogether.org/harassmen-women, accessed 26th October 2014. See also Mukherji, R., ‘The Cost of Justice’, posted on Kracktivist, 13th February 2014, http://kractivist.wordpress.com/, accessed 26th October 2014. In this blog post, Rina Mukherji details the case and 2013 judgment, her difficulties with obtaining legal and law enforcement assistance, and the adverse consequences of a protracted legal battle.

[27] Dhawan, H., ‘Two All India Radio officials sacked for sexually harassing radio jockeys’, The Times of India, 17th April 2014, http://timesofindia.indiatimes.com/india/Two-All-India-Radio-officials-sacked-for-sexually-harassing-radio-jockeys/articleshow/19586698.cms, accessed 27th October 2014.

[28] Sengupta, A., ‘Prasar puts best foot forward’, Telegraph India, 5th February, 2014, http://www.telegraphindia.com/1140206/jsp/nation/story_17905681.jsp#.VAWzOMWSxVM, accessed 2nd September 2014.

[29] Correspondent, ‘For months no one was ready to employ me says anchor who filed a case of sexual harassment on Sun TV Chief Editor”, The News Minute, 1st July 2014, http://www.thenewsminute.com/side_headlines/15, accessed 2nd September 2014.

[30] ‘NWMI’s statement, March 28, 2013’, Network of Women in Media, India, http://www.nwmindia.org/about-us/statements/61-nwmi-statements-on-sexual-harassment-at-sun-tv-2013, accessed 27th October 2014.

[31] See above note 29.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India 2014: Domestic Violence

The United Nations General Assembly addressed domestic violence in Resolution 58/147, ‘Elimination of domestic violence against women’. This resolution defines domestic violence as occurring ‘within the private sphere, generally between individuals who are related through blood or intimacy’, and notes that it is ‘one of the most common and least visible forms of violence against women’. Domestic violence can involve ‘physical, psychological and sexual violence’ as well as ‘economic deprivation and isolation’.[1] Thus, domestic violence occurs in the home or other private space; victims usually share a household with perpetrators. In many cases, victims of domestic violence experience more than one form of abuse. While domestic violence can occur across genders, the United Nations and other organizations have recognized that victims are predominantly women.

A crucial subset of domestic violence, intimate partner violence (IPV), refers to abuse by one’s spouse or partner. The World Health Organisation defines IPV as including ‘acts of physical aggression, psychological abuse, forced intercourse and other forms of sexual coercion, and various controlling behaviours such as isolating a person from family and friends or restricting access to information and assistance’. While IPV can occur in both heterosexual and homosexual relationships, and can affect both men and women, the overwhelming majority of victims are women abused by male partners[2].

In India, IPV is seldom recognised as a distinct gender violence category. Women in abusive marriages may be reluctant to report the abuse because of societal perceptions that married women must ‘adjust’ to their husbands’ behaviour, and that speaking publicly against their husbands will bring shame to their families; on the other hand, unmarried women facing IPV may be dismissed as ‘asking for it’ by being in premarital relationships.

Know the law

The 2005 Protection of Women from Domestic Violence Act (PWDVA) is a civil law that aims to provide relief and compensation to victims of domestic violence. It does not provide for punishment of perpetrators, aside from possible payment of monetary compensation. It applies to women living in a ‘domestic relationship’ with an abusive man; it can thus be used by wives, sisters, widows, mothers, etc.[3] Crucially, this law also extends to women who live with their partners ‘in a relationship in the nature of marriage’, referring to women in live-in relationships. Moreover, a complaint can also be filed against the male and/or female relatives of the victim’s husband or intimate partner. The PWDVA defines domestic violence as actual abuse, or the threat of abuse, of a physical, sexual, emotional, verbal or economic nature.[4] This act also addresses harassment of women over dowry payments, or any other ‘unlawful demand’.[5]

Under the PWDVA, a magistrate or court can provide protection to the woman by barring the offender from committing violence within and outside of the home, from taking away the woman’s assets, from intimidating her and her family and from communicating with the woman. Additionally, the woman cannot be evicted from a shared residence, and can claim damages for mental and physical injuries. The magistrate can order maintenance, and grant her temporary custody of children.[6]

Complaints can be registered with a Protection Officer, a service provider, the police, or a magistrate. A Protection Officer is appointed by the state government and facilitates access to the services provided by the PWDVA. Service providers are non-profits and hospitals that can also aid the woman in accessing legal aid and medical services.[7]

In 2012, the Lawyers Collective Women’s Rights Group reported that it received an ‘extraordinary and unprecedented’ 22,255 orders from magistrates under the PWDVA, showing that women ‘have been turning up in the tens of thousands to invoke … the PWDVA as a shield against abuse and violence in their homes’.[8] However, it must be noted that as a civil law, the PWDVA cannot be utilised to pursue criminal proceedings against perpetrators of domestic violence.

Crucially, Section 375 of the Indian Penal Code, which addresses rape, includes an exception stating that ‘sexual intercourse or sexual acts by a man with his own wife … is not rape’.[9] Thus, a married woman cannot legally accuse her husband of rape. While Section 375 can be utilised by unmarried women who have been sexually assaulted by their intimate partners, there is a pervasive belief that rapists are not personally known to their victims, which makes it more difficult to prosecute such cases.

Married women do have the option of filing a criminal case against their husbands or his relatives under Section 498A of the Indian Penal Code, which addresses marital cruelty. Section 498A vaguely defines ‘cruelty’ as any conduct that ‘is likely drive the woman to commit suicide or to cause grave injury or danger to life, limb or [mental or physical] health,’ as well as ‘harassment … with a view to coercing her … to meet any unlawful demand for any property’.[10]

Keeping Count

The last National Family Health Survey (NFHS-3), conducted in 2005-06, surveyed married women on the incidence of spousal violence. More recent data from the survey are as yet unavailable, as the NFHS-4, 2014-15, is currently being conducted. According to the NFHS-3, 39% of currently married women have experienced physical, sexual or emotional violence by their current husbands, of which more than two thirds reported experiencing violence within the last twelve months.[11] Roughly one in three women report having been slapped by their husbands, and 10% of women report that their husbands have physically forced them to have sex. Between 11% and 15% of women surveyed report having their arms twisted or being pushed, shaken, kicked, dragged or beaten.[12] Only one in four women who experience violence have sought help to end the violence, and very few women report seeking help from the police or social organisations.[13] Moreover, the survey found that 54% of women and 51% of men between the ages of 15 and 49 believed wife-beating to be acceptable for one or more reasons.[14]

The study also reports a greater likelihood of spousal violence among women whose fathers beat their mothers, and among women whose husbands get drunk often.[15] In addition, women who are employed and earn money are much more likely to experience spousal violence, particularly if they earn more than their husbands.[16] For women who make household decisions jointly with their husbands, including how to use their own earnings, the odds of experiencing violence are lower than for women who either make these decisions alone, or do not have a major say in such decisions.[17]

The National Crime Records Bureau (NCRB) tracks reports of ‘Cruelty by Husband or his Relatives’. Table 1 and Figure 1 show the number of cases reported each year nationally from 2002 to 2013. Not all cases resulted in a trial or conviction; some cases are still pending.

