GENDER

GENDER


According to the report entitled "The Law and Son Preference in India: A Reality Check" by Advocate Kirti Singh, United Nations, November, 2013 (please click here to download):

• Indian laws that ban child marriages, pre-natal sex selection tests and dowries are poorly implemented. There are laws existing in India that exclude daughters and widows from inheriting land. There are some Indian laws that promote a preference for sons over daughters.

• Women’s economic position is adverse as neither Indian law nor Government policy view their work within the home as productive work having economic value. Time Use studies by the Central Statistical Organisation provide evidence of the enormous amount of time spent by women in carrying out household activities. Non-recognition of household work and ‘care’ work reinforces gender discrimination and inequality.

• A study by Ministry of Women and Child Development (GoI) titled "Study on Child Abuse: India (2007)" shows that: a. A majority of the girls (70.57%) reported neglect of one form or the other by family members; b. Almost half the girls (48.4%) said that they sometimes wished they were a boy. This perhaps indicated “the overall gender discrimination” they faced; c. A majority of the girls (70.38%) reported doing more household work like cleaning/ dusting of the house and drawing of water compared to their brothers; d. Almost 49 per cent of the girls reported that they had to take care of their younger siblings; e. The overall percentage of girls who reported getting less food than their brothers was 27.33 per cent. In the states of Uttar Pradesh, Gujarat and Bihar, however, the reported percentages were 69.04 percent, 67.83 percent and 65.63 percent, respectively; and f. girls reported getting less attention than their brothers; that brothers dominated while playing and that they often teased their sisters but the parents did not listen to their daughters or take their side. Girls also reported not being appreciated and being scolded by parents for no ostensible reason.

• As a result of gender discrimination, India has a low child sex ratio (CSR), defined as number of girls for every 1000 boys in the 0-6 age group. The 2011 Census figure of CSR of 919 is lower than the CSR of 927 in 2001.

• The increase in violence against girls and women is apparent from the 2011 National Crime Records Bureau (NCRB) data, which has shown 31.02 percent increase in crimes against women since 2005. The National Crime Records Bureau (NCRB) statistics have shown that rape accounts for around 10.6 per cent of the total number of crimes against women. What is alarming is that girls under age 14 years constituted 10.6 percent of the victims, teenage girls between 14 and 18 years of age constituted 19 percent of victims while 54.7 per cent were young women in the age-group 18-30 years. The offenders were known to the victims in 94 per cent of the cases. The number of molestation cases reported in 2011 was 42,968, while there were 8,570 cases of sexual harassment (widely known as ‘eve teasing’). Crimes against women have in fact been escalating by 9.2 per cent every year on an average.

• Since its inception, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), meant to address gender biased sex selection, has not been effectively implemented or enforced by either the central or state governments. In some states the Act did not get notified till very recently. In one case of violation, action could not be initiated as notification of the Act had negligently not been published in the gazette. It has been found that a number of clinics, counselling centres and laboratories do not maintain proper registers and records as specified under the PCPNDT rules. The case law under the PCPNDT Act shows that sometimes the Appropriate Authorities (AAs) are deliberately negligent in performing their functions. An amendment to the Act should be considered so that the AA can be held accountable under Section 25 for dereliction of duty.

• Dowry-related crimes continue to increase at an alarming rate in India and currently account for 42 percent of all crimes against women. Important and far reaching changes were made in the Dowry Prohibition Act (DPA) in 1981, 1983 and 1986. In addition, the offences of ‘Cruelty’ to women and ‘Dowry death’ were introduced in the IPC and certain important changes made in the Evidence Act. However, due to the lack of implementation of the law, its effectiveness remains poor, despite the fact that after these changes were introduced, a large number of cases started getting filed under all these provisions. Police inaction and bias in cases of dowry have resulted in a low conviction rate and allowed dowry takers to function with impunity as stated earlier. In many instances, the police do not even register an FIR as they are bound to do in law. They do not investigate the cases properly, they routinely fail to gather important evidence, and they do not take statements of victims and other witnesses in time even if they are not consciously subverting a case. It is therefore critical that the DPA be implemented by appointment of Dowry Prohibition Officer (DPOs), at the district level in every state.

