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Looking Beyond Finance: The 2024 Budget And It’s Impact On Women

by Guest Author 08/12/2024

written by Guest Author

By Lauren Prem

“Budgets are not just about numbers—they are about who we are and what we value.”– Tammy Baldwin

Imagine a budget which transcends numerical values, adding real value to its people and making lives easier! Indians eagerly await the financial budget release day to know how funds have been allocated to different avenues of their life and how much tax they have to pay. The 2024 financial budget, presented on 23 July 2024, promises to add real value to the lives of four primary groups – the poor, the youth, farmers and women. Women comprising almost half the population have been promised numerous benefits under this budget to bridge the gap towards gender equality. So let’s explore what’s in this year’s budget for women?

The finance minister Nirmala Sitharaman has announced three lakh crore rupees to be allocated for the betterment of women, especially for the benefit of women-centric schemes. Besides, hostels and creches have also been promised to be set up in collaboration with job industries to ensure more participation of women in workplace. An additional amount of thousand crore rupees has been allocated to the Ministry of Women and Child development. Considerable finance has also been allocated to central government women development schemes – the Poshan (nutrition scheme), Saksham Anganwadi (again, nutrition scheme for children) and other small initiatives – Nirbhaya scheme (safety and security of women) and CARA (for adoption initiatives).

Stamp duty has been promised to be reduced for the properties purchased by women in order to promote female ownership. This measure aims to break the shackles of traditional ownership notions associated with men which led to accumulation of properties in the hands of men over a period of time.

Akin to reservation benefits which intends to rectify historical injustices, this concession measure has been introduced with the object of upholding property rights of women – a goal which is far-fetched even after women have been legally given equal share in their parents property. The challenge lies in its implementation due to failure of women to claim their rightful share, lest they attract the ire of their family members, especially brothers. Due to this, additional benefits become imperative to achieve equality in a wholistic sense – equity.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides budgeting guidelines embodying the concept of equity, in addition to considering equality in a formal sense. Article 3 of the CEDAW guidelines emphasizes on the aspect of non-identical treatment and special measures in certain cases to achieve equality in a substantive sense. The budgetary measures for this year clearly provide special benefits for women in respects of ownership and employment.

However, there remains a crucial question – how far do these benefits actually serve the purpose for which they were introduced?

Reducing stamp duties, setting up hostels and allocation of funds are indeed beneficial measures. Allocation of finance towards enforcing these measures is the first step towards the larger goal of equity. Yet, they are formulated with a short-sighted view, thereby failing to see the bigger picture of the path towards women empowerment. The root cause of the problem relating to male-domination in property holdings must be addressed.

Inability to acquire finance is the main challenge preventing women from holding property at par with men. A study reported by UN Women Organization shows that there is a gender gap in the ownership of bank accounts by 6% in developing countries. For example, if 70% men own bank accounts, only 64% women do. Similarly, there are several studies which prove that women are discriminated by financial institutions, which pose a difficulty for them in accessing funds for purchasing property. Stamp duty – a tax on property, undoubtedly is beneficial but fails to address the real concern that holds back women from becoming owners.

Needless to mention, India is plagued with different stereotypes and biases that hold back women from displaying independence and self-sufficiency. Education is the only panacea to these issues.

While the budget certainly focuses on holistic women development by allocating funds to enhance nutrition, health, safety and education, implementation remains a hurdle towards realizing the goals envisaged by the budget. For instance, implementation goals of the Nirbhaya scheme have not been properly met due to uneven distribution of funds among different states. An article in the Times of India reports that only 70% of the funds allocated to the Nirbhaya scheme had been utilized as of last year – 2023.

The issues regarding the existing schemes predominantly relate to implementation and under-utilization of funds rather than lack of funds per se. Above-mentioned figures indicate that there is still scope to utilize the existing funds in a better manner by ensuring proper distribution and planning. While increasing funding for important schemes is a positive step, the purpose for allocation of funds would not be met if the core issue is not addressed properly.

Similarly, the core issues for lesser female workforce as compared to males, is due to lack of education, dropping out and performing unpaid work. The reason for women performing unpaid labor can be traced back to stereotypes and gender roles attributed to them. Lack of a place to stay is not among the top priority of concerns. While setting up hostels is a useful measure, the issue of inequality and lesser participation of women will continue to linger in the Indian society if the core issues are left unaddressed.

The budget provides a wide-range of benefits for women to ensure their development in different aspects of life. However, the allocation of funds is based on an approach which fails to correctly trace the issues leading to inequality. As Baldwin’s quote rightly reads “budgets are about what we value.” Although the 2024 budget clearly shows that it values minority groups – women and children, it fails to allocate funds based on an approach that accurately identifies the areas which require funding. Significant deliberation is required to correctly locate the issues that have ultimately led to the bigger issues of lesser employment and property holding.

The government also needs to bear in mind, the implementation factor while allocating funds so that sufficient funds are also kept side to tackle the challenges that come in the way of effective implementation.

08/12/2024 0 comments 35 views

Marriage, Sex and Consent : The Split Verdict By Delhi High Court In Marital Rape Case

by Avani Bansal 08/12/2024

written by Avani Bansal

By Adv. Avani Bansal

Nothing that is ‘imposed’, survives for too long. Marriage as an institution continues to exist, around the world, because a large majority of people ‘choose’ to opt for it. But it is also true that world over, many people are now questioning the institution of marriage and opting instead to remain life-long companions without the shackles or protection of the law.

