SEM 6

UNIT 1: GENDER BASED VIOLENCE

A. DOMESTIC VIOLENCE : VIOLENCE AGAINST WOMEN AND

TRANSPERSONS

INTRODUCTION:

Violence in its multiple forms is an inescapable and all pervasive constituent of most women’s
existence. They either have a first hand experience of it or live in conscious or sub-conscious
sphere of it. Women face specific forms of violence that includes rape, sexual abuse, witch hunting,
sati, dowry, wife beating etc. Different forms of violence are different means of eliminating women
and excluding them from equal participation in the public sphere. It is a reflection of an exploitative
society based on inequalities of caste, class and gender. Violence plays a major role in keeping
women suppressed and economically exploited. The economic dependence of women and their
lack of access over property makes them weak in standing up and challenging the violence and
power structures that exploit them in society.

VIOLENCE WITHIN HOMES:

Violence within homes is a global phenomenon that cuts across culture, religion class and
ethnicity. Hierarchical gender relations perpetuated through gender socialization and socio-
economic inequalities are the root cause of violence against women. Powerlessness within the
home as well as constraining social and economic factors provides few options to women outside
marriage and is associated with high levels of abuse.

Domestic violence is one of the most common forms of violence. It involves individuals who have
a continuing inter-personal relationship that leads to repeated violence. Theoretically, the feminist
perspective explains violence towards women using the concept of power and coercion (force).
Gender-power relations are maintained through patriarchal expectations regarding the roles for
men and women in intimate relationships.

GIRL CHILD ABUSE-

The family and the bond between members in the family have always been glorified in Indian life
and culture. Violence and abuse within homes is an issue that challenges the cultural notion of a

1
safe home and protective family. Girl child abuse within the home includes sexual or aggressive
beatings as well as forceful work from children who should be in school or at play. Children are
victims of abuse of physical, psychological and emotional nature. Research conducted on child
abuse have shown that almost 80% of victims of physical abuse and a large percentage of rapes
are of girl children in the ages of 10 to 16 yrs. These figures are indicated of sexual vulnerability
(unprotected) of girl child in and around homes & also the social environment that encourage her
violation. Those committing the crimes are mostly immediate neighbors & relatives. Many cases
go unreported, surrounded by secrecy and shame. This attitude of the society increases the problem
of sexual violence. Girl child abuse can be differentiated into the 4 categories - physical abuse,
emotional abuse, neglect and sexual abuse. From not providing required environment for health
and growth combined with physical torture, mental trauma to sexual ill treatment of a child, girl
child abuse is a major problem.

It is also seen that within the household girls too are seen as physically & mentally weak. The
dominant ideology which restricts girls & women to definite roles & obligations leads to their
devaluation & discrimination in many areas. The basic assumption is that girls are inferior,
physical & mentally weak & sexually vulnerable. The girl’s right to share in the resources such as
healthcare, nutrition, education & material assets as well as parental interest & attention is limited.

Even though Indian has a high economic growth of almost 10%, many girls remain
undernourished. According to NFHS-3, 48 % of children under the age of five are stunted due to
chronic under nutrition, with 70 % being endemic.

The nutrition situation of children is largely due to the situation of women. NFHS-3 indicates that
36 % of Indian women are chronically undernourished and 55 per cent are anemic. Recent data
form Bihar and Madhya Pradesh shows that girls represent up to 68 %of the children admitted to
programmes for the severely malnourished.

Child under nutrition is very much a matter of gender for three main reasons:

1. It affects women more than it affects men due to the specific nutrition needs of women
during adolescence, pregnancy, and lactation;

2
 2. Widespread nutrition deprivation among women perpetuates an inter-generational cycle of
nutrition deprivation in children. Undernourished girls grow up to become undernourished
women who give birth to a new generation of undernourished children;

3. Women are given the responsibility – but often not the means – to ensure best nutrition for
their children. A recent study in Andhra Pradesh shows that women with higher autonomy
(both financial and physical, for example – the freedom to go to the market) are less likely to
have stunted children.