Table 1: Reported Cases of Cruelty by Husband or his Relatives, NCRB[18]

Year 2002 2003 2004 2005 2006 2007
Number of cases reported of cruelty by husband or relatives 49237 50703 58121 58319 63128 75930
Year 2008 2009 2010 2011 2012 2013
Number of cases reported of cruelty by husband or relatives 81344 89546 94041 99135 106527 118866[19]

 Figure 1

DV I

The 2013 figure of 118,866 cases reported is an 11.6% increase from the number reported in 2012, and a 316% increase from the 28,579 cases first mentioned in 1995 by the NCRB. Of the cases from 2013, the highest proportion came from West Bengal (15.2%), followed by 12.7% each from Rajasthan and Andhra Pradesh.[21] Moreover, crimes under Section 498A represent roughly 40% of all crimes against women recorded by the NCRB under the Indian Penal Code.[22] While the NCRB data includes complaints filed by married women against not only their husbands, but also their husbands’ relatives, it does not extend to unmarried women in intimate relationships.

A recent study by the World Health Organisation (WHO), in partnership with the London School of Hygiene & Tropical Medicine and the South African Medical Research Council, titled ‘Global and Regional Estimates of Violence against Women: Prevalence and Health Effects of Intimate Partner Violence and Non-Partner Sexual Violence’, found that globally, 30% of women have experienced IPV.[23] Based on an analysis of data from 155 studies in 81 countries, the report does not provide country-specific information, but presents consolidated data from low- and middle-income countries in six different WHO-defined ‘regions’, in addition to a separate category with high-income countries from the different regions.[24] The South-East Asia Region, which includes India, has the highest rate of IPV among surveyed women, at nearly 38%.[25]

The report also reveals that 38% of all murders of women around the world are committed by their intimate partners,[26] and that women facing IPV are about 16% more likely to have babies with low birth-weight,[27] twice as likely to have an abortion,[28] almost twice as likely to experience depression and have alcohol-use problems,[29] and in some regions, 1.5 times more likely to contract HIV.[30]

[1] ‘Elimination of domestic violence against women’, United Nations General Assembly Resolution 58/147, 19th February 2004, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N03/503/40/PDF/N0350340.pdf?OpenElement, accessed 20th November 2014.

[2] ‘Intimate partner violence: facts’, World Health Organisation, p. 1, http://www.who.int/violence_injury_prevention/violence/world_report/factsheets/en/ipvfacts.pdf, accessed 29th October 2014.

[3] Protection of Women from Domestic Violence Act, 2005, Section 2, http://wcd.nic.in/wdvact.pdf, accessed 29th October 2014. Section 2(a) defines an ‘aggrieved person’ as ‘any woman who is, or has been, in a domestic relationship with the respondent’ and who alleges to have experienced domestic violence. Section 2(f) defines a ‘domestic relationship’ to include living together ‘in a shared household’ as well as relationships of consanguinity, marriage or adoption.

[4] PWDVA. See above note 3. Section 3(Explanation I)(i-iv) defines physical, sexual, verbal and emotional and economic abuse.

[5] PWDVA. See above note 3. Section 3(b) includes in its definition of domestic violence harassment intended to ‘coerce [a woman] … to meet any unlawful demand for any dowry or other property’.

[6] Lawyers Collective Women’s Rights Initiative, ‘Frequently Asked Questions on the Protection of Women from Domestic Violence Act 2005’, p. 3, http://www.lawyerscollective.org/files/FAQonProtectionOfWomen1.pdf, accessed 2nd September 2014.

[7] PWDVA. See above note 1. Section 2(n) defines a ‘Protection Officer’, and Section 2(r) defines a ‘service provider’.

[8] Gopal, M. G., ‘The Big Picture’, from Staying Alive: Evaluating Court Orders, Sixth Monitoring and Evaluation Report 2013 on the Protection of Women from Domestic Violence Act, 2005, Lawyers Collective Women’s Rights Initiative, p. ix, http://www.lawyerscollective.org/wp-content/uploads/2012/07/Staying-Alive-Evaluating-Court-Orders.pdf, accessed 2nd September 2014.

[9] Indian Penal Code, Section 375(Exception), http://indiankanoon.org/doc/623254/, accessed 29th October 2014.

[10] Indian Penal Code, Section 498A, http://indiankanoon.org/doc/538436/, accessed 29th October 2014.

[11] Kishor, S. & Gupta, K., ‘Chapter 10: Spousal Violence’, ‘Gender equality and women’s empowerment in India’, National Family Health Survey (NFHS-3) India 2005-06, Ministry of Health and Family Welfare, p. 96, http://www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf, accessed 28th October 2014.

[12] See above note 11, p. 97.

[13] ‘Key Findings Report’, National Family Health Survey (NFHS-3) India 2005-06, p. 21, http://www.rchiips.org/nfhs/NFHS-3%20Data/NFHS-3%20NKF/Report.pdf, accessed 28th October 2014.

[14] See above note 11, p. 74.

[15] See above note 11., p. 102 (for correlation with parental domestic violence) and p. 104 (for correlation with husbands’ drinking often).

[16] See above note 11, p. 100.

[17] See above note 11, p. 100.

[18] ‘Cases registered and their disposal under Cruelty by Husband or his Relatives during 2001-2012’, Crime in India 2012, National Crime Records Bureau, http://www.data.gov.in/catalog/cases-registered-and-their-disposal-under-cruelty-husband-or-his-relatives#web_catalog_tabs_block_10, accessed 29th October 2014. Table 1 and Figure 1 data up to 2012 are from this report; for 2013 statistics, see above note 18.

