India – Another Tragic Gang Rape – Public Outcry

23
August 2013 – A 22-year-old photojournalist has been gang-raped by five men in
the Indian city of Mumbai, police say.

 

NEW DELHI (1 May 2013) – At the end of her official country mission to India,
the UN Special Rapporteur on violence against women, its causes and
consequences, Ms. Rashida Manjoo, delivered the following statement:

“I have been mandated by the Human Rights Council to seek and receive
information on violence against women, its causes and consequences, and to
recommend measures to eliminate all forms of violence against women.

I would like to begin by expressing my thanks to the Government of India for
having invited me to visit the country from 22 April to 1 May. The invitation,
which was in response to a request from my mandate, was received prior to the
events that led to the death of a young woman in Delhi on 16 December 2012. The
protest actions and outpouring of sadness and anger; and the extensive coverage
by the media, both local and global; has generated a huge focus on the issue of
violence against women and girls in India.  This mission has generated
country-wide interest, and also, demands for the addressing of this systemic
problem as an urgent imperative, at both the State and the non-state levels.

During my visit, I held meetings in New Delhi, Rajasthan, Gujarat,
Maharashtra and Manipur, and gathered information from other states, including
Tamil Nadu. I am grateful to all my interlocutors, including Union and State
authorities, National Human Rights Institutions, representatives of civil
society organisations, and United Nations agencies. Most importantly, I want to
thank the individual women who shared their personal experiences of violence
and survival with me. The pain and anguish in the testimonies of loss,
dispossession, and various human rights violations, was visceral and often
difficult to deal with.

The Government of India has signed and ratified numerous international human
rights instruments and has also adopted numerous progressive laws and policies
at the Union and State levels. Numerous laws, including amendments to existing
laws, have been enacted to address various manifestations of violence against
women. Among others, these include : the Indian Penal Code which broadly
includes crimes against women. This law includes the crimes of rape, kidnapping
and abduction for specified purposes, homicide for dowry, torture, molestation,
eve teasing, and the importation of girls, among others. More specific laws on
crimes against women include : the Criminal Law Amendment Act 2013, the Sexual
Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Act
2013, the Protection of Women from Domestic Violence Act 2005, the Indecent
Representation of Women (Prohibition) Act 1986, the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act 1989, the Dowry Prohibition Act
1961, the Commission of Sati Prevention Act 1961, and the Immoral Traffic
(Prevention) Act 1956 among others.

Furthermore, the following Bills are currently under discussion: the
Indecent Representation of Women (Prohibition) Amendment Bill 2012, the
Readjustment of Representation of Scheduled Castes and Scheduled Tribes in
Parliamentary and Assembly Constituencies Bill 2013, the Removal of
Homelessness Bill 2013, the Prevention of Female Infanticide Bill 2013, the
Abolition of Child Labour Bill 2013, the Child Welfare Bill 2013, the Indecent
or Surrogate Advertisements and Remix Songs (Prohibition) Bill 2013 and among
others.

At the institutional level, the realisation of the promotion and protection
of human rights broadly, and women’s rights and children’s rights specifically,
are vested in numerous Union and state level Ministries, Departments,
Commissions, Committees and Missions for the empowerment of women. Furthermore,
I was informed about numerous programs and policies that have been put in place
in recent years to address the issue of violence against women within a human
rights and development framework. These include schemes addressing the needs of
victims of rape, trafficking, domestic violence, and so on. Some of these
schemes address counselling, support, skills development, access to benefits
and also to shelters. Public/private partnerships have been forged within
different spheres including the police sector. The laws and schemes highlighted
above will be analysed and discussed fully in my mission report.

I welcome the Government of India’s speedy response after the rape incident
of 16 December. A judicial committee headed by the late Justice Verma was
established, and new legislative measures were adopted earlier this year. While
this legislative reform is to be commended, it is regrettable that the
amendments do not fully reflect the Verma Committee’s recommendations.

It is unfortunate that the opportunity to establish a substantive and
specific equality and non-discrimination rights legislative framework for
women, to address de facto inequality and discrimination, and to
protect and prevent against all forms of violence against women, was lost. The
speedy developments and also the adoption of a law and order approach to sexual
wrongs, now includes the death penalty for certain crimes against women.

