NATIONAL LAW INSTITUTE UNIVERSITY

WOMEN IN INDIA: ABYSMAL PROTECTION, PERIPHERAL RIGHTS

AND SUBSERVIENT CITIZENSHIP

SUBMITTED BY:
SWAPNIL GUPTA
2006-BALLB-03
SIDDHARTH SINGHAL
2006-BALLB-83
 CONTENTS
1. Introduction
2. Violence and Women: Interwoven and Integral
a. Domestic Violence
b. Sexual Harassment
3. Legal Discourse: Loopholes and Lacunae
a. Constitutional Safeguards
b. Indian Penal Code of 1860
c. Other Statutes
4. International Human Rights Law: Domesticating Global Standards
5. India and International Law: Dwindling Dualist Domain
6. Public Versus Private Dichotomy: Dialectic and Decisive
7. National Commission on Women: Panacea or Paper Tiger?
8. Conclusion

2
 INTRODUCTION
“Where women are respected, there the gods reside, the heavens open up and angels
sing poems of praise” -Manu
Opposing the Westphalia model, the advent of international human rights norms in the
last half century consolidated the position and status of individuals as “actors and subjects” in
law.1 Notwithstanding this premise, the status of women as equal counterparts and stakeholders
in all spectrums of life is largely a mirage. Despite the flurry of ratifications that the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) received, the
domestic incorporation of the provisions enshrined therein is gradual, sporadic, and even dismal.
India is no exception to this unsatisfactory record. The domestication of even the minimum
standards stipulated in CEDAW for the protection and promotion of women’s rights is a
Herculean challenge. Gender inequality and injustice manifests as an inescapable truism in the
Indian context.2 The status of women in India is both poignant and paradoxical. There exists a
wide chasm between the de facto and de jure position of women. From cradle to grave, the
violence, abuse, and exploitation that girls and women encounter, both in the private and public
realms, remain unparalleled and largely unaddressed. The age old feudalistic and patriarchal
underpinnings of the Indian societal, communal, and familial life have been the elemental causes
for this subordinate and secondary status, as women within this framework are viewed as
property of men.3 This complex socio-cultural and legal scene has largely frustrated the
empowerment and advancement of women in India.
Furthermore, women in India do not constitute a homogenous social group. Regional,
cultural, class, caste, education, religious and community variations result in differential levels
and experiences of violence, exploitation and abuse. Gender inequality thus manifests itself as a
series of disparate but nevertheless interlinked issues. Domestic violence cuts across class, caste,
age, economic strata, geographic region, employment status, and literacy level and has
culminated into a social phenomenon justifying marginalization and exclusion of women.4 The

1
Louis B. Sohn, “The New International Law: Protection of the Rights of Individuals Rather than States,” 32 Am.
U. L. Rev. 1, 1 (1982).
2
Eileen Kaufman, “Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts’
Equality Jurisprudence,” 34 Ga. J. Int’l. & Comp. L. 557, 557, (2006).
3
Laurel Remers Pardee, “The Dilemma of Dowry Deaths: Domestic Disgrace or International Human Rights
Catastrophe?” 13 Ariz. J. Int’l. & Comp. L. 491, 502 (1996).
4
The National Family Health Survey 3 (2005-06) (finding that 35% of Indian women face either physical or sexual
abuse at the hands of their husbands).

3
cycle of violence continues unabated, like a legacy passed on from generation to generation. Not
only are men and boys across cultures actively encouraged to participate in violence, but their
acts of abuse are often condoned and dismissed as a “normal” gesture.5 Often, violence against
women is considered a vital component in many cultures necessary to “discipline” them.
The autonomy and identity of the Indian woman is also severely restricted as she is
judged and assessed in the backdrop of the multitude of relationships that she is expected to
honor during her lifetime as a daughter, wife, mother and sister. The dicta of love, selflessness
and supreme sacrifice demanded of her contributes to her subordinate and often servile position
in the society. These societal and familial structures reinforce duties and responsibilities at the
cost of her individuality. Violence is commonly used to reinforce these stereotypes against
women and maintain status quo in her role, position and identity in the societal fabric. Violence
against women thus thrives in relationships, value systems, institutions and structures.6
This article seeks to critically assess the status of women in India with specific relation to
two core areas: domestic violence in households and sexual harassment in the workplace. The
former seeks to demolish the myth of homes as a “safe haven,” while the latter aims to expose
the “vulnerabilities” of working women. These two core areas will be addressed in the backdrop
of the prevailing legal, social, cultural and ethical constructs in India. This article will begin with
a descriptive and analytical overview of Indian constitutional provisions, followed by a critical
assessment of the existing legal framework that impinges on women’s rights. This article also
focuses on the proactive Indian judiciary and the ensuing jurisprudence in entrenching women’s
rights against sexual harassment. In this context, this article will analyze the dilution of a
traditionally “dualist” Indian State with regard to internalization of international norms.
Furthermore, the perspective of the Indian State on women’s rights as posited in the public
versus private dichotomy is also discussed. Finally, we will briefly scrutinize the functioning of
the National Commission of Women in India and its impact on women’s empowerment. By
exploring the above mentioned issues, this article will attempt to gauge the overall permeation of
women’s rights discourse in India.

5
Subrata Paul, “Combating Domestic Violence Through Positive International Action in the International
Community and in the United Kingdom, India and Africa,” 7 Cardozo J. Int’l. & Comp. L. 227, 236-27 (1999).
6
Judith Armatta, “Getting Beyond the Law’s Complicity in Intimate Violence Against Women,” 33 Willamette L.
Rev. 773, 842 (1997).

4
 VIOLENCE AND WOMEN: INTERWOVEN AND INTEGRAL

Throughout history, attempts have been made to decipher the phenomenon of violence
against women. Several theories have been propounded to gauge the underlying causes of gender
violence.7 One of the earliest, as well as most pervasive, notions is the biological determinism
context. This theory posits that inherent superior male physical strength triggers an inclination
towards control, aggression and violence. This biological determinism reinforces the different
“human nature” of men and women. Under this theory, women are passive and compliant, and
violence perpetrated by men is dismissed as a natural biological and genetic trait. This theory
explains violence by men as a portrayal of a lack of self control while simultaneously conceding
the inability of women to shield themselves from such brutal assaults.
The Marx-Engels Theory challenged the biological predisposition of men towards
violence and contextualized violence against women to be an offshoot of the subservient and
subaltern existence of women in the social sphere. This theory is premised on the concept of
private property, appropriated by men, wherein women thrived as economic dependents and as
property of their fathers and husbands. Herein lays the foundation of a systemic sociological
conception of violence against women. This centrifugal position allocated to economic
considerations while determining intra and extra familial power relations and status is visible
even in contemporary times.
Theories apart, the implications of such philosophies have not yet been able to decipher
the myriad reasons justifying women’s subjugation and subservient status. Undeniably, the
culture of silence coupled with decades of passiveness, helplessness, submissiveness and even
denial has immensely encouraged the entrenchment of violence against women as a “universal
phenomenon.”8 Despite the claims of belligerency and aggression as virtues solely possessed by
the male gender, the socialization process in India makes the environment conducive to
exploitation of the vulnerability and passivity of girls and women. Immemorial, orthodox
patriarchal, cultural and religious norms and value systems have affected conceptions of power,
security, and status, culminating eventually into the powerlessness and subordination of women.

7
Laura L. O'Toole & Jessica R. Schiffman, “Gender Violence: Interdisciplinary Perspectives”, N.Y.U. Press, 1997
8
Amy K. Arnett, Comment, One Step Forward Two Steps Back: Women Asylum Seekers in the United States and
Canada Stand to Lose Human Rights Under the Safe Third Country Agreement, 9 Lewis & Clark L. Rev. 951, 960-
61 (2005).