[19] ‘Chapter 5: Crimes against Women’, Crime in India 2013, NCRB, p. 81, http://ncrb.gov.in/CD-CII2013/Chapters/5-Crime%20against%20Women.pdf, accessed 26th September 2014.

[20] Figure 1 was generated using the data from Table 1.

[21] See above note 18, p. 84.

[22] See above note 18, p. 81.

[23] ‘Global and regional estimates of violence against women: Prevalence and health effects of intimate partner violence and non-partner sexual violence’, World Health Organisation, 2013, p. 2, http://www.who.int/reproductivehealth/publications/violence/9789241564625/en/, accessed 29th October 2014.

[24] See above note 23, p. 9-10.

[25] See above note 23, p. 17.

[26] See above note 23, p. 2.

[27] See above note 23, p. 23.

[28] See above note 23, p. 23.

[29] See above note 23, p. 24-25.

[30] See above note 23, p. 29.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Dowry Violence

Dowry is a practice in which the bride’s family is required to give money or gifts to the groom and his family. While the 1961 Dowry Prohibition Act criminalized the institution of dowry, it is still widely practiced in India and other parts of South Asia.[1] These monetary demands can be prohibitively expensive for women’s families, and can escalate even after the wedding is over; their prevalence perpetuates the notion that a woman is an economic burden that her husband’s family must take on, and for which the woman’s family must give compensation.

In some cases, dowry-related harassment can escalate to physical violence or even death. However, death or injuries relating to dowry harassment are often disguised by the husband’s family under a variety of pretences; the husband’s family may attempt to conceal a dowry death by attributing it to a kitchen accident. For instance, ‘data for some urban areas of India indicate that one in four deaths of women age 15 to 24 is from “accidental burns,” a medical euphemism for dowry-related’ deaths.[2]

Know the Law

1961 Dowry Prohibition Act

This Act prohibits the request, payment or acceptance of a dowry as consideration for the marriage, where ‘dowry’ is defined as ‘any property or valuable security given or agreed to be given’ by ‘one party to a marriage to the other party … in connection with the marriage’. The penalty for demanding dowry is imprisonment of up to six months and a fine, while the penalty for giving or taking dowry is imprisonment of at least five years and a fine. [3]

Indian Penal Code

Section 304B of the IPC specifically addresses dowry-related violence. It defines ‘dowry death’ as a circumstance ‘where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage’; additionally, it must be ‘shown that soon before her death she was subjected to cruelty or har­assment by her husband’ or his relatives ‘in connection with any demand for dowry’. The punishment for this offence is imprisonment for a minimum of seven years; sentences up to life imprisonment may be issued.[4]

Section 498A of the IPC pertains to acts of cruelty by the husband or his relatives against his wife. ‘Cruelty’ is defined as any conduct that ‘is likely to drive the woman to commit suicide or to cause grave injury or danger to life’, as well as ‘harassment … with a view to coercing her … to meet any unlawful demand for any property or valuable security’, or ‘on account of failure by her or any person related to her to meet such demand’. The punishment for such an offence is up to three years of imprisonment and a fine.[5]

Keeping Count

The National Crime Records Bureau (NCRB) keeps track of dowry deaths and dowry harassment under the categories of ‘dowry deaths’ (IPC Section 304B) and ‘cruelty by husbands or relatives’ (IPC Section 498A). It also tracks the number of incidents prosecuted under the 1961 Dowry Prohibition Act. Note that the category of ‘cruelty by husbands or relatives’ is not limited to dowry harassment, but also includes acts of abuse unrelated to dowry demands. Table 1 shows the number of reported cases under each relevant section of Indian law since 2009. Figures 1-3 graph the data for each law over the same time period. While reports of dowry deaths under IPC Section 304B have remained relatively steady over the past five years, the NCRB data show a clear and consistent increasing trend in the reports of dowry harassment under the 1961 Dowry Prohibition Act. Reported cases of ‘cruelty by husband or his relatives’ under IPC Section 498A also show a steady increasing trend.

Table 1: Reported Cases of Cruelty by Husband or his Relatives, NCRB[6]

Year  2009 2010 2011 2012 2013
Reported cases of cruelty by husband or relatives (IPC Sec. 498A) 89546 94041 99135 106527 118866
Reported cases of dowry death (IPC Sec. 304) 8383 8391 8618 8233 8083
Reported cases under the Dowry Prohibition Act, 1961 5650 5182 6619 9038 10709

Figure 1[7]

 

Dowry I

Figure 2[8]

Dowry II    

Figure 3[9]

Dowry III

Note that the data only covers cases that have been reported under each relevant law. The actual incidence of dowry death and harassment is difficult to estimate, as it is suspected that many cases go unreported.

[1] Combating Acid Violence in Bangladesh, India and Cambodia, Avon Center for Women and Justice, 2011, p. 19, http://www.ohchr.org/documents/hrbodies/cedaw/harmfulpractices/avonglobalcenterforwomenandjustice.pdf, accessed 12th November 2014.

[2] Bunch, C., Carrillo, R. & Shore, R., ‘Violence against women,’ from Women in the third world: An encyclopedia of contemporary issues, ed. Stromquist, N.P., Routledge, NY, 2013 ed., p. 62.

[3] Dowry Prohibition Act, 1961, Sec. 2-3, http://www.wcd.nic.in/dowryprohibitionact.htm, accessed 12th November 2014. Sec. 2 defines ‘dowry’ and Secs. 3 and 4 establish the penalty.

[4] Indian Penal Code, Section 304b. See above note 2. Subsection (1) defines ‘dowry death’, and subsection (2) lists sentencing guidelines.

[5] Indian Penal Code, Section 498A(a-b), http://indiankanoon.org/doc/538436/, accessed 12th November 2014.

[6] ‘Chapter 5: Crimes against Women’, Crime in India 2013, NCRB, p. 81, http://ncrb.gov.in/CD-CII2013/Chapters/5-Crime%20against%20Women.pdf, accessed 26th September 2014.

[7] Figure 1 generated using data from Table 1.

[8] Figure 2 generated using data from Table 1.

[9] Figure 3 generated using data from Table 1.

