In June this year, the Supreme Court of the United States, in a landmark judgment, overturned the constitutional right of American women to abortion. This right was established 50 years ago, and the recent judgment sparked criticism from feminists and gender rights activists, who claimed that it undermined reproductive rights and women’s physical autonomy.
A month later, the Supreme Court (SC) ruled that even unmarried women had the right to safe abortion, and denying it violated their personal autonomy and freedom. The judgment was roundly praised for upholding gender justice. For several years now, the SC has been recognised as a defender of gender rights.
In 2020, former President Ram Nath Kovind had praised the country’s judiciary for “pursuing the cherished goal of gender justice”. He had also described the SC as “proactive and progressive”.
“From issuing guidelines on preventing sexual harassment in the workplace two decades ago to providing directives for granting equal status to women in the Army this month, the Supreme Court of India has led progressive social transformation,” he had said.
Kovind was referring to the Vishaka Guidelines, promulgated by the Supreme Court in 1997 to govern cases of sexual harassment at workplaces. This eventually evolved into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
He was also praising the SC’s judgment in February 2020, allowing women to serve a full tenure in the Army and be treated on a par with their male colleagues when it came to promotions, ranks, benefits, and pensions. Till then, the Army, which started inducting women officers in 1992, only allowed them short service commissions of five years.
The Indian courts have, over the past few years, passed several landmark judgments to ensure justice, not only for women but also for other genders.
These include a 2014 judgment recognising transgenders as a third gender, and the decriminalisation of Section 377 of the Indian Penal Code that earlier criminalised consensual same-sex relationships in 2018. In the same month, the SC also decriminalised adultery, which had been a crime for 158 years. “Husband is not the master of wife. Women should be treated with equality along with men,” former Chief Justice of India Dipak Misra had said. And in 2020, the SC ruled that a Hindu woman would be able to inherit her father’s property even if he did not leave behind a will, clearing any misconception over succession rights.
But do landmark judgments succeed in making a more equal society? A look at the data on crimes against women reveals a different story. Crimes against women, including rape and intimate-partner violence, seem to be on the rise all over the country. At times, some judgments—instead of making way for progressive measures—help in the continuation of a regressive, patriarchal society, claim activists.
The National Crime Records Bureau (NCRB), a New Delhi-based government agency that collects and analyses data about crimes reported across the country, had in September 2021 claimed in its annual report that the number of cases of crime against women had declined in 2020.
In 2019, the number of such cases registered in police stations across the country was 4,05,326. It declined to 3,71,503 cases in 2020—a fall of 8.3 per cent. The report attributed this to the pan-India Covid-19 lockdown.
The NCRB’s 2022 report, however, records a reversal in this trend. In 2021, crimes against women registered across the country rose 15.3 per cent to 4,28,278. The report also showed that the crime rate per 1,00,000 women was 64.5 per cent in 2021.
Crimes against women are categorised under various subheads such as rape, rape with murder, dowry, acid attacks, suicide abetment, kidnapping, forced marriage, human trafficking, and online harassment, among others.
The number of cases of assault on women with an intent to outrage their modesty accounted for 20.8 per cent of the total cases registered in 2021—as many as 90,675. The number of rapes registered in 2021 was 31,677—an average of 86 per day. Of these, 3,033 were minor victims and survivors.
The NCRB only records the number of cases registered at police stations. It might not reflect the total number of crimes against women, many of which go unreported. Also, an increase in the number of cases possibly reflects more awareness among victims, survivors, and their allies about the legal process. Nevertheless, the number of crimes against women registered against women is alarmingly high.
In December 2012, a brutal gang rape was reported in New Delhi. A 23-year-old paramedical student, who would later get the ironic moniker of ‘Nirbhaya’ because Indian law does not allow the names of rape victims and survivors to be reported, was assaulted in a moving bus on the capital’s streets. She succumbed to her wounds in a hospital several days later.
The news of the assault sparked countrywide protests, leading to significant changes in the laws governing rape and sexual assault. The Criminal Law (Amendment) Act, 2013, was passed, amending several provisions of the IPC and the Criminal Procedure Code (CrPC). The definition of “rape” was expanded to include such offences as forced oral sex, which was not prosecutable earlier. The Act also made existing offences more stringent, and it was further amended in 2018.