5
Perpetual violence against women thus becomes a vehicle to depict a man’s machismo, control
and power.
Defining the term “violence against women” (VAW) remains a prodigious task. No
universal definition of the term exists, as it can be construed narrowly as well as broadly. An
expansive definition would comprise structural violence being an intrinsic aspect of VAW, while
many argue for a limited definition so as to preserve the descriptive and powerful connotation of
the term VAW.9 The 1993 United Nations Declaration on the Elimination of Violence Against
Women (The Declaration) defines VAW as “any act of gender based violence that results in, or
is likely to result in, physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or
private life.”10 The Declaration is revolutionary in numerous aspects. It is hailed as the first
instrument that unequivocally recognized VAW as a global concern. It also enshrines a sweeping
definition of VAW: violence within families, communities in general, and violence encouraged
and condoned by the State.11 Though it is codified in a General Assembly Resolution, the U.N.
Declaration is more than just a symbolic document because it reflects an authoritative statement
of views of the global community and accordingly possesses significant legal value. 12 In fact, this
G.A. resolution embodying the Declaration is an off-shoot of the 1993 Vienna Declaration and
Programme of Action, wherein States pledged and committed to challenge VAW.
Violence against women is tantamount to discrimination as well as a transgression of
basic rights and freedoms. This is reminiscent of the fact that gender based violence reinforces
VAW being a differential and disproportionate experience. In fact, world-over (including in
India), VAW spans the entire life cycle of girls and women and has increasingly assumed
varying manifestations and proportions. The diversity is both appalling and frightening. Spousal
battery, rape, marital rape, domestic violence and sexual abuse of children come within the
purview of familial relationships. In an organized setting, it would entail commercial sexual
exploitation, prostitution, and sexual and domestic slavery. Violence in the developing world
predominantly stems from religious and cultural indoctrination and practices. Traditional,

9
Lori L. Heise, Jacqueline Pitanguy & Adrienne Germaine, “Violence Against Women: The Hidden Health Burden”
46 (World Bank Publ’n 1994).
10
G.A. Res. 48/104, P 1, U.N. Doc. A/RES/48/104 (Dec. 20, 1992).
11
G.A. Res. 48/104, Art. 1, U.N. Doc. A/RES/48/104 (Dec. 13, 1993).
12
Surya P. Subedi, Protection of Women Against Domestic Violence, 6 Eur. Hum. Rts. L. Rev. 596 (1997).

6
cultural and religious violence would be on the lines of sati (widow burning), dowry, female
genital mutilation, female feticide/infanticide, child marriages, and honor killings.
The domestic legal field contributes with discriminatory laws and practices. Structural
and institutional settings can also promote violence like patriarchy and custodial rape.
Increasingly, community spaces are also being invaded by violence like sexual harassment in
places such as educational institutions and workplaces. The range of perpetrators is also diverse:
state and non-state actors, individuals and communities. All these are off-shoots of common
archaic patriarchal notions, stereotyping of gender roles, and distribution of power, resulting in
pre-disposing a society towards legitimizing and perpetuating VAW.

A. Domestic Violence
“Marital Violence,” “Conjugal Violence,” “Familial Violence,” or “Domestic Violence” -
the nomenclature may differ, but the human rights transgressions experienced by women and the
repercussions of the same on family, community and society remains constant. Inter-spousal
violence is almost synonymous with domestic violence. Home, as a space of tranquility, safety
and harmony is a myth today.13 The pervasiveness of domestic violence makes it imperative to
revisit and challenge the notion of homes as a safe haven. Confined within the four walls and
hidden from public view, homes and kinship have emerged as nouveau areas of abuse, violence
and exploitation.
The social construct of an “ideal woman” or “good woman” often sanctifies violence as a
yardstick to discipline them. While the legal system dismisses wife-beating as a minor and
common aberration of interpersonal relationships, Domestic violence is ironically justified as an
act of love and affection meted out to make the victim a “better individual.” Empirical studies
have also substantiated violence being an integral and intimate part of a large majority of Indian
women’s married life. As per the National Family Health Survey (NFHS-3) in its third report for
the time span 2005-2006, about 14.7% of women between the ages of 15 and 49 had experienced
sexual violence, while about 19.8% of women have been emotionally tortured.14

13
Malavika Karlekar, Domestic Violence, Eco. and Pol. Weekly, Jul. 4, 1998 at 1741.
14
Int’l Planned Parenthood Fed’n, India: Survey Shock for Women, available at
http://www.ippf.org/en/News/Intl+news/India+Survey+shock+for+wo men.htm.

7
B. Sexual Harassment
The contemporary manifestations of gender violence have transcended frontiers of homes
and are, in fact, visible in the public sphere as well. Beyond the realm of interpersonal and
individual relationships, violence stalks women in settings of power, authority and influence in
the workplace as well. Although unwanted and unsolicited sexual advances in the workplace do
not exactly depict a new phenomenon, the absence of a coherent legal definition of the term
coupled with a glaring lack of public recognition and support of the issue, imply that “sexual
harassment” remains invisible.
In India, the women’s rights movement in the 1980s anchored their voices against sexual
harassment. However, the veil of secrecy and taboo nature of sexual issues in general, coupled
with lukewarm public support resulted in the issue being trivialized and sidelined. The campaign
against sexual harassment was resurrected after the ruthless gang rape of a Rajasthan State
Government employee by a group of high caste men, for executing her official duties of
preventing and campaigning against child marriages.15 According to the World Economic Forum,
India ranks in the bottom ten of countries with regard to the gender gap index. This ranking
places India amongst the ten most gender biased economies wherein women’s political
participation and economic empowerment is marginal.16

15
Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011.
16
Infochangeindia, India Among 10 Most Gender Biased Economies: Study, Infochangeindia News,
http://infochangeindia.org/200711156754/Women/New/India-among-10-most-gender-bias-economies-study.html.

8
 LEGAL DISCOURSE: LOOPHOLES AND LACUNAE

Women’s rights in India are like a chimera or oxymoron. The Indian legal system has
failed to adequately take cognizance of the crime of domestic violence. 17 Predominantly, it is
dowry-related offenses that forge a link with household violence, thus allowing for violence
unrelated to dowry demands to go unpunished. Similarly, criminal sexual violence against
women in India has been understood and interpreted through the language of rape. These abstract
and limited characterizations deprive women their legitimate rights and status as human beings.
A lack of articulation in the prevailing legal maze of other wrongs perpetrated against women
tremendously impacts their access to justice.

A. Constitutional Safeguards
The Constitution of post-colonial India came into force in 1950.18 Hailed as the
“Conscience of the Nation” and the “cornerstone of the legal and judicial system,” the
constitutional provisions are deemed to be both sacrosanct and the fundamental law of the land. 19
The potential for entrenching women’s rights regime is hampered by the various judicially
enforceable rights guaranteed in the Constitution of India of which Articles 14, 15 and 21 are
most significant. Article 14 embodies the formal right to and status of equality for Indian
women. Article 15 endorses the right against discrimination by the State on the basis of religion,
race, caste, or sex. The founding fathers of the Constitution of India recognized the gender
imbalance persisting in Indian society and framed the tone of Article 15(3) in ameliorative and
affirmative language. The founders thereby empowered States to make special statutes and laws
for the recognition of women as a class.
Article 16 embodies the right to equal opportunity for all citizens in the sphere of
employment. The protectionist tone of Article 15(3) defines women as a class and steers the path
towards protective discrimination. With Articles 15(1) and 16(1), diluting formal equality as
depicted in Article 14, the State is under a constitutional obligation to facilitate sociopolitical
advancement of women as a social group.20 This showcases the underpinnings of protective
17
Indira Jaising, “Domestic Violence and the Law”, 1 J. Nat’l Hum. Rts. Comm’n 72, 72-3 (2002).
18
See India Const.
19
Avani Mehta Sood, Gender Injustice Through Public Interest Litigation: Case Studies from India (citing P. D.
Matthew, Constitution Of India Simplified 1 (2004)).
20
Sesharathamma vs. Manikyamma (1991) 3 S.C.R. 717 (determining that the wife's share set forth in the will for
her maintenance had in fact blossomed into an absolute right due distinquishing between Section 14(1) and Section

9
discrimination as a yardstick which is employed to measure formal gender equality. Article 19(1)
(g) guarantees the freedom to practice any profession or undertake any trade, occupation, or
business. Most importantly the essence of the Constitution of India is enshrined in Article 21,
which espouses the fundamental rights to life and liberty. In order to address domestic violence
in India, it is necessarily required to revisit these principles and rights.
Article 51A of the Constitution is comprised of Ten Commandments, known as the ten
“fundamental duties” that are binding obligations on every Indian citizen. Section (e) under
Article 51A imposes a duty on each and every citizen to uphold the dignity of women by
condemning and renouncing derogatory practices. Since Article 14 guarantees the right to
equality to women in all spheres, if it is read in conjunction with Article 51A(e), it will result in
inequitable consequences that affect the dignity of women if they are denied their legitimate right
to employment and economic independence.
Historically, protectionist legislation within the criminal justice system has been the
prevalent response to violence against women.21 This protectionist approach, wherein women are
referred to only as victims, belies the rights-based perspective on women’s issues and concerns.