WIFE BEATING-

Even though incidences of violence against women in society are being recognized, silence is
maintained with regards to violence at home. An increasing number of women are killed or driven
to suicides in cases of domestic violence. An important reason for this is a patriarchal ideology
that sanctions such behaviors. There are a number of reasons that lead to wife beating & battering.
Anything & everything is used as a justification for severely beating up women. The most
frequently stated causes for wife beating was jealousy, not doing the household work properly,
unfaithfulness, not bringing enough dowry, alcoholism & money matters.

Alcohol is often blamed for violence by men. However, most women argue that this merely
provides men with a convenient & acceptable reason & may not necessarily be a direct cause of
violence. Dowry is also used as a justification for violence. Madhu Kishwar, a feminist writer feels
that oppression of wives due to rising consumerism & dowry is also an excuse for using violence.
In patriarchal societies based on private property & male inheritance, a woman is considered not
only a husband’s property but also as a vehicle for producing male children. If a woman’s loyalty
& purity is in doubt, her husband’s absolute rights over his possession gets violated and therefore
there is violence. However adultery in males is glorified.

Women as victims of violence have been subjected to severe physical & mental torture. Their self
worth & confidence is crushed. The community & neighborhood offers no support. The police &
administration uphold the structures of violence.

Wife beating has health social legal &economic consequences survey based studies have indicated
that 35-75% women in India face verbal, physical or sexual violence from their part or other men
known to them. Majority of women irrespective of their socio-economic backgrounds accept

3
power differentials based on sex & hence believe that men have a right to discipline them. Most
women do not ask for help from the violence that they suffer from & very few approach social
service organizations. The major causes of violence are the husband suspecting his wife of being
unfaithful, dowry, showing disrespect to in-laws, neglecting the house or children, not cooking
food properly. The NFHS (National family health Survey) indicates that among men and women
a greater proportion of those who were illiterate, poor, young & those in rural areas, who were
divorced or deserted, justified wife beating. This shows that when women failed to observe
accepted norms of behavior in their married homes they face violence. The societal norms, men’s
idea of self-esteem, their perception of women influenced husband’s behavior. Husbands exercised
control over their wives by clearly indicating how they should behave. Talking to other male
members that includes cousins, neighbors or male friends invokes jealousy that justifies wife
beating; as it questions the woman’s character. Women who are beaten or physically abused
justified their husband behaviour to rationalize the treatment towards themselves. The experience
of violence & controlling behavior by husbands lowers women’s self esteem, make them fearful
& lowers their ability to fulfill daily tasks to the satisfaction of other family members. Economic
empowerment & education of women also does not make women seek help [N F H S 3 survey].

There are certain myths about domestic violence that rationalize & justify wife beating:

1] Myth: Violence is a private family matter.

Fact: It is not a family problem but a crime.
2] Myth: The violence is not serious.
Fact: Domestic violence involves pushing, slapping, punching & is not a one-time
occurrence. It can have serious effects leading to injury.
3] Myth: Victims provoke their partner to commit violence.
Fact: Victims are not to be blamed for their partner’s violence. Whatever problem
exists in relationships the use of violence is never justified.
4] Myth: Domestic violence doesn’t happen in my neighborhood.
Fact: Domestic violence happens in all areas & is universal.

MARITAL RAPE-

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of
force, or physical violence, or when she is unable to give consent. Marital rape could be by the use

4
of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent
perversion by a husband against the wife where she is physically and sexually abused.

The Indian Penal Code (IPC) does not even categorize ‘marital rape‘or ‘forced sex by husband’ as
a cognizable offence. Many married women have no choice but to surrender to their husbands’
sexual whims.

Advocate Geeta Menon says, “In India, marital rape happens only if the couple is legally separated
and the husband still has forced sex with the wife. Else, there is nothing called marital rape. Also,
there is no provision in the IPC to seek action against the husband for forced sex.”

But the absence of law does not mean that rapes don’t happen within marriages. Advocates dealing
with family matters admit to receiving several briefs where women complain of being forced to
have sex by their husbands notwithstanding their psychological and physical state. Sex without
consent is at most addressed as an issue of cruelty in a marriage.

There is no family or legal support for Indian women when it comes to marital rape. They just
have to suffer it silently.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in
England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath
given herself in kind unto the husband, whom she cannot retract.”

Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an
absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation.
The revolution started with women activists in America raising their voices in the 1970s for
elimination of marital rape exemption clause and extension of guarantee of equal protection to
women.