A significant alteration was made to the Evidence Act, 1872, allowing the presumption of non-consent for the victim or survivor. This means the onus of disproving a sexual crime was on the accused, not the complainant. It was done to ensure that women with previous sexual experience or sex workers could also seek justice for rape.
And yet, victim shaming remains a major problem in cases of sexual assault and rape, claim legal experts. “There are no perfect victims in cases of sexual assault,” says Rebecca M. John, a senior SC lawyer. “But courts still keep looking for perfection in a woman’s character while assessing their allegations.”
John has represented survivors in several rape cases over the decades. “She is promiscuous, she had affairs, she did not behave in a certain way, she did not cry enough during the incident, she does not seem traumatised—all these are regular excuses thrown at us by the defence to get an accused acquitted,” she tells Outlook.
True to its “proactive and progressive” reputation, the SC does provide ground-breaking judgments from time to time. For instance, in 2018, it set aside a Delhi high court verdict that had acquitted four men in a rape case in 1997. The SC observed that a woman had a “right to refuse to submit herself to sexual intercourse to anyone”, even if she was “habituated to sexual intercourse”.
But not all judgments are similar. In August this year, a sessions court in Kerala granted bail to writer, activist and accused in a sexual assault case, Civic Chandran because the complainant was allegedly wearing a “provocative dress”. The judgment had led to widespread outrage. The Kerala high court later stayed the Kozhikode district and sessions court’s order that granted anticipatory bail.
“Such incidents reflect not only the inherent patriarchy in the Indian judiciary but also problems with the 2013 Act itself,” says John. She added that the problem was in the way the courts viewed the law. “The sentences prescribed are very stringent,” says John. “The Act gives very little discretion to courts to deliver a lower sentence as might be appropriate in different cases. To get rid of this problem, courts often choose to dismiss the case altogether.”
The conviction rate in rape cases was at a low of 24.8 percent in 2021. Only 156 people had been convicted and 22,313 cases were under trial.
“In an ideal democracy, a law passed with the intention of improving public life must be audited over a period to assess its impact on the ground, and tweaked to improve its efficacy,” says John. “Perhaps it’s time for India to take a second look at its laws against gender violence.”
In the summer of 2021, as the country was struggling against the second wave of Covid-19, Sarita* (name changed), 41, a resident of Nesapakkam in Chennai, decided to end her life. Years of domestic abuse had made her desperate and in April 2021, she set fire to herself. Luckily, she survived.
“After my second child was born, my first husband left me in 2017,” she said. “We had been married for many years.” She got married again in 2019, but this time, her own family was opposed to the union. “I went to the police, but they did not help me,” says Sarita. “They sent me back to my relatives, asking me to behave appropriately.”
She said she did not really want to kill herself. “But this was no life either.”
Sarita’s misfortune is a common experience for many Indian women. NCRB data shows the highest number of cases of crime against women in 2021 was registered under the “cruelty by husband or relatives” category—31.8 per cent (1,36,192 cases). The number of women committing suicide in India has also increased alarmingly. Of the 1,60,000 people who took their own lives in India in 2021, 45,026 were women—up from 44,498 in 2020. Among the women committing suicide in 2021, 51.5 per cent (23,178) were homemakers—up from 50.3 per cent (22,372) in 2020.
Despite laws such as the Protection of Women from Domestic Violence Act, 2005—popularly called the DV Act—Indian women continue to suffer violence in a patriarchal society, with strictly defined gender roles. Even the wording of the law had initially surprised gender activists.
Defining who is an accused in a case of domestic violence, the draft bill had said it was a person who committed violence “again and again”.
“What does ‘again and again’ mean?” asks Mariam Dhawale, general secretary, of All India Democratic Women’s Association (AIDWA), an independent left-oriented women’s association. “Even here, we see an attempt to justify some amount of violence.” The words were removed and the definition was clarified after objections from women’s rights activists.