B. Indian Penal Code of 1860

Legal parlance in India has conspicuously refrained from making even a passing
reference to the term “domestic violence”. In fact, the crime of domestic violence is generally
subsumed under the overarching provision of cruelty to married women, punishable under
section 498A of IPC. Not only does the Indian Penal Code fail to provide a separate offense for
domestic violence, but all other tangible and intangible forms of domestic violence within the
household have been covered under the cruelty clause: no additional safeguards.
Additionally, although Section 498A provides some relief, it implies that the woman
would have to abandon her matrimonial home in order to avoid further abuse. Section 304B
criminalizes and penalizes violence when the death of the woman can be proved by a tangible
link to dowry demands. The Anti-Cruelty provision is triggered when the victim is alive, whereas
the anti-dowry clause is generally triggered when the victim is already dead. Thus, in substance,
women had to resort to the civil remedy of divorce or the criminal ‘remedy’ under Section 498A.

14(2) of the Act).

21
Ratna Kapur, “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/Post-
Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. J. 1, 6-7 (2002).

10
Both the provisions were grossly inadequate as they failed to provide the victim with an effective
remedy.
For the crime of sexual harassment as well, women have a limited choice under Indian
penal statutes. Section 354 under the IPC is the pertinent provision that penalizes assault or
criminal force committed with the deliberate intention to outrage the modesty of women.
Additionally, Section 509 punishes any word, act, or gesture intended to insult the modesty of
women. It is interesting to note that the frequently used term “modesty” has not been defined.

C. Other Statutes
Prior to the Protection of Women from Domestic Violence Act (DVA) enacted in 2005,
no exclusive or central/state legislation on domestic violence existed. No law prior to 2005 even
defined the term ‘domestic violence,’ as it was thought of as a ‘private’ matter not worthy of
mention in legal discourse. The abject lack of an expeditious civil remedy often discouraged
many victims from waging battle in the courts.22 However, the engagement of the law post-2005
on the issue of violence against women as a major affront to human dignity and self-worth is in
itself a ground-breaking endeavor. Matrimonial violence has traditionally been listed under acts
of cruelty which paved the way as a ground for divorce under all personal laws in India. The
endorsement of matrimonial violence as an independent crime arrived with the DVA, along with
numerous praiseworthy and innovative provisions.
In general, physical abuse is the sole and central theme of legal scholarship pertaining to
violence against women in India.23 The DVA ushered in a new era by categorizing a wide and
comprehensive spectrum of abuse as punishable, including physical, economic, verbal, emotional
and sexual abuse. It prohibits an act, omission, commission or conduct that would result in any
of the aforementioned forms of abuse. The U.N. Framework on Model Legislation for Domestic
Violence, as well as CEDAW, is a direct inspiration for this comprehensive definition of abuse.
The legislation incorporates a human rights perspective by recognizing every woman’s right to
live in a violence free home environment.

22
Brooke B. Grandle, “Choosing to Help or Advance their Agenda: A Comparative Look at How the Supreme
Courts of India and the United States Approach Violence Against Women”, 24 Women’s Rts. L. Rep. 83, 92-93
(2003).
23
Amy Hornbeck et al., The Protection of Women from Domestic Violence Act: Solution or Mere Paper Tiger, 4
Loy. U. Chi. Int'l L. Rev. 273 (2007); Judith G. Greenberg, Criminalizing Dowry Deaths: The Indian Experience, 11
Am. U. J. Gender Soc. Pol'y & L. 801 (2003); see also Alwis & Daynard, supra note 44.

11
 The DVA added a new dimension to the spectrum of women’s rights. The law broke new
grounds by challenging the archaic and traditional views of marriage as the sole recognized legal
union in Indian society.24 Unfettered by ethical, cultural, and social imperatives, the DVA
accords due legal recognition to other types of multiple ‘domestic relationships.’ 25 This provision
has immense potential to safeguard the rights of women who are in matrimonial relationships
that are considered void by law and facilitates their quest for redress and justice. The Act also
accords protection to married women and women in live-in relationships, and to mothers and
daughters who experience violence in a domestic or matrimonial relationship.26
Abuse perpetuated against males, however, does not fall under the scope of this Act. One
of the most severe critiques of the DVA is that it encompasses only women and children as
victims, as opposed to laws in other countries in South Asia, which espouse a gender-neutral
stance.27 This narrow and exclusive focus reiterates the notion that domestic violence remains a
woman’s problem and is not an issue that has repercussions for families, society, and
community. More significantly, it excludes from its mandate violence directed against any
erstwhile partner/co-habitant whom the perpetrators might subject to violence. Further, it does
not safeguard the rights of persons working in the house against any possible abuse. The only
exception being the solitary provision that extends the protective ambit of the law to male
children who are either adopted, foster, or step-children.28
The ‘right to reside’ is an unrecognized right for women in the Indian social milieu.
Women who have seldom been owners or inheritors of property, making them vulnerable to
dispossession, eviction and destitution, now find legal affirmation in the DVA 2005. 29 This is a
radical shift from the traditional scenario, wherein both the lack of physical security and fear of
social ostracization forced women to continue to endure domestic violence. The recognition of
this right to reside in the matrimonial home is of immense importance, as dispossession often

24
Tahira Karanjawala & Shivani Chugh, The Legal Battle Against Domestic Violence in India: Evolution and
Analysis, 23 Int’l J. L. Pol’y & Fam. 289, 292 (2009).
25
DVA, supra note 43, at S. 2(f) (defining ‘domestic relationship’ [as] ‘a relationship between two persons who live
or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage,
or through a relationship in the nature of marriage, adoption or are family members living together as a joint
family.’).
26
Indira Jaising, “Law Of Domestic Violence: A User’s Manual For Women” (Universal Law Publishing Co. 2007).
27
See, e.g., Prevention of Domestic Violence Act, No. 34 (2005) (Sri Lanka); see also Domestic Violence Act 521
(1994) (Sri Lanka); see also Civil Partnership Act (2004) c. 33 (Eng.) (demonstrating that same-sex couples in the
U.K. are also protected and the law acknowledges relationships beyond heterosexual unions).
28
S.2(b), DVA
29
S.2(s), DVA

12
denies the woman any contact or custody of her children. This situation might leave the women
vulnerable to greater violence as she continues to reside with the perpetrator. The Act also
provides for alternate accommodation that a wife can seek to stall further violence/abuse pending
a final decision on her case, as given under S.30 of the Act.
The range of remedies and protection orders available under the Act are broad based and
all encompassing. The various forms of orders that can be passed include protection, residence,
monetary compensation and custody. The wide spectrum of protection guaranteed under the
legislation is ground breaking. The provision attaching criminal sanctions on the perpetrator in
case of disobedience of any court orders makes the law effective. The law also brings within its
ambit criminal and un-traversed civil remedies, unheard of in Indian history, to the aid of the
victimized women. The former, being stringent and punitive in nature, serves as a deterrent,
while the latter addresses other needs of the victimized women. The DVA however, is
predominantly a civil law. The judicious amalgamation of civil and criminal remedy within a
single umbrella statute provides the victim multiple avenues to pursue justice and also reduces
the stress of petitioning multiple forums.
The DVA 2005 is a complementary piece of legislation in which the remedies and relief
are in addition to the relief given under existing laws. 30 The Act does not interrupt the prevailing
law governing family matters; it provides additional protection and rights. The victimized
women can simultaneously seek remedy under this Act, as well as other laws. The intention of
the drafters was to facilitate interim and emergency relief while leaving women with the recourse
of their respective personal laws for a more long-lasting and durable solution.
The presence of specially designated Protection Officers marks a shift from insensitive
police registering or vetoing complaints of domestic violence. 31 The Protection Officers, in
conjunction with service providers play a vital role in assisting the victim with the complexity of
their issues. Their presence would also be a reflection of a niche group of individuals and
organizations who have a bona fide interest in the issue and would facilitate the women’s access
to justice, rather than hamper it.
The PWDA is also an explicit affirmation of a special group of trained and sensitive
professionals that would assist the victim at every step in the fight for justice. The Protection
Officers would be less open to manipulation by the police or the perpetrator/family, as non-
30
S.26, DVA
31
S.8, DVA