In the present day, studies indicate that between 10 and 14% of married women are raped by their
husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered
women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed.
Women who became prime targets for marital rape are those who attempt to flee.

Marital rape is not an offence in India. Despite amendments, law commissions and new
legislations, one of the most humiliating and debilitating acts is not an offence in India.
5
Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic
sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the
wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for
rape.

According to the section, the rapist should be punished with imprisonment of either description
for a term which shall not be less than 7 years but which may extend to life or for a term extending
up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not
under 12 years of age, in which case, he shall be punished with imprisonment of either description
for a term which may extend to 2 years with fine or with both.

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of
rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12
to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once,
the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of
human rights regulations.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker.
Sex has been treated as obligatory in a marriage and also taboo. At least the discussion openly of
it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women
still is an undeniably important factor for being heard and respected. With the women being fed
the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even
counseling remains inaccessible.

Legislators use results of research studies as an excuse against making marital rape an offence,
which indicates that many survivors of marital rape, report flash back, sexual dysfunction,
emotional pain, even years out of the violence and worse, they sometimes continue living with the
abuser.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been
criticized by Indian and international women’s and children organizations, who insist that
including oral sex, sodomy and penetration by foreign objects within the meaning of rape would
not have been inconsistent with any constitutional provisions, natural justice or equity. Even
international law now says that rape may be accepted an s the “sexual penetration, not just penal
penetration, but also threatening, forceful, coercive use of force against the victim, or the
6
penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of
Violence against Women includes marital rape explicitly in the definition of violence against
women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the
criminal, the benefit of doubt.

Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect
themselves against “perverse sexual conduct by the husband”. However both the judiciary and
executive are silent on what is perversion, no definition has been provided.

Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil
remedies to what the provision of cruelty already gave criminal remedies, while keeping the status
of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act,
amongst other things in the definition of domestic violence, has included any act causing harm,
injury, anything endangering health, life, etc., … mental, physical, or sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life

threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It is
about the fundamental design of the marital institution that despite being married, she retains and
individual status, where she doesn’t need to concede to every physical overture even though it is
only be her husband. Honour and dignity remains with an individual, irrespective of marital status.

Section 122 of the Indian Evidence Act prevents communication during marriage from being
disclosed in court except when one married partner is being persecuted for an offence against the
other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless
it is a prosecution for battery, or some related physical or mental abuse under the provision of
cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the
DVA and IPC will be a nearly impossible task.

7
VIOLENCE AGAINST TRANSPERSONS

Transgender people over four times more likely than cisgender people to be victims of violent crime

Transgender people are over four times more likely than cisgender people to experience

violent victimization, including rape, sexual assault, and aggravated or simple assault,

according to a new study by the Williams Institute at UCLA School of Law. In add ition,

households with a transgender person had higher rates of property victimization than

cisgender households.

Researchers analyzed pooled data from the 2017 and 2018 National Crime Victimization

Survey, the first comprehensive and nationally representative criminal victimization data to

include information on the gender identity and sex assigned at birth of respon dents.

Results showed that both transgender women and men had higher rates of violent

victimization than their cisgender counterparts, but there were no differences between

transgender men and women.

“The media has rightly given attention to the 2020 increase in murders of transgender

women of color,” said lead author Andrew R. Flores, Affiliated Scholar at the Williams

Institute. “Our study shows that both transgender women and men are also highly vul nerable

to non-fatal physical and material victimization.”

Key Findings

8
• Transgender people (16+) are victimized over four times more often than cisgender people.

In 2017-2018, transgender people experienced 86.2 victimizations per 1,000 people

compared to 21.7 victimizations per 1,000 people for cisgender people.

• Transgender women and men had higher rates of violent victimization (86.1 and 107.5 per

1,000 people, respectively) than cisgender women and men (23.7 and 19.8 per 1,000 people,

respectively).

• One in four transgender women who were victimized thought the incident was a hate crime

compared to less than one in ten cisgender women.

• In 2017-2018, transgender households had higher rates of property victimization (214.1 per

1,000 households) than cisgender households (108 per 1,000 households).

• About half of all violent victimizations were not reported to police. Transgender people

were as likely as cisgender people to report violence to police.

