Gender-based violence

Gender-based violence (GBV) refers to harmful acts directed at an individual or a group

of individuals based on their gender. It is rooted in gender inequality, the abuse of
power and harmful norms. The term is primarily used to underscore the fact that
structural, gender-based power differentials place women and girls at risk for multiple
forms of violence. While women and girls suffer disproportionately from GBV, men and
boys can also be targeted. The term is also sometimes used to describe targeted
violence against LGBTQI+ populations, when referencing violence related to norms of
masculinity/femininity and/or gender norms.

Types of violence against women

Domestic violence
Domestic violence, also called domestic abuse or intimate partner violence, is any
pattern of behavior that is used to gain or maintain power and control over an intimate
partner. It encompasses all physical, sexual, emotional, economic and psychological
actions or threats of actions that influence another person. This is one of the most
common forms of violence experienced by women globally.

Domestic violence can include the following.

Economic violence
Economic violence involves making or attempting to make a person financially
dependent by maintaining total control over financial resources, withholding
access to money, and/or forbidding attendance at school or employment.

Psychological violence
Psychological violence involves causing fear by intimidation; threatening physical
harm to self, partner or children; destruction of pets and property; “mind games”;
or forcing isolation from friends, family, school and/or work.

Emotional violence
 Emotional violence includes undermining a person's sense of self-worth through
constant criticism; belittling one's abilities; name-calling or other verbal abuse;
damaging a partner's relationship with the children; or not letting a partner see
friends and family.

Physical violence
Physical violence involves hurting or trying to hurt a partner by hitting, kicking,
burning, grabbing, pinching, shoving, slapping, hair-pulling, biting, denying
medical care or forcing alcohol and/or drug use, or using other physical force. It
may include property damage.

Sexual violence
Sexual violence involves forcing a partner to take part in a sex act when the
partner does not consent. See more about sexual violence below.

Learn more: The signs of relationship abuse and how to help

Femicide
Femicide refers to the intentional murder of women because they are women, but may
be defined more broadly to include any killings of women or girls. Femicide differs from
male homicide in specific ways. For example, most cases of femicide are committed by
partners or ex-partners, and involve ongoing abuse in the home, threats or intimidation,
sexual violence or situations where women have less power or fewer resources than
their partner.

Honor killing
Honor killing is the murder of a family member, usually a woman or girl, for the
purported reason that the person has brought dishonor or shame upon the
family. These killings often have to do with sexual purity, and supposed
transgressions on the part of female family members.

Sexual violence
Sexual violence is any sexual act committed against the will of another person, either
when this person does not give consent or when consent cannot be given because the
person is a child, has a mental disability, or is severely intoxicated or unconscious as a
result of alcohol or drugs.

Sexual violence can include the following.

 Sexual harassment
Sexual harassment encompasses non-consensual physical contact, like
grabbing, pinching, slapping, or rubbing against another person in a sexual way.
It also includes non-physical forms, such as catcalls, sexual comments about a
person’s body or appearance, demands for sexual favors, sexually suggestive
staring, stalking, and exposing one’s sex organs.

Rape
Rape is any non-consensual vaginal, anal or oral penetration of another person
with any bodily part or object. This can be by any person known or unknown to
the survivor, within marriage and relationships, and during armed conflict.

Corrective rape
Corrective rape is a form of rape of perpetrated against someone on the basis of
their sexual orientation or gender identity. It is intended to force the victim to
conform to heterosexuality or normative gender identity.

Rape culture
Rape culture is the social environment that allows sexual violence to be
normalized and justified. It is rooted in patriarchy and fueled by persistent gender
inequalities and biases about gender and sexuality.

Learn more: 16 ways you can stand against rape culture

Human trafficking
Human trafficking is the acquisition and exploitation of people, through means such as
force, fraud, coercion, or deception. This heinous crime ensnares millions of women and
girls worldwide, many of whom are sexually exploited.