This development foreclosed the opportunity to establish a holistic and
remedial framework which is underpinned by transformative norms and standards,
including those relating to sexual and bodily integrity rights. Furthermore,
the approach adopted fails to address the structural and root causes and
consequences of violence against women.

The Protection of Women from Domestic Violence Act is a positive development
in the aspirational goal of protection for victims of family violence.

The discrepancy between the provisions of the laws and the effective
implementation thereof, whether through the use of the police generally or the
Protection Officers in particular, was a recurrent complaint which I heard.
Despite provisions intended to offer legal, social and financial assistance to
victims, many women are unable to register their complaints. As a result, the
vulnerability of women increases, and further, they are also deprived of the
benefits prescribed in the law – as proof of registration of cases is required
for access to many benefits. Furthermore, prevention of violence, as a core due
diligence obligation of the State, does not feature in the implementation of
this law.

Despite numerous positive developments, the unfortunate reality is that the
rights of many women in India continue to be violated, with impunity as the norm,
according to many submissions received. Mediation and compensation measures are
often used as redress mechanisms to address cases of violence against women,
thus eroding accountability imperatives, and further fostering norms of
impunity.

Manifestations of violence against women

Numerous experiences of violence, whether direct or indirect, in different
spheres including the home, the community, and in institutions, whether
perpetrated by state actors or condoned by the State, was shared with me during
the mission. Violence is being experienced in situations of peace, conflict,
post-conflict, and displacement among others. The denial of constitutional
rights in general, and the violation of the rights of equality, dignity,
bodily integrity, life and access to justice in particular, was a theme that
was common in many testimonies. Violence against women as a cause and
consequence of de facto inequality and discrimination was also a
common theme in numerous submissions received.

Violence against women and girls in India manifests in numerous ways and
varies in prevalence and forms based on numerous factors including geographic
location. Some manifestations include : sexual violence, domestic violence,
caste-based discrimination and violence, dowry related deaths, crimes in the
name of honour, witch-hunting, sati, sexual harassment, violence against
lesbian, bisexual, and transgender people, forced and/or early marriages,
deprivation of access to water and basic sanitation, violence against women
with disabilities, sexual and reproductive rights violations, sex selection
practices, violence in custodial settings and violence in conflict situations,
among others. These manifestations of violence are rooted in multiple and
intersecting forms of discrimination and inequalities faced by women, and are
strongly linked to their social and economic situation. One interlocutor
described violence against women and girls as functioning on a continuum that
spans the life-cycle from the womb to the tomb.

During my visit, I heard numerous testimonies of many women who are
survivors of domestic violence, whether at the hands of their husbands or other
family members. Many of these women live in family settings with deeply
entrenched norms of patriarchy and cultural practices linked to notions of male
superiority and female inferiority. The lack of effective remedies, the failure
of the State to protect and prevent violence against women, the economic
dependence of many women on the men in their lives, and the social realities of
exclusion and marginalization when speaking out, often results in women
accepting violence as part of their reality. The current focus by state actors
on preserving the unity of the family is manifested in the welfare/social
approach and not in the human rights based approach. It does not take into
consideration the nature of relationships based on power and powerlessness; of
economic and emotional dependency; and also the use of culture, tradition and
religion as a defence for abusive behaviour.

Sexual violence and harassment in India is widespread, and is perpetuated in
public spaces, in the family or in the workplace. There is a generalized sense
of insecurity in public spaces/amenities/transport facilities in particular,
and women are often victims of different forms of sexual harassment and
assault.

On the issue of conflict-related sexual violence, it is crucial to
acknowledge that these violations are occurring at the hands of both state and
non-state actors. The Armed Forces (Special Powers) Act and the Armed Forces
(Jammu and Kashmir) Special Powers Act (AFSPA) has mostly resulted in impunity
for human rights violations broadly, according to information received. The law
protects the armed forces from effective prosecution in non-military courts for
human rights violations committed against civilian women among others, and it
allows for the overriding of due process rights.

Furthermore, in testimonies received, it was clear that the interpretation
and implementation of this act, is eroding fundamental rights and freedoms –
including freedom of movement, association and peaceful assembly, safety and
security, dignity and bodily integrity rights, for women, in Jammu &
Kashmir and in the North-Eastern States. Unfortunately in the interests of
State security, peaceful and legitimate protests often elicit a military
response, which is resulting in both a culture of fear and of resistance within
these societies.

