#NoMoreImpunity || Blog Symposium || Custodial Torture: A Special Hell

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CUSTODIAL TORTURE: A SPECIAL HELL

Nitya Ramakrishnan

In the December of 1991, Li Peng, the Chinese Premier came on a visit to New Delhi. Over 2000 resident Tibetan men and women, demonstrating in protest, were detained by the Delhi Police. The Supreme Court ordered their release and directed an inquiry into complaints of unwarranted police violence against peaceful protesters. Additional Sessions Judge, Rekha Sharma, conducted the inquiry,[i] at which, the women spoke of the verbal and physical abuse in custody. It was the women’s word against that of the police, and the latter were exonerated on the principle of doubt. This was no trial, but a fact finding inquiry, and its conclusions precluded any investigation and trial of the molestation as a criminal offence.

No such doubt surrounds the torture and murder of Thangjam Manorama by officers of the Assam Rifles stationed in Imphal. Those officers roam free, while the State and the Central Government engage in a turf battle that has lasted a decade. On July 10 2004 Manorama was formally arrested and taken from her home by uniformed men of the Assam Rifles. On July 11, 2004, her bullet ridden body was found in an open field of the city.  On July 12 Manorama’s family lodged a First Information Report at the local police station.  Forensic tests commissioned by the state police revealed marks of torture and possible rape before Manorama was killed.   The Assam Rifles do not deny either the arrest or the killing, but say that they killed while she trying to flee (with her arms tied behind her!). A Commission of Inquiry set up by the State Government indicted the army men. The legality of this Commission was challenged by Assam Rifles on the ground that as a Central force, they were not amenable to any inquiry set by the State Government.[ii] The Gauhati High Court upheld this claim of Assam Rifles and the case is now in the Supreme Court.  Meanwhile, the High Court’s plea to the Centre that, it should on its own initiate action, goes unheeded. Quite aside from who may set up a commission, there is a crime of homicide and rape to be investigated and tried, but that has not happened.

On May 30, 2009, the bodies of two women, Nelofaar, 22 and Asiya, 17, were found floating in Rambi Ara Nalla‘s shallow waters flowing through the Shopian district of the State of Jammu and Kashmir. On the previous day, these young women had set out from home, for their nearby orchard across the river, both sides of which are heavily patrolled by the Indian army.  Huge public protests followed the finding of the bodies, for it was strange that the army should have maintained silence about these deaths, that could not possibly have escaped their notice.  Eventually, the state police registered an FIR and the first set of forensic reports indicated rape and murder. A Commission of Inquiry, and a CBI investigation later, the doctors who gave the first forensic report have been branded liars. The case is closed as one of accidental drowning. We do not know what happened, as there has been no open trial.

Every death, disappearance or alleged rape in police custody, or any other custody ordered by a Magistrate must be subjected to a magisterial inquiry in addition to a police investigation, but this requirement of law is observed mainly in the breach.[iii] So too, the NHRC guidelines on encounter deaths. Almost never, do we see a full trial of a complaint of custodial abuse.

India has no separate statute banning torture, and is yet to ratify the UN Convention Against Torture. A proposal to do both is pending since 2010.[iv]  However, torture is effectively outlawed. Murder, by any one is a criminal offence.  Hurt and illegal confinement in police custody have been classified as offences in the Indian Penal Code since 1860.[v]  Later, after the Constitution came into force, it has been judicially pronounced that torture is a violation of the right to life guaranteed by the Constitution.

A spate of legal clauses followed a public movement sparked by the acquittal of two policemen by the Supreme Court in the Mathura rape case.[vi] Custodial rape was listed as a separate category of rape, with a higher punishment offence.[vii] The burden of proof was shifted to the custodial officer, if sexual intercourse during custody was established.[viii]

More amendments followed the public protests over Nirbhaya in December 2012.  Rape by army men in areas of their deployment was added to the category of rape crimes that would draw a higher punishment. Presumptions were brought in to operate against custodial officers and members of security forces in rape trials.[ix]

There is enough in the law even today to punish torture. Yet, action against offenders does not occur as a matter of course. Invariably, higher courts have to be petitioned, or fact finding committees set up before state agents are even investigated on the count of torture. Then too, the process seldom moves to a conclusion. Reparative justice by way of compensation has largely been a matter of judicial discretion. The National Human Rights Commission has done little more than award measly sums as interim compensation.

