The case for treating violence against women as a form of sex discrimination in India

Abstract

Violence against women (VAW) is rampant in India, and rising every year. However, Indian laws are geared towards punishing individual instances of such violence, instead of attempting to eradicate the problem itself. This is owed in part to the incomplete understanding of the causes and effects of such violence. Here, I advance a feminist understanding of VAW, wherein it is seen as a result of gendered prejudices designed to keep women in subordination. I show that international human rights law now endorses this feminist understanding, and trace the evolving understanding of equality in Indian courts to argue that given its current understanding as substantive equality, VAW can and should be seen as a form of sex discrimination due the cycle of disadvantage it creates for women. I critically analyse several decisions by Indian courts that show a move towards acceptance of VAW as a form of sex discrimination, and point to the limitations of these decisions. Finally, I propose various ways in which envisaging VAW as a form of sex discrimination would lead to a better framework of laws for not only countering such violence, but also eradicating it.

Keywords

Sex discrimination violence against women feminist lens Indian equality law international human rights law

Introduction

Violence against women (VAW)¹ acquired centre-stage in Indian legal and policy discussions after the brutal Nirbhaya gang-rape in Delhi (Karp et al., 2015), which resulted in the Criminal Law (Amendment) Act, 2013 to the Indian Penal Code, 1860. This amendment made significant progress by introducing provisions for inter alia sexual harassment under Section 354A, voyeurism under Section 354C, stalking under Section 354D, acid attack under Section 326B, and by finally recognising them as offences in their own right. It also expanded the definition of rape under Section 375, and increased punishments for several offences.

This amendment joined other laws specifically legislated to counter VAW – Immoral Traffic (Prevention) Act, 1956, Dowry Prohibition Act, 1961 (as amended in 1986) along with the offence of ‘dowry death’ under Section 304B of the Indian Penal Code, Indecent Representation of Women (Prohibition) Act, 1986, the offence of ‘cruelty’ to the wife by her husband or his relatives under Section 498A of the Indian Penal Code, Commission of Sati (Prevention) Act, 1987, Protection of Women from Domestic Violence Act, 2005 and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. One may think that the arsenal of laws needed to eradicate the problem of VAW is now complete. However, the claim of this paper begins with the understanding that this is far from the truth.

Taken together, all these laws ultimately fail to understand, respond to, and remedy VAW. Criminal remedies are incapable of accounting for the non-physical psychological harm² to the victim, as well as the signalling effect of the crime. Individual criminal cases reduce a societal and group problem to a case-by-case solution, without revealing the many ways in which VAW cannot simply be captured by court processes, and thus goes unaddressed. In effect, then, these remedies wait for a recognisable manifestation of the many ways in which women continue to be suppressed, rather than providing an active solution to eradicate the problem of VAW itself. Meanwhile, legislations and public policy responses remain contingent on a watershed moment resulting from nation-wide waves of disgust over widely publicised instances like the Nirbhaya gang-rape. Such responses also heighten the standard for what is seen as a particularly problematic form of VAW, when indeed, all VAW should be taken as problematic.

The aim of the paper is to present a legal scheme in which VAW receives recognition as a structural problem, and is dealt with through structural remedies. Indian scholarship is presently lacking on VAW and its relationship with Article 14 of the Constitution of India, 1950 under which ‘the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’ and Article 15(1), which specifically mentions sex as one of the grounds on which discrimination is prohibited. This paper seeks to bridge this gap and make a case for why VAW should be seen as a form of sex discrimination, with a particular view to highlighting how doing so results in better remedies.

I first discuss and advance a feminist understanding of VAW, where it is seen as a product of harmful gender stereotypes and prejudices designed to keep women in subordination. In the second section, I chart the developments in international human rights law that have now endorsed this feminist position. I also trace the evolving understanding of equality in Indian courts and argue that its current understanding as substantive equality allows and requires VAW to be seen as a form of sex discrimination. In the third section, I discuss various decisions of Indian courts dealing with VAW that show judicial acceptance of the understanding that VAW is sex discrimination, and also argue why there is still a long road ahead. Finally, in the last section, I propose the various ways in which envisaging VAW as a form of sex discrimination leads to a better framework for countering and ultimately eradicating such violence.

I. Understanding violence against women through a feminist lens

For more than four decades now, feminist scholars have been writing and campaigning to highlight the ways in which the control of women’s bodies is normalised. Brownmiller (1975) has argued that women’s bodies have been co-opted throughout history by men through pornography, sexual assault, and anti-abortion platforms. MacKinnon (1979, 2005) has reasoned that VAW is a form of male power imposition that is designed to keep women in subordination. Bunch (1990) has written that violence against women is a political act, because it sends the message that women must stay in their place or be afraid. Schneider (2000) too has drawn attention to how intimate violence is based on structural gender inequality and operates within a larger system of coercive control and subordination.

Writing specifically within the Indian context, Kannabiran and Kannabiran (1991) cite various instances to argue how VAW is used to punish women who overstep their limits and assert themselves. Bhanwari Devi’s case is a powerful reminder of of how VAW is used as a social mechanism by men to force women into a subordinate position. Being a lower-caste woman, she was gang-raped by upper-caste men of her village for attempting to intervene in their social affairs (Pandey, 2017).