“Research has shown that experiences of victimization are related to low well-being,

including suicide thoughts and attempts,” said study author Ilan H. Meyer, Distinguished

Senior Scholar of Public Policy at the Williams Institute. “The results underscore the urgent

need for effective policies and interventions that consider high rates of victimization

experienced by transgender people.”

While talking with The Logical Indian, a Bengaluru-based transgender activist, Rakshitha

Mallikarjuna, said, "The transgender people are still facing a lot of issues and challenges in

society as violence is everywhere. It keeps on increasing by neighbours and police. Transgender

people are also not treated the right way at workplaces because we are given employment

opportunities based on sympathy and empathy." What Is The Way Ahead? The increasing

9
violence against trans persons signifies the need for social acceptance or co-existence.

Mallikarjuna said, "To tackle the rising violence, awareness is the most crucial part. What we set

for the younger generation shapes the way they think about gender, respect and human rights.

We should start conversations about gender roles early on and challenge the traditional features

and characteristics assigned to transgender people. She added, "Point out the stereotypes children

constantly encounter, whether in the media, on the street or at the school, and let them know that

it's fine to be different. Encourage a culture of acceptance."

B. WOMEN IN SITUATION OF CONFLICT: COMMUNAL CONFLICT, CASTE

VIOLENCE

GENDER AND COMMUNAL CONFLICT:

When riots occur in cities, women are victims, participants and peace makers. These multiple roles
emerged particularly clearly during the communal conflicts in India in the 1990’s. Women’s roles
during communal conflicts are defined not just by their identities as women or as members of a
religious community but by their class and their residential location in the city. Women in middle
class localities might identify themselves as Hindus or Muslims. Better off women are pre-
occupied with preserving their space and identity and get provoked to act only if these are disturbed
or threatened. The 1992-93 riots in Mumbai happened in the wealthier parts of the city. However,
women living as pavement dwellers think of themselves first as disadvantaged pavement dwellers
and then as members of a caste or religious group. During the riots some came forward to help in
relief work but the majority responded with fear.

It is also women’s economic location in the city in terms of where they live in the city, determines
their response during conflict. Living at subsistence level, access to resources is primary concern
10
and hence identity becomes secondary. In the fight over scarce resources sometimes dividing lines
are based on religion or caste. These divides among the urban poor are accidental, which are
exploited and built upon when politics gets communalized. During riots women understand the
need for peace between communities because it is closely linked to their struggle for daily survival.
A significant reason why some areas remain peaceful despite provocation and a mixed
neighbourhood is the presence of women who had organized the community during times of peace.
Women pavement dwellers who had created saving and credit groups in their settlements or social
workers in settled slums took the lead in relief work and peacemaking efforts after the riots.

The plight of poor women living in slums and being caught in a communal conflict is tragic. They
might not always be a target of attack, but they suffer from consequences of violence in specific
ways. Many of them are home based workers or domestics. Loss of wages cut into their capacity
to survive in the city. Curfew affects their daily livelihood and their ability to find food for their
families. When there is a communal riot women lose everything in a flash. They lose their lives,
livelihood, property, familiar surroundings and their culture. Women also lose faith in fellow
human beings. They begin to identify long standing friends and neighbours as Hindus, Muslims
or Christians, etc. and start doubting them.

During riots important questions to be raised are:

1. What has been the role of women in riots?

2. Have they participated to been victims of riots?
3. Do they think of themselves primarily as women or is their identity tied up with the
community, caste or religious group?
4. What is their role as peacemakers?

Kalpana Sharma’s study of poor women in Mumbai during communal conflicts between Hindus
and Muslims during 1992-93 riots throws up several issues.

First it is wrong to assume that women are always helpless in times of conflict. They are often
willing participants and are prepared to respond with violence if they are attacked. But they act out
of on instinct to protect their families particularly sons & husbands. Even if some of them are
active outside the home, inside the family they acknowledge the role of the man. Often women
stepped out because of the husband’s instructions to go out & confront the police. On the other
hand, women also become victims of violence. The sexual violence perpetuated against women
11
was unimaginable in riots. In the Godhra riots of 2002 even a 20 day old fetus in the womb of its
mother was not spared. Many women were killed after being raped and mutilated.

Second, poor women understand more store readily the need for peace between communities
because any disruption can mean no relief for the family. Whether it is the police or a political
group, poor women are prepared to negotiate for peace as it is a question of survival.