13
execution of their duties would result in a penalty. The DVA 2005 is notably an exceptional law
because it encapsulates the obligations of the State to disseminate information and awareness
about the legislation. States have a duty to inform citizens of their statutory and legal rights, and
under the statute enforcement authorities and officials are required to be oriented and trained in
the aims and purposes of the Act. The Protection Officers and the police also have a legal duty to
inform the victim of the rights and remedies enshrined in the Act.32
However, the DVA 2005 makes no reference to CEDAW; neither in its title, nor in its
preamble. In fact, the Act surprisingly maintains a stoic silence over it; even though in the past
domestic courts in India have liberally invoked CEDAW in their decisions.33 In October 2007 the
Supreme Court decided Batra v. Batra,34 where the court expressed severe dissatisfaction in the
haphazard manner in which the terms of the DVA were defined.
The provision of counseling as embedded in the law has also encountered stark
criticism.35 The provision envisages a delay of two months by advocating for counseling for
either both aggrieved parties to rethink their relationship and union. This is largely detrimental to
the interests of the victim as it infringes not only on her constitutional and legal right to speedy
disposal of the case but would also exert immense psychological pressure on her to reconcile
with her husband, the perpetrator. The possibility of judges emphasizing on this provision
because of societal pressure to preserve the institution of family and marriage would necessarily
compromise on the victim’s safety and dignity.36 It would also relegate violence against women
to be an acceptable offence. The provision in the DVA Rules mandates that any settlement as a
by-product of counseling would be only at the discretion of the aggrieved party. 37 This again is
prone to misuse as emotional blackmail, social stigma, parental pressure, economic dependency
and a host of other coercive reasons may compel the women to abdicate her fight for justice and
revert back to the abusive environment.

32
S.5, DVA
33
See Mun. Corp. of Delhi v. Female Workers, (2000) 2 S.C.R. 171, available at
http://judis.nic.in/supremecourt/chejudis.asp (reading the contract between the parties in light of CEDAW art. 12);
see also Githa Hariharan v. Reserve Bank of India, (1999) 1 S.C.R. 669, available at
http://judis.nic.in/supremecourt/chejudis.asp (stating that domestic courts are under an obligation to give due regard
to international conventions and norms, specifically CEDAW’s provisions, for construing domestic laws when there
is no inconsistency between them).
34
A.I.R. 2007 S.C. 1118
35
S.14. DVA
36
See Tahira Karanjawala & Shivani Chugh, The Legal Battle Against Domestic Violence in India : Evolution &
Analysis, 23 Int'l J. of Law, Pol. & Fam. 289 (2009).
37
S.37(k), DVA

14
 The Act is touted to be anti-male, anti-marriage and anti-family. The legislation has been
challenged for being unconstitutional as it is considered to be discriminatory against the male
community in general.38 The courts have ruled out this contention, as the Act was justified in
being gender specific because domestic violence was predominantly and disproportionately
experienced by women only. This was also buttressed by the fact that the Constitution of India,
via Article 15(3), is authorized to legislate over women specific laws. Yet as compared to the
small number of provisions for women’s rights in the Indian statute books, the passage of DVA
2005 is a watershed moment in the history of women’s rights in India’s private sphere.
The DVA is not devoid of contradistinctions. One illustration is the divergence between
Section 498A of the IPC 1860 and the DVA 2005; the distinctions are manifold. The former
embodies a restrictive definition, as only a grave form of violence constitutes domestic violence,
while in the latter encompasses all forms of abuse and is not necessarily confined to only those
actions that drive a woman to commit suicide. The types of remedies available are also limited:
section 498A provides for criminal remedies, while the DVA stipulates affirmative civil
remedies, and the victim may invoke other laws as well. Section 498A also precludes economic
or sexual dimensions of violence while the latter categorically includes it. Section 498A can be
invoked only by married women, while the ambit of DVA extends to other forms of relationships
as well. Finally, only police and judges have a role to play under Section 498A, whereas under
DVA a host of other stakeholders are proactively involved, such as NGOs, hospitals, and
counselors. The DVA encourages speedy trials through interim and ex parte orders, while
Section 498A is cumbersome, tedious and time consuming.
Differential and subjective interpretations by judges could pit Section 498A against the
DVA which could have grave ramifications on women’s rights as a whole. In the recent decision
of Bhaskar Lal Sharma v. Monica39, the apex court held that kicking a woman and threatening
her with divorce would not constitute an act of cruelty unless motivated by dowry demands,
which is the crux of Section 498A. This is in stark contrast to the component of emotional abuse
in the DVA that includes ridicule, humiliation, barbs, insults, and acts etc. This judgment is set to
open a Pandora’s Box, where other acts ‘akin’ or ‘similar’ to kicking and threatening might be
regarded to be beyond the ambit of Section 498A. 40 This judgment raises concerns for women’s
38
Mistress at Par with Wife, Says Delhi High Court, ExpressIndia, April 8, 2008, available at
http://www.expressindia.com/latest-news/Mistress-at-par-with-wife-says-Delhi-HC/294152/.
39
(2009) SCALE 744
40
Rakesh Shukla, Apex Court Rules Anew on Cruelty by Husband and Relatives, InfoChange India, Sept. 2009

15
organizations. Fallout from this judgment has been the reinvigorated debate on the dichotomy
between progressive and strict interpretation of criminal laws and statutes.
The Act is regarded as limited in vision and scope as it guarantees only interim and
temporary relief to the victim. With no permanent remedy for the crime, the law is not much of a
deterrent and does not provide a comprehensive and long lasting remedy to the victim. The
legislation eliminates protectionist perceptions by firmly encapsulating domestic violence and
sexual harassment as criminal offenses. This Act also paves the path for plausible social change
and overhauling of attitudes and practices that subjugate women. The fact that fundamental
freedoms and human rights are couched in black letter law may facilitate social and cultural
transformations that recognize and affirm women’s identity and autonomy. The reform of the
existing social structure that subverts women’s progress and empowerment can now be
challenged in the legal domain.
The issue of sexual harassment is even sparser in the prevailing laws. The provisions in
the domain of labor law also advocate right against sexual harassment at workplace. The Equal
Remuneration Act of 1976 advocates nondiscrimination on the basis of gender in matters related
to fixing wages and determining transfers, training and promotion.41 Under the Industrial Dispute
Act of 1947, the labor tribunal can be approached if a worker had been wrongly dismissed or
discharged as a consequence of non-compliance of sexual demands by the employer. The statute
also defines the tern “unfair labor practices,”42 which can be interpreted to include sexual
harassment. In addition, the Industrial Employment (Standing Orders) Act of 1946 imposes a
mandatory obligation on the employers to define and intimate the working conditions of
employees. Sexual harassment forms a substantive and integral law of the standing orders and
classifies acts or omissions that may amount to misconduct resulting in suspension or dismissal.
The Indecent Representation of Women (Prohibition) Act of 1987 provides that
harassment by an individual through books, photographs, paintings, films, pamphlets, or
packages, etc. that contain the ‘indecent representation of women,’ is punishable by a minimum
sentence of two years.43 Similarly, under Section 7 (Offenses by Companies), companies come
within the ambit of this law if there has been ‘indecent representation of women’ on the

available at http://infochangeindia.org/ 200909167943/Women/Judicial-Interventions-and-Women/Apex-court-

rules-anew-on-cruelty-by- husband-and-relatives.html.
41
Sections 4 & 5
42
Section 25T
43
The Indecent Representation of Women (Prohibition) Act, 1986, No. 60, Acts of Parliament, 1987 at S.4