This feminist understanding of VAW has not found acceptance easily, and domestic violence has posed a peculiar problem. In the case of violence perpetrated by strangers, it may be presumed that the victim and the perpetrator share no affinity towards each other. Nonetheless, it becomes difficult to see domestic violence as a form of discrimination since it comes in conflict with the idea of intimacy and love in domestic relationships. However, it is such assumptions about the marital home and the relationships within it that are part of the structure of violence. Jones (2000) has argued that domestic violence often occurs when women refuse to obey and resist doing something they are told to do by their husbands. It is thus another way of maintaining control and power over the victim-wife and of reinforcing patriarchal gender roles.

One objection to this view is that even elder abuse, child abuse and abuse within homosexual relationships occur due to other issues of power and control, which cannot fit the explanations for women’s experiences of abuse within heterosexual relationships (Schneider, 2000: 57–71). Goldscheid (2006) admits that gender alone may not be the most significant factor in each act of intimate partner violence. Yet, she emphasises that ‘the problem of domestic and sexual violence is rooted in and reflects the legacy of sex discrimination and accompanying attitudes sanctioning male violence towards women’.

Indeed, acts or threats of violence, whether they occur in private or public spaces, by known individuals or by strangers, instil fear and insecurity in women’s lives and are obstacles to the achievement of equality. This fear often becomes permanent in their minds and constrains their mobility and access to opportunities at par with their male counterparts. In this way, even if it is only one woman who suffers sexual assault or dowry harassment, her experience ‘teaches’ all women something about their place in society and makes them fearful of a similar fate (Gordon and Riger, 1988). This fear is unique to women’s existence (Hopkins, 2001), and another crucial manifestation of this fear lies in the inability of the victims to voice the very thing that they fear – the violence that they experience.

Power over women’s bodies and lives through violence against them, in its most absolute form, means that most often grievance or dissent is not even articulated, since ‘to articulate a grievance indicates a degree of political awareness of a wrong which the absolute exercise of power does not permit’ (Kannabiran and Kannabiran, 1991: 2131). Such violence in turn makes women more vulnerable to other forms of disadvantage (Schneider, 2000: 12–13), by making them fearful of pursuing opportunities and thus keeping them locked in a weaker socio-economic position. Thus, VAW thus both grows out of and reinforces the patter of male domination and female subservience within society (Goldfarb, 2002a: 251).

What emerges from this discussion is that violence is perpetrated against women because they are women, and this is a class problem. However, it manifests and is remedied (in a very limited sense) in individual cases, even though it disadvantages the entire class of women whether they are direct or indirect victims. The reason that VAW manifests in these individual ways is also rooted intricately in the reason of its very existence: women’s issues continue to be subordinated to the issues of their particular identity groups as they remain, and are kept, dependent on men. Upper-caste women co-habit with their upper-caste husbands and the lower-caste with theirs; white women with their white families and black with theirs; poor women co-habit with their poor husbands and the rich ones with theirs; and so on. Ultimately, struggles along each of these identity markers, whether race, caste, religion, economic or immigration status, by being rooted in men’s experiences first, trump the particular intersectional grievances of poor women, lower-caste women, black women who stand quite apart from and yet sometimes together with rich, upper-caste and white women.

Instead of recognising women’s problems for what they are, women are locked into the same gender stereotypes that perpetuate violence, such as that of the nurturing mother and the acquiescent wife who bear sole responsibility for housework and childcare, while different forms of VAW continue to be seen as distinct from their common origins. These very stereotypes limit women’s access to equal opportunity and equal treatment. The existence of Exception 2 to Section 375 of the Indian Penal Code, which protects men from being prosecuted for raping their wives, is only one example of a legislative manifestation of the same. In this manner, the phenomenon of VAW continues as a vicious cycle that keeps women, as a class, subordinate to men.

II. Charting the law

In this section, I discuss the developments in international human rights law as well as in Indian equality law that ground and reinforce the need to the recognise VAW as a form of sex discrimination.

A. Violence against women and international human rights law

The Declaration on the Elimination of Discrimination Against Women was adopted by the United Nations General Assembly in 1967. It was only a statement of moral and political intent instead of being a binding treaty. While it stated the need to abolish all practices that were discriminatory against women in Article 2, and to encourage equality in economic and social life in Article 10, there was no mention of any form of VAW as being discriminatory or the need to tackle VAW as a way of promoting equality.³ Further, when the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) comprising 30 Articles was adopted in 1979 with 130 votes to none, it contained no reference to VAW and drew no linkage between VAW and discrimination against women.⁴

In 1989, the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) issued General Recommendation No. 12, which stated that Articles 2, 5, 11, 12 and 16 of CEDAW impose obligations upon state parties to protect women against violence of any kind, including within the family, at the workplace or in any other area of social life. The CEDAW Committee thus recommended that state parties include information about VAW in their periodic reports.⁵ Despite this, as the Committee later noted, there were concerns that the state party reports did not adequately reflect the close connection between discrimination against women, gender-based violence and the violation of women’s human rights.⁶