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This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Honour Crimes

Honor crimes and honor killings refer to ‘acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonor upon the family’.[1] Motives for honor crimes can include marrying outside prescribed social rules, premarital sex, refusing to enter an arranged marriage, or being the victim of rape or sexual assualt.[2]

The then United Nations High Commissioner for Human Rights, Navi Pillay, noted in 2010 that, in some parts of the world, honor crimes may be less likely than other crimes to incur punishment. Strong social norms, she said, place ‘family violence … outside the conceptual framework of international human rights’ or government responsibility.[3] A review by the UN Special Rapporteur for Violence Against Women highlighted ‘State inaction’ as a contributing factor in honor crimes and other forms of violence against women; governments do not always take steps to address the ‘structural subordination of women and dominant … norms of chastity and honor’ that are used to justify violence.[4]

In India, honor crimes tend to occur as retaliation against couples marrying or pursuing a relationship against their parents’ or communities’ wishes. Couples have been condemned for marrying ‘outside their caste or religion’ or ‘within a kinship group (gotra)’; the latter are deemed incestuous even when there is no biological relationship.[5] Khap panchayats, powerful but unelected village councils, play an important role in sanctioning honor crimes by publicly condemning couples, especially in the states of Haryana, Uttar Pradesh, and Punjab.[6] These panchayats have taken particular interest in intra-caste marriages, or marriages between couples from the same gotra, or sub-caste.[7] Honor crimes also occur in South India; the October 2012 marriage of a Dalit man and a Vanniyar woman caused caste violence in the Dharmapuri district of Tamil Nadu.[8]

Know the Law

Honor crimes have not been addressed by any specific act or ordinance, nor are they considered a distinct category of crime under the Indian Penal Code (IPC). Rather, when reported or prosecuted, they fall instead under existing categories such as assault or homicide. Perpetrators, if convicted, face the penalties attached to those existing categories; there are no separate sentencing rules for honor crimes. Additionally, because of the caste dimension to these crimes, reports can be filed under the SC/ST Act instead of being recognized as an ‘honor’ crime. Moreover, family members often pass these deaths off as suicides or death by natural causes.

In August 2012, the Law Commission of India submitted a report proposing a law to deal with honor crimes, entitled ‘Prevention of Interference with the Freedom of Matrimonial Alliances (in the Name of Honour and Tradition): A Suggested Legal Framework’. The proposed bill aims curb the power of panchayats by ‘prohibiting the … gathering of such members of panchayats for the purpose of condemning the marriage’.[9] The proposal argues that a separate law is necessary because a ‘number of cases go unreported for fear of reprisals’ and because ‘the penal law lacks direct application to the illegal acts of such caste assemblies’.[10]

The Law Commission report also notes that the effects of panchayat-sanctioned marriage condemnations include endangerment of the victims’ life and liberty, and their having to experience ‘insecurity and misery’.[11] The suggested law to address honor crimes, besides making a panchayat or other gathering for the purpose of condemning a marriage illegal, would also make punishable ‘acts endangering liberty’; moreover, it would also address ‘criminal intimidation by the members of unlawful assembly’, and would call for ‘higher punishment’ for such acts of intimidation that are already punishable under the IPC.[12]

The Law Commission’s proposed law has thus far not been made into law, either as suggested or in amended form.

Keeping Count

As honor crimes have not been specifically and explicitly addressed in law, the National Crime Records Bureau (NCRB) does not keep a separate count of them. The actual incidence of honor crimes and honor killings is difficult to estimate; many of them may go unreported. When they are reported, they are generally classified under the broader NCRB categories of battery, assault, or homicide.

In 2010, the United Nations Population Fund estimated that around 5000 women are murdered worldwide in the name of family and community honor each year.[13] The National Commission for Women has said that it investigates around 70-80 cases per month, culminating in around 1000 cases per year.[14] Many women’s rights groups, however, assert that these figures are likely to be an underestimate; some non-governmental organizations estimate that as many as 20,000 cases occur globally each year.[15] Additionally, media outlets may decide not to report such crimes, judging them to be family matters rather than issues of national importance.[16]

[1] ‘Crimes committed in the name of “honor”’, Human Rights Watch, cited by Stop Violence Against Women, 2008, http://www.stopvaw.org/honor_killings, accessed 23rd November 2014.

[2] See above note 1.

[3] ‘Impunity for domestic violence, “honor killings” cannot continue – UN official’, UN News Centre, 4th March 2010, http://www.un.org/apps/news/story.asp?NewsID=33971#.VHg-wfSUc5i, accessed 23rd November 2014.

[4] ’15 years of the United Nations Special Rapporteur on Violence Against Women, Its Causes and Consequences’, UN Special Rapporteur on VAW, 2009, p. 21, http://www.ohchr.org/documents/issues/women/15yearreviewofvawmandate.pdf, accessed 23rd November 2014.

[5] ‘India: Prosecute rampant “honor” killings’, Human Rights Watch, 18th July 2014, http://www.hrw.org/news/2010/07/16/india-prosecute-rampant-honor-killings, accessed 23rd November 2014.

[6] See above note 4.

[7] Dutta, S. & Stancati, M., ‘Why Honor Killings Happen’, Wall Street Journal, 16th January 2013, http://blogs.wsj.com/indiarealtime/2013/01/16/why-honor-killings-happen, accessed 22nd November 2014

[8] PTI, “HC questions TN govt over promulgatory orders in Dharmapuri”, The Hindu: BusinessLine, 23rd August 2013, http://www.thehindubusinessline.com/news/hc-questions-tn-govt-over-promulgatory-orders-in-dharmapuri/article5052317.ece, accessed 22nd November 2014

[9] ‘Prevention of interference with the freedom of matrimonial alliances (in the name of honour and tradition): A suggested legal framework’, Law Commission of India, August 2012, p. ii, http://lawcommissionofindia.nic.in/reports/report242.pdf, accessed 23rd November 2014.

[10] ‘Prevention of interference’, Law Commission, Sec. 2.2, p. 5. See above note 9.

[11] ‘Prevention of interference’, Law Commission, Sec. 3.1, p. 10. See above note 9

[12] ‘Prevention of interference’, Law Commission, Sec. 3.2, p. 11. See above note 9

[13] “Impunity for domestic violence, ‘honour killings’ cannot continue”, UN News Centre, 4th March 2010, http://www.un.org/apps/news/story.asp?NewsID=33971#.VAW_HMWSxVN , accessed 22nd November 2014

[14] Arjunpuri, C., ‘Honour killings’ bring dishonour to India’, 27th December 2012, http://www.aljazeera.com/indepth/features/2012/12/2012121614107670788.html, accessed 22nd November 2014.

[15] Basu, N., ‘Honour killings: India’s crying shame’, Al Jazeera, 28 November 2013, http://www.aljazeera.com/indepth/opinion/2013/11/honour-killings-india-crying-shame-20131127105910392176.html, accessed 24th November 2014.

