Report of the Special Rapporteur on violence against women, A/HRC/26/38/Add.1, 1 April 2014: India
II. Manifestations of violence against women and girls, its causes and consequences
7. Violence against women in India is systematic and occurs in the public and private spheres. It is underpinned by the persistence of patriarchal social norms and inter- and intragender hierarchies. Women are discriminated against and subordinated not only on the basis of sex, but on other grounds, such as caste, class, ability, sexual orientation, tradition and other realities. That exposes many to a continuum of violence throughout the life cycle, commonly referred to as existing “from the womb to the tomb”. The manifestations of violence against women are a reflection of the structural and institutional inequality that is a reality for most women in India.
B. Violence against women in the community
19. Women in same-sex relationships and transgender women also confront violence and exclusion. Section 377 of the Penal Code criminalizes sexual activities “against the order of nature”. This particularly affects the protection rights of lesbian and transgender women and has been used by parents as an excuse to prevent homosexuality in their families. The mere perception of different sexual orientation is sufficient to put people at risk of violence and is a contributory factor to the inability of the lesbian, gay, bisexual, transgender and intersex community to report cases of violence.
IV. Challenges in fulfilling the State’s obligation to act with due diligence to eliminate violence against women
50. However, the laws that were adopted did not fully reflect the recommendations of the Verma Committee. The opportunity to adopt a holistic approach to violence against women, including addressing the root causes and consequences of such violence, was lost. In fact, the Criminal Law (Amendment) Act failed to: criminalize existing beliefs and practices linked to chastity; protect women with disabilities, unmarried women, lesbian, gay, bisexual and transgender persons, religious minorities, and girls below 18 years of age from sexual violence; or recognize marital rape as a criminal offence. Moreover, gang rapes and mass crimes involving brutal acts of sexual violence are not considered as multiple crimes against women, but as a single punishable crime under this law. Many concerns were raised about the deterrent effect of the application of the death penalty, as provided for in the Act. This is a statutory option for the courts in cases of gang rape where a perpetrator is a repeat offender, or if sexual violence results in the death of the victim, or puts the victim in a permanent vegetative state. It is of concern that conviction in such cases may entail higher evidential burdens for the victim, since the death penalty is a consideration in sentencing. The current legislative framework is therefore still in need of reform.
59. The lack of implementation of the Protection of Women from Domestic Violence Act was a concern often raised. Under the Act, women victims require the assistance of a protection officer to lodge a complaint and to file a domestic incident report. The recruitment and deployment of protection officers in the country is limited; they often work part-time and lack the resources to assist victims to file complaints. For instance, in the State of Rajasthan, with a population including approximately 27 million women, there are only 607 designated protection officers and 118 organizations registered as service providers. The inadequacy of resources to provide a mandatory service is a reflection of a failure to act with due diligence. The Special Rapporteur was informed that the central Government is considering providing financial assistance to states to fund full-time protection officers. In addition, concerns were raised with regard to the lack of protection for people in same-sex relationships, due to the language in the law as regards jurisdiction.
VI. Conclusions and recommendations
Law and policy reforms
78. The Special Rapporteur recommends that the Government:
(a) Ratify all outstanding international human rights instruments;
(b) Withdraw the declarations and reservation to the Convention on the Elimination of All Forms of Discrimination against Women, in particular regarding articles 5 (a); 16, paragraphs 1 and 2; and 29, paragraph 1;
(c) Amend the Criminal Law (Amendment) Act, 2013 and in particular review the provisions that provide for the death penalty in section 376A; include a definition of marital rape as a criminal offence; expand the scope of protection of the law and include other categories of women, including unmarried women, lesbian, transgender and intersex women, religious minorities and underage citizens; and define gang rape as multiple crimes requiring appropriate punishment (section 376D);
(d) Repeal section 377 of the Penal Code, which criminalizes consensual same-sex behaviour;
Link to full text of the report: Report-SRVAW-India-2014-eng
Link to State’s comments on the report: Report-SRVAW-India-comments-2014-eng
- 10. In a recent decision, Suresh Kumar Koushal and another v. Naz Foundation (India) Trust, 2013, the Supreme Court, while setting aside the decision of the Delhi High Court on section 377 of the Indian Penal Code, ruled that the Parliament had to legislate on the issue and upheld section 377, as it still remained in the statutes of the country.↵
- 34. 2011 census.↵
- 35. Interview with representatives of the government of Rajasthan.↵