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PROJECT WORK SUBMITTED ON BEHALF OF PARTIAL

FULFILMENT OF REQUIREMENT OF THE DEGREE OF


B.A. L.L.B(H)

HUMAN RIGHTS LAW PROJECT WORK


GENDER JUSTICE PERSPECTIVES ON CRIMES AGAINST
WOMEN IN INDIA

Submitted to-

Submitted by

Mr. Ashutosh Tripathi

Gurpreet Singh

Human Rights Faculty

A11911111029,
Section A
Semester

Acknowledgment

I Gurpreet Singh student of Amity Law School-2, Noida semester 7, section-A


want to express my special thanks and gratitude to Mr. Ashutosh Tripathi for
entitling me this project work on GENDER JUSTICE PERSPECTIVES ON
CRIMES AGAINST WOMEN IN INDIA. While researching on this topic I
came to know about so many new things. Secondly I would also like to thank
my parents and friends who helped me a lot in finalizing this project within the
limited time frame.
Thank you.

TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.
8.

INTRODUCTION
GENDER INEQUITIES: SOME PERSISTENT ISSUES

THE GROUND OF REALITIES: MIRAGE OF GENDER JUSTICE


NHRC & INDIAN PERSPECTIVE OF HUMAN RIGHTS
GENDER JUSTICE: ARE THE COURTS BIASED
NEW DIMENSIONS: GENDER EQUALITY & HUMAN RIGHTS
THE BATTLE OF JUSTICE: ROLE OF SOCIAL REFORMERS
CONCLUSION

1. Introduction
Gender inequalities throughout the world are among the most all-pervasive
forms of inequality. Gender equality concerns each and every member of the
society and forms the very basis of a just society and hence, the issue of gender
justice is of enormous magnitude and of mammoth ramification engulfing in
all-embracing and illimitable canvas.
Undoubtedly, it is rightly described that human rights are sure and sound
guarantee of democracy. Every person should know that they have rights and
that they are protected by the State. A supplementary recognition and human
rights respecting guarantee is the harmonisation of the juridical frame of the
republic and the international normative acts to which the democratic republic
has adhered to. Human rights and respecting laws obviously and evidently
confirm the degree and the status of civilisation of a nation. It is easy to
understand the universal truth that all the people are born equal, that their
Creator invests them with some inherent, indivisible, inalienable, nonnegotiable and non-derogable natural and basic rights and through this we can
count the effort to decent life, liberty, freedom, happiness and harmony.
Human rights, broadly speaking, may be regarded as those fundamental and
natural rights which are essential for a decent life as human being. They are the
rights which are possessed by every human being irrespective of his or her
nationality, race, religion, sex, colour, simply and only because he or she is a
human being. Human rights and fundamental freedom allow us to fully develop
and use our human qualities, our intelligence, our talents and our conscience
and to satisfy our physical, spiritual and other needs as human beings. They are
founded upon mankinds's increasing demand for normal but decent life in which
the inherent dignity and worth of each human being will receive regard and
respect, protection and parental care. Human rights are sometimes characterised
as fundamental rights or natural rights or basic rights.

Gender-based discrimination reveals ugly face of the society. This issue is very
old and is global as well with varying degree. Really, it is a travesty of all
canons of social justice and equity for women who constitute half of the world's
population and work for two-third of the world's working hours and who earn
just one-tenth of the world's property and remain victim of inequality and
injustice. This anomaly is, now, being openly questioned and the underlying
discrimination is seriously challenged. As human development occupies centre
stage in the global development debate, gender equality and gender equity are
emerging as major challenges. Gender discrimination, though amongst the most
subtle, is one of the most all-pervading forms of institutionalised deprivation.