Some cases of custodial torture catch public attention, while an infinitely greater number do not. Those that may get documented will reveal the ploys of the system to resist any open scrutiny of custodial abuse. These ploys are a manipulation of the process, in spite of the legal provisions that render torture a crime.

The 1991 case of Delhi’s Tibetans  begs the question, for within a prison cell, torture will, oftener than not, only be word against word.  The 2004 case of Manorama shows that even when the fact does not rest on word alone, and is established by record, state actors easily avert justice.  Shopian 2009 is a case of shifting the goal-posts midway.

Torture is an open secret. A special hell is reserved for women in those dark chambers where no law can enter. Still, the fear that an arrest and investigation is likely to follow would act as some kind of check. Routine prosecution of torture as a crime is the first step against impunity.

Unlike the empire that effectively strikes back, torture victims are less able to galvanize legal process. Their interlocutors get side-tracked into special solutions and almost in denial, they seek to saddle the system with more and more laws with less and less effect.

Nitya Ramakrishnan is a Supreme Court Senior Advocate and the author of In Custody: Law, Impunity and Prisoner Abuse in South Asia, Sage, 2013.

[i] The Inquiry Report is not readily available.

[ii] Judgement and Order in  Writ Petition 5187 of 2004, Col. Jagmohan Singh and others Vs The State of Manipur & Others and Writ Petition 6187 of 2004, JC-172262F Nb Digambar Datta and others vs The State of Manipur and others, Gauhati High Court, June 23, 2005.

[iii] S.176(1-A) CrPC.

[iv] The Prevention of Torture Bill 2010 was passed by the Lok Sabha, but the Rajya Sabha saw fit to refer it to a Select Committee, Post the Select Committee recommendations it has not been placed before Parliament.

[v]  Ss.330, 331 and 348  IPC.

[vi] Tukaram and anr V State of Maharashtra (1979) 2 SCC 143

[vii] Introduction of S.376 (2)  a, b, c,and d.by the Criminal Law amendment Act of 1983 as categories of rape carrying a higher punishment

[viii] Introduction of S, 114A Evidence Act. by the Criminal Law amendment Act of 1983

[ix] Criminal Law Amendment Act 2013.

Brief: Draft National Policy for Women 2016

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Brief:
Draft National Policy for Women 2016

prepared by Ragamalika Karthikeyan

Draft released by the Ministry of Women and Child Development on May 18, 2016 hopes to replace the 2001 National Policy for the Empowerment of Women.

Vision:

A society in which, women attain their full potential and are able to participate as equal partners in all spheres of life and influence the process of social change.

Mission:

To create an effective framework to enable the process of developing policies, programmes and practices which will ensure equal rights and opportunities for women in the family, community, workplace and in governance.

Overview:

  • The policy focuses on health, education, employment and visibility of women.
  • Although the larger focus is on maternal health and nutrition, policy also mentions mental health, geriatric care.
  • Policy focus on migrant women labourers, especially domestic workers. New legislation promised for domestic workers.
  • Large focus on skill development and vocational training of women and girls.
  • Pay parity, institutional mechanisms to encourage gender equity in familial responsibilities mentioned.
  • Focus also on increasing land ownership of women. Measures to reduce stamp duties, increase awareness about land rights among women.
  • Emphasis on collecting gender disaggregated data across sectors.
  • ‘Emerging issues’ like menstrual hygiene, cyber safety touched upon.
  • 50% reservation for women in local bodies, 33% reservation in assemblies, Parliament, promised.
  • The policy promises to strengthen public transport, sanitation infrastructure to help women in many ways.
  • Institutional response mechanisms, better implementation of existing legislation promised to tackle violence against women.