In India, women from the Dalit, Adivasi, other Scheduled castes, tribal and
indigenous minorities, are often victims of a multiplicity of forms of
discrimination and violence. Despite protective legislative and affirmative
action laws and policies, their reality is one where they exist at the bottom
of the political, economic and social systems, and they experience some of the
worst forms of discrimination and oppression – thereby perpetuating their
socio-economic vulnerability across generations. They are often forced to live
in displacement settings, experience forced labour practices, prostitution and
trafficking, and also experience intra-community violations of rights.

In consultations in Manipur, I heard anguished stories from relatives of
young women who have disappeared without trace or who were found dead shortly
after going missing. The lack of response from the police is the norm in such
cases, with the attitude being that these are mostly elopement cases.

I am deeply concerned about other consequences of such disappearances of
young women, including exposure to sexual abuse, exploitation or trafficking.
More generally, many tribal and indigenous women in the region are subjected to
continued abuse, ill-treatment and acts of physical and sexual violence. They
are denied access to healthcare and other necessary resources, due to the frequency
of curfews and blockades imposed on citizens. Moreover, the chronic
underdevelopment prevalent in the region, coupled with frequent economic
blockades, is having an impact on the overall cost of essential items, and is
exacerbating the already vulnerable situation of women and children living in
the region.

Customary and religious practices such as child marriages and dowry-related
practices, sorcery, honour killings, witch-hunting of women, and communal
violence perpetrated against cultural and religious minorities, were
highlighted in numerous testimonies. Communal violence, inspired by religious
intolerance, does manifest in some parts of India. Indiscriminate attacks by
religious majorities on religious minorities, including Christian and Muslim minorities,
is frequently explained away by implying that equal aggression was noted on
both sides. Also, such violence is sometimes labelled as ‘riots’, thereby
denying the lack of security for religious and other minorities, and
disregarding their right to equal citizenship. This issue is of particular
concern to many, as the wounds of the past are still fresh for women who were
beaten, stripped naked, burnt, raped and killed because of their religious
identity, in the Gujarat massacre of 2002.

I am also concerned about the declining female sex ratio in India. The
deeply entrenched patriarchal social norms, prevailing views of
daughter-aversion and son-preference, the dowry-related link, and, the general
sense of insecurity in light of high prevalence rates of gender-based violence,
is fuelling a significant drop in female births throughout the country. The
Indian Government’s concern about this issue has resulted in the adoption of
policies and schemes. The implementation of such interventions is resulting in
the policing of pregnancies through tracking/surveillance systems and is
resulting in some cases in the denial of legal abortion rights, thereby
violating the sexual and reproductive rights of women.

With regard to domestic workers, I am dismayed by the prevalence of numerous
violations faced by these women and girls. Many of them, often migrant and
unregistered women, work in servitude and even bondage, in frequently hostile
environments; performing work that is undervalued, poorly regulated and low-paid.
According to testimonies, they are also denied access to essential services and
resources provided by the State, as they lack proper identification, and view
this as a barrier to access. They are often the victims of various acts of
violence, including sexual harassment and victimization by their employers and
others.

I have also been informed that women with disabilities experience numerous
forms of violence, including sexual violence, forced sterilization and/or
abortions and forced medication without their consent. In addition, their
experience of discrimination, exclusion and marginalisation reinforces the need
for greater attention and specificity.

India has embarked on a journey of aggressive economic growth and this path
is viewed as the route to simultaneously addressing its human development
challenges. Despite the inclusion of beneficial provisions for women and
children in the Five Year Plan, the impact of economic development policies on
women is resulting in forced evictions, landlessness, threats to livelihoods,
environmental degradation, and the violation of bodily integrity rights, among
other violations. The adverse consequence of resulting migration to urban areas
is reflected in the living and work conditions of many of these women and
children, for example living in slums or on the streets, engaging in scavenging
activities and in sex work etc.

Some women have committed suicide; others are frequently exposed to acts of
harassment and violence, including sexual assault. It was strongly argued by
many interlocutors that India’s pursuit of neo-liberal economic growth must not
be pursued at the expense of vulnerable women and children, and their right to
a healthy and secure environment.