2. Gender inequities: Some persistent issues


The terms "sex" and "gender" are often used interchangeably in everyday life,
but in sociological literature they are frequently differentiated. The term "sex" is
applied to differences between men and women that are based on female or
male attributes. The term "gender" is applied to the cultural aspects of male and
female roles. In other words, the behaviour, personality and other social
attributes that are expected of males and females become the basis of masculine
and feminine roles. Sexuality and the different capacities of men and women in
the reproductive process are particularly likely to be thought of as giving
"natural" reasons for gender divisions in society.
The question of gender equality is a very old and burning problem. Twenty
years ago in Mexico the First World Conference on Women inspired a
movement that has helped to reduce gender inequality worldwide. Illiteracy
among women is declining, maternity mortality and total fertility rates are
beginning to fall, and more women are participating in the labour force than

ever before. However, much remains to be done. Persistent inequality between


women and men constraints a society's productivity and, ultimately, slows its
rate of economic growth. Although this problem has been generally recognised,
evidence on the need for corrective action is more compelling today than ever.
The principles of gender equality and gender equity have been basic to Indian
thinking. The 19th and early 20th centuries saw a succession of women's
movements, first, around social issues and later around the freedom struggle
itself. The Constitution of India adopted in 1950 not only grants equality to
women, but also empowers the State to adopt measures of affirmative
discrimination in favour of women.

3. The ground realities: Mirage of gender justice


Although these rights are guaranteed equally to men and women, there are
several ways in which the structure of the family and the existence of several
inequitable social customs and practices serve to deprive women of these rights.
In particular, discrimination occurs within the family where norms regarding
women's secondary status are reinforced in children from birth. Preferential
status to son is one of the key aspects underlining social values that view girls
as burdens. Women are viewed as dependents within the family and face severe
restrictions on their mobility, which further impede their ability to gain access
to education, economic opportunities, to move freely and settle anywhere, to
form unions or groups and so on, which are all fundamental freedoms under the
Indian Constitution. Freedom of speech and expression is often denied to
women within the family, and women are kept out of decision-making
processes even within the community and State institutions. Cultural norms
regarding appropriate behaviour for women often reinforce images of docility,
passivity and subservience, severely curtailing for women the exposure and

confidence they require for participating on an equal footing with men in public
life. Practices like female foeticide, infanticide and the constant if not increasing
incidence of violence on women also constitute consistent assaults on women's
right to life and personal liberty.
One of the fundamental obstacles in promoting gender equality in development
remains at the community level where attitudinal biases often prevent women
from realising their rights. The Government has done little to take on board
these obstacles, apart from occasional and irregular campaigns around single
issues like dowry, girl child education, amniocentesis and so on. Police
education campaigns are restricted to occasional posters and TV spots, but are
not consistent or backed up by strong and clear action by the State. Their impact
remains less than effective, particularly, since there is little action taken against
advertising or campaigns that are gender discriminatory.

4. NHRC & Indian Perspective of Human Rights


The National Human Rights Commission (NHRC) was set up in 1993 as a
statutory body to which individuals and interested parties can make complaints
on human rights violations in the country. NHRC has explicitly stated that
women's rights will be a part of its concerns. As yet NHRC has taken up no
specific issues of violation, though it has attempted to address single instances
of State violence on women. It is yet to take a significant interest in women's
rights. Part of the problem arises out of the division seen between the National
Commission for Women and NHRC; although a member of the Women's
Commission is represented in NHRC, it is often assumed that the Women's
Commission, its establishment has been criticised as a move on the State to
appear accountable without providing these bodies with sufficient autonomy to
push through decisions or recommendations of the Law Commission that may

appear to be contrary to State's interests. The Law Commission, the Minorities


Commissions, the Commissions for Scheduled Tribes and Scheduled Castes,
have been broadly mandated to look at women's issues. Barring the Law
Commission, which has participated actively in recommending gender justice
and legal change, the remaining Commissions have shown little concern for
women's rights in their functioning.
The causes of gender inequality are complex, linked as they are to the
infrahousehold decision-making process. However, the decisions are made, the
infrahousehold allocation of resources is influenced by market signals and
institutional norms that do not capture the full benefits to society of investing in
women's equality of life and creates burble in economic efficiency and growth.
Regional perspectives play a very important role in the realm of gender
equality.
It is, therefore, essential that public policies work to compensate for market
failures in the area of gender equality. These policies should equalise
opportunities between women and men and refract resources to those
investments with the highest social returns. Of these investments, female
education, particularly at the primary and lower secondary level, is the most
important, as it is the catalyst that increases the impact of other investments,
industry and infrastructure.
Women themselves are agents for change because they play a key role in
shaping the welfare of future generations. Public policies cannot be effective
without the participation of the target group, in this case, women, who make up
for more than half of the world's people. Their views, therefore, must find place
into the policy formulation.