Third, communities hold together in times of conflict if they have united earlier in times of peace
to tackle common concerns. Women leaders play a crucial role in maintaining peace & restoring
it. In many localities during riots that either remained calm or got back to normal soon, the key
participants were local women. Poor women understand more readily the need for peace between
communities because disruption has direct impact on their daily survival.

Finally, an investment in the processes that strengthen a community’s ability to negotiate with the
state for its rights and entitlements and empowers women to be at the forefront of such efforts,
contributes in the long run to a stable and more peaceful environment.

CASTE AND GENDER VIOLENCE:

The caste question and the women's question are interrelated. The social relations of caste and
gender are based on the exercise of power through the use of force.

Dalit /Scheduled caste (SC) women, in India’s highly patriarchal and caste-based society, bear the
triple burden of caste, class, and gender. Being positioned at the lowest social order of Indian
society, Scheduled caste women suffer from many forms of discrimination, including lack of
education, economic disadvantages, social disempowerment, domestic violence, political
invisibility and sexual oppression. She faces oppression from state and non-state actors of different
genders, castes and socio-economic groupings.

SC women are the most vulnerable and face untouchability, discrimination and violence much
more than their male counterparts. Being a Dalit woman, abuse is used to remind her of her caste
and keep her oppressed. On an average, about 1000 cases of sexual exploitation of Dalit women
are reported annually and in the year 2001 alone, 1316 cases of rape was reported (NCRB, 2001).
12
Untouchability and social exclusion being faced by the Dalit community, takes shape of an
institutionalized system in some places in context to Dalit women, called ‘Devadasi’s’. Under
Devadasi system, a scheduled caste family dedicates/marry its young daughter to the village
goddess, and when the girl reaches puberty she becomes an available sexual partner for the priest
and all upper caste men in the village. While the upper caste devadasis officiate at religious
ceremonies and festivities the scheduled caste devadasis are indispensable to a funeral procession.

Dalit women also face violence when they try to access rights and entitlements provided by the
constitution and the government. In addition to facing discrimination and untouchability in
accessing welfare schemes, women from Dalit community also faces sexual and other kinds of
physical violence. In spite of the space (reservation) given to them at panchayat (village) level
their participation is dismal in the local governance. Dalit women face direct impediments right
from the time of filing nominations right up to announcement of the election results, including:
caste and sexually-based verbal abuse; harassment, threats or physical assaults; property
destruction; restrictions on freedom of movement; and illegal and fraudulent voting practices.

A series of recent incidents from Haryana illustrates the major threat of violence faced by Dalit
women. The violent nexus of caste and patriarchy has once again raised its hood in the form of
increasing sexual violence against Dalit women in Haryana, where in the month of September 17,
2012 cases of alleged rapes have been registered; among them a teenage girl committed suicide
after being raped, by setting herself on fire, and another victim’s father killed himself after he was
shown a video of his daughter being raped. In October, in the 15th incident of sexual assault on
women in Haryana, a pregnant Dalit woman was allegedly abducted and raped by two youths in
Kalyat area of the district .On October 18th, it was on the news the murder of a Dalit woman who
sought justice for her minor daughter, a victim of gang rape by local men of a dominant caste, in
Karnal (Haryana).

There are two main factors that perpetuate atrocities against Scheduled Caste women:

13
1. Scheduled Caste women are intentionally victimized by upper castes because they lack the social
position to stand up for their rights individually and because assaulting or raping them reinforces
the subordination of the whole SC community to upper castes.

Victims, their families and other activists assert that the harm inflicted by a rape goes far beyond
the physical and emotional trauma for the victim. Because rape diminishes a woman's purity - an
important quality to maintain in these communities - rape also attacks men in their role as
'protector' of the purity of their sisters, wives and mothers. The end result is a situation where Dalit
women are humiliated to be "used and thrown away," while Dalit men stand by powerless to do
anything about it, a humiliation for them as well. In this way, men, women and their communities
are injured by a rape, and intentionally subordinated by the perpetrators.