Introduction

The draft policy lists out 12 objectives, focusing on the health, education and social and political participation of women and girls. The objectives also talk about tackling violence against women and empowerment of marginalised women. The subjects of these objectives are discussed in seven ‘priority areas’, and some ‘emerging areas’. The document also focuses on strategies for implementing its objectives.

Priority Areas:

  • Health, including food security and nutrition

  1. Maternal, Sexual and Reproductive Health:
  • Capacity building of existing systems, like Accredited Social Health Activists (ASHAs) and Anganwadis, in order to improve maternal mortality rates.
  • Co-ordinated ‘Referral Transport System’ for safe childbirth and emergency obstetric care in all areas, especially difficult, remote and isolated areas, and in places affected by natural calamities.
  • Focus of sterilisation campaigns to be shifted to men instead of women.
  • Special emphasis on sexual and reproductive health needs of adolescents.
  • ‘Suitable interventions’ to focus on health needs of menopausal women.
  • Healthcare coverage for surrogates during pregnancy, and for post-pregnancy check-ups.

2. Nutrition:

  • Focus on nutrition during antenatal and postnatal stages.
  • Strategies to address intra-household discrimination on nutrition for girls and women.
  • Regular data collection, district-wise, sex-wise, on nutritional deficiency of children.
  • Review of Integrated Child Development Services (ICDS) role in preventing and addressing under-nutrition.
  • Strengthen Public Distribution System (PDS) to reach vulnerable women.
  • Proposal to have Self Help Groups (SHGs) manage institutions of food/grain banks, to ensure uninterrupted supply of food, even during disasters.

3. General/Other:

  • Systemic approach to provide mental health screening, care and treatment to vulnerable women.
  • Focus on communicable and noncommunicable diseases, formulation of appropriate strategies and interventions to address them.
  • Strengthening of geriatric services, including preventive, curative and rehabilitative health care, to help women over 60.
  • Expansion of Govt health insurance schemes, and linking them to existing schemes benefitting women, like Integrated Child Development Services, Janani Suraksha Yojana etc.
  • Investment in data infrastructure to get gender based data from public and private institutions, and researchers, to address health reforms.

 

  • Education

  1. General
  • Responsive complaining mechanism in schools and colleges to address discrimination, sexual harassment.
  • Gender sensitisation of faculty, and curriculum, content and pedagogies for an understanding of concepts of masculinity, femininity, and gender stereotypes.

2. School Education

  • Strengthen pre-school education in Anganwadis in order to:
    • Improve cognitive and communication skills of children.
    • Free older children, especially girls, from child care responsibilities and prevent dropouts.
  • Increase enrolment and retention of adolescent girls by providing functional girls’ toilets, recruiting more women as teachers.
  • Transport systems to ensure girls don’t drop out because of distance to school.
  • Secondary education of girls to focus on skill development and vocational training.
  • Monitoring and Evaluation of Govt schools by Mother Groups, Self Help Groups.
  • Innovative and accessible education systems for children of migrant labourers, especially in large construction sites, salt pan areas, plantations, and other manufacturing zones.

3. Higher Education

  • Inter-sectoral plan of action to encourage enrolment of women in professional/scientific courses, by provision of financial assistance, coaching, hostels, child care etc.
  • Partnership with international universities to provide opportunities to women for higher education.
  • Online distance education courses in skill development and entrepreneurship.

4. Adult literacy

  • Mission mode approach for women’s literacy. Adult literacy to be linked to financial literacy, life skills, education on rights, laws, schemes etc.
  • Economy

 

  1. Poverty:
  • Gender disaggregated surveys on intra-household well being to measure incidence of poverty among women.

2. Raising Visibility

  • Gender wage gap to be addressed across all sectors. Focus on pay parity and satisfactory work conditions for women in informal sector.
  • Growing informalization and casualization of women’s work / labour to be addressed.
  • Reduction in stamp duties for women if assets registered in their name; lowering of income tax slabs for women.
  • Gender outcome assessment in all financial inclusion schemes.
  • Review of all existing trade agreements and treaties from a gender perspective. Future negotiations to be backed by ‘Gender Trade Impact Assessment’.
  • Household surveys to assess gender inequality in household work and unpaid care work. Measures to free women’s time for paid work.
  • Caregiver support programmes and family and community counseling to help differently abled women.
  • Focus on social security, protection of migrant women labourers, especially domestic workers.