The causes of persistent disparity and inequality between men and women are
only partially examined, explored and understood. In recent years attention has
been focused on inequalities in the allocation of resources at the household
level, as seen in the higher share of education, health and food expenditures,
boys receive in comparison with girls. The decision-making process within
households is complex and is influenced by social and cultural norms, market
opportunities and institutional factors. There is considerable proof that the
infrahousehold allocation of resources is a key factor in determining the levels
of schooling, health and nutrition accorded to household members. Regional
factors also have contributed in gender equalities.
Apart from the equality jurisprudence, an activism, the role of the Supreme
Court of India on human rights jurisprudence, especially, with reference to the
constitutional mandate enshrined in Article 21, in the Constitution has been
excellent and globally enviable. The commandment of Article 21 is, that no
person shall be deprived of his life or personal liberty except according to the
procedure established by law. The concept and philosophy of personal liberty
under Article 21 has been expanded by innovative construction and
interpretation, whereby, in the larger interest and for public policy, many
aspects covering a wide array of rights that go to constitute a life lived, in
freedom and dignity and not just bare existence, but with decency, have been
highlighted.
The contribution of the Supreme Court, thus, in projecting, proliferating and
popularising the human rights jurisprudence, is outstanding and yeomen. The
human rights jurisprudence covers enforcement of fundamental rights and
fundamental freedoms guaranteed by Articles 19 to 30 of the Constitution and
which has, as such, provided substantial and useful material for a better vision
for the 21st century in relation to human rights, and particularly, human rights
of workers, women and weaker segments.

Pro-feminist views seek to overcome discrimination against women, mainly,


through law. Some have long-term strategies, while others insist on immediate
strategies. Women's increased sophistication and articulation, clarity of parties
and determined efforts, all tend to take the women's movement a long way. If
women are serious about putting their rights on the national agenda, they have
to be uncompromising to their constitutional rights. Placing women's rights in a
context gives legitimacy, transparency, visibility and more acceptability.
Ensuring women's rights, obviously, creates a strong launching pad for the
emergence of a more humane justice, equal human society and equality and
probity.

5. Gender Justice: Are the court biased


Bias has been defined as a particular influential power which sways the
judgment: the inclination or propensity of the mind towards a particular object.
In judicial parlance, justice requires that the judge should have no bias for or
against any individual in making his judicial decision and that his mind should
be perfectly free to act as the law requires.
Whilst bias may take various forms, when it comes to the judiciary, bias, even
on account of a particular gender, should have no place in it. Bias in any form is
anathema to a judge. It is, therefore, recognised that where bias is perceived, the
general public considers the judicial system as having failed to adhere to the
highest standards of impartiality and fairness. The rule of law obtains validity or
ratification by society because of its commitment to equality for all citizens
irrespective of race, colour, creed, sex, etc.
Less than ten years ago terms such as "judicial gender bias" or "gender bias and
the courts" were unheard of. Today, the systematic discussion of gender bias is

not only part of the most national judicial education systems, but it has also
received national and international recognition. Pervasive gender bias in the
courts, which was virtually invisible as recently as the 1980s, has become
apparent and is plainly visible on record and one cannot miss it even with a
casual glance. Research conducted into this matter, by social scientists and
researchers in the legal field, have documented a judicial gender bias and its
profound effect on judicial fact-finding and decision-making. Originally, such
progressive empirical studies were uncoordinated. In numerous areas of the law,
a disquieting picture emerged which shows that gender bias existed in all areas,
operating sometimes to the advantage of men and more often and more
seriously to the disadvantage of women.
If gender bias is identified in all its nuances and hues that would be a large step
in dealing with this dilemma. It is not special treatment for women or for men
that is called for, because such special treatment is not needed. Instead, what is
needed is sensitivity to the ways in which unexamined attitudes about men and
women lead to the unintended result of biased decision-making. Once this
sensitivity is achieved, and it is reinforced by inquisitiveness, analysis and
openness, then and only then will the litigants be able to explain their
circumstances to a court that is both willing to learn and to judge to achieve a
gender neutrality in its judicial system, which is both vital and important for the
ultimate achievement of justice in its purest and highest form.
Violence and its perpetuation are often related to conflicts of caste, class,
ethnicity, communalism, fundamentalism and terrorism; and all these factors
cumulatively have a negative impact on women. Other forms of violence are
trafficking in women and girls and custodial violence perpetrated by lawenforcement agencies. Violence is reprehensible in all contexts.