In India, while many young men and women are choosing to get married late in their lives and some opting for live-in relationships as well, there is still a large majority of boys and girls, whose families do not leave them with an effective choice as regards marriage. The law steps in aiding this choice by providing an entire ecosystem – a web of laws to ensure protection of the rights of married partners, especially for women.

But the exception for ‘marital rape’ as per Section 375 of the Indian Penal Code (IPC), 1860 creates a logical bind – it excludes non-consensual sexual intercourse between married partners from the definition of rape. The recent split verdict from a division bench of the Delhi High Court in the RIT Foundation v. Union of India case, has once again brought to light an age old debate in India as regards the role of consent and the recognition of the agency of women in marriage. It throws open a bigger question – does allowing for marital rape actually protect the institution of marriage or does it harm it?

While Justice Rajiv Shakdher held that the marital rape exception under Section 375 IPC is violative of Article 14, 15, 19 (1) (a) and 21 of the Constitution and should be struck down; Justice Hari Shankar dissented with him and held that non-consensual sex within marriage cannot be termed as rape.

The fear writ large in Justice Hari Shankar’s legal view that – ‘if non-consensual sex by a husband is classified as ‘rape’, it will affect the very institution of marriage’, needs cross examination. The legal opinion of judges expressed in lengthy judgments need to be deconstructed to see what part of their thinking is visible on the face of it, but what is the underlying fear that a judge may or may not spell, but shapes his thinking on a particular issue – like the hidden part of an iceberg.

This line of reasoning that – marriages are so sacred, that when two people decide to get married, they somehow are signing for a lifetime of sex, and that spouses need not obtain consent, every single time, they are about to engage in a sexual act, is fraught with challenges.

First, it is important to see the role of law in the institution of marriage for what it is i.e. a web of protection for facilitating entry and exit into the institution. Law cannot by itself grant ‘marriage’ some holy veil, that the concept of marriage itself does not have. By allowing for violence in any shape or form, within marriage, by the instrument of law, amounts to over-interference by the law in an institution.

Secondly, the institution of marriage , especially as viewed in India, is a mix of a sacrament and a contract. In India, while there are different personal laws governing marriage, the dominant cultural view is that marriage is not a pure contract. Nor is it an institution to satisfy one’s lust. It is seen as a spiritual union of two people. Therefore allowing for non-consensual and forced sex within marriage tantamounts to eroding away at the very foundation of this spiritual union/institution. So the logic offered by Justice Hari Shankar, that criminalising marital rape will somehow protect the institution of marriage, stands falsified by his own logic. If marriage is a sacred institution – there cannot be any space for violence in it. If you allow for marital rape to be legal – than marriage cannot be held as a sacred institution.

Thirdly, marriage requires two adults who are equal partners. Allowing any room for non-consensual sex, takes away the agency of the woman within the relationship. To think that the husband can impose himself on his own wife, suggests that somehow the wife is less of a woman, less than the whole, than she was before marriage. Such a view of marriage is more likely to dent how the coming generations view marriage. Also, law cannot give or take away any agency from both the partners, even in the name of marriage. Laws are meant to step in when one partner in any way, violates the agency of another partner – not to automatically erode away the agency of the wife, as soon as she decides to get married.

Fourthly, we really need to have an open conversation about how do we view ‘sex’ as a society. Will our laws protect non-consensual sex in any case/situation? Should they? Sex has to be based on the mutual consent of two adults – marriage or no marriage. Marriage is neither for sex nor equivalent to it. Marriage is a promise to take care of the well-being of each other, to be there for each other in thick and thin. How does this even sound logical – “you married me, so you got to have sex with me, every time, I want it, whether or not you want it.” This logic is contrary to everything that’s sacred about marriage.

Fifthly, let us unwrap the concept of ‘Consent’ as it has wide ramifications than just the marital rape debate in India. One question that’s often asked is – “do we need to understand consent based on cultural context?” So, is it logical to say that while in America, a woman saying ‘no’ should be understood as such, in India, somehow, even when a woman is saying ‘no’, it can be understood as ‘yes’? This suggestive argument that somehow – thanks to the cultural context, even a woman’s no is not an actual no, lays the foundation of perpetration of major crimes against women. By treating ‘consent’ as having different shades of grey, we not only reduce the agency of women, but we impliedly attempt to veil the refusal of men to take ‘no’ for an answer by giving a cultural justification for the same.

India is certainly not alone in debating the definition of consent. We are in the midst of a global movement, that’s pushing for a legal framework and universal definition of ‘consent’. The Council Of Europe Convention On Preventing And Combating Violence Against Women And Domestic Violence, better known as the Istanbul Convention adopted in May, 2011, was signed by 45 countries and the European Union. States who have ratified the Convention are required as per Article 36 of the Convention to declare as a crime – “sexual violence, including rape, explicitly covering all engagement in non-consensual acts of a sexual nature with a person.” Similarly in 2019, the Platform of 7 independent United Nations and regional expert mechanisms on violence against women jointly called upon all States and relevant stakeholders worldwide to act against rape as a ‘form of gender based violence and a human rights violation, and, to ensure that the definition of rape is based on the absence of consent, in line with international standards.’