Conclusion

Numerous human rights mechanisms have addressed the violation of women’s
human rights in India. The substance of some relevant recommendations addresses
the following issues:

1. There is  a need for urgent measures to end the
   alarming decline in sex ratios (CEDAW, CRC) 
2. The negative effect of personal status laws on the
   achievement of overall gender equality (CRC, CCPR, and CEDAW). Such laws
   need to be reformed to ensure equality in law (CEDAW). 
3. The social and cultural patterns of discrimination
   against women require urgent action by the State (CEDAW). 
4. Ensure that all victims of domestic violence are able
   to benefit from the legislation on domestic violence. Develop a
   comprehensive plan to combat all forms of violence against women (CEDAW).
   Domestic violence is endemic. The Protection of Women from Domestic
   Violence Act and Section 498-A of the Indian Penal Code must be enforced
   effectively (CESCR). 
5. The implementation of the Armed Forces (Special Powers)
   Act, the Public Safety Act and the National Security Act, and the Armed
   Forces (Jammu & Kashmir) Special Powers Act should be repealed (HRC,
   SR Summary Executions), as it perpetuates impunity (HRC), and is widely
   used against Human Rights Defenders (SR HRD). 
6. Grave concerns are noted as regards the continuing
   atrocities perpetrated against Dalit women. There is a culture of impunity
   for violations of the rights of Dalit women (CEDAW). Concerns are further
   expressed for the failure to properly register and investigate complaints
   of violations against scheduled castes and tribes, the high rate of acquittals,
   the low conviction rates, and the alarming backlog of cases related to
   such atrocities (CRC, CEDAW and CERD). 
7. The practice of devadasi is of concern (HRC). The
   effective enforcement of relevant legislation and the Indian Constitution
   is required to end this practice (CERD). 
8. To expeditiously enact the proposed Communal Violence
   (Prevention, Control and Rehabilitation of Victims) Bill, 2005 with the
   incorporation of: sexual and gender-based crimes,
   including mass crimes against women perpetrated during communal
   violence; a comprehensive system of reparations for victims of such
   crimes; and gender-sensitive victim-centred procedural
   and evidentiary rules, and to ensure that inaction or complicity of State
   officials in communal violence be urgently addressed under this
   legislation. 
9. Grave concern is expressed about the continued
   existence of women and girls employed as domestic workers and their
   experiences of sexual abuse (CEDAW). 
10. Harmful practices on women and girls, including forced
    marriage, dowry and dowry-related violence are of great
    concern (CEDAW, CRC, CERD, and HRC). Violence and social sanctions due to
    inter-caste relationships are also of concern (CERD). 
11. The impact of mega-projects on the rights of women
    should be thoroughly studied, including their impact on tribal and rural
    communities, and safeguards should be instituted (CEDAW). 
12. Continuing disparities in literacy levels are of
    concern, in particular the educational status of scheduled castes,
    scheduled tribes and Muslim women (CEDAW). Effective measures must be
    adopted to reduce the drop-out rates among Dalit girls (CERD). 
13. More effort is needed to end customary practices which
    deprive women from underprivileged classes, castes and religious
    minorities of their rights to human dignity and to non-discrimination
    (HRC). 

I would like to encourage the government of India to ensure specificity in
addressing the multiple and intersecting inequalities and discrimination that
women face. My mandate has consistently voiced the view that the failure in
response and prevention measures stems from Government’s inability and/or
unwillingness to acknowledge and address the core structural causes of violence
against women. Linkages should be made between violence against women and other
systems of oppression and discrimination prevalent within societies. A
legislative and policy approach will not bring about substantive change if it
is not implemented within a holistic approach that simultaneously targets the
empowerment of women, social transformation, and the provision of remedies that
ultimately address the continuum of discrimination and violence, and also the
pervasive culture of impunity.
My comprehensive findings will be discussed in the report that I will present
to the United Nations Human Rights Council in June 2014.”

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Ms. Rashida Manjoo (South Africa) was appointed Special Rapporteur on
Violence against women, its causes and consequences in June 2009 by the UN
Human Rights Council. As Special Rapporteur, she is independent from any government
or organization and serves in her individual capacity. Ms. Manjoo also holds a
part-time position as a Professor in the Department of Public Law of the
University of Cape Town. Learn more, visit: http://www2.ohchr.org/english/issues/women/rapporteur/index.htm