Amendment in the Penal Code and introduction of Section 304-B or 408-A or


even in case of important amendments in IPC on custodial deaths and even in
the Evidence Act and such others are not sufficient enough to check increasing
domestic cruelty and violence. Therefore, legal literacy and awareness
programmes must be evolved for better development and empowerment of
women. No doubt, we are deeply committed to the object of elimination of all
forms of discrimination against women and India is one of the signatories of the
Convention on the said subject.
As per the report of review of New Internationalist's Women-A World Report,
there has been progress in the field of gender equality since 1985, but less than
what was expected. The report illustrated how women's ability to bear children
means that they are expected to take responsibility for domestic work
worldwide. A woman in a Pakistani village, for example, spent around 63 hours
a week on domestic work alone. But, housework is everywhere invisible and
undervalued. If the services provided free by a housewife in the USA in 1979
had been purchased with wages at market rates, they would have cost $145,000
a year. On this basis, unpaid work done in the industrialised countries
contributes 25-40 per cent of GNP.
It is really surprising to think that if women paid each other to do their
housework, GNP would nearly double. It is not of course that we wish to value
all work and caring in monetary terms, but it does seem that because such work
is undervalued, women's abilities and contribution throughout the society and
the world also tend to be undervalued. It is interesting that in parts of the world,
where cash and wages have not penetrated, women and men tend to do
relatively equal amount of work.
Three-fifths of the world's population live their lives by the rhythm of the
seasons. The remaining two-fifths of us-about 1 billion people-are hitched to the

machines that run modern society. Women predominantly work in service jobsreflecting their traditional role of caring and cleaning. In 1985 women's wages
were consistently lower than men's, ranging from 73 per cent in the countries of
northern Europe to less than 50 per cent in Japan and Korea. Even in the United
States, the figures are alarming. There are also the numbers, statistics like
measured mile-makers, flashing along a dawn drive towards a still distant
reckoning. There were 301 women State Legislators in 1969, 908 in 1981; 5765
female elected officials in 1975, and yet those 908 legislators are only 12 per
cent of the members of the State Legislative bodies. Only 19 of the 435
members of the US House of Representatives are women, only two out of 100
senators.

6. New dimensions: Gender equality and human rights

perspective
In spite of series of actions, singular policies, new programmes and some
achievements, certain critical areas call for immediate attention. Some of them
could be highlighted as follows keeping in mind the regional factors and
perspectives:
(i) Inadequacy of institutional mechanisms for the advancement of women.
(ii) Persistent and institutionalised discrimination against the girl child.
(iii) Feminisation of poverty.
(iv) Gender blindness in macro-economic policies.
(v) Invisibility of women's contribution to the economy and environmental
sustenance.

(vi) Poor participation by women in decision-making structures and processes.


(vii) Gender gaps in literacy, education and health.
(viii) Growing trend of violence against women.
(ix) Barriers encountered by women in accessing legal entitlements.
(x) Gender-biased social norms.
(xi) Negative portrayals and perpetuation of gender stereotypes by mass media.
(xii) Regional adverse perspectives and problems affecting the goal of gender
equality and equity.