Thus, in 1992, the CEDAW Committee in its General Recommendation No. 19 explicitly stated that gender-based violence is a form of discrimination, directed towards a woman because she is a woman, or that affects women disproportionately. It brought VAW within the definition of discrimination in Article 1 of CEDAW, and stated that gender-based violence may breach specific provisions of the Convention, even if the provisions don’t expressly mention violence. It also explicitly linked several individual treaty provisions on VAW with sex discrimination. Crucially, it stressed that traditional stereotypical attitudes and practices by which women are regarded as subordinate to men may justify the violence against them as a form of protection or control. The committee also stated that VAW contributes to their low levels of education, skills, and work opportunities. It referred to how poverty and unemployment increase opportunities for the high incidence of VAW, and lack of economic independence also forces many women to stay in violent relationships.⁷

This was followed by the Declaration on the Elimination of Violence Against Women, which was adopted by the UN General Assembly in December, 1993. Although it was a non-binding declaration, it was aimed at strengthening state commitments to global participation and policy formulation regarding VAW. It stressed that VAW is an ‘obstacle to the achievement of equality’, and recognised that VAW ‘is a manifestation of historically unequal power relations between men and women’, as well as a crucial social mechanism by which ‘women are forced into a subordinate position compared with men’.⁸

In 1996, the International Labour Organisation’s Committee of Experts on the Application of Conventions and Recommendations confirmed its views that sexual harassment is form of sex equality at the workplace.⁹ Since then, it has time and again re-emphasised this position through both binding and non-binding instruments.¹⁰ The UN Committee on Economic, Social and Cultural Rights too in 2004 stated that VAW is a form of discrimination. It stressed that state parties must take appropriate measures to eliminate such violence and act with due diligence to prevent, investigate, mediate, punish and redress acts of violence against them by private actors.¹¹

In 2017, marking the 25th anniversary of General Recommendation No. 19, the CEDAW Committee issued General Recommendation No. 35 to update it.¹² It re-emphasised that VAW is a means of maintaining women’s subordinate position in society, and that such violence is a ‘critical obstacle to the achievement of substantive equality between women and men…’. The Committee stated that it regards VAW as being rooted in the ideology of men’s entitlement over women, the need to assert male control or power, enforce gender roles, or punish and discourage ‘unacceptable female behaviour’.

It re-emphasised that VAW constitutes discrimination against women under Article 1 of CEDAW and thereby engages all the obligations under the Convention. State parties must pursue all appropriate means to eliminate VAW. This obligation comprises the state responsibility for not only the VAW arising from acts or omissions of a state party or its actors, but also of non-state actors, which provides the missing link between human rights obligations and acts of private persons. Most crucially, the CEDAW Committee recognised that the prohibition of gender-based violence against women has evolved into a principle of customary international law, binding all states.¹³

What emerges, thus, is that despite the ignorance towards the the link between VAW and discrimination earlier, international human rights law has now come to fully accept and endorse the feminist position: that various forms of violence are perpetrated against women not due to unrelated and disparate reasons, but as an overall system of ensuring their subordination.

Indeed, several countries have taken steps towards codifying this position in their jurisdiction, albeit to a limited extent. For instance, in South Africa, the Employment Equity Act, 1998 was drafted in light of the Constitution’s equality provisions and its obligations as a member of the International Labour Organisation. Section 6(3) thereof classifies harassment on any one of, or a combination of, the grounds as a form of unfair discrimination. As held in the case of Christian v. Collier Properties, ¹⁴ sexual harassment amounts to sex discrimination under Section 6(3). United Kingdom’s Equality Act, 2010 makes harassment unlawful under Section 26(2). According to the guidance provided by the Equality and Human Rights Commission on the Equality Act, sexual harassment is a form of sex discrimination.

Further, the United States’ Violence Against Women Act, 1994 contained a federal civil right to be free from gender-motivated violence. This provision was drafted with the purpose of responding to gender based violence in a way that recognised such violence as a deprivation of women’s equality. Victims of crimes of violence that were motivated by gender could bring a civil action in federal or state court to recover inter alia compensatory and punitive damages (Goldfarb, 2002a: 252). While this provision was later struck down by the United States Supreme Court for exceeding the Congress’ power (Goldfarb, 2002b), it nonetheless ingrained the idea that violence against women is a source of their inequality in the American consciousness (Law, 2019).

India ratified CEDAW in 1993 (Mehra, 2013). Under Article 51(c) of the Constitution, the State shall foster respect for international law and treaty obligations, and under Article 253 it has the power to enact laws for the implementation of a treaty. As a state party then, India is obligated to adopt and enforce the view that VAW is indeed a form of sex discrimination. Notably, the Supreme Court of India stated in Vishakha v. State of Rajasthan ¹⁵ that where such domestic law has not been enacted, the Court may, under its powers of enforcement of fundamental rights, read the provisions of an international convention into the Constitution in order to make those rights meaningful. This means that failing action by the legislature, the Courts could very well read the position under CEDAW, that VAW is a form of sex discrimination, into Indian law.¹⁶ In fact, the developments in India’s equality jurisprudence, as discussed in the next section, reinforce the need to do so.

B. Violence against women and Indian equality law

Aristotle’s dictum that equality means treating likes alike and unlikes unalike, known in equality law scholarship as ‘formal equality’, has been tacitly accepted and applied in most jurisdictions (MacKinnon, 2006: 181–183). It has predominated not only international law, European Union law and the United States’ equality jurisprudence, but has also largely guided the Indian Supreme Court’s application of the Constitution’s equality provision in Article 14 (MacKinnon, 2006: 182).