While we now wait to see how the Supreme Court will weigh in on this issue in Appeal, let us hope that India will not be left behind in ensuring that Women remain equal partners and whole individuals in Marriage, Sex and Consent. Clearly, while allowing marital rape to be criminalised, we will be saving the institution of marriage, instead of eroding it, assuming that the institution needs saving at all, which ofcourse is an arguable proposition for another day.

(Avani Bansal is a practicing Advocate in the Supreme Court and can be reached at advocateavanibansal@gmail.com’; Tweet @bansalavani)

First published here :
https://www.outlookindia.com/national/sex-in-marriage-criminalising-marital-rape-will-save-institution-of-marriage-magazine-202759

08/12/2024 0 comments 34 views

Interview of Prof. Verene A. Shepherd

by Elsa Joel 08/12/2024

written by Elsa Joel

By ELSA JOEL

Elsa: I’m too much in awe of what you are in totality Prof. Verene Shepherd. This opportunity to chat and get to know you better is an honour. When you decided to research the history of Jamaican women, did you have some kind of an urge to unearth Jamaican feminism, the genesis of it all and tell the world that feminism is nothing new to Jamaica?

Prof. Verene: Thank you for taking the time to explore my work, ideas and influences. First of all, my overall research interest as a Social Historian, is the experiences of historically marginalized people: enslaved Africans, indentured Asians (in particular Indians), left behind men and boys, women (including enslaved women and household workers). My interest in women’s experiences was influenced by the late Historian, Lucille Mathurin Mair, who wrote the first dedicated book on Jamaican women. So she unearthed the history of Jamaican feminism. I simply continued research to show the roots of gender-based violence and the history of women’s activism against all forms of oppression and discrimination. Mair’s work made me a feminist, though.

Elsa: As professor and director of the Institute for Gender and Development Studies at the University of the West Indies for more than two decades, your contribution to the making of Caribbean feminism through writings, teachings and research has been commendable. What do you think should be the role of educational institutions in maintaining and strengthening feminism and thereby secure social transformation constantly?

Prof. Verene: Their role should be to teach the contribution of women to Caribbean History & Development and the meaning of “feminism.” This will reveal the existence of powerful women who did not allow their sex to define them; who abhorred sexism and who showed that to be feminist is simply to believe in gender justice and equality and rights for women. It is not to be “anti-man”. Men should, after-all, be also supporters of feminism.

Elsa: How well/best can educational institutions stay networked through collaborative activities and information sharing on regional, continental and global events as far as women’s rights and gender equality is concerned?

Prof. Verene: By organizing institutional exchanges of staff and students and using today’s virtual space to host collaborative events that result in knowledge exchange. By identifying shared experiences (racism, sexism, the harm of hegemonic masculinity) and engaging in advocacy to bring awareness and inspire societal change.

Elsa: President of the Association of Caribbean Historians, Chair of the Jamaica National Heritage Trust and Chair of the Jamaica National Bicentenary Committee. You have held positions, powerful and meaningful enough to put the Caribbean countries, especially the island of Jamaica on the world stage. Any landmark/strategic enforceable decisions or course of action that you take pride in while carrying out your roles and responsibilities in one of the positions above!

Prof. Verene: My role as Chair of the 2007 Jamaica National Bicentenary Committee caused renewed focus on the impact of British colonialism on the CARICOM Region. It destabilized the Eurocentric narrative about abolition of the trans-Atlantic trafficking in enslaved Africans and uncovered new, African, abolitionists. It focused world attention on reparation and influenced my work at the United Nations, when in 2010 I became a member (and later Chair) of the Working Group of Experts on People of African Descent.

Elsa: Invasion is different from migration. Colonizing a country, thriving on the sweat, toil and blood of forced labour, opposing abolition, sexually exploiting women of colour by white men and the death of millions of overworked and brutalised enslaved people is not just unethical or unjust or uncalled-for but outright immorality, right? Did you see tangible reparations while you co-chaired Jamaica’s National Council on Reparations?

Prof. Verene: You are correct, invasion, conquest, colonization and racism are evil and immoral and the Caribbean is still living with the legacies of such historic wrongs. There was no tangible reparation in 2007; but the conversation around the justification intensified; and the movement has grown since then. Today, though, we see examples, however small, of tangible reparation by non-State actors. The claim against former and current colonizers remains valid.

Elsa: I am not sure if you’ve heard of the terrifying story of slaveholder Simon Taylor. I’m wondering if his family successors can be traced and made to pay the price. This is just a suggestion, because he was one of the biggest slaveholders in the Caribbean. At least his family must be made known so that they share the shame and not just the fortune this inhuman colonizer made by trading and exploiting slaves. Just the tip of an iceberg, but a good start. Your take Dr. Shepherd!

Prof. Verene: Yes; I know the history of Simon Taylor very well, especially through the Arcedekne papers at the University of Cambridge. I was struck by his stark disrespect for African women subjected to sale by his description of the ideal young women to be bought by enslavers. I have not, however, traced his family.

Elsa: Within the Office of the United Nations High Commissioner for Human Rights, which position made you feel it’s your destiny to be playing your part in it? Or, did you enjoy every assignment that you undertook?