[16] ‘Today: HBV in the contemporary world’, Honour Based Violence Awareness Network, http://hbv-awareness.com/today/, accessed 24th November 2014.

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This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Acid Attacks

An acid attack is the premeditated act of throwing concentrated acid (usually sulfuric, nitric, or hydrochloric acid) on the body of another person. The purpose of this is to intentionally disfigure and cause extreme physical and emotional pain to the victim.[1]

The effects of acid attacks include blindness, disfiguration of the face and body, scarring, and long-term psychosocial and economic difficulties. Treatment for acid violence can include multiple expensive surgeries, physical therapy, and long-term medical care, which are often out of reach for many victims due to geographic isolation, the prohibitive costs of hospitalization and specialized care, and lack of appropriate medical facilities.[2]

While acid attacks occur in many countries around the world, they are particularly prevalent in South Asia, and ‘perpetrators’ motives are often tied to gender inequality and discrimination’.[3] In India, acid attacks are most commonly perpetrated against women, often in retaliation for ‘spurning suitors, for rejecting proposals of marriage, [or] for denying dowry’.[4] The types of acid used for these attacks can be bought easily and inexpensively in many neighborhood stores and until 2013, the sale of acid was not regulated by any governing body.[5]

The Avon Global Center for Women and Justice also reports that a majority of acid attacks in India, about 61% out of those reported in news media, occur in public spaces like bus stands, road sides, trains, schools, colleges, and markets.[6] Acid attacks may also harm bystanders and relatives in addition to the primary intended victim.

Know the Law

In the 2013 Criminal Law Amendment Act, the Indian Penal Code was amended to include a specific category for acid attacks. According to Section 326B of the Amendment, attempting to throw or administer acid with intent to deform, maim or burn another person can be punished with five to seven years in prison, plus a fine. According to Section 326A, anyone who ‘causes permanent or partial damage or deformity to’ or ‘maims or disfigures’ another person by intentionally throwing acid shall be punished with a minimum sentence of ten years’ imprisonment, plus a fine. Sentences up to life in prison may be issued.[7]

In 2013, the Indian government reclassified acids as a poison, bringing them under the regulatory purview of the Poison Act of 1919. This Act empowers state governments to regulate the safe possession, sale and registration of substances designated as poisons. Including acids in this category means buyers of over-the-counter concentrated acids must provide proof of identity to the retailer upon purchase.[8] Retailers must also register the purchase and the address of the buyer, and concentrated acids can no longer be bought by individuals under the age of 18. While this is a national ruling, the responsibility to implement the law remains with state governments.[9] Data on whether the ruling has reduced the frequency of acid attacks in India are not yet available. However, Bangladesh saw a 15-20% decrease in the number of acid attacks following the adoption in 2002 of laws to limit access to acids and increase criminal penalties; this suggests that such laws can be effective in decreasing acid attacks.[10] As of September 2014, however, few states have implemented the new laws, and compensation and medical help for victims often remain mired in inter-departmental confusion.[11]

Keeping Count

The National Crime Records Bureau (NCRB) has yet to publish data on acid attacks, as they were only recognized as a distinct category of crime in 2013. The Acid Survivors Trust International, an organization dedicated to preventing acid attacks and supporting victims, estimates that between 500 and 1000 acid attacks occur annually in India, based on comparison with neighboring countries that do publish data.[12] The Avon Center report ‘Combating Acid Violence in Bangladesh, India, and Cambodia’ tracked news reports of acid attacks in India from January 2002 to October 2010, as a proxy for the actual prevalence of attacks. Table 1 and Figure 1 below show the number of acid attacks reported across all the news sources examined in the report. Note that the actual number of attacks is almost certainly orders of magnitude greater than the number that make it into the news. However, if the rising number of news articles is in fact at least partly due to greater numbers of attacks and not simply to increased media attention, the report suggests that acid attacks have been on the rise in recent years.

Table 1: Acid Attacks in News Reports, 2002-2010[13]

Year 2002 2003 2004 2005 2006 2007 2008 2009 2010
Number of acid attacks reported in news 4 6 10 22 19 19 25 21 27

 Figure 1

Acid Graphic

Statistics and surveys of acid attack survivors show that acid violence is often connected to other forms of gender violence. A survey of 56 women in Karnataka who survived acid attacks between 1999 and 2007 found that 55 of them knew their attacker. All of the women surveyed stated that, prior to the acid attack, they had experienced other forms of gender violence or harassment, including workplace harassment, domestic violence or dowry demands.[15]

[1] ‘Combating acid violence in Bangladesh, India, and Cambodia’, Avon Global Center for Women and Justice at Cornell Law School  et al, 2011, p. 1-2, http://www.ohchr.org/documents/hrbodies/cedaw/harmfulpractices/avonglobalcenterforwomenandjustice.pdf, accessed 21st November 2014. This report examined news reports of acid attacks in India from January 2002 to October 2010; it also studied reports of acid attacks in Bangladesh and Cambodia.

[2] ‘Burnt not defeated: Women fight against acid attacks in Karnataka’, Campaign and Struggle Against Acid Attacks on Women (CSAAAW), 2007, pg 28, http://www.lawschool.cornell.edu/womenandjustice/upload/burnt-not-defeated.pdf, accessed 21st November 2014.

[3] ‘Combating acid violence’, Avon Center, p. 9. See above note 1.

[4] ‘Report on the inclusion of acid attacks as specific offenses in the Indian Penal Code and a law for compensation of victims of crime’, Law Commission of India, 2008, p. 3, http://lawcommissionofindia.nic.in/reports/report226.pdf, accessed 21st November 2014.

[5] Mahapatra, D., ‘Government to treat acid as poison, regulate sales’, Times of India, 17th July 2014, http://timesofindia.indiatimes.com/india/Government-to-treat-acid-as-poison-regulate-sales/articleshow/21111357.cms?referral=PM, accessed 21st November 2014.

[6] ‘Combating acid violence’, Avon Center, p. 14. See above note 1.

[7] Criminal Law (Amendment) Act, 2013, Ch. 2(5), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Sec. 5 of the Act inserts Sections 326A and 326B into the Indian Penal Code.

[8] Poisons Act, 1919, Sec. 2(a-g), http://www.health.mp.gov.in/acts/poison-act-1919-2.pdf, accessed 21st November 2014.

