GENDER-BASED VIOLENCE

This article is written by Namrata Dube, B.A.LL.B. of 9^th Semester of South Calcutta Law College, Kolkata, an intern under Legal Vidhiya.

Abstract: –

Gender based violence is a kind of violation of human rights, which is directed against a person for that person’s gender or many other reasons. The aim of this article is to provide a basic understanding of the concept of “Gender-based violence”. Besides, this article also deals with its types, causes, its effect in India, the constitutional provisions related to it, its prevention and various cases on the subject.

Keywords: –

Coercion, threats, transgender, abortion, sexual harassment, domestic violence, refugees, LGBTQIA, Fundamental Duties, Directive Principles, Fundamental Rights

Introduction: –

One of the major problems faced by people all around the world is gender-based violence. Any act that results in physical, sexual or psychological harm or suffering including threats or coercion whether occurring in public or private life is termed as gender-based violence. It is a violence or any harmful act against an individual on the basis of gender. Although majority of this violence is faced by the girls and women but LGBTIQ, boys and even men can also be targeted through gender-based violence. In other words, gender-based violation means to force one person to do any act against his or her will through violence, coercion or threats. It is thus violence committed against a person because of his or her gender.

Definition: –

Gender- based violence refers to any type of harm that is perpetrated against a person or group of people because of their factual or perceived sex, gender, sexual orientation or gender identity. It is based on an imbalance of power and is carried out with the intention to humiliate and make a person or group of feel inferior or subordinate. It can be sexual, physical, verbal, psychological or socio-economic and it can take many forms also.

Types: –

Gender based violation can be classified into 6 main heads, such as verbal, psychological, physical, economic and domestic violence. Psychological violence means any act which results in emotional and mental injuries of those affected persons. It includes frightening by means of looks or gestures or threatening. For instance, a threat to take away a child from her mother. And domestic violence means any violence which is committed by someone in victim’s domestic circle. Its aim is to exercise control and power on the other.

 These types of violence can be observed in several ways in our society, they are enumerated below: –

• Gender based violence against transgender: – The apex court along with other courts have given so many landmark judgments in favour of transgenders and their rights. In spite of this, they face several inhuman activities such as forced sterilization, lack of social acceptance etc.
• Gender based violence against disabled person: – The disabled person of all age groups faces social discrimination and violence.
• Gender based violence against infants and girl child: – In our developing country, till date boys are given more privileges than girls by following some cultural traditions. This practice results in aborting the female infants before birth and killing or disowning of girl child after birth.
• Gender based violence against women: – In our civilized society, one out of three women faces violence irrespective of their age, colour, religion or education. They even have to face this issue in their home (abused by her spouse), on streets, in school, at workplace in terms of sexual harassment.

Causes: –

There are various reasons for gender-based violence, some of them are listed below: –

• Poverty: -As soon as the child attains the age of majority or sometimes before that also young girls are pulled out of education and are forced to marry, or to help in domestic task. Generally, this is observed among people who are economically weak.
• War: – Another reason of gender-based violence is the rising number of conflicts, which results in conflict related sexual violence. It may include forced prostitution, sexual slavery, forced marriage and many other forms of sexual violence. For instance, in Afghanistan, women and children are facing the burnt of the resulting violence.
• Displaced women and refugees: – Displaced women and girls are often not included in national surveys. Also, the temporary accommodation (refugee camps) in which they live in put them at greater risks, as they do not have locks on bathrooms, inadequate lighting etc.

In India: –

In spite of several government schemes, mechanisms to safeguard a transgender as well as women’s right and to prevent gender-based violence, there are still major obstacles which desists them from achieving equality. Unfortunately, the gender-based violence continue to rise in India. They are encouraged by the persistence of patriarchal gender and social norms. Though a few changes in the legal system, such as passing of stricter sexual assault laws, creation of fast-track courts for prosecution of rapes have accrued better results. In the landmark judgment of decriminalizing homosexuality under sec 377 gave a huge relief and acceptance to the LGBTQIA in the society to some extent. Also, various cases of violence against women like Unnao rape case, Nirbhaya case have led to changes in legislation.

The Constitutional Provisions: –

The framers of the Constitution had included provisions in it in the form of Directive Principles, Fundamental Duties, Fundamental Rights in order to prevent gander-based violence, and also to authorize the Centre to take appropriate actions, so that this type of violation can be avoided. The provisions that are included in the constitution to prevent this type of violence is enumerated below: –

• Article 14- It authorizes the state to accept every person equally and to give equal protection of law within the territory of India.
• Article 15(1)- It states that the state shall not discriminate any citizen on the grounds of religion, colour, caste, sex or place of birth.
• Article 15(3)- It states that nothing in this article will prevent the state to make any special provision for women and children. On the basis of this provision the Domestic Violence Act, Workplace Harassment Law are enacted by the central legislature.
• Article 16(1)- It states that all the citizens of India will get equal opportunity in matters of employment under the state and no one will be ineligible on grounds of sex, religion, race, caste and place of birth.
• Article 39(d)- It states that the strength and health of the workers irrespective of their gender shall not be abused or manipulated.
• Article 42- It seeks to ensure just and humane work conditions and provide maternity relief.
• Article 46- It states the state shall promote with special care the educational and economic interests of the weaker section of the society.

Prevention: –

The gender-based violence can only be eliminated through collective efforts of society and government. The steps enumerated below can help to uproot the existing unequal gender relations: –

• The media can help to eradicate this inequality by advertising solutions, and educating publics about their legal rights and to recognize and address this.
• School system can play a vital role to stop this before it starts. By providing sexuality education, counseling programs and school health services can spread the message that violence is wrong and it can be prevented.
• One of the ways to identify and assist the victims, is by training the healthcare providers to recognize and address the gender-based violence.
• By involving the entire community in recognizing and working to prevent the gender-based violence can surely eradicate the inequality.

Case Laws: –

• Laxmi v. Union of India & Ors. (2014 SCC 442), in this case there was violence against 16 years old girl named Laxmi. She was made a victim of an inhumane acid attack by the accused. The apex court’s ruling placed limitations on the vending of acid and the victim was compensated.
• Vishaka & Ors. v. State of Rajasthan (AIR 1997 SC 3011), in this case there was a violence of sexual harassment against a woman in workplace. This case gave a legal framework to address sexual harassment and provided women with a tool to fight against it.
• Jarnail Singh v. State of Haryana (AIR 2013 SC 3467), there was a violence (kidnapping and rape) against a child. The apex court followed the law as per the Juvenile Justice (Care and Protection of Children) Rules,2007 and convicted the appellant.
• NALSA v. Union of India, 2014, the court held that the transgenders fall within the purview of the Constitution of India and therefore are fully entitled to the rights guaranteed therein. In this landmark case the transgenders got the recognition as a third gender.

Conclusion: –

Although the framers of the constitution and the legislature had taken the protective measures to eradicate the gender-based violence, it is still existing in India. We are not successful in executing the existing laws in our nation. It is very necessary to properly implement those laws which help in eradicating this violence. Another factor for the existence of this violence is that, the lack of proper knowledge of the victim and their rights. Thus, by providing sexuality education, counseling programs and school health services can spread the message that violence is wrong and it can be prevented. Also, the media can help to eradicate this inequality by advertising solutions, and educating publics about their legal rights and to recognize and address this.

Reference: –

• Gender-Based Violence in India: A Dark and Bitter Reality, (hindrise.org n.d.)
• Manu, A Study on Gender-Based Violence in India, (manu n.d.)
• The Constitution of India, Bare Act, (Universal 2017)
• Durga Das Basu, Introduction to the Constitution of India, (Basu n.d.)