Prof. Verene: The Working Group on which I served (2010-2015) and the Treaty Body on which I now serve (2016-present) both fall under the Office of the United Nations Office of the High Commissioner for Human Rights (OHCHR). I have enjoyed the work and challenges of both positions. They call for the elimination of racial discrimination, including against people of African descent.

Elsa: Deplorable, socially unjust and dangerous, racial discrimination has been a curse on humanity since time immemorial. Walter Scott, Alton Sterling, Philando Castile, Stephon Clark, Breonna Taylor, George Floyd, Ibrahima Barrie in Belgium, the list goes on in spite of the creation of the International Decade for People of African Descent. Committees of many kinds, with different names and objectives, with experts of high moral standing and acknowledged impartiality are supposed to ensure racism is an offence, hate crime, illegal and punishable. As a member of the Working Group of Experts on People of African Descent (WGEPAD), how often do you come across the effects of this crime and how often are the accused punished severely/ befittingly?

Prof. Verene: I am no longer a member of the Working Group of Experts on People of African Descent (WGEPAD). But while a member, I saw the effects first-hand on country visits. But I do not have to be a member of a UN body to come across the effects of hate crime etc. I travel and experience racism all the time just on the basis of skin colour. I also live in a Region scarred and disfigured by colonialism, which gave rise to racism, hate crimes, unspeakable forms of torture and punishment, racial profiling and discrimination on all the grounds set out in article 1 of the International Convention on the Elimination of all forms of Racial Discrimination. Punishment is not as frequent as occurrence because not many countries criminalize hate speech and racial discrimination.

Elsa: When you were asked to inquire into Zwarte Piet, what’s the first thought that raced through your mind?

Prof. Verene: I was not personally asked to enquire into Zwarte Piet. African people and people of African descent brought the practice to the attention of certain UN Treaty Bodies and the WGEPAD of which I was a member. It is a custom that was condemned as racist long before the WGEPAD started to pay attention to it.

Elsa: Your piece of mind for ‘That’ Belgian UNESCO official who claimed that you had no authority to speak on behalf of the UN and were abusing the name of the UN to bring your own agenda to the media.

Prof. Verene: I pay no attention to such utterances and statements that reflect ignorance.

Elsa: Your most beautiful childhood memory, a favourite school teacher, an adorable/brilliant student you nurtured and one-two awards that surprised you?

Prof. Verene: i)I recall my father taking home a beautiful piece of black and white polka dot fabric that my mother designed and made into the most fabulous dress that I wore to a school function. I must have been about 8 years old. I did not want to take it off. ii)All my teachers brought something new and interesting to my educational journey. I see them as a collective. iii)I am so proud of all of my students. They enriched my life. I am proud of those who have followed my footsteps to become Historians or at least to study History, and also those who have embraced gender justice and human rights. One of my past students even took over from me as the GRULAC member on the WGEPAD and one, an Attorney who studied History, and now works in the Office I head, was a recent UN Fellow. My first History PhD student teaches in the Institute for Gender and Development Studies and has just done me the honour of asking me to co-edit a book with her! iv) I was very surprised to have been awarded one of the 2019 President’s Book Award at the St Martin Book Fair in that year and to have been placed on the Black Achievement Wall of Honour at the UN, New York in 2017, alongside such luminaries as President Barack Obama and Miriam Makeba!

Elsa: If I am to begin reading your books, which one would you recommend first and why?

Prof. Verene: I Want to Disturb My Neighbour: Lectures on Slavery, Emancipation & Post-colonial Jamaica (Kingston: Ian Randle Publishers, 2007) – because it explains who I am and what issues agitate and shape my consciousness.

Elsa: A thought for the day! Our take-home message!

Prof. Verene: Always be your authentic self! Pretence is pathetic!

08/12/2024 0 comments 25 views

Death Of Memory Machaya – Child Brides In Zimbabwe Still Awaits Justice

by Guest Author 08/12/2024

written by Guest Author

By Dheeraj Diwakar

A fourteen-year girl died while giving birth at Church Shrine in Zimbabwe. The girl was forced to marry at an early age. After two hours of her death, she was secretly buried by Church. This incident caused a serious outrage among citizens and Human Rights fraternity all over the world. This case has highlighted the age-long practice of Child Marriage in Zimbabwe. United Nations in its statement condemned the incident and criticized the Government for not taking substantial steps to prohibit Child Marriage in practice. The silence kept by the Government of Zimbabwe raises several questions i.e., Will child-brides in Zimbabwe ever get Justice? This piece seeks to legally analyze the plight of child-brides in Zimbabwe.

Despite various International Human rights movements initiated to prohibit child marriage, the statistic of Child marriage is alarming. About 31% of girls below eighteen years of age are married, of which 4% were married before fifteen years. The age difference between bride and groom is even more concerning. According to data of 2014, about 20% of girls aged 15-19 years who are married have spouses ten or more years older. This is the main cause of gender-based violence, as about 20% of women have experienced sexual violence in their life. The mortality rate for child brides is higher than the average mortality rate.