[9] Mahapatra, D., ‘Government to treat acid as poison, regulate sales’. See above note 5.

[10] ‘Combating acid violence’, Avon Center, p. 12. See above note 1.

[11] Dasgupta, K., ‘Acid attack survivors in India find safe space but little legal respite’, The Guardian, 9th September 2014, http://www.theguardian.com/global-development/2014/sep/09/acid-attacks-india-legal-respite, accessed 22nd November 2014.

[12] ‘Where it happens: India’, Acid Violence, Acid Survivors Trust International, http://www.acidviolence.org/index.php/acid-violence/countries/india, accessed 22nd November 2014.

[13] Table 1 adapted from data provided in ‘Combating acid violence’, Avon Center, p. 11. See above note 1. Note that the data for 2010 only go up to October.

[14] Figure 1 adapted from ‘Combating acid violence’, Avon Center, p. 11. See above note 1.

[15] ‘Burnt not defeated’, CSAAAW, 2007, pg 30. See above note 2.

 

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This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Street Sexual Harassment

Street sexual harassment can refer to any form of sexual harassment that occurs in a public place. This includes not just streets but also public transport such as buses and trains, malls, beaches, parks, restaurants and cafés, markets, bazaars, public toilets, elevators and any other place outside the home or workplace.[1] Street harassment can affect girls and women, and to a much lesser extent, boys and men; it can occur at any time of the day or night; and it can take the form of verbal, non-verbal or physical actions that are sexually aggressive and cause physical and/or emotional harm. Street sexual harassment is euphemistically known in India as ‘eve-teasing’, which trivializes the impact that this form of violence has on victims.[2]

The non-profit organisation Stop Street Harassment lists several offences that can be categorised as street harassment, ranging from ‘leers, whistles, honks, kissing noises, gender-policing, and non-sexually explicit evaluative comments, to more insulting and threatening behaviour like vulgar gestures, sexually charged comments, flashing and stalking, to actions like public masturbation, sexual touching, assault and murder’.[3] The organisation also notes that street sexual harassment is a ‘human rights issue’, because it denies women equal access to public spaces.[4]

Know the law

National Legislation

There is no national legislation addressing street sexual harassment specifically; however, the new Criminal Law (Amendment) Act, 2013, which was enacted in April 2013 to amend sections of the Indian Penal Code (IPC) that address gender violence, has classified ‘sexual harassment’ as a punishable offence. Under the newly introduced Section 354A, ‘physical contact and advances involving unwelcome and explicit sexual overtures’ and ‘a demand or request for sexual favours’ are each punishable with imprisonment up to three years, or a fine, or both.[5] According to the same Amendment, ‘making sexually coloured remarks’ can lead to imprisonment for up to one year, or a fine, or both.[6] These amendments, while not comprehensive, apply to many cases of street sexual harassment, providing victims new avenues for obtaining justice.

Additionally, the newly-added section 354D of the Indian Penal Code addresses stalking: ‘any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman’ can be tried for stalking. If convicted, offenders can face imprisonment up to three years for a first conviction, and up to five years for repeat offences, in addition to paying a fine. However, this section also says that a case will be dismissed if the accused can prove that ‘in the particular circumstances such conduct was reasonable and justified’, thereby providing a potential loophole for perpetrators.[7]

In addition to these amendments, offences under existing legislation, such as assault or criminal force to a woman that is intended to ‘outrage her modesty’ (under Section 354), is now punishable with imprisonment of a minimum of one year, and up to five years, in addition to a fine; previously, the maximum sentence for a Section 354 offence was two years.[8] Offences under Section 509, which addresses any ‘word, gesture or act intended to insult the modesty of any woman’, can now be punished with imprisonment up to three years, up from one year, in addition to a fine.[9] Section 294 criminalises obscene acts and singing, reciting or uttering any ‘obscene song, ballad or words’ in a public place, and can result in imprisonment for up to three months, or a fine, or both.[10]

State Legislation

While most states have enacted prohibitions against sexual harassment generally, Tamil Nadu continues to be the only state in the country with legislation targeting street harassment explicitly. The Prohibition of Harassment of Women Act was passed by the state in 1998 in response to the death of college student Sarika Shah, who died due to injuries sustained from street sexual harassment.[11],[12] The Act was amended in 2002.

The Act provides for life imprisonment and a fine of at least Rs. 50,000 for those convicted of intentionally causing the death of a woman by harassment. According to Section 4 of the amended Act, up to three years’ imprisonment and a fine of not less than Rs. 10,000 is the penalty for ‘whoever commits or participates in or abets harassment of women’ in any place. The law also imposes a punishment of up to ten years’ imprisonment and a fine of not less than Rs. 50,000 on offenders in cases where the harassment causes the victim to commit suicide. Significantly, the Bill states that the onus of proving innocence lies on those accused of having caused or abetted the ‘harassment death’ or ‘harassment suicide’. It also provides for compensation for victims of street harassment who suffer any loss, injury, disability or mental agony, and for victims’ legal heirs.[13],[14]

Keeping count

Many factors contribute to the vast underreporting of street harassment: perpetrators are often strangers; they can usually escape with relative ease; women are socially conditioned to stay silent about this form of abuse; and victims tend to harbor distrust towards the institutions that are meant to deliver justice.

As a result, little statistical data is available on the prevalence of street sexual harassment, and the reliability of existing data is difficult to evaluate. The National Crimes Record Bureau (NCRB) does not collect data on street harassment specifically; it does record the number of cases filed under Section 354 (‘assault on women with intent to outrage her modesty’, referred to in pre-2012 reports as ‘molestation’) and Section 509 (‘insult to the modesty of women’ through words, gestures or acts, referred to in pre-2012 reports as ‘sexual harassment’). However, both of these sections of the IPC encompass not just street sexual harassment but also other forms of gender violence, such as workplace harassment.

Table 1, as well as Figures 1 and 2, summarize the past six years of NCRB data. Not all of the cases filed resulted in prosecutions or convictions. Furthermore, without further study it is impossible to determine whether and to what extent fluctuations in the numbers are due to actual changes in the incidence of harassment, changes in reporting practices and procedures, random variation or other unknown factors.