3. Agriculture

  • Effective implementation of land rights laws for women; ‘witch hunt’ against women landowners to be addressed.
  • Encourage women to hold land in Govt land distribution schemes.
  • Gender disaggregated data collection on land ownership.
  • Women to be recognised as farmers; agro schemes to target women beneficiaries.
  • Self Help Groups, co-operatives to be incentivized to follow sustainable agriculture practices.
  • Special package for wives of farmers who committed suicide.

4. Industry, Labour and Employment (Skill Development and Entrepreneurship)

  • Pay parity, safe workplaces, social security to facilitate women in formal work environments.
  • Focus on skill development and entrepreneurship for women.
  • Part-time and flexi-time job creation in the organised sector to attract more women.

5. Service Sector

  • Infrastructure like toilets, child care facilities, safe public transport to be strengthened to encourage women to enter service sector.

6. Science and Technology

  • Gender-based data collection through mobile phones to inform policy decisions.
  • Self Help Groups, Co-operatives, Non-Governmental Organisations to be trained to disseminate technology in rural areas.

 

  • Governance and Decision Making

 

  • 50% reservation for women in local bodies, 33% in assemblies and Parliament.
  • Financial incentives, quotas to increase women’s participation in civil services, judiciary.
  • Increase women’s participation in trade unions, political parties etc. Maintain gender disaggregated data to assess progress.
  • Train civil servants on gender issues.

 

  • Violence Against Women

 

  • Life cycle approach to address all forms of violence against women and girls.
  • Measures to improve Child Sex Ratio – effective implementation of Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT) and creating awareness about the issue.
  • Special measures to combat violence against adolescent girls in public and domestic spaces.
  • Strengthen existing legislation to prevent trafficking of women and children.
  • Sensitise law enforcement, judiciary, panchayats to prevent violence against differently abled girls and women.
  • Strengthen alternate dispute redressal systems, like family courts and nari adalat, to address violence against women.
  • Create and strengthen linkages between legal service institutions and shelter homes. Create one-stop-centres at shelter homes to provide legal aid to women.
  • Advocacy and awareness work with men and boys.
  • Gender sensitivity training for law enforcement, judiciary.

 

  • Enabling Environment

 

  • Focus on providing safe housing for women across socio-economic spectrum, including capacity building of state-run shelter homes for survivors of domestic violence.
  • Safe drinking water and sanitation facilities for women at all levels.
  • Menstrual health and hygiene education for adolescent girls in schools/colleges.
  • Include women in decision making process regarding water conservation.
  • Increase number of women in decision making roles with respect to mass media.
  • Advocate use of gender sensitive language in media.
  • Provide safeguards to protect women on the web.
  • Promote sports for women by providing financial incentives, scholarships, coaching.

 

  • Environment and Climate Change

 

  • All environment policy to incorporate gender concerns.
  • Gender specific strategies in disaster management and prevention.
  • Environment friendly, sustainable micro-enterprises run by women to be promoted.
  • Strengthen role of women in forest governance.

Emerging Issues:

  • Child care, dependent care and paid leave for both men and women in organised and unorganised sectors.
  • Review of personal and customary laws in accordance with Constitutional provisions.
  • Develop measures to prevent cyber fraud, and protect victims, especially women.
  • Ensure rights of all parties using in artificial reproductive techniques, including commissioning mothers, surrogates, and children.
  • Social security measures to benefit single women, including widows, separated, divorced, never-married and deserted women.

How will these issues be tackled?