The country has two different sets of laws concerning marriage i.e., Customary Marriages Act and Marriage Act but neither of them sets the minimum age of marriage. On the other hand, Customary law permits polygamy. Zimbabwe’s constitution is progressive which enshrines gender equality and justiciable rights. Section 78 prescribes a minimum age limit for marriage i.e., 18 years, and condemns coerced marriage. It says, “no person shall be compelled to marry against their will”. Section 26(2) orders the State to implement measures to prohibit children from getting into matrimonial alliances.

Constitutional Court in the landmark case of Loveness Mudzuru has outlawed the practice of Child-Marriage. Thus, child marriage is found contradictory with Constitutional provisions. Further, Article 1 of the Convention on Consent to Marriage and Registration of Marriages 1964 calls upon the nations to prohibit the marriage of girls under puberty and set the minimum age of marriage. This is reaffirmed by Article 16(2) of the Convention on the Elimination of Discrimination Against Women. Further, Article 21 of the African Charter on the Rights and Welfare of the Child states that child betrothal and marriage shall be prohibited, and “effective action” shall be taken to ensure that the minimum age for marriage is 18. The “minimum age for marriage is 18” is further reaffirmed by Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

The increasing prevalence of child marriage in Zimbabwe is contradictory with the Nation’s growth and development. Despite having numerous constitutional provisions and International Conventions, the graph of child brides is rising. Government fails to implement these legal provisions effectively. The lacunas in marriage laws are one of the biggest concerns which results into prevailing of the customary laws. The Government must take serious steps to tackle this social evil and ensure justice for all.

Image Courtesy: BBC

Author: Dheeraj Diwakar

08/12/2024 0 comments 33 views

Tribulation Of Innocent Hands

by Guest Author 08/12/2024

written by Guest Author

By Advocate Meenu Padha; Co- Authors – Tavleen Kaur & Vinayak Sonkar

India needs an instant nationwide awareness and campaigns against the child labour to protect and safeguard children from the economic and social consequences which has been faced due to Covid-19 crisis and lockdowns. Although some of us are practicing social distancing and actively working from home in the hope of a much better tomorrow, there are still a large number of children who may be victims of seemingly positive measures. One effect is the increase in the number of child labour. For many children, the Covid-19 crisis means little or no education due to poverty or less means of technology which will ultimately lead them to lag behind their peers. This will prompt a large number of children to stop learning even after we return to “normalcy” post COVID. Many children who are not in school will embroil themselves in child labour. In the two waves of Covid-19 in India, lakhs of men and women, many of whom did not have stable jobs and depended on daily wages, became unemployed or faced low income which had a spiralling effect on their children. Due to lockdown, the schools are unable to run physically and only a few people can access or receive online education. In the first wave of Covid19 in 2020, more than three-fourth of children did not have access to online learning facility and more than half of the children did not have access to any learning materials. The increasing anxiety of parents, shortage of learning material, low income and non-access to online education, all together has led to an increase in child labour.

The epidemic is clearly appearing to be a child rights crisis, which is increasing the risk of child labour, because more families are falling into extreme poverty. As stated by the United Nations Organisation, 160 million of child labour cases have increased to 8.4 million over the consecutive four years and Covid-19 has been a major contributor to this. Children from poor and disadvantaged families in India are now at a greater risk such as dropping out of school and being forced to work. Lakhs of families in emerging and developing countries are employed as daily workers in the informal sector (rickshaw drivers, construction workers, street vendors, workers in small factories, etc.). In particular, they have lost revenue due to the overwhelming effects of the global lockdown and the pandemic. The sharp decline in income means that families cannot afford basic necessities or money for children’s health care or education. In the formal sector as well, factory closures in countless countries have led to massive layoffs and loss of income, with major consequences being faced by lakhs of workers and their families. As adults are at a higher risk of contracting the coronavirus than children, the ultimate pressure is increasing upon children specially in poor families, to take the whole responsibility of family and bridge the gap of basic necessity. Since the production base is still looking for the cheapest labour, children are considered to be a very cheap option for such labours and work to meet their demands. Even before the epidemic, the figures for child labour in India were dismal. According to the Census 2011 statistics, the overall number of child labourers in India between the ages of 5 and 14 is 4.35 million (major workers) and 5.76 million (marginal workers), for a total of 10.11 million. Furthermore, there are 22.87 million teenage labourers in India, bringing the total (in the age bracket of 5-18 years) to about 33 million.

In addition to child labour, there are myriad facets of this problem which both result from child labour and also contribute to it. As per the National Crime Records Bureau, in India, one child disappears every eight minutes. India also has the highest child trafficking cases. Children are sometimes removed from their homes to be purchased and sold in the market. In other situations, youngsters are duped into falling into the hands of traffickers by being offered a job, only to be enslaved upon arrival. There are many children trafficked for a variety of causes, including work, begging, and sexual exploitation. Because of the nature of this crime, it is both difficult to trace these children and also prevent their exploitation effectively due to weak law enforcement. While we have an estimate of the issue, understanding its exact scope, and getting ascertainable numbers is very hard. Though the majority of child trafficking happens within the nation, a considerable number of children are trafficked from Nepal and Bangladesh.