“There is a kind of social and cultural justification for a man beating up his wife,” Dhawale tells Outlook. “It runs through the administration, including the judiciary and the police, as well as society at large,” she adds. “A woman complaining about domestic violence is often viewed with suspicion, as someone trying to use the DV Act to incarcerate men.” Dhawale says the implementation of the Act also left a lot to be desired.
It is a common practice, especially in the rural areas, to appoint revenue officers, sub-collectors, and even tehsildars (tax officials) as protection officers for women, as stipulated under the Act. They serve as the first responders in cases of domestic abuse. However, these officers were often burdened with other administrative duties. “They have little interest in helping women who have been abused,” says Dhawale.
The SC had, in March this year, disapproved of the practice of appointing officers from the elite Indian Administrative Service (IAS) as protection officers. But the practice continued unabated. In many districts, there is often only one protection officer, swamped by complaints from across the area under their jurisdiction. “There is very little awareness among women about remedies and laws that can help them,” says Shwetha Shankar, senior director of programmes, International Foundation for Crime Prevention & Victim Care, Chennai. “Community-level action and empowerment can bridge the gap,” she adds.
Activists also say that some judgments by the courts could weaken the laws to prevent domestic abuse. For instance, in February this year, the SC observed that Section 498A of the IPC was often used by women to “settle personal scores against the husband and relatives”. The bench of Justices S. Abdul Nazeer and Krishna Murari, while hearing a plea to quash an FIR filed by a woman in 2019 against her husband and in-laws, alleging harassment for dowry, ruled: “Decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of Section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long-term ramifications of a trial on the complainant as well as the accused.” Activists, however, claim that this judgment has made it difficult to lodge cases under this IPC section. “Section 498A was meant to help women. Now that it has been made a bailable offence it is no longer of use to women as no arrests are being made under it,” says Dhawale.
A right to rape?
The Delhi High Court’s split verdict on petitions seeking criminalisation of “marital rape” earlier this year left many disappointed. The division bench of Justices Ravi Shakdher and C. Hari Shankar, on May 11, reserved its orders while hearing petitions that challenged Exception 2 of Section 375 of the IPC. Exception 2 keeps non-consensual sex between husband and wife out of the ambit of rape. While Justice Shakdher held that Exception 2 should be struck down, Justice Hari Shankar disagreed. One observation that the latter made while delivering his verdict sparked a row.
“A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined,” he says. “Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?”
“The amount of sexual violence in marriages is alarming,” says AIDWA’s Dhawale. “In most cases, it is a way for the husband to assert his authority over his wife.”
“The lack of any legal framework means women continue to face assaults,” she adds. Dhawale also explained that marital rape could not be addressed through divorce or the DV Act because these provided civil remedies while rape was a criminal offence. AIDWA and other gender justice organisations such as RIT Foundation have now appealed to the SC to strike down Exception 2.
India’s neighbour Bhutan has made marital rape a crime, though several South Asian countries do not consider it as such.
The long road ahead
While the law is yet to recognise marital rape, the Ministry of Health and Family Welfare has issued guidelines that all victims of sexual violence—married or not—should be treated equal. This has led to a strange procedural dichotomy. For instance, in 2011, when a 20-year-old married woman walked into a municipal health centre at Bandra in Mumbai, with wounds to her genitalia, the healthcare workers treated her as a rape survivor. This is reflected in the health centre’s records. However, no case of rape was lodged with the police because the alleged aggressor was her spouse.
According to the latest National Family Health Survey (NFHS-5), based on a sample survey conducted between January 2015 and December 2016, covering 1,00,000 households, two in five women have experienced physical or sexual violence from their husbands or partners. A 2014 working paper, Reporting and incidence of violence against women in India, by A. Gupta, compared NFHS data with NCRB data from previous years and showed that less than one per cent of spousal sexual violence cases are reported to the police. “Instead of criminalising marital rape, our laws criminalise the victim,” says Dhawale. “Making marital rape a prosecutable offence will automatically raise the number of reported cases and encourage more women to speak up about it.”
(This appeared in the print edition as "No Country For Women?")