Female genital mutilation

Female genital mutilation (FGM) includes procedures that intentionally alter or cause
injury to the female genital organs for non-medical reasons. It is classified into four
major types, and both the practice and the motivations behind it vary from place to
place. FGM is a social norm, often considered a necessary step in preparing girls for
adulthood and marriage and typically driven by beliefs about gender and its relation to
appropriate sexual expression. It was first classified as violence in 1997 via a joint
statement issued by WHO, UNICEF and UNFPA.
Child marriage
Child marriage refers to any marriage where one or both of the spouses are below the
age of 18. It is a violation of the Universal Declaration of Human Rights, which states
that “marriage shall be entered into only with the free and full consent of the intending
spouses.” Girls are more likely to be child brides, and consequently drop out of school
and experience other forms of violence.

Online or digital violence

Online or digital violence against women refers to any act of violence that is committed,
assisted or aggravated by the use of information and communication technology (mobile
phones, the Internet, social media, computer games, text messaging, email, etc) against
a woman because she is a woman.

Online violence can include the following.

Cyberbullying
Cyberbullying involves the sending of intimidating or threatening messages.

Non-consensual sexting
Non-consensual sexting involves the sending of explicit messages or photos
without the recipient’s consent.

Doxing
Doxing involves the public release of private or identifying information about the
victim.

Existing Legal Situation:

 Indian Penal Code, 1860

 Constitution of India
 Indian Evidence Act,1872
 The Immoral Traffic ( Prevention) Act,1956
 The Dowry Prohibition Act,1961
 Protection of Women from Domestic Violence Act, 2005
 The Sexual Harassment of Women at Workplace 2013
 The Criminal (Amendment) Act, 2013
 Pre Natal Diagnosis Techniques ( Regulation ) Act of 1994
 Domestic Violence Act,2005
 Information Technology Act, 2000
Recommendations of the Verma Committee (2013)

 Rape: 10yrs to Life Imprisonment

 Gang Rape: 20 yrs to Life Imprisonment
 Rape and Murder: 20 yrs to Life Imprisonment
 Rape of Minor: Minimum 10 yrs to Life Imprisonment

Constitutional Provisions For Women In India

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental
Rights, Fundamental Duties, and Directive Principles of State Policy. The Constitution not only
grants equality to women but also empowers the State to adopt measures of positive discrimination
in favour of women. Within the framework of a democratic polity, our laws, development policies,
plans, and programs have aimed at women's advancement in different spheres. India has also
ratified various international conventions and human rights instruments committing to secure equal
rights of women.[16]

The Preamble
The preamble in itself clearly shows that every individual is equal and posses certain rights in our
nation, it is the key to the constitution and does not discriminate between men and women. Let us
discuss certain keywords and sentences in the preamble that reinstate the fact that the constitution
is equally beneficial for everyone.

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity�.[17]

 We � It means for all, irrespective of their gender

 �all its citizens � determines the fact that the constitution will be equally beneficial for
everyone.
 JUSTICE, social, economic and political�.
a. Social:
The enforcement of various acts and provisions for the upliftment of women in the
society. E.g., The Dowry Prohibition Act 1961, The Equal Remuneration Act 1976,
The Prohibition of Child Marriage Act 2006, Indecent Representation of Women
(Prohibition) Act, 1986
b. Economic:
Every woman has the right to work and to be equally paid. There are various cases
 where women are paid less despite being in the same position as that of man. They
are paid unequal amounts that lead to economic injustice.
c. Political:
The women of our country have the right to contribute to the functioning of the
government. They have entitled the right to contest elections and the right to vote.
The right to universal suffrage to be given to them. There must be reservation for
women in certain administrative bodies.
 LIBERTY of thought, expression�. The thought, expression, belief, faith, and worship must
be equally protected. She has the freedom to express her thoughts.
 EQUALITY of status and opportunity�.

a. Opportunity- The opportunity that is made for the men must equally be given to
women. An exception should be highly justified. The person whose right has been
infringed can visit the court for enforcing it. The opportunity to study, job,
endowments from government programs cannot be denied, keeping in mind the
doctrine of intelligible differentia that must exist among equals.
b. Status- Status here means that if a job is offered to a man and a woman and they are
recruited in the same position then they will be recognised on the same status. There
shall not be any kind of discrimination in terms of status.