Child trafficking is caused by a variety of factors, the most common of which are poverty, ineffective law enforcement, and a lack of high-quality public education. The traffickers that take advantage of children can be from another area in India, or could even know the child personally. Children who return home after being trafficked are typically shunned by their communities rather than welcomed. Poverty, a lack of education, and the need to financially support their family are some of the core causes of child trafficking in India. India’s unemployment rate is quite high, with the United Nations Development Programme estimating it to be 3.5 percent. Furthermore, there aren’t a lot of income opportunities. When youngsters are given the opportunity to labour, they are more likely to be exploited. Children in poverty are frequently compelled to trade sex in exchange for a place to live or food to eat. Some parents have even been compelled to sell their children to traffickers in order to get out of poverty or pay off debts. Gangs frequently traffic children and compel them to beg on the streets. Contemporary cases of begging can be seen in most of the metropolises. Not only are these children being forced to beg for money, but a significant number of those on the streets have had gang leaders forcefully remove their limbs or even pour acid into their eyes to blind them. Those children who are injured tend to make more money by invoking the empathy of the people, which is why they are often abused in this way. Organ trafficking is also widespread, with traffickers tricking or forcing minors to give up their organs.

As per UNICEF, over 300,000 children under the age of 18 are presently being exploited in more than 30 violent situations throughout the world. While the bulk of child soldiers are aged 15 to 18, some are as young as 7 or 8 years old. A huge number of youngsters are kidnapped and forced to serve as soldiers. Others work as porters, chefs, guards, servants, messengers, and spies. Many of these young soldiers have been sexually assaulted, which frequently results in unplanned pregnancies and sexually transmitted illnesses. Some youngsters have been coerced into carrying out crimes against their families and communities. A lot of children are also made to steal, snatch, kill with a mindset that it is an essential for their living .

Currently, 152 million youngsters, 64 million girls and 88 million boys, labour across the world. This represents nearly one-tenth of all children worldwide. There are about 10 million youngsters in India who are actively engaged in or pursuing employment. Despite considerable attempts done in recent years by the UN, ILO, and individual nations like India, this remains the case. Failure to minimize the number of minors exploited in job circumstances is due to the socio-cultural fabric that allows it to happen and condones the offence, as well as the enormous demand for inexpensive child labour in agricultural, mining, carpet-weaving, garment, brick kiln, and other sectors, as well as the pervasive poverty that continues to be both a cause and a function of child labour.

Selling of minor girls for prostitution is a big subject of concern. These minor girls are syndicated to enormous abuses one cannot even imagine. They are molested, harassed, raped, exploited, stalked, beaten and many more injuries are caused to those small teeny bodies which are sabotaged with cigars, burns, wounds and blood through their legs. While they feel the pain in the earlier years, in later years, girls come to accept it as their fate.

They perceive it as a way of living and consider sexual abuse as a necessary exchange for drugs, food, shelter, protection and other basics of life. Children who are exploited for commercial sex are subjected to child pornography and child prostitution transactions. Commercial sexual exploitation (CSE) of women and children earns around $400 million USD each year in Mumbai alone. According to the Ministry of Women and Child Development (MWCD), there are around three million prostitutes in the nation, with an estimated 40% of them being youngsters, since there is an increasing desire for extremely young girls to be initiated into prostitution according to customer preferences. Sexual exploitation has many serious implications for these youngsters.

Now the main question which comes up every now and then is – Will the government and general public take strong steps to prevent the abuse of the children and stop child labour and child trafficking?

On a national level, human trafficking is expressly prohibited in Article 23 of the Indian Constitution. To combat the issue of child trafficking, the Indian government has also passed further legislation and modified the Indian Penal Code (IPC). The Immoral Traffic (Prevention) Act of 1986 (ITPA) amends the Suppression of Immoral Traffic in Women and Girls Act of 1956. (SITA). Human trafficking for prostitution was deemed illegal by SITA, and legal action was detailed for anybody participating in human trafficking in any capacity. ITPA made laws friendlier towards the victim. ITPA also created a system to rehabilitate victims of trafficking and prevent them from bring trafficked again. In 2013, IPC was amended to create new provisions to address Trafficking in India that is more in accordance with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Particularly Women and Children. State governments have also been observed taking steps to combat child trafficking by attempting to create systems and regulations at the state level. Non-governmental organisations that strive to solve various parts of this issue fill up any gaps in the execution of plans and regulations.

Although India is regarded as a centre for human trafficking, the Indian government places little emphasis on the issue. Hence the way in which the current legal system operates to address child labour in India can be considered as coming into direct conflict with the trend of independent child migration that is seen across the country. Therefore, legal measures are not enough. Every person needs to understand the gravity of this issue, make themselves aware, and keep their eyes and minds open, to help the government where ever possible in tracking the cases of child labour and preventing it.

08/12/2024 0 comments 25 views

Marital Rape: A Social and Legal Paradox

by Guest Author 08/12/2024

written by Guest Author

By Vandana Bharti

Despite 75 years of independence, the social status of women in India still stands in shadows. Grievous crimes and alarming rates of pending cases portray the loopholes in the legal machinery of the Indian legal system. One such appalling act is that of Rape – where the dignity and self-respect of a woman is bruised beyond contemplation. When such an act occurs behind four-walls in a matrimonial home, it is known as Marital Rape. Where the spouse engages with his/her better half in a forceful, non-consensual sex it is termed as Marital Rape.

A legally sanctioned contract between a man and a woman forms marriage. In India, the legality of sexual intercourse between a man and a woman gives the husband leverage to consider the consent of his wife perpetual in the course of marriage.