  • At Central and State level, short-term, medium-term and long-term action plans will be made in the following template:
  1. Action points based on each priority area to be achieved during each fiscal year
  2. Outcomes with Indicators
  3. Responsible Agencies
  4. Identification and commitment of resources
  • Inter Ministerial Committee headed by Minister of Women and Child Development to operationalise policy. At state level, committee to be headed by Chief Minister.
  • Strengthen existing institutions for the protection and empowerment of women, including National Commission for Women, State resource centres under National Mission for Empowerment of Women, Central Social Welfare Board etc.
  • Include civil society organisations in formulation, implementation and monitoring of policies for women.
  • Review existing legislation and formulate new legislation and/or amendments to benefit women.
  • Comprehensive legislation to address the issues of domestic workers.
  • Compulsory registration of marriages.
  • Emphasis on advocacy efforts to change the mindset of the population, focus on men and boys.
  • Promote skill development opportunities for women.
  • Strengthen convergence at all levels to ensure village co-ordinators can reach out to women effectively on all Govt schemes.
  • Collect gender disaggregated data for all policies and schemes; find new ways of collecting gender-based data to know the real state of women in India.

The Ministry of Women and Child Development invites feedback on the draft by June 20, 2016. 

Can India take a leaf out of Goa’s laws?: Guest post by Samita Sawardekar

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Samita Sawardekar, who is an investment banker based in Mumbai & writes on economic & other issues, writes for The PSW Weblog on dowry laws and how much they matter. This is her considered viewpoint, and we invite you to engage with it. Do you agree? Why or why not?

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Can India take a leaf out of Goa’s laws?

By Samita Sawardekar

Goa is known for its famous beaches, its sussegad attitude and way of life that has captivated thousand of people across India.  However, it has some unique laws, which are also worth emulating.

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It all started with the SMJ episode on Dowry that got people talking about this cancer that has affected much of Indian society. While I did not see the episode, it clearly resonated with many, provoking fierce debate in newspapers and on-line forums.

What is dowry?  Dowry refers to anything from cash to gold and other material goods which the groom and his family may ask the girl and her family to pay to seal the marriage. The girl’s father is often forced to pay exorbitant sums far exceeding the assets owned, and it is not uncommon for the family to take on debt to meet these dowry demands.

While the act itself is condemnable, the social consequences of this are immense and tragic.  Because of this practice, girls tend to be viewed as a financial burden and get discriminated against from birth as the incentive to invest in the girl child, whether in terms of health or education, in minimal.  The corollary is an increased preference for the male child, who in addition to being someone who carries forward the family name and looks after parents in their old age, is also seen a means to collect dowry.  This bias coupled with a move towards smaller families has seen a shocking surge in female infanticide as parents use advancements in medical technology to abort female fetuses.

As a result, the male female ratio in India is highly skewed at  940 females for every 1000 males in 2011 (Thank you, SH, for the edit!).  In contrast, the ratio is 1030 in US and 1020 in Scandinavian countries of Norway and Sweden.    This malaise is particularly strong in states like Punjab and Haryana where the sex ratio has dropped below 900.

In an attempt to eradicate the practice of Dowry, the Dowry Prohibition Act was enacted in 1961.  While there have been several attempts at increasing the penalties and improving the policing, that is clearly not enough.  While public education about the ills of dowry is necessary, one also needs to go to the root of the problem and attempt to address it at the source.

The original rational behind dowry was economic rather than social.

The system arose as a means to bring about fair distribution of ancestral wealth amongst the children. In patriarchal societies, sons, who usually stayed with the family post-marriage, were given immoveable property such as land, houses etc. In contrast, daughters who typically moved away post-marriage, were given moveable property such as gold, cows, horses etc.  It was thus a voluntary mechanism to distribute family assets between the children and to ensure the financial security of the girl child.

As often happens, over time, the custom degenerated to the system that exists today where dowry is demanded by the boys’ family to seal the marriage.

Given this background, one way to address the root of the problem is to reduce the economic rationale behind dowry and thereby reduce the incentive and indeed the “need” to ask for dowry.  In addition, a focus on women empowerment that increases the ability of women to resist such ills and bring a change in society is likely to yield better results.