Here, I trace how the test for violation of the right to equality under Article 14 has evolved from formal equality tests encompassing reasonable classification and arbitrariness, to finally, a broader inquiry that understands equality as a substantive notion – one that takes into account existing social and structural disadvantages and requires the state to remedy them. I will argue why this not only allows, but demands, that VAW is recognised as a form of sex discrimination.

The days of the classification test

After independence, Indian courts were first confronted with a claim under Article 14 in Chiranjit Lal Choudhary v. Union of India.¹⁷ Here, the shareholder of a company called into question an Act formulated to regulate the said company, which was formerly closed by the government due to allegations of mismanagement. He contended that the Act singled out this company and did not generally apply to all companies and challenged the Act on several counts, including a violation of Article 14. The court interpreted equality as a formal doctrine, as restrained by the reasonable classification test. This test comprised of two elements of analysis: intelligible differentia and rational nexus. Therefore, as long as there was an intelligible differentiation between the two groups that received different treatment, and such differentiation had a rational nexus with the state’s objective in formulating the given law, there would be no Article 14 violation (Seervai, 2015: 453). Rejecting arguments about the under-inclusivity of the Act, the court held that even one company could be a class in itself, and further that there was a strong presumption in favour of the constitutionality of any Act. The burden was on the petitioner to prove that other similarly situated companies had been left out and the said company was discriminated against, which he failed to discharge.

Khaitan (2016: 702) has argued that this classification test is ‘founded upon a highly deferential, remarkably limited, and formalistic equal treatment principle governing state action’ (emphasis added). As seen in Chiranjit Lal Choudhary itself, and as pointed out to be a flaw with the test by Tussman and tenBroek (1949), the reasonable classification test doesn’t resolve the question of the extent of deference to the legislature. Further, the doctrine is attracted only for state action which classifies or fails to classify persons when performing some act (Khaitan, 2016).

Of course, for a test to allow significant deference to the legislature, especially when courts must play the role of an independent arm of the state and serve as counter-majoritarian institutions, is troubling in itself. However, far more troubling, from the point of view of the issue at hand, is the fact that this doctrine presumes that state accountability for inequality is triggered only when the State does something actively. It ignores the possibility of state inaction facilitating an existing inequality, or even exacerbating it. I will now examine if this objection is satisfactorily responded to by the arbitrariness test.

The age of the arbitrariness test

The arbitrariness test came about with the realisation that the traditional classification test often lacked the requisite sensitivity to social context as various jurisdictions around the world improved their approach to remedying inequality (Baer, 2012). Although ‘arbitrariness’ featured in Article 14 decisions from the time of Chiranjit Lal Choudhary, it was in EP Royappa v. State of Tamil Nadu ¹⁸ that it first received the status of a stand-alone doctrine. Bhagwati J in Royappa famously held that mere ‘arbitrariness’ will suffice to constitute a violation of Article 14 since ‘…equality is antithetic to arbitrariness’. This doctrine was of course then affirmed in several following decisions of the Supreme Court.¹⁹

However, several difficulties plague the application of the arbitrariness doctrine too. Scholars (Khaitan, 2016: 712; Seervai, 2015: 437) have pointed out that it is hard to determine the meaning and content of ‘arbitrary’. As Khaitan (2016: 712–714) argues, sometimes, it is reasonable to be arbitrary, at other times, one can be unreasonable without being arbitrary, and one can also be arbitrary and unreasonable at the same time. It was perhaps the confusion regarding the indeterminable meaning of ‘arbitrariness’ as well as the continuing spirit of deference that led Justice Chelamsewar in Rajbala v. State of Haryana ²⁰ to observe that ‘arbitrariness’ was a ‘doubtful test’.

Irrespective of this shadow of doubt, the central cause for concern with the reasonable classification test remains unresolved: even a claim of arbitrariness cannot be brought before courts unless there is a matter that the state has actively been arbitrary about, whether that is selecting a particular age as the age of consent or declaring a certain number of days as the lockdown period to fight a novel virus. A final handicap that is worth bearing in mind is that in accordance with this formal understanding of equality, whether during the days of the classification test or the age of the arbitrariness doctrine, Articles 15 and 16 were interpreted as exceptions to Article 14, rather than as a part of the Constitution’s Equality Code (Nussbaum, 2001), thereby limiting the understanding and reach of the right to equality under the Indian Constitution.

The move towards substantive equality and why it matters

A range of meanings have been attributed to ‘substantive equality’, such as equality of opportunity, equality of results, or a multidimensional concept pursuing several interrelated objectives (see Fredman, 2016a, 2016b; MacKinnon, 2016). Instead of favouring a particular scholarly definition, here, at the minimum it is understood as a repudiation of the assumption in formal equality that all individuals in society are similarly situated, with equal opportunities, abilities and struggles. It is understood as a concept that accounts for the particular baggage that groups carry due to how they have been treated historically, and how they are presently treated due to the continuation of certain systems.

As opposed to the Indian Supreme Court’s understanding of equality as a formal concept, scholars have time and again made the argument that equality as under the Indian Constitution is explicitly aimed at securing substantive equality for previously subordinated groups, since the framers understood the goal of equality as remedying systematic caste and sex-based hierarchy and discrimination (Bhatia, 2017: 115, 117; Nussbaum, 2001: 39). This vision is anchored in the provisions for affirmative action in the Constitution, which were included with the view that historically oppressed minorities should be able to acquire the abilities to compete on more equal terms with members of privileged groups (Sridharan, 1999: 144).