Indian Legislation On The Offence Of Rape:

Section 375 of the Indian Penal Code (IPC) states – A man has committed rape if he had sexual intercourse with a woman against her will, without her consent, with her consent but by putting her in danger or threatening her, with her consent whom she believes that she was lawfully wedded to, with her consent but the consent was given in an unconscious state, and with her consent when she is under 15 years of age. Nowhere does this specify the essential elements and the repercussions of committing marital rape.

As per Indian Penal Code, husband can be convicted on grounds of marital rape only when:

The wife is 15 years of age or below; and is punishable by imprisonment for up to 2 years or fine, or both.
When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
Rape of wife of above 15 years in age is not punishable.

Precedents In the Law

In the Harvinder Kaur v. Harmandar Singh case (AIR 1984 Delhi 66 ), the Delhi High Court stated that the interference of the Constitution in household matters would destroy the marriage.

The court stated, “In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, said, “‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”

Naval Rahul Shiralkar, Advocate at High Court of Bombay Judicature at Nagpur, said, “Courts have various methods to identify marital rape and have given strict punishments but due to the lack of a law against a crime like that, the judiciary is bound to not admit ‘forceful intercourse by a man upon his wife’ as marital rape.”

Shiralkar said that many of the marital rape cases went unreported in India. He added, “There are at least 5-6 cases reported every year in Nagpur Family Court which are pending litigation.”

Saranya S. Hegde, President of the Mahila Dakshata Samiti, Bangalore, said that husbands often thought that they could do everything with their wives because society and marital laws supported that. “The helpless and dependent suffer in silence.”

Hegde said, “If a woman goes to a [family] court, the judge often favours the husband and asks the wife to adjust.” In her more than 15 years of experience, Hegde said she had seen women committing suicide due to the mental torture they went through because of marital rapes and domestic violence.

Kamlesh Premi, Counsellor at home at the Centre for Social Research, said the court procedures took almost five or seven years. Having been a counsellor for more than 20 years, Premi said that the judiciary system was too lengthy.

First, the woman has to complain to the Crime against Women Cell and get counselled. Then if she wants, she has to file an FIR (First Information Report) under Section 498 (A) (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, which in itself is quite a lengthy procedure. And at the end, even after an investment of at least five years and financial resources, the court would either ask her to adjust or maybe get her a divorce with maintenance. Hence, a lot of women compromise or either go for mutual divorce. “Therefore, there is a lot of under-reportage for marital rapes,” she added.

“It is in rare cases that a wife asks for a divorce or maintenance,” Premi said. “The biggest problem is that the husbands treat wives as private property. They think they own her.”

Dr. Ratna Purwar, a gynaecologist in Lucknow, said women often complain about the presence of vaginal or anal wounds in such severity that could substantiate rape. She added that, when men are asked to abstain from forceful sex with their spouse, the most common answer is, “Why did I marry her then?”

The financial dependency of women becomes a prime reason for all the physical and verbal abuse endurance. It had become normal despite the mental health depletion and trauma. Marriages in India have the concept of ‘implicit consent’ to sex and women sadly or happily comply and do not report it.

In the Anuja Kapur vs Union of India Through Secretary case of 2019 (W.P. (C) – 258/2017) , a PIL was filed asking the Delhi High Court to make guidelines and laws on marital rape. The court replied that drafting of the laws was the work of the legislature and not the judiciary. “The court is more concerned with the interpretation of the law rather than the drafting of laws.”

In the Nimeshbhai Bharat Bhai Desai vs. State of Gujrat case of 2018 (2018 SCC OnLine Guj 732), the Gujarat High Court admitted that marital rape was not just a concept and the notion of ‘implied consent’ in marriage should be dropped. The law must protect bodily autonomy of every woman (married or unmarried).

However, in Independent Thought vs Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, was rape regardless of her marital status.

Supreme Court of India, in the case of Independent Thought v. Union of India (2017) 10 SCC 800, read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian Constitution.

In 2017, the Daily reported a 2014 study by International Centre for Research on Women and United Nations Population Fund on 9,500 respondents in seven states of India. The report concluded that 17% of women received spousal violence while 31% (one in three) men admitted to committing sexual violence against their wives.

In 2016, Maneka Gandhi, then minister for child and women development, said that the ‘concept of marital rape’ that was understood internationally could not be applied to India considering the levels of illiteracy and poverty.

In 2016, the U.N. Committee on Elimination of Discrimination Against Women recommended that marital rape be criminalized in India. After that recommendation, a question was raised in the upper house of Parliament asking what action had been taken. Haribhai Parathibhai Chaudhary, then minister of state for home, replied, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.” This response was repeated literally by Minister Gandhi in the Parliament.

In the year 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC. The challenge is on the basis of Article 14, Article 15 (a fundamental right prohibits discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex, and place of birth), Article 19 (freedom of speech which is the right to express one’s opinion freely without any fear through oral/ written/ electronic/ broadcasting/ press), and Article 21 of the Indian constitution.