In this context, one can look at Goa, which anecdotally appears to a more egalitarian society than many parts of the country.   Statistics also appear to point in that direction – any additional research on this is welcome:

Parameter Year India Goa Kerala Highest Lowest
Literacy Rate (%) 2011 74% 87.4% 93.9% 93.9% (Kerala) 63.8% (Bihar)
Per Capita Income in Rs. 2011-12 60972 192652 83725 192652 (Goa) 24682 (Bihar)
Females per 1000 Males (Sex ratio) 2011 940 968 1084 1084 (Kerala) 877 (Haryana)
Crime against women  2008 23.9 8.1 23.7 40.5 (Tripura) 2.14 (Nagaland)

Sources: Other figures from Statistics on Women in India 2010  published by National Institute of Public Cooperation  & Child Development. Number of crimes against women per total population in lakhs as per National Crime Records Bureau.

As one would expect with greater income & literacy levels, the gender bias tends to reduce.  However,  Kerala, which scores well on these parameter and has the highest sex ratio in the country, seems to falter on the crime against women parameter.  The system of dowry is also known to be widely prevalent with negotiations on the amount of dowry being a key decision factor in finalizing  a marriage. In comparison, Goa scores well on these parameters and the dowry is not widely prevalent.

While a range of factors undoubtedly contribute to this state of affairs,  one of the contributing factors is the Goan Civil Code, some specific provisions of which are discussed below :

1. Uniform Civil Code 

Article 44 of the Indian Constitution says the “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”.

Sadly, more than 60 years later, this important directive principle is yet to see the light of day. Even today, multiple civil codes exist and the law varies depending on the religious community to which the individual belongs.

Goa, however, has the unique distinction of already having a uniform civil Code governing all its citizens irrespective of which religion they belong to.  The Code, which has in fact been in force for more than a century, is a legacy of the 450-year-old Portuguese rule in the State.  It regulates matters relating to family, contracts, succession and property and is based on the principle of equality of race, gender, caste and creed.   The law has been adhered to and strictly followed by all communities in Goa, with a vast majority choosing to ignore those usages and customs of their communities that are in conflict with the Code.

2.  Laws of succession

The Goan Civil Code stipulates that at least 50% of the property has to be set aside for distribution among the legal heirs viz. the lineal descendants (son & daughter) and ascendants (father and mother). In other words, the law prohibits individuals from making a will and bequeathing more than 50% to somebody who is not a legal heir.

There are several points to note here:

  • The law does not distinguish on account of sex when it comes to descendants, and ascendants.  All heirs get an equal share irrespective of their gender.
  • Secondly, a legal heir is entitled to his/her proportionate share of atleast 50% of the property and in the event there is a breach, the state can intervene and restore the same to the heirs.
  • While a legal heir can renounce his/her rights, the law explicitly prohibits renunciation during the life time of their parents even by way of ante-nuptial contract.  In other words, even if a declaration is obtained from the daughters at the time of the marriage that they have been given money by their parents on account of their future and indisposable share, the same is illegal and cannot be enforced.

This provides the girl child with significant financial security as she is entitled to her share of her parents’ wealth by law even post her marriage. This also reduces the economic rationale behind dowry.  The boys side knows there is no need to “ask” for dowry because she has a rights to her family’s assets even post her marriage.

In contrast, no such protection is available under the Civil laws prevailing in the rest of India.  Women typically forgo their share of the family estate as families routinely will away a large majority of the estate to their male heirs.  In such situations, dowry becomes a mechanism to ensure that the girl gets a fair share of the family wealth.

3.  Laws regarding marriage.

The Goan Civil Code  has a unique concept of “Communion of Properties”. While the  law permits marriage under 4 regimes,  an overwhelming majority (more than 98%) of the population tends to get married under the “Communion of Properties” regime whereby whatever is brought by either of the spouses before the marriage and whatever is acquired or earned by either of them during the subsistence of the marriage, is common till the dissolution of marriage”.

In other words, each spouse, by mere fact of the marriage, gets rights to one half of all assets owned by the other whether ancestral or earned.

There are 2 more significant points to be highlighted here :

  • this “common” property cannot be sold or encumbered by one of the parties without the explicit consent of the other.
  • this right continues after the dissolution of the marriage, either by death or by divorce.  Thus, in the event of a divorce, the woman is legally eligible for 50% of the property/income and there is no question of her being dependent on the spouse’s discretion to get a fair maintenance.  Similarly, in the event of death of the husband, 50% of the estate is separated as a share of the wife and only the remaining 50% can be distributed among the heirs.