Both Khaitan (2016) and Bhatia (2017) have argued that Naz Foundation v. NCT of Delhi, ²¹ where the Delhi High Court decriminalised homosexuality, marked a move away from a formalistic version of equality, which had ‘crippled Indian Constitutional equality jurisprudence since its very inception’. Even though the Naz Foundation decision operated within the framework of the classification test ‘yet it infused them with a novel, transformative content, by focusing on the impact of Section 377 on disadvantaged and marginalised groups’ (Bhatia, 2017: 117). The focus here was on the law’s effect of targeting a community, perpetuating its social exclusion, and robbing it of its dignity (Bhatia, 2017: 130). As Bhatia (2017) argues, this shifted the inquiry from examining the nature of the classification to examining whether the law disadvantaged a group. The court thus viewed equality not as an issue of ‘comparability’, but as a ‘right against hierarchy’ (Baer, 1999: 253).

Although the subsequent reversal of the Delhi High Court’s decision in Naz Foundation by the Supreme Court was a severe blow to these progressive developments in Indian equality jurisprudence, much of the damage was reversed in Navtej Johar v. Union of India. ²² Here, the Supreme Court noted that to reduce equality to this formal exercise of classification would miss its true value, and rather its substantive content along with liberty and dignity is at the base of the Constitution. It therefore corrected its own wrong and restored the findings in Naz Foundation. Finally, in Joseph Shine v. Union of India, ²³ the Supreme Court noted that justice in accordance with substantive equality would require the elimination of institutional and systematic discrimination against disadvantaged groups which undermines their full participation in society.

The above decisions clearly indicate India’s move towards a substantive rather than formal reading of equality. The formal equality framework was not grounded in an understanding that the disadvantaged groups are kept unequal through the operation of social structures. Thus, confining women to the home, excluding them from voting and getting gainful employment due to the stereotypical gender roles assigned to them was not seen as violations of the right to equality (MacKinnon, 2006: 182–183). However, the move from a formal to a substantive reading of equality signifies the acceptance of an understanding of equality that seeks to reverse historical wrongs and subjugation, destroy continuing hierarchies and root out systemic sources of discrimination (Fredman, 2016a: 712). Thus, the practices and systems of subordination of women, including all forms of VAW as discussed in Section I, become issues of equality.

What is most crucial about this move towards substantive equality is that a specific state act is not required to invoke the violation of India’s equality provisions. Rather, even failures and omissions that allow for the existence of or exacerbate group inequalities would suffice. And indeed, if substantive equality is the morality as derived from constitutional values, as opposed to ‘popular morality’, which is ‘based on shifting and subjective notions of right and wrong’,²⁴ then it is only a substantive understanding of equality which can truly fulfil the constitutional imperative: for it demands that there be no inequality, irrespective of whether the state actively causes it, or whether it perpetuates it by failing to act sufficiently. Further, if the workings of the ordinary political processes are indeed limited in their ability to protect vulnerable minorities, and the purpose of Article 14 is to offer redress to these very vulnerable groups (Bhatia, 2017), then state action cannot be a necessary prerequisite for an inequality claim.

This means that a substantive understanding of the right to equality would only require the identification of group inequalities, and then demand that the state to take active measures to eradicate them; rather than placing the burden on the individual to point out specific state measures that have contributed to such inequality.

The inequality between men and women in India, both in terms of gendered violence against the group and difference in socio-economic status, is evident from the data. According to the latest official reports (National Crime Records Bureau, 2019), a woman was raped in India every 15 minutes, and subjected to cruelty at the hands of her husband or his relatives every 5 minutes. Around 13,000 cases of dowry demands were registered, and over 7,000 dowry-related deaths were recorded.

At the same time, 59% of the illiterate persons in India are women, which is roughly 186 million women. The female literacy rate, at 64.6%, is 17 percentage-points lower than the male literacy rate (Chandra, 2019). This gender-gap in literacy is more than twice the global average for 2016 (World Bank). India’s dismal gender ratios are also evident at the highest echelons of power: to date, only 8 women have served as judges in the Indian Supreme Court, and women account for only 10.89% of the total number of judges in the country (Economic Times, 2019). Only 3 out of 25 ministers are women in India’s current Cabinet of Union Ministers, and women account for only 14.3% of the current elected representatives in the lower house of the Parliament (Dantewadia, 2019). As discussed in Section I, gendered violence is caused by the very stereotypes that don’t allow women to pursue the same opportunities as men, and makes them further vulnerable to disadvantage, thus keeping them locked in a weaker socio-economic position. In this way, VAW is both a result of and an active reinforcement of gender inequality.

One thing is clear: if the purpose of the right to equality is ultimately to do away with hierarchies of subordination and fear, to ensure ‘all people…enjoy equal social conditions’ (Parliament of India, 1947), and to allow the opportunity for self-realisation inherent in every human being (Rao, 2015), then women as a class of Indian people must not continue to fear their private spaces due to domestic violence, they must not continue to fear public spaces due to fear of sexual harassment, they must not continue to fear what will happen in the future to their bodies even if they are safe today. This is by no means an equal social condition.