Fundamental Rights Part III of the Indian Constitution

Deals with the fundamental rights. These rights apply to all the citizens irrespective of sex. Certain
provisions are there protecting the rights of women.

1. Right to Equality
Article 14 deals with equality before law, which means any person who lives in the territory of
India is entitled to have equal rights before the law or the equal protection of the laws. Here it
must be noted that the phrase 'any person' is used which means that it is applicable for both
men and women. According to Article 15 of the Constitution, there shall not be any
discrimination among individuals on certain grounds that also includes sex, here the
term sex and not 'gender' is used which means this article is focusing on the biological
difference and not the social difference.

Further in Article 15(3), discrimination on the grounds of religion, race, caste, sex, or place of
birth shall not prevent the state from making any special provisions for women and children.
Women are a vulnerable class of the society they have not been equal and thus they were
considered lesser gender. Thus 'Protective or Positive Discrimination' is made to elevate
women to the level of men, so that they are at the level playing field.

Therefore, under the Constitution, the State has been given the power to make laws relating
to women and children but such laws shall not be violative of Article 15 of the Constitution.
Article 15(1) prohibits gender discrimination. Article 15(3) lifts that ignominy and permits the
state to positively discriminate in favour of women to make special provisions to ameliorate
their social, economic, and political condition and accord them parity.[18]

Article 16 of the Constitution mentions that equal opportunity should be given to all citizens in
matters that are related to employment or any appointment to any office. Thus, no person
shall be discriminated on the grounds of 'sex as mentioned in Article 16(2) of the
 Constitution.

2. Right to freedom:
Articles 19 to 22 deals with the right to freedom. Article 21 of the Constitution of India,
provides Protection of life and personal liberty According to Bhagwati, J., Article
21 embodies a constitutional value of supreme importance in a democratic society.
This right is claimed when a person's right to life or liberty is infringed. The right to life does
not mean mere animal existence it means living with dignity, they are entitled to have a
respectful life.

This right is the fundamental of all the rights of the Constitution. In India there is an upsurge
in cases where their right to life is violated, as they are subjected to domestic violence,
sexual abuse[19], harassments, etc. in most of the household these women accept such
violence to protect their marriage, the fear of family disgrace prevents them from raising their
voice, dependency on the husband, etc. the fundamental right is the heart of the Constitution
and women must thoroughly be made aware of it.

3. Right against Exploitation:

Article 23 of the Constitution provides the right against exploitation. This constitutional
provision prohibits traffic in human beings. Trafficking of women is very common in our
country where they are extremely exploited. The legislature has passed the Immoral Traffic
(Prevention) Act, 1956 that aims to abolish prostitution and other forms of trafficking.

Let's discuss certain cases related to the above mentioned rights.

 Right to hold property by women- In the case of Madhu Kishwar & Ors v. State Of Bihar &
Ors[20] The Chota Nagpur Tenancy Act 1908, provided certain property rights to the people
of that region. However, according to the act it was stated that the tribal women will have no
right to inherit any property.

Thus, only male members were entitled to inherit property. A petition was filed stating that
certain provisions that are in favour of succession to property only to the male line are
discriminatory, unfair against women, and ultra vires the equality clause (Article14) of the
Constitution. A three judge bench decided the case, wherein two Judges found it non
violative on grounds that the personal laws which give inheritance rights should not be
applied to the concerned tribes.

But the descending Justice Ramaswamy, K. found the provisions highly discriminatory that
violative of Article 14 right to equality. In his opinion, if this kind of act prevailed then injustice
will also prevail in the country. However, the act was allowed because of the majority.

 Discriminations in employment:
The Apex Court in the case of Air India v. Nergesh Mirza[21] It was held that a woman shall
not be denied employment merely on the ground that she is a woman as it amounts to a
violation of Article 14 of the Constitution. The Air India Airlines had certain service rules and
all the female staff has to follow, it stated that:
Air Hostesses shall not marry for the first four years of their joining; they will lose jobs if they
became pregnant. They shall retire at the age of 35 years unless managing director extends
the term by ten years at his discretion.