According to the NCRB data, the number of Section 354 cases filed increased by 56% between 2012 and 2013; the number of Section 509 cases filed increased by 37.2% during the same period. Of the Section 354 filings in 2013, Madhya Pradesh had the highest percentage of reported cases (11.67%), followed by Maharashtra (11.50%).[15] Of the Section 509 filings for 2013, a staggering 37.35% were reported in Andhra Pradesh alone;[16] however, this may indicate greater awareness of Section 509 or better support for victims in that state, instead of or in addition to a higher incidence of harassment. Without further data and analysis, no clear causal conclusions can be drawn from the reporting statistics. Anecdotal evidence suggests that street harassment occurs much more frequently, and to a substantially larger number of women, than indicated by reported cases.

Table 1: Sexual Harassment and Assault Cases Filed, NCRB

Year 2008 2009 2010 2011 2012 2013
Section 354 cases filed 40413 38711 40613 38711 42968 70739
Section 509 cases filed 12214[17] 11009[18] 9961[19] 11009[20] 8570[21] 12589[22]

                                                                                       Figure 1                                                                                              

SSH Graphic I 

 Figure 2

SSH Graphic II

In 2009, the non-profit Jagori launched the ‘Safer Cities Free from Violence against Women and Girls’ initiative, in collaboration with the Department of Women and Child Development and UN Women. As part of this initiative, Jagori conducted a baseline survey in 2010 of over 5,000 men and women living in Delhi.[23] Kerala-based non-profit SAKHI also contributed to this initiative, undertaking a study in Thiruvananthapuram and Kozhikode between 2009 and 2011. SAKHI surveyed 800 women and 200 common witnesses (men and women likely to have witnessed the sexual harassment of women, owing to their proximity to public spaces) in Thiruvananthapuram and 400 women and 100 common witnesses in Kozhikode; the organization also held focus group discussions, safety audits and capacity gaps analyses.[24]

According to Jagori’s survey, almost two-thirds of women had faced sexual harassment two to five times in the preceding year. Harassment was most commonly reported to occur on public transport and roadsides. The study also revealed that school and college students between the ages of 15 and 19 and female workers in the unorganised sector were particularly likely to be harassed; that harassment can occur at any time of the day or night, in any kind of public space, whether secluded or crowded; that almost nine out of ten respondents had witnessed incidents of sexual harassment; that bad infrastructure, poorly maintained pavements and the lack of public toilets were among the main reasons for the prevalence of street harassment; and that the burden of staying safe continues to remain upon women. An ‘overwhelmingly high percentage’ of all respondents considered sexual harassment to be the ‘most important factor that renders Delhi … unsafe’. [25]

The study by SAKHI reinforced many of these findings. All the women surveyed in Thiruvananthapuram said that they feared the possibility of violence in the city’s public spaces. Sexual harassment has also been reported as the main ‘safety problem’ by 98% of the women and 99% of the common witnesses surveyed.[26] Almost 60% of women said that a ‘lack of respect’ contributed towards making them feel unsafe in public.[27] In Kozhikode, the number reporting harassment during the day was over twice the number of those who had experienced it after dark.[28] Only nine of the 400 women surveyed for ‘direct experience’, as opposed to those surveyed as ‘common witnesses’, reported not having faced street sexual harassment.[29]

[1] Gender Violence in India: A Prajnya Report, ‘Street Sexual Harassment’, p. 9, 2010.

[2] ‘What Is Street Harassment?’, Stop Street Harassment, http://www.stopstreetharassment.org/, accessed 8th October 2014.

[3] See above note 2.

[4] See above note 2.

[5] Criminal Law (Amendment) Act, 2013, Ch. 2(7), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Sec. 7 of the Act inserts Section 354A into the Indian Penal Code. Section 354A(1)(i-ii) lists the offences, and Section 354A(2) lays out sentencing rules.

[6] See above note 5. Section 354A(I)(iv) lists the offence, and Section 354A(3) lays out sentencing rules.

[7] See above note 5. Section 354D(I) defines stalking and lists the exceptions; Section 354D(II) lays out sentencing rules.

[8] Criminal Law (Amendment) Act, 2013, Ch. 2(6). (See above note 5)

[9] Criminal Law (Amendment) Act, 2013, Ch. 3(24)(f). (See above note 5)

[10] Indian Penal Code, Sec. 294(a-b), http://indiankanoon.org/doc/594493/, accessed 8th October 2014.

[11] Crime Review Tamil Nadu 2011, “Chapter 7: Crime Against Women”, p. 61, 2011, http://www.tnpolice.gov.in/, accessed 8th October 2014. Report lists ‘local laws with special provisions to safeguard women and their interests’.

[12] Sangameswaran, K.T., ‘Trial court verdict in Sarika Shah case upheld’, The Hindu, 15th March 2008, http://www.thehindu.com/, accessed 8th October 2014.

[13] Act to amend the Tamil Nadu Prohibition of Eve-Teasing Act, 1998 (Act No. 59 of 2002), Sec. 6-7 (Amendments to Sec. 4 of the original Act), http://www.lawsofindia.org/, accessed 8th October 2014.

[14] Special correspondent, ‘Act against eve-teasing to get more teeth’, The Hindu, 31st October 2002, http://www.thehindu.com, accessed 2nd September, 2014

[15] ‘Chapter 5: Crime Against Women’, Crime in India 2013, NCRB, p. 389, http://ncrb.gov.in/, accessed 8th October 2014.

[16] See above note 15.

[17] ‘Figures at a Glance – 2008’, Crime in India 2008, NCRB, http://ncrb.gov.in/, accessed 8th October 2014. Notes 17-22 refer to both Section 354 and Section 509 filings for the given year.

[18] ‘Figures at a Glance – 2009’, Crime in India 2009, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[19] ‘Figures at a Glance – 2010’, Crime in India 2010, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[20] ‘Figures at a Glance – 2011’, Crime in India 2011, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[21] ‘Figures at a Glance – 2012’, Crime in India 2012, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[22] ‘Figures at a Glance – 2013’, Crime in India 2013, NCRB, http://ncrb.gov.in/, accessed 8th October 2014.

[23] ‘Safe Cities Free of Violence against Women and Girls Initiative: Report of the Baseline Survey Delhi 2010’, Jagori & UN Women, 2011. http://jagori.org/, accessed 8th October 2014.

[24] ‘Are Cities in Kerala Safe for Women? Research findings of the study conducted in Thiruvananthapuram and Kozhikode cities, Kerala 2009-11’, SAKHI Women’s Resource Centre: Thiruvananthapuram, July 2011, http://www.unwomensouthasia.org/, accessed 8th October 2014.

[25] ‘Safe Cities’, Jagori & UN Women, p. xii (see above note 23).