III. Violence against women and Indian courts

MacKinnon (2006: 196) recounts that when sexual harassment was first brought to a US court as a claim of sex discrimination, it was submitted that the victims were being subjected to it because they were women, as members of their gender-based group. The courts’ reaction, however, was that it was personal as between the man and the women, and not dependent on the social group positions of the parties. Therefore, it was not sex-based. It took many more attempts before the court accepted the sex discrimination argument, and in 1986 came to regard sexual harassment as actionable sex discrimination in the landmark decision Meritor Savings Bank v. Vinson.²⁵ This decision, as well as the position in international human rights law, is reflected to a certain extent in Indian courts too.

The writ petition in Vishakha v. State of Rajasthan ²⁶ was a class action claim following the gang-rape of Bhanwari Devi, discussed above in Section I, seeking the enforcement of fundamental rights of working women and prevention of sexual harassment at the workplace. The significance of the decision in Vishakha is that the highest court of the land referred to the General Recommendations to CEDAW and recognised that sexual harassment violates the right to gender equality under Articles 14 and 15 of the Constitution. However, the decision did not go as far as stating that VAW, and not merely sexual harassment, is a form of sex discrimination. This was more than two decades ago, in 1997.

In 2002, the Bombay High Court in Usha Badri Poonawalla v. K. Kurian Babu ²⁷ affirmed a notification that exempted female litigants from paying court fees in cases involving violence against them, in order to provide better access to justice. Crucially, it referred with approval to paragraph 112 of The Beijing Declaration and the Platform for Action, a UN document, which emphasises that VAW is an obstacle to the achievement of equality, and that it violates, impairs and nullifies the enjoyment of their human rights and fundamental freedoms. It thus recognised that violence against women is one form of sex discrimination. However, in doing so, it drew a link with Article 15(3), which provides that ‘nothing shall prevent the state from making any special provision for women and children’, and inquired into the ‘beneficial object of the notification’. Surprisingly, remedying women’s vulnerability to violence was seen as a beneficial action, rather than the minimum necessary to reverse existing hierarchies.

In its decision in US Verma Principal, D.P.S. Faridabad v. National Commission For Women ²⁸ in 2009, the Delhi High Court explicitly referred to MacKinnon’s work on how sexual harassment of working women is a form of discrimination. Similarly, in 2016, the Bombay High Court in Vidya Akhave v. Union of India Department of Women and Children ²⁹ saw sexual harassment legislation as arising out of a concern for gender equality. The court noted how women are ‘socially and physically vulnerable and are faced with sense of constant insecurity while working in any organisation’. It then emphasised ‘the duty of every employer to ensure that the appropriate safeguards are provided by the men in the organisation to protect the women from sexual harassment and other types of harassments’. Thus, while the effects of VAW and how it hampers women in their everyday affairs was recognised, the same sentence also carried male paternalism and the need to protect women.

Most recently, in 2018, the Allahabad High Court in Rajendra Baitha v. Appellate Authority/Director ³⁰ recognised VAW as a form of sex discrimination, especially when it ‘is capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her’. Crucially, the court stressed that each incident of sexual harassment, at the place of work, results in the violation of the fundamental right to gender equality. The court noted that fundamental rights guaranteed in the Indian Constitution encompass all facets of gender equality, including prevention of sexual harassment and abuse. It thus applied the understanding that sexual harassment is a form of, or results in, gender inequality.

Finally, in Joseph Shine, which was a challenge to the constitutionality of the offense of adultery, the Supreme Court noted in a sweeping statement that the subordination of one sex to another (presumably, in any form) is wrong and ‘ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other…’.

This move towards recognition of VAW as a form of sex discrimination in courts demonstrates that while progress is being made, there is still a long road ahead for Indian courts. First, these decisions don’t fully reflect the positive developments in international human rights law. They do not refer to General Recommendation 19 or General Recommendation 35, and the nuanced understanding of VAW therein. Second, the paternalism inherent in some of these decisions, including Usha Badri Poonawalla as well as Vidya Akhave, reflects a lack of understanding of the fact the VAW is caused by such patriarchal stereotypes in the first place. In Kannabiran’s (2009: 95) words, what is missing is a ‘progressive interpretation of women’s vulnerability to violence’.

Third, the linkages between VAW and sex discrimination are found largely within sexual harassment decisions, as opposed to cases also involving domestic violence and rape. This might be the case due to several reasons: First, because this is only as far as the US court went in the oft-cited case Meritor Savings Bank, and Indian courts are unwilling to step beyond it; second, because the workplace is seen as a sphere where the woman has already emerged to take independent charge of her economic life, and the responsibility to not hamper her here is more urgent, or rather more easily identifiable; or third, because the decision in Vishakha and the celebration that followed, resulted in the comfortable acceptance of the observations therein, without creating the impetus to expand its logic.

