This article is written by Shalom Manamela, an undergraduate law student at Noida International University, Greater Noida, Uttar Pradesh.
Abstract
In India one of the biggest crises of human rights violation is Gender based violence also referred to as GBV. It remains one of the biggest crises despite the existence of constitutional guarantees and statutory protections. Under article 21 of the Indian constitution, the right to life and personal liberty are guaranteed and this has been explained or interpreted to include the right to live with dignity, bodily integrity and security. Many International Human Rights organisations or instruments still bind India as they require states to be able to prevent, investigate and punish all acts of gender-based violence. This article shall examine all constitutional frameworks that are there to govern gender-based violence in India and will evaluate how they comply with International Human Rights Obligations. This article will show the significancy and challenges faced by India in implementation, access to justice and accountability of institutions despite having legal frameworks.
Introduction
Gender based violence known as GBV amounts to a very serious violation of not only human rights but also the principles of equality, dignity and Justice. Incidents or cases of domestic abuse, sexual assault, dowry related violence, workplace harassment and other forms of gender-based violence in India continues to raise crucial questions and concerns on whether legal and institutional mechanism are effective. The constitutional framework addressing gender-based violence is founded in the Constitution of India under Article 14, 15 and 21. Article 21 of the Indian constitution guarantees rights to dignity, privacy, bodily autonomy and personal security. There have been certain obligations which have been taken by India on an International level and these include Convention on the Elimination of all forms of Discrimination Against Women known as the CEDAW and the Universal Declaration of Human Rights also known as the UDHR. The National Crime Records Barreau demonstrates that despite the existence of legal frameworks, crimes against women continue to rise per annum. The National Health Survey also finds a vast proportion of married women being victims of domestic violence showcasing the gap between legal protections and lived realities.
Constitutional Framework
The right to dignity under article 21
Under Article 21 of the Indian constitution, the Supreme Court in Maneka Gandhi v. Union of India held that any procedure which deprives individuals of life and liberty must be fair, just and reasonable and this led to the expansion of article 21 to include protection of human dignity and personal autonomy. This interpretation laid the foundation for protecting individuals from gender-based violence as this type of violence infringed upon dignity, bodily integrity and personal liberty. In the Francis Coralie Mullin v. Administrator union Territory of Delhi, it was held that right to life extended beyond mere physical existence and it included the right to live with dignity thereby constituting that gender-based violence is not only a criminal offence but a violation of Constitutional guarantees that are in article 21.
Article 14 and 15
The principle of equality and non-discrimination under article 14 and 15 can be judicial interpreted in the case of Vishaka v, State of Rajasthan. Bhanwari Devi, a social worker who was targeted for attempting to prevent child marriage was gang raped and at the time India lacked proper legislation. The Court held that sexual harassment violated the fundamental rights to equality, dignity and life which are under article 14, 15, 19 and 21. The Court relied on the Elimination of forms of Discrimination Against Women to formulate the Vishaka guidelines which showcased that International human rights can be used to strengthen constitutional protections when domestic law is inadequate.
The Marital Rape Exception Under Indian Criminal Law
A major concern in India response to gender-based violence is the constituency in the existence of marital rape exception under the criminal law in India under the BNS. Long ago, marriage was viewed as a relationship with an unending consent to sexual relations between partners, this was taken from colonial legal traditions. This tradition is facing a lot of debate with the evolving constitutional principles and international human rights standards. This marital rape exception provides a very major difference between married and unmarried women as it denies married women the same protection given to other women when it comes to non-consensual sexual intercourse. This raises very serious question under the constitution especially under article 14 and 21. Article 14 of the Indian constitution guarantees equality before the law and equal protections of laws. Article 21 protects the right to life, dignity, bodily integrity, privacy and personal autonomy. This exception has been challenged multiple times from a constitutional aspect as an individual right to bodily autonomy and consent should not be forsaken just because of marriage. The concept of human dignity which is part of article 21 needs to make sure that every individual has a right to make decisions when it concerns their body and this should have nothing to do with their marital status. These principles were further reinforced in the Justice K.S Puttaswamy v. Union of India as the court recognised the right to privacy as a fundamental right under article 21. This decision affirmed that privacy included bodily integrity and decision autonomy and recognised individual freedom to make personal choices that concerned their body. These principles are essential to the debate on marital rape as marriage cannot remove a person right to consent or bodily autonomy. The existence of the marital rape exception thereby raises very serious question. The denial of protection against sexual violence due to being married is inconsistent with the constitutional guarantee of equality and dignity. This debate is also able to show major tensions that exist between traditional understandings of marriage and the constitutional values. There is need for reconciliation between domestic legal frameworks with the modern understanding of consent, autonomy and gender equality.