16
premises, and a sentence of two years can be imposed on the accused. The option of resorting to
a civil suit under tort laws on grounds of mental or physical harassment resulting in loss of
income, livelihood and employment due to the sexual harassment experienced could also be
explored. There is no Central or State legislation on sexual harassment in India. There have been
numerous Union and State bills that have been proposed over the years, but none have
materialized into a law. The law and guidelines in force today is the product of a Supreme Court
decision.
Among the bills regarding women empowerment that are still pending, the one that tops
the list id Women Reservation Bill. The proposed legislation seeks to reserve 33.3 percent seats
in Parliament and state legislatures for women; reservation for women at each level of legislative
decision-making, starting with the Lok Sabha, down to state and local legislatures. If the Bill is
passed, one-third of the total available seats would be reserved for women in national, state, or
local governments. This bill, if made law, would lead to gender equality in Parliament, resulting
in the empowerment of women as a whole. Increased political participation of women will help
them fight the abuse, discrimination, and inequality they suffer from. But, still this bill could not
be made a law till now. Various political parties have staunchly opposed it because they fear
many of their male leaders would not get a chance to fight elections if 33.3 percent seats are
reserved for women. Politicians have also argued that reservation would only help women of the
elitist groups to gain seats, therefore causing further discrimination and under-representation to
the poor and backward classes.
Those opposing this bill should take a look at the experience of women’s reservation at
the panchayat level, which has been very encouraging. 33.3 per cent seats in panchayat elections
have been reserved for women already. A million women are being elected to the panchayats in
the country every five years. This is the largest mobilisation of women in public life in the world.
These sarpanches are slowly making their presence felt. They focus much more on basic issues
like drinking water, sanitation and education. And most importantly, they are much more honest.

INTERNATIONAL HUMAN RIGHTS LAW: DOMESTICATING GLOBAL STANDARDS

Frequently referred to as the International Bill of Women’s Rights, The Convention on
the Eliminations of All Forms of Discrimination Against Women (CEDAW) in 1979 has been a
catalyst in triggering gender justice world over. The hallmark of CEDAW is its authoritative and

17
broad spectrum of rights guaranteed to women in diverse fields. It possesses the distinction of
being the first global human rights instrument to exclusively and comprehensively elucidate the
fundamental freedoms and human rights of women in areas as disparate as employment, health,
inheritance, marriage, and family, among other important topics. India is a State-Party to the
CEDAW and thus the onus is on the Indian State to fulfill its treaty obligations. The hallmarks of
CEDAW are its provisions encapsulating equality, non-discrimination, and state obligations to
protect and prevent. The doctrine of equal protection of law is embodied in CEDAW in Article
2.44
Under the Beijing Platform for Action India has an obligation to fulfill its promise and
commitment to the international community to undertake a comprehensive national policy for the
safeguard and promotion of women’s rights and fundamental freedoms in India. 45 The Beijing
Platform for Action is of critical significance because in conjunction with CEDAW it endorses
private domestic violence as being a matter of urgent public concern and it calls for an equal
partnership between men and women in families, communities, and nations.
The Indian Apex Court has sincerely incorporated the guidelines for preventing sexual
harassment in the workplace by referring to General Recommendation 19 of CEDAW. This
direct internalization of international standards has broadened the scope of remedies available to
Indian women. This is especially pertinent as neither Indian civil nor criminal laws coherently or
adequately address the crime of sexual harassment.

Legal Jurisprudence
The Indian Judiciary is steadfastly and proactively engaging women’s issues and
concerns in a rights-based manner. The courts have not only articulated constitutional rights and
guarantees echoing gender equality in their decisions, but have also enhanced them
tremendously. The apex court, the Supreme Court of India, rendered its first judgment in the case
of S.R. Batra v. Tarun Batra46 under the DVA 2005 on the right of the wife to reside in the
‘matrimonial home’. While conceding that the right to reside in the matrimonial home was one
of the exemplary provisions of the DVA to ensure that the victim is not disposed and reduced to

44
CEDAW, Art. 2 (providing that States Parties should condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women).
45
Kirti Singh, Violence Against Women and the Indian law, in Violence Law and Women’s Rights in South Asia
77, 82 (Savitri Goonesekere, ed., 2004)
46
(2007) 3 SCC 169

18
the status of a destitute, the Supreme Court held that this right can be claimed only against the
husband and not against the in-laws. Though the Act provides that the victim can seek directions
from the court to provide for an alternate accommodation of a similar standard as her ‘shared
household,’ the victim can only enforce this right against the husband and not his parents.
The judgment has been criticized on the grounds that it goes against the spirit of the DVA
2005, which is to provide financial, emotional, and physical security for victims of domestic
violence. The Court has also been accused of being regressive by linking the right to residence of
the battered woman with ownership. It has also been alleged that this right would be rendered
ineffective as the judgment would trigger a race by the errant husband to transfer his property to
his parents so as to circumvent this provision. 47 Human rights activists also perceive that this
judgment will further perpetuate the inequitable property rights existent in India where patriarchy
has historically deprived women of property rights.
In the case of Olga Tellis vs Bombay Municipal Corporation 48, the Court reasoned that
deprivation of the right to livelihood was tantamount to depriving a person of the constitutional
right to life as provided under Article 21. This decision bolsters the fact that preventing a woman
from working, or creating a hostile work environment, affects her right to livelihood and would
be a direct infringement of her right to life and liberty. Similarly, economic abuse as depicted in
the DVA should entail in the broadest interpretation by Courts not just a deprivation of basic
subsistence but also a woman's lack of control over her economic liberty. This holistic
interpretation would uphold India's constitutional as well as international treaty commitments. In
the case of Sheela Barse v. The Secretary, Children Aid Society 49, the court directed that India is
under an obligation to give domestic effect to international treaties and conventions.
Sexual harassment was never categorically recognized as a distinct offence under Indian law,
though a plethora of legal provisions can be invoked to address the crime. The courts in India
have made inroads in the backdrop of legislative lacunae. One of the earliest cases was that of
Rupan Deol Bajaj v. K.P.S.Gill50, in 1988, wherein the petitioner, an Indian Administrative
Officer, had filed a case of sexual harassment against the Director General of Police, Punjab. The
case lasted for seventeen years before the final ruling was handed down by the apex court in

47
Rashme Sehgal, Courts Unwilling to Grant Women Right to ‘Shared Household’, Infochange, April 2007,
available at http://infochangeindia.org/index2.php?option=com_content&do_pdf=1&id=6341.
48
(1985)1 S.C.R. 180, 194
49
(1987) 1 S.C.R. 870, 875
50
(1996) 1 A.I.R. 309, 309

19
2005, wherein the accused was convicted for ‘outraging’ a woman’s modesty, as well as usage of
words, gestures, and acts, etc., for insulting a woman. 51 Though the Supreme Court imposed a
fine of Rs. 2 lakhs, the victim refused the compensation. The Court also refused to succumb to
the plea of the victim, who requested a jail term for the accused. 52 This case is currently of
interest as a result of the demand of the victim, Rupan Deol, to strip the accused, a decorated
police officer, of all his medals for meritorious service. This reaction is fallout of a current case,
wherein another top-ranking officer in being investigated on charges of molestation, harassment,
and abetment to suicide of the then fourteen year-old victim.
The pre-eminent case for the right against sexual harassment was Vishaka v. State of
Rajasthan53 - a public interest litigation with the grievance that the legislature and executive had
turned a blind-eye towards the harassment of employed women. Further legal action proved
futile for the victim, as all the accused were released. In response to the secondary victimization
experienced by the victim, as well as the appalling lack of recognition of sexual harassment as a
serious violation of the physical and psychological integrity of a woman prompted a women’s
rights organization to file a public interest litigation in the High Court.
The Supreme Court responded with an explicit and detailed set of Guidelines and Norms for
Prevention of Sexual Harassment. Vishaka triggered the judicial branch of the Indian State into
the new law making territory, which was previously the exclusive realm of the legislature. The
Vishaka Guidelines continue to be in force as they have not been replaced by any statute. One
critique is its limited applicability to only the organized labor force, while 90% of the Indian
labor market is in the unorganized sector.
The Vishaka judgment is also a forerunner in the principle of fair and just procedure, now
including a ‘gender just’ dimension. The Maneka Gandhi v. Unin of India, 54 depicted an
unparalleled leap in interpreting and expanding the principle of fairness in procedure. This
interpretation is in sync with the constitutional provisions of right to equality as well as in
consonance with international rights of women as enshrined in CEDAW.

