16 Days Campaign/ Women’s History Roundtable: 8-12-12: Sheila Jayaprakash on law, gender violence and society




Law, Gender based violence and Indian Society

This month’s Round Table seminar was a special one. In keeping with the theme of Prajnya’s 16-Day campaign against gender violence, Madras High Court lawyer Sheila Jayaprakash spoke about the laws relating to gender violence.

From statistics, we can see that crime a

gainst women is on the rise in spite of an increasing number of legal remedies and deterrents which exist today. Ms Jayaprakash divided crimes against women into two categories: those committed within the home, and those c

ommitted outside the home. The former fall under the ambit of civil law; while the latter are subject to criminal law proceedings.

Ms Jayaprakash raised questio

ns about the effectiveness of laws relating to crime against women. Have they actually been helpful, or do they j

ust look good on paper? She took us through the various laws which are intended t

Even those legislations that are intended to protect women are based on extremely unequal assumptions. For example, in a case of adultery, only the “other man” can be prosecuted if a married woman is having an affair. Implicit in this system is the assumption that the man is at fault, even though the woman is a willing participant. In effect, this system of prosecution controls the sexuality of a woman. Therefore, these so-called protective measures actually handicap rather than empower women.o empower women in India, starting with the Constitution, which affirms that all citizens (regardless of sex) have a right to equality. There is a qualifier which comes with this: the Constitution states that special laws can be enacted for the protection of women and children (historically marginalized and oppressed groups). Additionally, the Constitution states that customs that are derogatory to women should be dismantled. However, in a contradictory move, India has failed to ratify the section in CEDAW (Convention for the Elimination of Discrimination Against Women), which calls for the dismantling of such cultural customs! The explanation given by the heads of state for this failure is that it would be insensitive to impose this on religious minorities, and their customs should be respected. Thus, Ms Jayaprakash concluded that while there is formal equality for women, it remains just that: formal.

Ms Jayaprakash believes that the way forward lies in positive equality rather than formal equality or protective equality. For example, in a workplace, the onus should be on the employer to ensure the safety on women. Thus, while formal equality is all very well, there need to be ways for women to access this equality.

With reference to crimes outside the home, there have always been laws relating to them. However outdated the terminology of these laws is (a prime example being “outrage to modesty”), the fact remains that there are ways to seek legal redress for those crimes which are euphemistically referred to as “eve-teasing” as well as rape. We learned that the Social Welfare Board has a policy of offering monetary compensation to rape victims. Ms Jayaprakash pointed out that it isn’t compensation or even enhancement of punishment (from imprisonment to death) that will help eliminate the incidence of rape. What is likely to work better is the surety of conviction and also a time-bound investigation. The latter is particularly important, as Ms Jayaprakash illustrated with a story of a rapist who was convicted 17 years after his crime, and escaped punishment because the Judge said that he was too old and frail to be a menace to society anymore!

One of the major problems while prosecuting a case involving rape is the slow processing of physical evidence such as sample analysis, which can take upto 3 years! Additionally, much of the physical evidence is destroyed because most women are simply not aware that their clothing and their bodies and the only tangible evidence of rape.

Ms Jayaprakash also spoke about the importance of sensitizing the police force. When a woman comes to report a rape, it is important that the officer recording the report does so in a sensitive manner. It is important that policemen recognize that the victim is in a state of emotional distress. Ms Jayaprakash has held many workshops in police stations to sensitize policemen.

Law relating to crimes against women within the home starts and ends with the Dowry Prohibition Act of 1961.

The way the law perceives cases of dowry death or rape by an individual in a position of power (e.g. in a hospital or a mental asylum) is very different from the way a criminal offence is perceived. In the case of the former, the accused is seen as guilty until proven innocent. However, judges often have trouble adjusting to this mindset when they are used to looking at a case the other way around i.e., innocent until proven guilty.

Civil laws dealing with domestic violence all relate to remedies within the home, namely, divorce. However, there are multiple problems associated with this. The concept of equal division of assets is nearly unknown in Indian courts, and the woman often leaves the marriage with nothing. As a result, most women prefer not to recourse to divorce.

The Protection of Women from Domestic Violence Act addresses the all-important issue of Right to Shelter. This requires a drastic change in the mindset of judges, because it implies that the abuser (usually the husband) has to leave the marital home. This goes against the grain for many judges, and is especially confusing in the case of a joint family.

The definition of abuse has also been expanded to include economic abuse as well as sexual abuse. Economic abuse includes not allowing the wife to seek employment outside the home, or have her own funds. The inclusion of sexual abuse in the category of domestic violence is an important step forward as it implies that marital rape is a punishable offense. However, in practice, this section is not used frequently as reporting marital rape or sexual deviance usually carries a significant amount of psychological trauma with it.

Thus, domestic violence is a crossover between civil and criminal law – while it comes under the ambit of civil law, it is punishable under the Criminal Code.

The discussion which followed Ms Jayaprakash’s presentation was prolonged and covered many aspects of the law and domestic violence.

Rapporteur: Archana Venkatesh

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