2016 saw the revolutionising of the Indian Air Force with the commissioning of the first female pilots; Bhawana Kanth, Avani Chaturvedi, and Mohana Singh. It was also the year the Mental Health Bill, The Rights of Transgender Persons Bill and the Surrogacy Bill were introduced in the Parliament, the year ending on a positive note for persons with disabilities.
However, 2016 was also the year that witnessed the death of Dalit scholar Rohith Vemula, the turmoil in JNU, showcased an attitude of indifference and ignorance to the class divide that was an inescapable aftermath of the demonetisation drive, and culminated with mass molestation of women by a mob in Bengaluru on New Year’s Eve, the response to which is reflective of Indian attitudes, particularly of people in power, of intolerance towards the rights of women and minorities.
There is a blatant disregard for a rather simple concept of consent (even though Pink, for all its hits and misses, did release this very year). A woman’s choice of wardrobe still determines her moral fibre and it is considered completely acceptable to deny people their rights as a means to communicate the degree of intolerance that pervades the mindsets of our “representatives”.
The past year has witnessed many ups and downs but the latter have overshadowed the former begging the question that, are we, as a society, evolving backwards?
Having spent the first week of 2017 still reminiscing the year that was, here’s hoping that in the year that is yet to be, we see the feminist struggle in India take a turn for the better, the battles not being lost to the Savarna feminist discourse. We’ve all pledged our #FeministResolutions for 2017 and here’s hoping the people running this country do the same, starting with:
1. Criminalising Marital Rape
The Supreme Court in Bodhisattwa Gautam vs. Subhra Chakraborty observed that rape is a crime against the basic human rights and amounts to the violation of the most cherished fundamental right, that of the Right to a Life with Dignity as enshrined under Article 21 of the Constitution, of the victims of the said offence. The offence of rape and sexual violence against women within the domain of the family needs to be contextualised within the broader understanding of Indian social structures.
The understanding of marriage in the Indian context is akin to Carole Pateman’s Sexual Contract, furthering the feudal nature of the institution that is strengthened by the wilful subordination of the woman to the authority of her husband. The concept of marriage as a sacred union and the basis for the setting up of the unit of a family in India is the embodiment of prejudicial gender roles and hierarchies which have been clearly demarcated to ensure its sustenance. The introduction of individual’s rights within the family attacks the very foundation of this patriarchal institution.
Section 375 of the Indian Penal Code in defining the offence of Rape specifically excludes sexual intercourse by a man with his wife when the latter is not below the age of 15. The Justice Verma Committee Report, the precedent to the 2013 Amendment to the Laws pertaining to Sexual Offences against Women suggested that the exception under Section 375 be done away with and rape within marriage be criminalised like all other non-consensual sex, however, no such changes were brought about.
Although the Protection of Women from Domestic Violence Act, 2005 grants certain civil remedies in cases of crimes against women including sexual violence, the same has not been acknowledged as a criminal offence. The argument against criminalising marital rape ranges from emphasising the sanctity of matrimonial relations and a feudal concept of marriage that places wives at the disposal of husbands, to blatant disregard for acknowledging sexual violence within the family as a reality. Rape is not so much about the act of sex as it is about violence, violence that is unique because of its sexual character. In refusing to acknowledge marital rape as an offence, not only are we denying women agency over their own bodies but condoning violence against women so long as it is occurring within the personal domain of marriage.
2. Women’s Political Participation: From Bill to Act
The Constitution of India in granting equality to all persons, makes specific provisions with regard to women, empowering the State to adopt affirmative measures in order to ensure substantive equality of women, i.e. equality that results from granting of concessions to held overcome historical and social prejudices which obstruct free and fair access to resources. In attempt to further this Constitutional goal, and increase the political participation of women, the H.D. Deve Gowda Government in September 1996 introduced the Women’s Reservation Bill, the 108th proposed Amendment to the Constitution which stipulated 33% reservation for women in the Lok Sabha and all State Legislative Assemblies.