Justice Verma Committee report (2013) recommended the discarding of the exception of marital rape. Providentially, in November 2017 a division bench of the

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

In the 42^nd report by the Law Commission, it was proposed that criminal liability be attached to the intercourse of a spouse with his/her minor husband/wife. But the committee banished the recommendation stating that the sexual intercourse between a man and a woman can never impose criminal liability on the husband as sex is the parcel in a marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable and relevant to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights which concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

According to the 2015-16 National Family Health Survey (NFHS-4), 31% of married women have experienced violence – physical or sexual. The NFHS reported that about 4% of women were forced to have sexual intercourse when they did not want to, 2.1% to perform sexual acts they did not want to, and 3% were threatened to perform sexual acts they did not want to.

In 2015, two separate pleas were submitted to the Supreme Court asking for the law to be amended by deleting the marital rape exception. In the first, the petitioner, a 28-year-old, had already filed charges against her husband for domestic violence (a civil, not criminal offense) as well as “cruelty.” She used her maiden name, Reema Gaur, to shield her identity.

She wanted to bring him to justice for repeatedly raping her. “The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife,” the plea stated.

Appearing on TV, heavily veiled, wearing spectacles that magnified her eyes, Gaur talked about her marriage. “Every night post the wedding was a nightmare for me. … He would never even ask my permission,” she said. “He used to beat me up, insert artificial [objects] in me. At some point I was in such a condition I was not even able to walk,” she said, her voice breaking with tears. On the night she decided to leave, she said, “He hit me 18 times on my head with a box and a torchlight. And then he inserted the torchlight in my vagina.“

Bleeding and in a semiconscious state, she called her mother for rescue. The bleeding lasted for two months. In the year she was married, when Gaur tried to talk to her in-laws and her parents, “The only thing they told me is, ‘Try to adjust.’ “

In 2014, Akash Gupta of the Rice Institute, a non-profit organisation reported, that the number of spousal violence received by the wives was 40 times more than that received by non-intimate partners.

Deepika Narayan Bharadwaj, a film maker and activist believe the state does not have the potency to support women if they are to seek divorce on grounds of marital rape. “It’s naive to say women have complete right of consent and rights over their body, when the truth is they’re dependent on their husbands for everything, financially, emotionally,” says Bhardwaj.

Trisha Shetty, founder of She Says, a website for information and action on sexual crimes against women argues that protection from Marital Rape is not a western issue that needs solving rather it is a basic human right. People in India are of the opinion that sexual abuse and marital rape only happens to the poor, the fallacy needs to be broken. “That whole assumption that you’re making laws for people who don’t understand is nonsense. Everyone understands the concept of consent, of saying, ‘No.’” says Trisha.

She Says and several NGOs, including Jagori (which in Hindi means “awaken, women!”), have organized workshops and other programs to help women speak out about the sexual abuse and rape. Online, there are additional resources, such as this Marathi language effort to educate about consent via two folk dancers having a musical discussion about the meaning of “yes” and “no.” The government has even set up an emergency hotline, staffed by women, to field calls from women who need police assistance as well as resources and instruction about their rights. In their first year, they received more than 600,000 calls from women, some describing assault and rape within their marriage.

Judicial Stand

In Bhodhisathwa Gautam v Subhra Chakraborthy (1996 AIR 922) it was held that marital rape is violative of Article 21; Right to live with human dignity. Supreme Court held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights.

In Justice K.S Puttaswamy v Union of India (2017) 10 SCC 1 , it was held that the right to privacy as a fundamental right includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

Uncovering the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, (1891) ILR 18 Cal 49 observed that in case of married women, the law of rape does not apply between a couple after the age of the wife over 15 years of age, even if the wife is over the age of 15, the husband has no right to disdain her physical safety.

In Emperor v Shahu Mehrab (1911) ILR 38 Cal 96 the husband was convicted under Section 304A IPC for causing the death of his child-wife by rash or negligent act of sexual intercourse with her.

In State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207, Supreme Court referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. It is wistful to know that all sexual offences committed by a non-intimate or a stranger have been penalised and all females except wives have been granted their right over their bodies.

In Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 High Court observed that because the wife is living under the same roof with that of her husband, with no decree of separation, even if she is subjected to consensual or non-consensual sexual intercourse, the offence under Section 376A of IPC will not be imposed.

The idea of spousal rape is fictious to the Indian Judiciary, despite the mental and physical trauma of the survivor.

International Statistics

Marital Rape has been declared illegal and a criminal offence in 18 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R changed the law to an extent that the courts ruled that even within a marriage, any non-consensual sexual activity is rape.

What can be done?

To help the victim surf the trauma, shelters can be provided as a temporary safe place to stay and the staff may help in the consideration of options available, legal aid services to offer free of cost legal services and advice, support groups to help the victim voice the upheaval. Articulate support for the enforcement of apt laws and for new legislation to curb sexual violence, education programmes and support initiatives at local, state and national level.

Conclusion:

The incessant exemption of marital rape from the ambit of criminal law succours the idea of wife being the property of the husband exclusively. Changing the laws on sexual offences needs to be tactful especially in a country like India where there is an existence of diverse and conglomerate personal and religious laws that might clash with the new amendments in the statutory criminal law. The immediate need of prohibiting and criminalizing marital rape is just not enough. Sensitization of judiciary and police along with educating the myriad believers of the airy concept of marital rape is required in order to acknowledge that the concept of spousal rape; getting raped by one’s spouse is not trivial, and definitely cannot go unpunished.

08/12/2024 0 comments 27 views

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