This is a significant step towards women empowerment as it provides financial security and protects her rights in a very fundamental manner.

In contrast, the concept of “communion” is totally unknown in Indian law.

As per prevailing Indian laws, the woman has precious little financial security post her marriage as she is not legally entitled to her husband’s earnings and his dependent on his benevolence to fund her needs.  The situation is particularly skewed against her especially if she is a homemaker without any independent source of income.

Moreover, in the event of divorce, the maintenance she gets depends on the benevolence of her husband. Infact, it is not uncommon the woman to struggle to get her fair share.  Often incomes are unreported and difficult to prove in a court of law.  Also in many business families, a bulk of the property/income accrues in the name of the joint family and proving the independent income of the husband is particularly difficult.

The financial rights of women are thus very poor and she is often exploited financially in the event of death or a divorce.

Recognising this issue, the Government has proposed the Marriage Laws (Amendment) Bill, 2010, which seeks to give a woman a share in her husband’s property in case of a divorce.

4.  Laws regarding registration

In Goa registration of marriage is compulsory by law.  In fact, over the years, registration has become an integral part of the marriage ceremony in Goa.

This is not the case in the rest of India where registration is optional and often not done.  As a result often women, especially in the event of a separation, struggle to provide the necessary proof and get their dues.

The late Prime Minister Nehru said, “Legislation cannot by itself normally solve deep-rooted problems.  One has to approach them in other ways too, but legislation is necessary and essential so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape”.

The Goan Civil Code, apart from being uniformly applicable to all its citizens, has progressive and egalitarian laws that empower  women in a very fundamental manner.  Over time, this has helped to shape the cultural and social arc of Goan society and undoubtedly made it a far more equitable society.

India will do well to take a leaf from Goa and move in the same direction.

 

Acknowledgments

  1. Shri. M.S. Usgaocar, Former Additional Solicitor General, India and Advocate Gurudutt Mallya for their valuable insights
  2. Margaret Mascarenhas (who has written the must-read novel “Skin”) article on this titled “Legal Legacy” which you can read here.

Women’s History Roundtable: Nithya Raman on urban planning for women in India

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Rapporteur: Archana Venkatesh

Nithya Raman of Transparent Chennai addressed the Prajnya Roundtable on 14th July. Transparent Chennai was launched in October 2010 in order to collect data related to the city, and share it with the public.

The first question addressed by Raman was the importance of urban planning for women. She pointed out that with the economic growth in cities (due to the boom in the service sector), there is an ever-increasing demand for better infrastructure.

Before 2005, management of cities was in the hands of the State governments. However, in 2005, the central government intervened in this area by setting up JNNURM – the Jawaharlal Nehru National Urban Renewal Mission. Fifty thousand crore rupees has been earmarked for JNNURM in development funds.

With the establishment of JNNURM came the implementation of data-driven governance; the introduction of central government-mandated reforms in various areas by gathering and using more data about cities as a base line for reforms. While this is a sound approach to development, the problem lies in the execution of this program. Raman showed us that the quality of the data collected is usually poor; and though data collected by the central government is slightly better than that collected by the states, data gathered at the city level is found to be of the worst quality and extremely difficult to access.

Raman told us that in her experience, city-level data has become progressively worse since the 1970s. The records are poorly maintained, stored in less-than-optimum conditions, and not available for public access. Apart from these obvious shortcomings, Raman pointed out that all these records exclude the vast population that constitutes the urban poor.

She referred to statistics related to malaria as an example of poor record-keeping. Government statistics show that the incidence of malaria has decreased progressively. However, this data is collected by the corporation health inspectors, which means that it is collected from Primary Health Centres (PHCs) and other government hospitals. This kind of data collection overlooks the fact that only a small portion of the public actually uses these PHCs (as the quality of healthcare is quite substandard). Most people prefer to be treated at private hospitals – not all of which are registered. Many individuals even simply go to the nearest pharmacist, list out their symptoms and procure the medicine suggested by him. Thus, we can see that the government data collection ignores these informal providers of medical care. Raman estimated that 60-70% of medical establishments are unregistered. This limited approach towards data collection is reflected in the numbers: the Indian government estimates 2 million malaria cases per annum, but the WHO estimates this figure to be around 10 million per annum.