7. The battle of justice: Role of social reformers


As we study the social evolution of human society, the glaring fact that emerges
is that in the old feudal system, woman was always given an inferior status.
Paradoxically, she was also considered the symbol of the sanctity and purity of
the family. But this very aspect of her personality made woman the target as
well as the victim in conflict-torn society. In a feudal society there are serious
land disputes and conflicts about property rights. These are not always sought to
be settled through due processes of law. No weapon of intimidation, torture or
humiliation is considered unethical. The most revengeful way to humiliate a
family against whom disputes are pending is to subject the womenfolk in that
family to crimes that rob them of their honour and dignity and bring them
disrepute.
In our tradition-bound society, structured on old social values, when a woman is
subjected to a crime like rape, it becomes a multiple crime. She is raped at

home, then in public life, followed by an agonising cross-examination in court,


and the climax is reached when sensational reports about the crime appear in the
media. The victim of the crime finds the public exposure more agonising than
the crime inflicted on her. The most humiliating aspect of crime against a
woman is that her status in the hierarchical structure of society also comes in the
way of securing justice for her. Thus, her social status compounds her gender
injustice.
In a well-known rape case, the most obnoxious situation was that the court
concerned observed that the alleged rapists were middle-aged and as such, were
respectable and were not amenable to a crime against woman. Not satisfied with
this, the court made the astounding observation that "since the alleged rapists
were higher caste men, the rape could not have taken place because the alleged
victim was from a lower caste". Such observations only give credence to the
widely prevalent prejudiced view that men from the higher social echelons of
society are paragons of virtue and not likely to commit atrocities on socially
deprived women. What a tragedy that woman has to face the compounding of
gender as well as social injustice.
The battle for gender justice has been a long-drawn struggle. The sustained
efforts of several social reformers, even in the face of resistance from social
orthodoxy, have given impetus to the cause of gender justice. Constitutional
provisions, various laws, and judgments of courts have made their own
contribution to the cause of gender justice. However, more fundamental is the
work and role of social reformers, who sought to change the mindset of
orthodox tradition-bound society and usher in women's reforms in the social,
economic and educational fields.
Despite resistance from orthodoxy, women's education gradually acquired
greater acceptance. In the old orthodox society, the sati system of widows on

the funeral pyre of their husbands was an atrocious practice. If this practice was
gradually discarded, it was not only because of the Sati Prohibition Act in
Bengal in 1829 at the behest of Bentinck, Governor-General, but mainly due to
the social reform movement against the sati system carried on by the eminent
social reformer, Raja Rammohan Roy. Though the sati system is banned under
law, in isolated cases, it is still implemented in a clandestine way due to both
remnants of orthodox beliefs, and to machinations by the relatives of the widow
to garner her wealth and property by forcing her to mount the funeral pyre of
her dead husband. Still, there are efforts to continue to build a halo of sanctity
around the sati system. This only amounts to a glorification of gender injustice
and has to be resisted through an awakened public opinion.
In different parts of the world, male chauvinism in different degrees has led to
gender injustice. In some developed countries too, women were accorded the
right to vote very late. They had to launch a determined struggle to secure the
right of adult franchise. Even when women secured the right to vote, initially,
they did not receive in the legislatures the recognition they deserved on the
basis of their merit and ability.
If the social reform programme is to be pursued vigorously, certain attitudinal
changes are urgently called for. These comprise change of context, change of
relations and change of values. Without such a comprehensive change in the
existing value judgments of the present consumerist culture, the battle for
gender justice cannot be won.

8. Conclusion
It is really surprising to think that if women paid each other to do their
housework, GNP would nearly double. It is not of course that we wish to value
all work and caring in monetary terms, but it does seem that because such work
is undervalued, women's abilities and contribution throughout the society and
the world also tend to be undervalued.
Through this project I do not want to put forward that women need to be given
preference over men. There are various ways in which women are given
preference over men, for example, in cases like dowry and rape, the law
changes. The men need to prove their innocence instead of proving their guilt.
The word of mouth of women is counted as evidence. In city areas, men and
women have almost equal rights; moreover, probably we can say that now is a
time where women are given preference over men. There are schools and
universities only for women. There are seats in public transport vehicles and
only women cabs and metro cars that are also allotted only for women.
But however, we cannot ignore the harsh reality that even though India has
developed to such a large extent in the city areas, the rural areas are still
backward and orthodox wherein women struggle for the freedom of speech in
their own household, they struggle for the right to own property, they cannot
raise their voice to be the karta in the house. Women are generally physically
weaker than men because of whom there are still various cases pending for
domestic violence, rape, sexual abuse, etc.
The Constitution and Fundamental Rights are for everyone within the territory
of India and must be executed for men and women both equally. There must be
no biasness on the ground of gender (men and women both) against any sort of
crime in India.