This is despite the fact that echoes of the position that VAW amounts to sex discrimination can be found in the drafting history of the Protection of Women from Domestic Violence Act, 2005 and the Justice Verma Committee Report that led to the enactment of the Criminal Law (Amendment) Act, 2013.³¹ The former came about after a long campaign by Lawyers Collective spearheaded by Senior Advocate Indira Jaising. During the drafting process, domestic violence was seen as a ‘gendered phenomenon that reproduces and reinforces gender inequality’, due to which it was not framed as a gender-neutral legislation (Jaising, 2009: 53). Similarly, a look into the Justice Verma Committee Report (2013) shows the understanding of the Committee that VAW is both a criminal offence as well as a constitutional violation of the right to equality. This understanding is, however, yet to find its way into the decisions in cases involving domestic violence or rape.

Finally, the recent allegations of sexual harassment against the ex-Chief Justice of India while he was in office, and the manner in which the complaint was handled, shows how deeply ingrained prejudice against victims is even within India’s top most court. In April 2019, a young woman who previously worked as a staffer at Justice Ranjan Gogoi’s house filed an affidavit detailing harassment by him. She claimed that after she had rejected his advances, she was transferred several times and then dismissed from service. Her husband and brother-in-law, who worked in the police, were also suspended. Further, she and her husband were arrested on the false pretext of having taken a bribe. When the complaint was received, Justice Gogoi convened a panel headed by himself, with two other judges. Subsequently, due to public outcry, the Supreme Court set up an in-house committee of 3 judges, including 2 female judges to look into the allegations. The complainant withdrew from the inquiry citing unfairness, yet, the committee decided ex-parte and declared that there was no substance in the complaint. The report of the committee was not made public (Varadarajan, 2020). Justice Gogoi is currently a nominated member of India’s Parliament.

This incident marks a missed opportunity to give due recognition to the problem and pervasiveness of VAW. More crucially, it raises many uncomfortable questions about the ability of an institution that cannot hold itself accountable for VAW to fill the lacunae created by legislative inaction.

IV. Towards a better framework for countering violence against women

Viewing VAW as a form of sex discrimination isn’t simply a matter of theorising: the objective is to open better avenues for countering all forms of VAW within and outside courts. Here, I argue that envisaging VAW as a form of sex discrimination serves an especially valuable purpose, since it results in a shift in focus from criminal to constitutional and human rights issues; helps in counteracting damaging beliefs in society; eradicates the public-private divide; and allows for intersectional perspectives. All of these allow for a stronger and more holistic approach to countering VAW, and ultimately, eradicating it.

A. Shifting the focus from criminal to constitutional and human rights issues

There are several problems with addressing instances of VAW as mere criminal offences. Victims often lack control over the process of litigation since they are not parties to the case but mere witnesses (Hopkins, 2001: 435). Further, the criminal process fails to recognise and address the psychological harm to the victim. Instead, criminal justice remedies such as traditional fines and imprisonment advance the notion that the case has more to do with the defendant’s harm to society, rather than to the victim. These punishments are especially incongruent with victims’ goals in cases of domestic violence or cruelty, since often all the victims want is for the violence to stop and an acknowledgement of wrongdoing, rather than jail time (Hopkins, 2001: 436). In a country like India, where women are dependent on their husbands for bread and shelter due to the lack of education and vocational training provided to them, sending him away without thinking about state support often means making the woman’s position even worse off. Finally, a conviction in a criminal case involving VAW signifies the end of the problem at hand and is assumed to give closure to the victim. This system sees each case as stand-alone, individual, and disparate, creating little incentive to take measures before and after a case begins or ends in courts.

Instead, characterising VAW as sex discrimination and therefore as a human rights concern has a unique expressive value: it signifies that the harm being addressed is not merely harm to the individual directly affected, but a structural one that deserves acknowledgement by law on par with the anti-subordination claims of caste discrimination (Hopkins, 2001: 438). It consequently allows for VAW to be recognised as a group-based harm and a practice of social inequality that is carried out on an individual level, but requiring a systemic solution (Edwards, 2008: 54; Goldfarb, 2002a: 254–255). It signifies recognition of the fact that women are not exposed to violence by accident, instead, ‘violence is the result of a structural, deep-rooted discrimination which the state has an obligation to address’ (Office of the UN High Commissioner for Human Rights).

This drives home the point that the process of countering VAW neither begins nor ends in courts, and that courts play only a small role in the overall framework for the eradication of VAW. In doing so, it elevates measures to destroy patriarchy and gender stereotypes in society through efforts such as education and vocational training at the same level as ensuring justice in individual cases in courts. Thus, addressing VAW through such measures and widespread reforms becomes a legal obligation rather than just an ambiguous policy concern or a charitable act.

B. Counteracting damaging beliefs in society

Numerous incidents of officials within the criminal justice system worsening the plight of victims of VAW have come to light even after the legal reforms in 2013. These include instances where policemen have refused to register a rape case, passed remarks on the victim’s character, or even assaulted her and her family again within the police station (Human Rights Watch, 2017). There are several instances of judges citing the same stereotypes about rape victims in court that underpins the violence against them.³² The manner in which the complaint of sexual harassment against the ex-Chief Justice of India was handled, as discussed in Section III, also betrays the presence of such prejudicial attitude towards VAW within the corridors of India’s highest court. Julie Goldscheid (2006: 356) has argued that the daily experience of domestic and sexual violence survivors in terms of the responses they receive from the legal, criminal justice and social service systems reflects the ongoing legacy of sex discrimination. These experiences only make justice further unachievable as victims feel intimidated, humiliated and unable to seek support.