[26] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 11 (see above note 24).

[27] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 12 (see above note 24).

[28] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 14 (see above note 24).

[29] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 13 (see above note 24).

 

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Prenatal Sex Selection, Foeticide & Infanticide

Practices like female infanticide, female foeticide and prenatal sex selection have resulted in chronically low female-to-male sex ratios throughout India.

Sex selection is defined as “any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex“.[1] Prenatal sex selection encompasses both the termination of a foetus because of its gender (female foeticide) and the prevention of the conception of a girl foetus, often through the use of medical technologies like ultrasounds, amniocentesis and sperm separation. While these technologies have been used worldwide to detect genetic and physical abnormalities in foetuses, they have been misused in India to facilitate a cultural preference for sons.

Female infanticide is defined as the deliberate and intentional act of killing a female child within one year of its birth, either directly or by conscious neglect on the part of the mother, parents or others to whose care the child is entrusted.[2]

The result of practices like prenatal sex selection and female infanticide is a declining sex ratio, which in turn facilitates other forms of gender violence, like dowry harassment and human trafficking.

Know the Law

While abortion in India is legal under specific circumstances, the abortion of a foetus on the basis of gender is illegal. In 1994 and again in 2003, the Indian legislature acted to curb such practices.

Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

This Act criminalized disclosing the gender of a foetus to parents and limited the use of medical technologies to screening for genetic abnormalities. In addition, the Act set up a Central Supervisory Board (CSB) to advise authorities in state and union territories on implementation and enforcement.[3]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003

In 2003, the 1994 Act was amended to further regulate the use of medical technologies and to bring sex determination under the purview of the law. It also requires documentation of medical equipment that can discern the sex of the foetus and mandates that all offices using ultrasounds display a signboard stating that the detection and revelation of the sex of the foetus is illegal.

Medical practitioners that violate the above acts can be imprisoned for a period of up to three years and fined Rs. 10,000 for a first offense; subsequent convictions can result in up to five years’ imprisonment and fines up to Rs. 50,000 rupees. Any person that tries to find out the sex of a foetus from a medical institution or practitioner can be imprisoned for a period of three years and fined Rs. 50,000; additional convictions can result in up to three years’ imprisonment and fines of Rs. 1 lakh.

Keeping Count

The data on pre-natal sex selection and infanticide is best reflected by the sex ratios (the number of girls for every 1000 boys) generated by the Indian Census. Both Table 1 and Figure 1 show sex ratios from the past five decennial censuses:

Table 1: Sex Ratios in India According to Census Data

Year 1971 1981 1991 2001 2011
Overall Sex Ratio (females per 1000 males) 930 934 927 933[4] 943[5]
Child Sex Ratio (age 0-6) (girls per 1000 boys) 964 962 945 927[6] 919[7]

Figure I

Sex Selection Graphic

Child sex ratios significantly lower than the overall sex ratio are an indicator of the incidence of prenatal sex selection and female foeticide.

Aggregate data does not fully capture the considerable regional variation that exists; for instance, the states of Jammu and Kashmir, Haryana, Punjab and Gujarat historically report lower sex ratios (between 870 and 920 females per 1000 males), while states like Kerala, Tamil Nadu and Andhra Pradesh report higher ratios (above 990 females per 1000 males).[9] Within each state, sex ratios also vary significantly from district to district.

[1] The Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, http://rajswasthya.nic.in, accessed 6th October, 2014.

[2] Tandon and Sharma, Female Foeticide and Infanticide in India: An Analysis of Crimes against Girl Children, 2006.

[3] See above note 2.

[4] Census of India 2001, Chapter 6: Sex Composition of the Population, p.3, www.censusindia.gov.in, accessed 6th October, 2014. Report includes overall sex ratios reported in decennial census data from 1901 to 2001; data from 1971 onward are included here.

[5] Census of India 2011, Primary Census Abstract: Figures at a Glance, p. xi, www.censusindia.gov.in, accessed 7th October 2014.

[6] Census 2001, p. 8 (see above note 4). Report includes child sex ratios from 1971 to 2001.

[7] See above note 5.

[8] Generated from the data displayed in Table 1.

[9] Census of India 2011, CensusInfo India 2011, http://www.dataforall.org/dashboard/censusinfoindia_pca/, accessed 7th October 2014.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: An Introduction

The third edition of the Prajnya Gender Violence in India report has been in the works a very long time, and as a result, each draft has required multiple updates and edits. Like many other things we do, the GVR (as we call it) has been a casualty of our limited resources and our dependence on volunteer work. Also, like many other things we do, the GVR represents our inability to give up entirely on a good idea.

“To everything, there is a season,” and finally, we are uploading GVR 3 today, albeit in a different format–at least for now. This new edition is going up as a series of blogposts. Everything else is the same–the effort that has gone into them, the sincerity of each author, the concerns about accuracy and integrity. We just don’t want to wait any more to prepare and design an actual document. We want you to have this work accessible right away.

GVR 3 has had multiple authors, each engaging with and adding to the others’ work. They are Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

Divya Bhat was a Shakti Fellow at Prajnya, spending time with us in Chennai while she did her fieldwork on the medical community’s response to sexual assault survivors. Shakthi Manickavasagam joined us to coordinate the 2012 Prajnya 16 Days Campaign against Gender Violence, and has stayed on to become an integral part of the volunteer team that works on gender violence awareness. Titiksha Pandit joined us briefly as a Saakshi Fellow to work on a research project on gender sensitisation and awareness, and we asked her to help update the text as it was. Finally, when Mitha Nandagopalan arrived in Chennai on an extended visit and volunteered her excellent research and editorial skills, we have been able to bring this edition to a close, even filling in the gaps that remained.

In the final round of edits, we have had the joint effort of Mitha, Shakthi and Anupama Srinivasan and it is the 2014 Campaign Coordinator, Swetha Shankar, who is posting these, making this a true team effort. I would like to thank all these people for their hard work over the last few years.

The GVR was first imagined in 2009 as a ready reckoner on gender violence, and I hope you find this edition useful, whatever search leads you to it.
For your convenience, here is an index of the GVR 3 posts:
  1. Prenatal Sex Selection, Foeticide & Infanticide
  2. Street Sexual Harassment
  3. Acid Attacks
  4. Honour Crimes
  5. Dowry Violence
  6. Domestic Violence
  7. Workplace Sexual Harassment
  8. ICTs & Gender Violence
  9. Rape
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