International Human Rights Obligations
There are various international organisations that address gender equality and the protection of women against violence.
Convention On the Elimination of All Forms Against Women (CEDAW)
The convention on the elimination of all forms against women also known as CEDAW it obligates states to eliminate all sorts of discrimination which is against women in all spheres of life. This convention requires the government to adopt from the legislative, judicial to administrative measures that protect women from violence and all sorts of discrimination. Although India has a lot of legal frameworks there are still some challenges such as underreporting, gaps in legal protection.
Universal Declaration of Human Rights (UDHR)
The Universal Declaration of human rights known as the UDHR recognises inherent dignity and the equal rights of all members that can be found in a human family and gender-based violence at its utmost goes completely against this principle. The principle of dignity, equality and security is recognised in the UDHR have influenced interpretation of fundamental rights under the constitution of India and international human rights standards when it comes to gender-based violence.
International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on civil and political rights also referred to as the ICCPR ensures or enable protections of rights to life, liberty, security and freedom from degrading treatment. These rights are very crucial when dealing with cases that include sexual violence, domestic abuse and harmful traditional practises. India is obligated to ensure effective legal remedies for violation of these rights as a state party of the ICCPR. Its challenges showcase the need for reform to fully realise these obligations
The Constitution and international human rights norms in India
When it comes to interpretation of constitutional rights, the Indian government rely heavily on principles of International human rights. constitutional provisions may be interpreted through use of international conventions, treaties and concise with fundamental rights and this has been a stance which has been held by the Supreme Court repeatedly especially when there is absence of conflicting domestic legislation. This has been a very essential approach especially when it comes to advancing women’s rights and gender justice and this has enabled the expansion of article 21 to be able to include dignity, bodily autonomy, privacy and protection from violence through incorporation of international human rights standards into the constitutional jurisprudence. This can demonstrate the commitment of India when it comes to harmonising domestic constitutional values with global human standards.
Challenges in India response to gender-based violence
There are several challenges that persist despite the existence of constitutional guarantees and obligations. Underreporting as its due to the social stigma, fear of retaliation and its due to lack of confidence in the justice system. Delay in investigations and the lack of adequate support services for victims which may include counselling, shelter, legal aid as they hinder justices. Patriarchal norms that continue to influence institutional responses to gender based violence.
Intersectionality And Vulnerable Groups
Not all individuals are affected by gender-based violence equally. Women coming from marginalised groups suffer from multiple forms of discrimination and can be based on caste, religion, disability, ethnicity, economic status and it can be due to their sexual orientation. Vulnerability to violence is usually compounded to factors such as social and economical advantages and an intersectional approach ascertains that. People that encounter barriers when it comes to seeking justice is usually Dalit women, persons belonging to sexual and gender minorities. For a vast change to take place there is need for the constitutional response to go beyond formal equality and to be able to address structural inequalities that can prevent vulnerable groups from being able to exercise their rights under article 14, 15 and 21.
The States Accountability And Its Due Diligence
Under the international human rights, it recognises that state can be held liable and accountable not only for its acts but for failing to prevent, investigate, prosecute and punishing acts of gender-based violence which are committed by state individuals. Governments are required to make use of proactive measures to protect individuals from foreseeable harm under the principle of due diligence. This might include the state enabling effective legislation, by ensuring swift investigations, providing victims with support services and holding all perpetrators accountable for their acts. The state has an obligation to safeguard dignity and security of Individuals under article 21 of its Constitutional guarantees. Gender based violence amounts to constitutional violation when there is failure to respond swiftly and in an adequate manner.
Recommendations
India should strengthen implementation through specialised police training, survivor centred procedures, improved legal awareness and simpler access to support services. Courts should continue adapting to rights-based interpretation of constitutional provisions to protect dignity, equality and bodily autonomy.
Comparative Perspectives: Lessons From Other Jurisdictions
Comparative experiences from jurisdictions such as South Africa and Canada have demonstrated that effective responses pertaining to gender-based violence, survivor protection and institutional accountability. India may make use of theses practices and adapt them to its constitutional framework.
Conclusion
Gender based violence itself showcases a constitutional and human rights crisis or challenge which require sustained legal and institutional responses. There is need for reliable and most effective implementation despite the existence of article 21 and other constitutional provisions that are there to provide strong protection to people against violence. India could strengthen its commitment to dignity and equality by aligning with practices of international human rights standards.