Raman then moved on to address the question of slums in Chennai. An early survey of slums in Chennai was done in 1971. The findings revealed that one-third of the population lived in slums. Acting on these findings, the Tamil Nadu Slum Clearance Board (TNSCB) built a number of tenement houses. A second survey was conducted in 1986, and more slums were added to the list.

Shockingly, no slums have been added to the list of slums in Chennai since 1986! In fact, census officers were only allowed to enumerate the population in officially recognized slums in Chennai. This means that JNNURM funding can only be used for officially recognized slums – which are a small percentage of the slums in the city, given its rapid expansion. Hence, the housing plan by TNSCB provides housing for a meager 20% of slum dwellers.

Raman concluded that all these instances are further proof that it’s impossible to have an effective strategy for urban planning without real data. Relocation doesn’t seem to be a viable long-term solution when we only have limited data to work with.

The final point of discussion was perhaps the most important: sanitation in the city. Raman presented us with a disturbing fact: the Corporation of Chennai doesn’t maintain a register of the number and location of public toilets in the city. After filing an RTI, Transparent Chennai found that there were over 700 toilets as per the official record, but only 572 of these seem to actually exist.

Apart from the discrepancy in data; it also emerged that most public toilets are not used by women for various reasons such as lack of water supply, safety etc. In fact, people have even taken up residence in some unused toilet blocks!

The TNSCB undertook a survey of unofficial slums, and found that toilets were only built where municipal land was available. In a state where land is acquired for almost any industry; it seems absurd that the government will not or cannot acquire land to build public toilets.

Raman concluded her talk but mentioning a few possible methods of intervention to ensure safety of women in urban areas (which is always under-reported). She suggested mapping harassment in Chennai, to identify locations and times which are particularly dangerous for women; and also generating data to fill in the gaps and ensure that harassment is adequately reported in the city.

Marital rape and the law

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A rare editorial on gender violence, from today’s Indian Express.

An offence, of course

It is a cry that is often muffled within the walls of a home, and one that cannot find justice easily even when it reaches the hallowed halls of our courts. For marital rape is still not spelt out as an offence in India. Which is why, when the government conveyed to the Supreme Court the necessity to treat forced sex between husband and wife as rape and amend laws accordingly — the proposal was made a couple of years ago by the Law Commission — the sense of urgency with which we have to respond to violence against women calls for reiteration.

Section 375 of the IPC archaically qualifies sexual intercourse between husband and wife as rape only if the wife is less than 15 years old.

Women have to take recourse to 498-A of the IPC to protect themselves against “perverse sexual conduct by the husband”, or to the Protection of Women from Domestic Violence Act. A serious debate on marital rape, combined with a willingness to change laws, began again last year, when the department of legal affairs drafted the Criminal Law (Amendment) Bill, based on recommendations of the women and child development ministry and the National Commission for Women. The intention was to amend various sections of the IPC, the Criminal Procedure Code, and the Indian Evidence Act to recognise new categories of sexual assault. We can no longer afford to dither on this. We need to debate this as well, without treating marital rape as taboo or resorting to euphemisms, but looking at it as a social, criminal problem.

 

Workplace Sexual Harassment: New Indian Law

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The Indian cabinet just approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010. Law Resource India describes the proposed bill here, and provides links to related articles. So far, action in workplace sexual harassment cases has been governed by the guidelines laid down by the Supreme Court of India in the Vishakha case in 1997.

 

In the news: Honour killings in South India

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In keeping with the spate of news stories and comment pieces on honour killings, The New Indian Express carried a series  on honour killings in the South.

Gokul Vannan, Caste shadows on love and The Story of Madurai Veeran

P Hareesh, Honour in murders motivated by greed exists