However, when viewed as sex discrimination, VAW is characterised not just in terms of the act itself but also the underlying structural causes behind it. It thus presents the need as well as the potential to counteract these very causes that re-appear as damaging beliefs in society. It is then possible to alter, with purpose and urgency, the attitudes of not only private citizens but also of officials tasked with responding to such violence, including police officers, forensic teams, court officials and judges (Goldfarb, 2002b: 122–123).

C. Eschewing the public-private divide

The CEDAW Committee has recognised in General Recommendation no. 19 that ‘family violence is one of the most insidious forms of violence against women…within family relationships women of all ages are subjected to violence of all kinds…which are perpetuated by traditional attitudes’. Yet, the law often privileges the public sphere over the private sphere, and thus refuses to give due recognition to the specificity of the female life in the private sphere (Naffine, 1995: 32). As a result of this, it ‘ignores, marginalizes, or silences women’s concerns. In fact, the family is a crucible of women’s unequal status and a site where women can be violated with almost perfect impunity’ (UNHCR Special Rapporteur’s Report, 1995). In India, the legal recognition and support for this public-private divide is most explicitly found in the exception allowed for marital rape under Exception 2 to Section 375 of the Indian Penal Code.

However, understanding VAW as sex discrimination nullifies the need for classification as public or private violence, since the latter is as much a public issue when set against the backdrop of structural gender inequality. In doing so, it presents a stronger and more emphatic argument for why forms of VAW within the home, including marital rape, should also be criminalised.

D. Highlighting the severity of all forms of VAW

It took several years of struggle by scholars and activists to achieve the criminalisation of certain forms of VAW in India such as stalking, voyeurism, dowry death, and acid attacks as specific offences. However, rape, which brings ‘dishonour’ upon the victim’s father or husband or brother and makes her ‘unfit for marriage’, has always found a place in criminal codes. This shows how VAW is more likely to find attention in the forms that violate male privilege too. Indeed, expanding the definition of rape beyond forced penile-vaginal intercourse to one including circumstances that had no possibility of conception and ‘dishonour’ but were equally traumatising for the victim, also took a long time.³³

However, all of these forms of VAW, whether sexual harassment, rape, acid attacks or dowry deaths, ultimately stem from the understanding that women must fulfil their stereotypical roles, be subordinated, and get punished when they overstep the boundaries pre-decided for them. Seeing VAW as a form of sex discrimination then gives context to all these different forms of VAW and renders focus on the severity of each of them, in their own right.

E. Allowing intersectional perspectives

The Declaration on the Elimination of Violence against Women recognises that some groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women with disabilities, etc. are especially vulnerable to violence. Bhanwari Devi’s case is expository of how such intersectional identities of women increase their vulnerability to violence. She was raped for being a lower-caste woman who dared to interfere in the affairs of upper-caste men. Both her gender as well as her caste made her vulnerable, and taken together they uniquely amplified her vulnerability. The Sessions Court while acquitting the accused suggested that it was highly unlikely that upper-caste men would have sexual relations with a lower-caste woman (Kang, 1995), thus showing how caste-stereotypes also influence a woman’s treatment within the criminal justice system. Although her rape triggered the litigation leading to the celebrated judgment regarding sexual harassment at the workplace in Vishakha, her case still remains pending before the High Court, 28 years after the crime was committed.

Kannabiran (2009: 96) has argued that courts must better understand the subjugation of women in patriarchal societies ‘which are divided along multiple, intersecting lines of caste, class, religion and gender, among others, not severally but together and in conjunction with each other’. The inability and unwillingness of courts to do so might stem from the lack of intersectional perspectives on VAW. However, the concept of intersectionality has already been acknowledged and applied by Indian courts in the context of sex discrimination.³⁴ Thus, viewing VAW as sex discrimination can lead to the application of the concept of intersectionality even within cases such as that of Bhanwari Devi’s.

Conclusion

The problem of VAW is a complex one, in that it arises from the same gendered stereotypes and attitudes that also have the potential to keep its victims caught in a trap of socio-economic disadvantage forever. Indeed, it further contributes to such disadvantage by making women more vulnerable, and fearful of pursuing opportunities as equal citizens. Currently, the laws in India fail to see VAW as a multi-layered problem complete with its causes and effects. This is why they only address its limited and individual manifestations, and are not geared towards eradicating it. An end to VAW cannot be imagined without accounting for its causes and the cycle of disadvantage it perpetuates.

The aim of the paper was therefore to present a legal scheme in which VAW is understood from a feminist lens, as a tool within a larger system of subordination of women, and is addressed through remedies that account for this reality. Theoretically, VAW fits as a form of sex discrimination within the Indian context, given the current understanding of equality as a substantive concept that seeks to remedy systemic disadvantage and break hierarchies of power. More importantly, an institutional acceptance of the same would result in a much-needed shift in the framework of remedies.

This framework begins with the understanding that VAW is a class problem and its extent is not limited to the recorded cases; that actors within the justice system can victimise the victims by subjecting them to the same stereotypes that underpins the violence against them; that the concept of public-private is a false divide that is created to perpetrate violence with impunity; and that such violence must be seen from an intersectional lens. Thus, this framework presents a real possibility of not only fully understanding and addressing the nature and web of causes of VAW, but also of eradicating it.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Ayushi Agarwal

Notes

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