• A study titled “Separated and Divorced Women in India, Economic Rights and Entitlements” by Kirti Singh of 405 separated and divorced women has revealed that an overwhelming majority, that is, 71.4 per cent returned to their natal homes on separation. The study also revealed that 85.6 per cent of those who had children had to look after these children after separation. Another finding of the study was that only 18.5 per cent of the women asked for divorce. This reiterates the assertion by many groups working with separated women that in India very few women ask for divorce because of financial and social insecurity.

• India has signed and ratified the Convention on the Rights of the Child (hereafter CRC) but has not taken adequate steps to implement the various Parts and Articles of the Convention, or to enact legislation in accordance with the Convention except in some areas.

• Marital rape is still not recognised in the law and only sexual assault of girls below the age of 15 years within marriage is considered a crime under the Indian Penal Code (IPC). The recent amendments introduced by the Criminal Law Amendment Bill, 2013, has raised the age of consent for sexual acts from 16 to 18. This will result in criminalizing consensual sex even between young persons and incarceration of young boys. The Act to punish sexual violence against children also defines children as all persons below 18 and thus punishes sexual intercourse below this age. Both these changes in the law fail to recognise the existing social realities in which young people, including those below 18, may engage in sexual activity.

• Since there is still no community of property law in India between a husband and a wife and the non-financial and financial contributions of a woman to a household are not recognized, there is urgent need to enact a standalone comprehensive legislation in this area.

• While the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) law is fairly comprehensive, it can be counter-productive for the woman if the section which seeks to punish a woman for making a malicious complaint is not deleted. This is not only against the Vishakha guidelines but will also stop women from making complaints, fearing possible allegations against them.

• Recently the Hindu Adoption and Maintenance Act, 1956 was amended to give equal rights of adoption to married women. The Guardianship and Wards Act was also amended to stop courts from appointing guardians if the mother was alive. Earlier, the courts could not appoint guardians only if the father was alive. However, Hindu women have still not been made equal guardians of their children as, under the Hindu Minority and Guardianship Act, the father has been named as the natural guardian of a child.

• Child marriage is not invalid even if it is performed in infancy or at any point in time before the girl reaches age 18. Prevention of Child Marriage Act, 2006 stipulates that child marriage is prohibited by the law but only prescribes punishment for the person who performs the marriage and those who are responsible for it, “promote” it, “permit” it to take place or “negligently fail to prevent” it. The 2006 amendments to the law increased the quantum of punishment that could be awarded but still did not make the marriage void ab initio.

• Under the Act, the minimum age for marriage for a boy is 21 years whereas for a girl it is 18. The reasons for this distinction are unclear. It is suggested that the minimum age for marriage for both the girl and the boy should be the same.

• Customary laws, like the Chota Nagpur Tenancy Act, 1908 in Jharkhand and other customary laws applicable in the states of Odisha, Bihar and the north-eastern states should be closely examined and amended to remove the discriminatory provisions regarding inheritance by daughters. Some laws, regarding grant of land by the government, also contain discriminatory provisions such as the provisions relating to allotment of land under the Rajasthan Colonisation (Allotment and Sale of Government Land in the Rajasthan Canal Colony Area) Rules, 1975 which state that  only an adult ‘son’ would be eligible for allotment of land.

• The two-child norm and the laws and measures to effectuate this norm have widely been recognised to be against basic human rights and the rights of the most vulnerable and the weaker sections of society, including women. It has also been widely reported by social activists and studies that the two-child norm advances son preference and daughter aversion as most people, if they are forced to have a small family, automatically prefer sons to daughters.

• The Population Policy of Madhya Pradesh links the provision of rural development schemes, income generating schemes for women, and poverty alleviation programmes as a whole, to performance in family planning. Both Rajasthan and Maharashtra make “adherence to a two child norm” a service condition for state government employees. A similar policy exists in Andhra Pradesh, linking construction of schools, other public works and funding for rural development schemes to achievement of family planning goals.

• Most critically, the cash incentive schemes for promotion of the girl child need to be reviewed as some of these schemes limit the benefits of the scheme up to two girl children leading to ambiguity in understanding the intent of the scheme. Further, some of the schemes also provide incentives at the time of marriage and support marriage expenses. This is obviously counter-productive to the purpose of preventing discrimination as it further fuels the perception that daughters are a liability.

 


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