The Supreme Court suggested that the first provision is legal, as it would help in the
promotion of the family planning programs, and will increase the expenditure of airlines
recruiting air hostesses on temporary or ad hoc basis, but the second and third provisions to
 be declared as unethical, callous, cruel, detestable abhorrent, unreasonable, arbitrary,
unconstitutional and an open insult to Indian womanhood.[22]

In C.B Muthamma v. Union of India [23]it was held that the rules relating to seniority and
promotion in Indian Foreign Service which discriminate only on the ground of sex are not
only unconstitutional but also a hangover of the masculine culture of having cuffing the
weaker sex. In this case the petition was filed wherein it was contended that a woman had
been denied promotion to Grade I on the ground of sex, which was violative of Article 15 of
the Constitution.

Another rule of The Indian Foreign Service Rules (Conduct and Discipline) Rules 1961,
required that an unmarried woman member should take the permission of the Government
before she marries, and after marriage, she may be asked any time to resign if it is felt that
her family life is affecting her work performance. The above rules contravene Article 15 of the
Constitution and were struck down.

Mackinnon Mackenzie & Co. Ltd v. Audrey D'Costa & Anr[24] there were stenographers
in the company both male and female. But the female stenographers were paid less as
compared to the male employees. Despite having the same working hours, the same work,
appointment on the same date and given the same number of holidays. The Court held that
such discrimination is violative of Article 14.

It was stated by the court in its judgment Discrimination arises only where men and women
doing the same or similar kind of work are paid differently. Wherever sex discrimination is
alleged, there should be a proper job evaluation before any further inquiry is made. If the two
jobs in an establishment are accorded an equal value by the application of those criteria
which are themselves non-discriminatory (i.e. those criteria which look directly to the nature
and extent of the demands made by the job) as distinct from criteria which set out different
values for men and women on the same demand and it is found that a man and a woman
employed on these two jobs are paid differently, then sex discrimination arises.[25]

The right to livelihood was challenged in the case of Anuj Garg & Ors vs Hotel Association
Of India & Ors [26], In The Punjab Excise Act 1914, Section 30 stated and was questioned
as it prohibited women employment where liquor is served. This section is violative of Article
14, the contention of the Punjab Government was to avoid chaos and is for the safety of
women. But the Court said that if the Government believed that the chances of raucous
could be there, the government should strengthen the security rather than disallowing
women to work. The Court criticised the mindset of the government stating that fetters are
put on the victim but there is no improvement in the society.

 Reservation of seats for women in educational institutions, employment:

The Bombay High Court in Dettatreya v. State of Bombay [27] has held that reservation
of some seats in women's colleges is not unconstitutional. The court observed the
establishment of educational institutions for women is not violative of Article 15 of the
Constitution. In the case of Government of Andhra Pradesh v. Vijay Kumar[28] instances
for 30 percent reservation of seats for women in specific state services stood valid as special
provisions could be made for women as per Article 15(3).

Similarly, in the case of T. Sudhakar Reddy v. Government of Andhra Pradesh[29] the

Supreme Court upheld the constitutional validity of certain rules of Cooperative Societies Act,
1964 which provided for the nomination of two women members by the Registrar of the
managing committee to vote and to participate in the Committee's meeting. The Court
 observed that such kind of special reservation can be provided to women.

 Rights of women of easy virtue:

In the case of State of Maharashtra v. Madhukar Narayan Mardikar[30] the contention
was made that a woman indulging in prostitution has a right to a dignified life. Article 21 is
available to every person irrespective of their profession. Although prostitution is illegal,
women are not voluntary criminals but are innocents, as denounced in the case of Vishal
Jeet v. Union of India[31] where the court observed that trafficking in human beings is
prevalent in India for a long time in the form of selling and purchasing of human beings for
prostitution for a price just like that of vegetables.

On the strength of Article 23, the legislature has passed the Immoral Traffic (Prevention) Act,
1956 that aims to abolish prostitution and other forms of trafficking. Thus, the court observed
that the government is expected to uphold development programs for such women.

Initiatives should be taken to pull out these women from this vocation. The essence is that
one shouldn't be considering them as criminals but victims of crime. Similarly, in the case
of Gaurav Jain v. Union of India[32] the court observed that children of the prostitutes are
entitled to education and other facilities as other children.