51
Indian Penal Code S.354 & 509
52
SC Upholds Conviction of Gill in Rupan Deol Case, Times of India, July 27, 2005, available at
http://timesofindia.indiatimes.com/articleshow/msid1183776.prtpage.cms.
53
A.I.R. 1997, S.C. 3011
54
(1978) 2 S.C.R. 621, 621

20
 In Apparel Export Promotion Council v. A.K. Chopra, 55 the High Court directed the
reinstatement of the accused, A. K. Chopra, on the grounds that he had merely attempted to
sexually harass his stenographer but had not actually committed the offense. The Supreme Court,
while upholding the dismissal of the accused, observed that sexual harassment was a form of
discrimination and the accused had taken advantage of his superior position to create a hostile
working environment for the victim. The Court also relied on Article 7 of the International
Covenant of Economic, Social and Cultural Rights that endorses the right of a woman to work in
conditions that are fair and free from sexual harassment.56 The Court adopted a strict
interpretation of the Vishaka Guidelines affirmed the accused’s attempts and acts to constitute
sexual harassment.
In Medha Kotwal Lele and others v. Union of India and Others, in 2004, the Supreme Court
clarified the authority of the Complaints Committee to be organized pursuant to the Vishaka
Guidelines, regarding the nature of inquiry that it would conduct therein. 57 The Court held that
reports from the Complaints Committee would be equated to inquiry reports.
The Vishaka Guidelines continue to reign supreme in India on the offence of sexual
harassment. However, the Guidelines have been critiqued for being too paternalistic and
referring to the harassed women as a ‘victim’ thus reinforcing her subservient status. Still further
viewing harassment through the prism of ‘modesty being outraged results in stereotyping
conduct expected of women in patriarchal societies with specific gendered roles and standards
and thus leaves the scope of depriving a woman who does not confine to these norms to be
beyond the realm of limited protection that the law guarantees. The gradual yet nascent evolution
and consolidation of women’s issues, beyond the rhetoric of outrages on dignity and honor to a
more nuanced rights framework, are visible in the issues deliberated upon so far.

INDIA AND INTERNATIONAL LAW: DWINDLING DUALIST DOMAIN

55
AIR 1999 SC 625
56
International Covenant on Economic, Social and Cultural Rights art. 7
57
Decided on Apr. 26, 2004

21
 India inherited the common law system as part of the British colonial legacy. Thus, for
any treaty or covenant ratified at the international level, its domestic incorporation has to be
facilitated by the enactment of national law. The maxim “Pacta Sunt Servanda”, as well as the
Vienna Convention on the Law of Treaties are recognized by India, but as a dualist nation, if the
international law is not in conformity with municipal law, the former would be sacrificed.
Conversely if no contradistinction exists within domestic law, the Courts have attempted to
interpret domestic statutes in harmony with international law.58 The same maxim is invoked to
prohibit States from resorting to lack of domestic laws as a justification for non implementation
of international treaties and covenants.
Conventionally a dualist State, India boasts of a wide array of international treaties and
conventions and protocols that it has ratified over the decades. International treaties and
agreements are not self-executing in India, as its domestic incorporation has to be facilitated by a
law enacted by the legislature. Nevertheless, the act of ratification imposes two obligations on
dualist States: States would provide for the enabling legislation as soon as feasible, and States
would not pass laws that are inconsistent with treaty obligations. The Constitution of India is
conspicuous by a glaring lack of an explicit or express clause dealing with international treaties
or conventions. Instead constitutional provisions of Articles 73 vests with the Executive the
power of entering into treaties. The Constitution of India in Part IV in Article 51(c) espouses a
constitutional and legal duty on the Indian State to foster respect for international law and treaty
obligations. Included in Part IV in the Directive Principles of State Policy in the Constitution of
India, this clause is to be considered as fundamental in the governance of the country. It is
pertinent to point out that the Constitution of India is the supreme law of the land and the above
provisions is an affirmative obligation on the State. Moreover by reiterating the responsibility of
the Indian State under the Chapter of Directive Principles of State policy to honor its human
rights commitments pledged to the international community, India has acknowledged and
affirmed international norms and laws as yet another interpretative tool and guiding force in
elucidating and construing constitutional, legislative and statutory provisions. The Indian Courts
have also time and again in course of its interpretative functions given pre-eminence to
constitutional provisions. In the Case of Vishaka v State of Rajasthan, the Court held that all

58
In Re Berubari Union and Exchange of Enclaves, (1960) 1 S.C.R. 250, 252; Gramophone Company of India Ltd.
v. Briendra Bahadus Pandey & Others, (1984) 2 S.C.R. 664, 665

22
elements and facets of gender equality can be captured in the prevalent fundamental rights in the
Indian constitutional framework.
Article 51 is repeatedly invoked by the Indian courts to grant legitimacy to international
treaties and covenants that India has ratified in the absence of any contradiction between
domestic and international law. In the famous case of Keshavananda Bharthi v. Union of India, 59
the Supreme Court of India held that Article 51, which is a municipal provision should be
interpreted in the light to United Nations Charter and other declarations accepted by the Indian
State. This notwithstanding though Article 51 falls under Part IV of the Constitution of India and
is thus implicitly non enforceable under a court of law, the architect of the Indian Constitution,
Dr. Ambedkar, noted that Part IV should be considered fundamental in the governance of the
country.
This provision has to be read in conjunction with Article 253 of the Constitution of India that
authorizes the Parliament to legislate any law for the international treaty or agreement ratified by
the Indian State. Often termed as the ‘enabling provision’, Article 253 enables the domestication
of international treaties. This mode of ‘legislative incorporation’ is steadfastly adhered to by the
Indian State. It is pertinent to note that under the constitution of India via Article 245, the
Parliament is empowered to make laws for the entire country or part of it and similarly the State
government can do so for any part of the State territory.
The Judiciary in India has in contemporary times emerged as the penultimate custodian of
human rights and fundamental freedoms of the citizens and non citizens alike. In the backdrop of
the legislature failing to enact domestic laws to replicate the international standards in the local
settings, the courts in India have seized the opportunity to endorse and these rights. Thought the
Courts have repeatedly enunciated that it is a common and accepted rule of judicial construction
to internalize international norms while construing domestic statutes as long as they are
consistent and harmonious and no domestic statute of significance exits. The underlying
philosophy being legislative lacunae should not result erosion of vital rights and freedoms. The
repercussions, however of such a move have been both adverse and daunting.
The first controversy has rallied around the transgression of the inviolable doctrine of
‘separation of powers’ embodied in the Constitution of India. Often accused of usurping the role
and mandate of the Parliament that remains the sole authority to make laws as per the Indian

59
A.I.R. 1973, S.C. 1461

23
Constitution, this law making initiative of the judiciary albeit in the best interest of the people on
Indian soil has encountered severe criticism. Secondly the judicial activism of the Courts has
also come under sharp scrutiny. However in light of scathing criticism, judicial constriction has
challenged legislative apathy and triggered law reform initiatives.
The same has sought to be countered by the legitimacy given to the Indian Judiciary under
Article 151 of the Constitution that declares the decisions/order of the Supreme Court of India to
be binding on all subordinate courts across the territory and having the force of law. The caveat
being, the order/case law or decisions would be considered as the law of the land, till the
Parliament legislates a domestic law addressing that issue. Thus both the jurisdiction and
mandate of the Apex Court is truly pervasive in this background as it was deemed that the
Supreme Court of India was not creating any new law but was on the contrary declaring law and
merely interpreting what already existed.
Also this was an interim measure to be in force till the Parliament passed a law on the
concerned issues. Moreover, the Court asserted that since there existed no conflicting domestic
legislation, provisions of CEDAW ought to be regarded as law of the land. 60 This case earmarked
the tentative and turbulent entry of the judiciary in the realm of law making. However it is in
Vishaka v. State of Rajasthan that the Supreme Court of Indian undauntedly resorted to
international norms to rule a constitutional right to be free from sexual harassment in the
domestic legal paradigm.
The 1998 Bangalore Declaration that emerged from a Judicial Colloquium of
Commonwealth Judges augments judges to creatively and proactively interpret domestic
legislations in order to achieve incorporation of human rights treaty norms in domestic
jurisprudence. This Declaration has had an unprecedented impact on adding strength and succor
to existing movement of gender justice and inequality by invoking extant Indian constitutional
guarantees on fundamental and human rights.