The Bill saw a fair share of lapses and reintroductions and was introduced in the Rajya Sabha by the UPA government in 2008, passed by the Upper House in March, 2010 and has since been pending in the Lok Sabha. The Bill has faced opposition on several grounds by members of various political parties, some of the arguments being reflective of the inherent need to reinforce patriarchal norms, but the pendency in effect has only meant absence of women in the public sphere and political participation. With the passing of the Bill and the provision for guaranteed representation of women in Parliament, the political field apart from being more inclusive will, in dealing with concerns and areas pertaining primarily to women and minorities, also find reflections of the diverse opinions in policies and executive decisions, thus having direct impact on governance.
3. Decriminalising Homosexuality
The debate around the constitutional validity of Section 377 of the Indian Penal Code, 1860 which defines unnatural offences has focused primarily on homosexuality. However, there is a need to recognise the rights of homosexuals beyond the provisions of the code. Populist Indian understanding of gender and sexuality is limited to male & female in case of the former and heterosexual in case of the latter, anything falling beyond the purview of these being considered “unnatural” or “abnormal.” The Supreme Court’s decision in 2013 which reinstated Section 377 too has been criticised for disregarding biological, medical and scientific evidence of a range of sexualities being completely natural.
While Section 377 has aided in the sexual harassment and torture of homosexuals and trans* people, the social attitude in toto has further led to our seclusion and discrimination; a narrowed understanding of sexuality serving as the argument for denying us basic rights, treating people of a different sexual orientation as people of a lesser value and criminalising the expression of sexuality and love that does not conform to the norm of heterosexuality.
The struggle of the LGBTQ community in India has been much beyond Section 377, the Curative petition for which is to be heard by the Chief Justice of India. It has been a struggle for inclusion in a society that not only shows blatant disregard for our rights but feels morally obligated to punish us for not conforming to its limited understanding of sexuality. This insensitive and dehumanising approach finds reflections in the laws and policies formulated, keeping in mind such an orthodox morality. The proposed Surrogacy Bill, 2016 for instance specifically excludes homosexual couples from within its purview. Therefore, there is a need to enact a comprehensive legislative regime as done in the case of trans* persons, guaranteeing the LGBTQ community of India the right to which they are entitled and offering them protection against discrimination.
4. Revisiting Abortion Laws In India
The law governing abortion in India is prescribed under the Medical Termination of Pregnancy Act, 1971 prior to which abortion was illegal in all circumstances, save when there was a danger to the woman’s life. Under the Act, a woman is permitted to abort a foetus within 12 weeks of the pregnancy on account of grave danger to her mental and physical health as diagnosed by a medical practitioner.
A foetus which will be born with severe abnormalities may also be aborted under the Act. Further, a foetus older than 12 but upto 20 weeks, may only be aborted with prior permission of two medical practitioners. Taking into account the social environment of the woman, the MTP Act also enlists instances of pregnancies resulting from rape and contraceptive failure as amounting circumstances constituting grave injury to the mental health of the woman, abortion beyond 20 weeks being permissible when done to save a woman’s life.
While it does take into account social circumstances and the health of both the woman and the foetus, the Medical Termination Of Pregnancy Act, 1971 at present does not speak of abortion as purely an act of choice, permitting abortion only on the request of the woman, the debate thus focussing on bodily agency of freedom of choice of a woman, and instances of unplanned pregnancies particularly in cases of consensual sexual activity outside of marriage. In order to reinforce the right of a woman over her own body, the Ministry of Health & Family Welfare has proposed certain amendments to the Act. These include:
- Permitting abortion in certain cases upto 24 weeks and beyond 24 weeks if the foetus suffers abnormalities;
- Permitting abortion within the first 12 weeks solely on the request of the woman, and between 12-24 weeks, if deemed necessary, for the medical practitioner to keep in mind the mental and physical health of the woman and the foetus;
- Permitting abortion in cases of single women if it can be shown that the pregnancy was unplanned.
The amendments once enacted will strengthen the law enabling all women, and not just married women, to have easier access to the option of medically terminating the pregnancy without having to resort to other alternatives which carry higher risks and long term health concerns. Apart from incorporating the proposed amendments, there is also a need to revise the law regulating abortions to shift emphasis on the bodily autonomy and health of a woman and the foetus, without any restrictions of time, as was recently done by the Supreme Court in the case of a rape victim.