 Mother can act as a natural guardian during the lifetime of father:

The Apex Court in Githa Hariharan v. Reserve Bank of India[33] held that the father
cannot claim that he alone was the natural guardian and his wife could take no decision
without his permission. It was held that the mother of the minor was relegated to an inferior
position on the ground of sex alone since her right as a natural guardian is made cognizable
after the father, which was a violation of Articles 14 and 15 of the Constitution on that
ground. Hence, the mother can act as the natural guardian of the minor during the lifetime of
the father who would be deemed to be absent.

 Right to Privacy:
In Neera Mathur v. LIC[34], a lady applied for work in LIC. The lady was asked to fill a
questionnaire that contained certain intricate details of her biological life. A petition was filed,
the Court stated that these questions are necessary for employment purpose. It is the
infringement of her right to privacy which exists under Article 21.

 Adultery:
In the famous case of Yusuf Abdul Aziz v. State of Bombay[35], A petition was filed where
the contention was made that Section 497 of Indian Penal code,1860 is violative of the
Constitution of India, where a person is punished for the offence of adultery with a married
woman without the consent of her husband. If there is a consenting adult woman who
understands the consequences of the activities, it is unfair to hold only the man responsible
for it, she should also be the party to the crime.

The Court then held that women shouldn't be considered the party of the crime, as this
provision can be misuse against her. There can be cases where she might not understand
the repercussions. Hence the Court upheld the validity of Section 497.

But in Joseph Shine v. Union of India[36] the Court overruled its previous decision and
said that Section 497 is no more applicable. If the woman is the consenting adult, she might
know the consequences. Thus, the section does not stand valid. The Court said that the idea
of gender justice should only be fulfilled when there is a difference between right and wrong.
It must be noted that the right to a dignified life is not only applicable to citizens but to the
non citizens as well.[37]
Thus, the fundamental rights of the Constitution are enriched with various provisions for women and
it will stand strong if enforced properly.

Directive Principles Of State Policy:

The directive principles of state policy is the reflection of governance that India is a welfare
democratic state. This policy envisaged equal rights to work, equal pay for equal work, adequate
means of decent and dignified livelihood to both men and women. Part IV of the Constitution
containing Articles 39(a) (d) and (e), 42, 44, and 45 deal with the welfare and development of
women.

According to Article 39(a), the State should direct its policy towards securing that the citizens, men,
women equally have the right to an adequate means of livelihood. This Article provides equal right
for all citizens, irrespective of sex, to adequate means of livelihood.

As per Article 39(d), the State is under Constitutional obligation, towards securing that there is equal
pay for equal work for both men and women.[38]

According to Article 39(e) the health and strength of workers of men, women, and that of children of
underage to be protected equally.

Article 42 of the Constitution deals with the just and humane condition of work and maternity leave.
There must be rules regarding better maternity leaves. There are however certain programs for
pregnant women, where they get free medical checkups and provided free medications, e.g., the
Anganbadi system, Asha Sisters (women trained to care the expecting mothers). In India, women
get six months of paid maternity leave for public sectors and there is no defined rule for private
sectors.

This term is less as compared to other countries. The child care leave granted to women is a total of
700-750 days for two children combined, until both the children turns 18 years old. The biggest
drawback in our country is that the paternity leave is only for 15 days in the public sector, it must be
considered by the legislature that the responsibility of the child is of both the parents, but no such
rule has been framed.

The concept of the Uniform Civil Code is given in Article 44 of the Constitution. It was incorporated in
the Constitution with the aim that gender injustice will be removed. Unfortunately, after so many
years of Independence, it is yet not implemented. In the landmark case of Sarla Mudgal v. Union of
India[39] it was held that a Hindu marriage exists even after one spouse converts to Islam.