PUBLIC VERSUS PRIVATE DICHOTOMY: DIALECTIC AND DECISIVE

60
Mihir Desai, Starting the Battle, India Together, Feb. 2005, available at
http://www.indiatogether.org/combatlaw/vol3/issue5/visakha.htm.

24
 Traditional International law has long endorsed and justified the compartmentalization of
human life into public and private. With its overarching mandate of governing inter state
relations and the infallible dicta of non interference in internal affairs of a country implied that
abuse and exploitation of women fell solely and squarely in the private realm while international
law catered to only the public sphere. Article 2(7) of the United Nations Charter espouses the
unfettered and absolute sovereignty of states in its domestic matters and has in the past emerged
as the legal basis for not scrutinizing publicly wrongs committed in the private sphere.
This public/private demarcation is further bolstered by the fact that initially even
international human rights laws and systems have predominantly focused on transgressions by
States and its agencies. With traditional International Law perceiving only States as legitimate
actors, wrongs perpetuated by non state actors received scant attention and were also relegated to
the domestic sphere exclusively.61 States thus also circumvented responsibility for private actions
unless the violence became a public nuisance as espoused by the UN Special Rapporteur on
Violence Against Women who has persistently echoed the public/private construct to be a major
roadblock in effective empowerment of women and the realization of their rights.62
Women’s identity and status in the history of India is non-uniform and non-constant, yet
violence against women is almost a universal phenomenon in India. Free India does assure
women and men to have equal access to public spaces through the broad spectrum of rights that
the Constitution of India embodies. Yet, the autonomy and personhood of woman is severely
compromised between the public versus private debate. This notwithstanding, the legal
framework in India with its laws, systems and personnel not only reinforces patriarchy but also
affirms the historical dichotomy between the public and private sphere. The artificial bifurcation
of men’s and women’s lives into public and private with unequal power dynamics between both
sexes to entrench a status quo in traditional structure of unequal gender relations has enabled
violence against women to persist, thrive and more often than not go unpunished.
Often regarded as ‘family violence,’ the poignancy of the violence is heightened by the
factual relation of intimacy, blood, or law that defines the relationship between the victim and
the perpetrator. The domestic household - historically not only considered a safe haven, but also
traditionally dominated by women has transpired into a space for perpetuating violence.
61
Hilary Charlesworth, ASIL Insight: The Declaration on the Elimination of All Forms of Violence Against Women
(Am. Soc’y. of Int’l L. Newsl.) July-Aug. 1994
62
The Special Rapporteur, Preliminary Report on Violence Against Women, Its Causes & Consequence, para 70,
Delivered to the Human Rights Commission, UN Doc. E/CN.4/1995/42 (November 22, 1994)

25
Reverence for family integrity and respect for privacy have often emerged as overriding
concerns to relegating domestic violence as a non issue. Though family as a unit represents
bonding, protection, care, and support, it is also increasingly home today to violent human
relationships.
The superficial distinction of the world into public and private domains, with the former
being regarded as masculine and latter as feminine, has institutionalized discrimination against
women. This gender bias has shaped stereotypical notions of the status and role of women in
societal and community settings, often relegating them to a subservient position. These
overarching patriarchal notions possess a stronghold in extant ideological, religious and cultural
norms that perpetuate the subordination of women to male authority and dominance. This archaic
gender-sex based demarcation of labor at home and in the workplace are visible manifestations
of State’s omnipresence.63
This public versus private framework often legitimizes violence against women. With the
State donning a nonintervention stance especially with regard to matters that fall under the realm
of the private sphere, women, a major portion of its citizenry, are marginalized by the legal and
justice system. Numerous reasons can be elucidated for such a stance. Historically, State
impingement in private affairs of citizens and families is depicted as a greater affront than the
actual violence experienced by women therein. This social construction of public versus private
demarcation camouflages the insidious nature and ramifications of domestic violence and
assault. Legal jurisprudence has also always adopted a ‘hands off’ approach regarding the
institution of family, which is considered to be the sole proprietorship of the infallible male head
of the household. This is a stark violation of India’s treaty obligations post ratification of
CEDAW which places an obligation on State parties to eradicate inequalities that women
experience, both within families as well as in the community.
Domestic violence as a separate crime in itself never received significant attention from
lawmakers or the legal fraternity; it was largely subsumed under other offenses such as dowry
and rape, amongst others. Moreover, the institution of family was deemed to be sacrosanct and
women were reared to be silent and passive actors of all that transpired within the four walls of
the house in order to uphold family honor and prestige. Secondly, the complex relationship of
economic, social, and emotional dependency between the perpetrator and the victim further
63
Domestic Violence and Law: Report on Colloquium on Justice for Women Empowerment Through Law, Lawyers
Collective, 2001, at xxxvii.

26
prevented the State from undertaking sweeping actions that would threaten this union. Lastly,
household violence in India dons a different hue as the undercurrents of dowry demands always
exist. Thus, violence becomes more institutionalized and sanctified in familial and interpersonal
relationships.64
The traditional and ever-sacrificing persona expected of Indian women has also been
manipulated within the legal system. Not only are Indian laws either silent or ineffective on a
host of offenses that occur within homes-like marital rape, child sexual abuse, and domestic
violence, but the same has also been aggravated by the State and its agencies in some quarters as
well. With the family as a unit deemed inviolable, even when the woman’s mental and physical
integrity and liberty are in peril, the cultural and social overtones coupled with the legal and
judicial prejudices make the eradication of the problem a mammoth challenge. Most matrimonial
disputes that are adjudicated in family courts also usually emphasize reconciliation.
Nevertheless, it is indeed a fallacy to completely dismiss the existence of the State's
regulation and control of its citizens’ lives in the private domain. Women’s lives especially have
been a predominant subject matter for State control and interference. Laws governing abortion,
contraception, marriage, divorce, and childcare benefits all demonstrate the State’s
omnipresence. This superficial discrimination, premised on sex and gender lines, externally
manifests itself in the private and public realms. Moreover, jurisprudence from international and
regional human rights systems have subscribed to the elimination of the public/private facade. In
the famous 1998 decision in the Valesquez Rodriguez case, the Inter-American Court on Human
Rights reiterated that it was immaterial whether aberrations were committed by States, its agents
or private individuals, as States must honor international obligations with full diligence and the
failure to do so would result in State responsibility.
Historically, only States were responsible for guaranteeing rights to their citizens. With
CEDAW endorsing substantive equality for women in all spheres, States, civil society actors,
and citizens alike have realized that discrimination against women can be eradicated by the
gradual erosion of the public versus private demarcation. This mandates the exigency to
undertake a critical appraisal of the role of Non-State Actors, including the family and
community. Thus, the onus is now on the State to doubly ensure that third parties do not
transgress these rights, thereby making families and communities the duty-bearers in upholding

64
Malvika Karlekar, Domestic Violence, 33 Econ & Pol. Wkly 1747 (1998).

27
the rights articulated in CEDAW. This paradigmatic shift in the notion of State responsibility has
assisted in further blurring the private-versus-public demarcation.
The gradual crumbling of the wall between the private and public discourse received a
fillip by the theory of ‘due diligence’ advocated by human rights groups across the globe to
address and challenge VAW by private individuals and actors. This principle obligates States to
take a proactive stance in curbing VAW irrespective of whether it is committed by public or
private entities by investigating, proscribing and punishing such acts. In addition to criminalizing
incidents of family violence, this principle also mandates that States pay just compensation to the
victims. CEDAW also defeats this public/private wedge.
The nondiscrimination clause in CEDAW is explicit and expansive enough to cover any
action premised on sex or a gender-based ideology resulting in differential treatment that negates
women’s enjoyment of their rights. The dichotomy between the public versus private spheres is
also negated by Article 5 of CEDAW which replicates the debate of indivisibility of rights in all
spheres. CEDAW, however, is frequently criticized for being predominantly and overtly focused
on women’s transgressions in the public sphere, and thus replicating the historical neglect of
women’s rights in the private arena.
The transformation of a hitherto private and family issue into one that evokes public
attention and responsibility would necessarily imply a paradigm shift in ideology and social
values, and would also be a reflection of recognition of the autonomy as well as agency of
women. The familial life teaches all about sundry human relationships as well as human rights,
thus creating the necessity to condemn and prosecute familial violence to attain a safer,
democratic, and less violent public space. This would also ensure the right to a dignified and
violence-free life, even in the private sphere. The blurring of the division between the private and
public endows States with a dual responsibility towards its citizens. First, States must not
perpetuate VAW, and second, States must prevent and respond punitively to human rights abuses
of women. This paradigm shift is a legacy of the principle of State responsibility wherein human
rights protection is construed as a proactive mantle being donned by the State as a promoter,
protector, preventer, and prosecutor of human rights transgressions.
The second dimension of the public-versus-private controversy is enmeshed within the
dichotomy between freedom and protection. Women who breach the confines of the household
to etch a living out of choice or compulsion (or both) emerge as vulnerable targets for abuse and

28
exploitation. There are several illustrations in the past to demonstrate the Indian judiciary's
departure from some firmly established criminal justice procedures, all to render and administer
gender justice. With the culture and legal milieu of the Indian setting prompting the female
victim to be always on trial (instead of the accused), the same is required to be eliminated in the
cases of sexual harassment to avoid the miscarriage of justice.
With Indian society placing much emphasis on chastity and purity, and discussions on
contraceptives, sex, and abortions almost being taboo, it is a daunting task for a woman to
confront the sexual predator and discuss it openly in the office, court, or society. The criminal
justice system requires a change in attitude more than a structural overhaul for accommodating
voices of female victims in such cases. A similar change in attitude should be followed in cases
of sexual harassment to inspire the confidence of the victim and public in the justice system.
This echoes the lack of participation by women, their interests, and rights in the
mainstream human rights discourse that has traditionally been male-centric. Also, women’s
marginalization and exclusion from human rights discourse is a consequence of them being
outside the purview of the public sphere, and the typical male occupying the status of ‘citizen.’
The revolutionary notion that women are human beings and thus inherently possess human rights
and liberties now has the potential to question the impunity that men have enjoyed and exercised
in homes and households. It remains ironic that society has erred in inculcating mutual love,
equality, and respect between sexes in one of the most formative, fundamental and intimate
relations and partnerships.

NATIONAL COMMISSION ON WOMEN: PANACEA OR PAPER TIGER?

29
 Institutions - global, regional and domestic - have dominated the discourse in
international law in contemporary times. The power, clout, and influence wielded by these
institutions in areas as diverse as trade, human rights and security, remains unquestionable and
unprecedented. Amidst this burgeoning mass of institutions, the space occupied by National
Human Rights Institutions (NHRIs) is unique. With the State, its agencies, and Non-State Actors
donning the mantle as transgressors of human rights, the onus for a critical and constructive
appraisal of the role of the State and others in promoting and protecting human rights becomes
imperative. The NHRIs have emerged as watchdogs in this context.
Though India is a signatory to a large number of international human rights instruments
and conventions, replicating these standards in the Indian context is an uphill task. Religion,
culture, caste, and class have also further fueled the oppression and exploitation of women. The
diversity in India has further triggered disparities, inequality, and discrimination. With a
conspicuous lack of focus on and prominence of women’s issues in India, a cohesive and
integrated approach to human rights protection and promotion of women has remained elusive.
With Indian women being on the fringes of polity, economy, society, law, and citizenry, the
National Commission of Women (NCW) emerged as an institutionalized response for
entrenching and advocating human rights principles and norms domestically for the women of
India. It has re-invigorated the debate for an egalitarian society.
The National Commission for Women, a statutory body under the National Commission
for Women Act 1990, was established in 1992. The NCW possesses the power to review
constitutional and legal safeguards for women. It is also entrusted with the mandate to appraise
existing statutes and gauge their implementation and efficacy and suggest avenues for reform.
The statute also empowers the NCW with suo moto cognizance of matters that affect full
realization and exercise of women’s rights. Most importantly, the NCW engages critically with
the Government of India on policy matters on women-related issues. As an institutional
mechanism, the role of the NCW is expansive, broad-based, and diversified. Apart from
advocating promotional and educational activities, the NCW also undertakes investigation,
counseling, legal research, campaigning, and advocacy.
The NCW has engaged in the law making process over the years by drafting bills on both
sexual harassment and domestic violence. The NCW took suo moto cognizance of the Bhanwari
Devi (Vishaka v. State of Rajasthan) gang rape case and assisted the victim by appointing a

30
special prosecutor and also by providing security to the victim. The NCW also rendered
assistance and advice to the apex court in India on the issue of compulsory registration of
marriages in the case of Smt Seema v. Ashwani Kumar. The NCW has painstakingly attempted
to address discrimination and abuse of women through public hearings, the constitution of Expert
Committees, fact-finding, legal awareness camps, law reform, sensitization programs of
functionaries, and others, all to facilitate gender equality. 65 The NCW has also over the decades
organized Parivarik Mahila Lok Adalats (local dispute resolution forums/courts) especially for
women to facilitate investigation and hearing of complaints on VAW in rural and tribal belts.
The NCW has so far emerged as a critical and holistic assessor of human rights
transgressions of women in the Indian Territory. However, as a mere recommendatory and
monitoring body, it has not radically altered the status of women in India. Though an
unprecedented and radical institution in its own right, the NCW is largely undermined by its
inherent lack of an enforcement mechanism. It has facilitated a more nuanced and in-depth
comprehension of women’s issues and status, yet complete empowerment of women from all
strata of life in India remains elusive. Arguably, more autonomy and punitive power would result
in a more proactive and effective commission.
Despite its success, the NCW has, in recent times, received brickbats for its lackadaisical
approach to women’s issues. The powerlessness of the institution is showcased in a damning
book by one of the erstwhile members of the NCW, Ms. Syeda Hamed, wherein the NCW reads
as a defunct, futile, and toothless institution with its dismal record in its mandate to emancipate
women.66 It remains debatable whether law reform and institutional [*143] structures can
overhaul prevailing notions of subjugation and servitude. Instead, a paradigm shift in the deep
rooted attitudes and perceptions might herald winds of change in endorsing women as human
beings.

CONCLUSION
The history of India is replete with illustrations of women depicted as iconic. Yet, women
are not accorded their due status, rights, and position. It remains imperative that the violence

65
National Commission for Women, Features, Press Information Bureau, Government of India, available at
www.pib.nic.in/feature/feyr2002/f050320021.html
66
Deepti Priya Mehrotra, A Gallery of Failures, India Together, May 2006, available at
www.indiatogether.org/2006/may/wom-ncw.htm.

31
against women in both homes and the workplace are comprehended and analyzed in the
backdrop of the overarching social construct of masculinity and male dominance. Inculcating
domestic norms of tolerance, equality, and rights would assist in consolidating and empowering
women as equals. The emergence of sexuality as a public discourse and the consideration of
sexual offenses as an offshoot of the extant social construction and arrangement of power, means
that sexual harassment in the twenty-first century is acknowledged as a critical and pervasive
illustration of gender related inequities.
Law is no longer a mere monolithic entity, but rather, the cleavage between theory and
practice is a stark reality. This is further compounded when deep-rooted and archaic social
attitudes and cultures refuse to willingly adapt to a progressive legal order. This is far more
visible in the women’s rights reign, where on paper women might possess rights and liberties,
but in reality they endure inequality, inequity, and discrimination. The transition from ‘gendered
law’ to ‘gender justice’ has been gradual, yet the future will hopefully allow women to emerge
from their subaltern status and assume the role of equal citizenry in all spheres.

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32
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