There is no automatic dissolution of Hindu marriage. In this case, the Hindu husband was liable for
the offence of bigamy as he converted to Islam without dissolving the earlier marriage when he was
a Hindu. The Court asked the Central Government to initiate the implementation of Article 44 as it is
imperative for both the protection of the oppressed and the promotion of national unity and integrity.
In another landmark case Mohd. Ahmed Khan v. Shah Bano Begum[40] the Supreme Court held
that Section 125 of the Code of Criminal Procedure, 1973 which imposes such legal obligation on all
the husbands is secular in character and is applicable to all religions. In this case, the court
emphasised the need for codifying a common civil code. No gender equality can be achieved without
making the Uniform Civil Code.[41]

Fundamental Duties:
Article 51A (e) states �to renounce practices derogatory to the dignity of women. It is a wide
provision, where the decency and morality of women must be intact. The Constitution provides such
duty that people are expected to do away with indecent practices like stalking, voyeurism, eve
teasing, name calling, etc.

Local Governance
In the 73rd and 74th Constitutional Amendments the reservation of seats for women in Panchayat
and in that of Municipality have been incorporated by inserting 243(d) and 243(t). One third of the
number of seats shall be reserved for women in both.

This is done for the upliftment of women in the field of politics as well. But after all this most of the
time, the woman only serves as the de facto incharge. The actual chores are done by the male
member (husband, brother, father etc) of her family. The woman is just the rubber stamp
administration who only signs the document and is not aware of the administrative system. Thus, the
actual idea of gender justice is not materialised.

Conclusion
Justice K. Ramaswamy stated:
Indian women have suffered and are suffering discrimination in silence. Self-sacrifice and self denial
are their nobility and fortitude and yet they have been subjected to all inequities, indignities,
inequality, and discrimination.

This topic of violence against women has always been in discussion, but unfortunately, the situation
is still not in control. Recently, during the phase of lockdown due to the spread of the coronavirus
there was a hike in the cases of domestic violence. A study by researchers at the University of
California, Los Angeles, brings confirmation that the coronavirus lockdowns are making Indian
women more vulnerable to violence at home- a fear that activists and academics have voiced from
the start.

Mapping the complaints of domestic violence received by the National Commission for Women
(NCW) in April-May against designated red, green, and orange zones, the study found that
complaints of domestic violence rose 131 percent in red zones, where there were stricter curbs on
mobility, relative to green zones.[42] The story does not end here, the Hathras rape case which is a
slap to humanity also took place, there are several cases like this, some are known through media
but many are unknown, every second of an hour a woman is subjected to violence.

What an irony it is, that we call our nation Bharat Mata and this is what is happening in our
motherland. It's highly disappointing that during this tough time, instead of focusing on the solution
and keeping ourselves safe, people are busy exploiting women.

What could be the possible solutions for violence? In my opinion, certain measures could be taken
like spreading awareness programs regarding gender equality, renouncing the practice of old
customs that downgrades women and gradually sensitising them of these heinous acts, the young
minds must also be educated so that they can step out and raise their voice against the wrong done,
girls and women should be given self-defence training in schools and colleges, we have a
comprehensive legislature exclusively for women, it must be enforced properly.
India is progressing in every dimension, but this development is of no use if our country is not able to
cope with the acts of violence.

The circumstances can change only if every individual pledge that we will fight this pandemic of
violence anyhow because we must remember that it is not only the duty of the government or the
judiciary to resolve such crimes, but it's our duty also to remove this filth of violence from our
wonderful nation.

The Constitution of The Commission:

The National Commission for Women Act, 1990 (Act No. 20 of 1990 of Government of India)
constituted the National Commission for Women as a statutory body. The first commission was
constituted on 31st January 1992 with Mrs. Jayanti Patnaik as the Chairperson.

The Act of 1990 under Section 3 provides for the constitution of the commission. This section lays
down that the commission will consist of one Chairperson, who is committed to the cause of women,
five members from various fields and a member secretary who shall be an expert in the fields of
management, organizational structure, sociological movement or a, member of the civil service of
the Union. All the members of the commission are nominated by the Central Government.

Each person holds office for a period of five years or till he attains the age of seventy. At least one
member each of the Commission must belong to a Scheduled Caste or Scheduled Tribe. In addition
to the abovementioned members of the Commission, the Commission has the power to set up
committees with members from outside the Commission.