Take the incident (1991) in a small village in Nalgoanda district, a Golla caste agricultural labourer
suspected to have helped Golla boy escape with a Reddy girl was beaten up by Reddy and was
paraded naked through the village streets. No one intervened or came to her rescue. Women went
indoors and men shut their eyes. They were told openly ‘Open your eyes. Are there no men
amongst you?' This insult is double edged. On the one hand gender is defined by the capacity to
aggress and appropriate the other. On the other hand the lower caste man could only cover his eyes
because the structure of relations in caste society castrates him through the expropriation of his
women. To add insult to injury visitors who flocked to the village on hearing of the incident self—
righteously asked the men if they had lost their moustaches and whether there were no males left
in the village. A case was registered on the initiative of the agencies of the state, the district
collector and the police officials.

2. Scheduled Caste women do not know their rights and are too powerless individually to hold the
Judiciary and the Executive accountable for enforcing protective laws.
The police and courts would only reluctantly help an SC woman who had been raped, if they
helped at all. The victims and their families reported that the police and judges were generally
from upper caste backgrounds and biased in favour of their own caste.

Dalit women are also raped as a form of retaliation. Women of scheduled castes and scheduled
tribes are raped as part of an effort by upper-caste leaders to suppress movements to demand

14
payment of minimum wages, to settle sharecropping disputes, or to reclaim lost land. They are
raped by members of the upper caste, by landlords, and by the police in pursuit of their male
relatives.

A case in Tamil Nadu where the Dalit leader demanded higher wages was raped and killed by
upper caste landlords. At one of the public meetings organised to protest against this incident, a
Dalit political leader is reported to have said 'What will happen if Dalit men shall all marry upper
caste women?' This led to great tension and violence and caste riots all over the state with the lives
of all dalits thrown at risk. The Dalit woman-can claim no such privilege since she can and has
been expropriated by the upper caste men, as a matter of their right.

The provocation for the upper caste men who raped the Dalit leader was twofold:
First, in demanding higher wages, she (and others with her) was clearly overstepping the limits of
her caste status which was defined by passivity and submissiveness. Second, in making a public
demand she was overstepping her limits and asserting herself in a gendered space- in this sense
caste functions within a rigidly gendered space.

Attacks on Dalit women during massacres, police raids, and caste clashes are very common. Dalit
women are easy targets for any perpetrator because upper castes consider them to be “sexually
available” and because they are largely unprotected by the state machinery. The Bathani Tola
massacre in Bihar in 1996 epitomizes this phenomenon.

The “landlords” wanted to reassert their feudal tyranny over the poor who have started becoming
more vocal and by attacking the most vulnerable, women and children; they sent a clear message
that they would not allow anyone to disturb the social structure... Women were raped and hacked.
The huts and small houses in which the victims took shelter were burnt down. The shrill cries
failed to draw the attention of the police posted a kilometre and a half away because their food
came from the landlords’ houses.

Most of the times conflicts occur because of upward mobility of the dalits especially in education
and also because they have made inroads into the upper levels of political parties resented by the

15
upper castes. This upward mobility has changed the structure of relationships between upper and
lower castes.

The social relations of caste and gender are based on the exercise of power through the use of
force. This power could have many dimensions: it can be simple and direct in its assertion; it can
be complex in not permitting the space for the raising of issues outside the parameters it creates.
Today the absolute exercise of power that denies articulation of grievance has weakened and
therefore violence has increased as dalits refuse to accept status quo.

The response of state administrations to incidents of caste violence amounts to a failure to ensure
equal protection under the law and exposes a pattern of complicity and collusion on behalf of
police and local officials. Despite ambitious calls for action by central and state governments in
the aftermath publicity of massacres and police raids, the Indian authorities have shown little
commitment to resolving the root causes of caste conflicts. In Bihar, Tamil Nadu, and other states
where massacres and large-scale police attacks on Dalits in rural and urban settings continue to
take place, state administrations should act swiftly and without bias to bring offending state and
private actors to justice.

C. VIOLENCE IN VIRTUAL SPACES: TWITTER AND FACEBOOK MISOGYNY

AND TROLLING

INTRODUCTION-

Abuse directed at visible and audible women demonstrates that cyberspace, once heralded as a
new, democratic, public sphere, suffers similar gender inequalities as the offline world. Since the
recognition of online hate and abuse, scholars has sought to define, explain and understand this
growing phenomenon. Problematically, extant research has tended to treat online abuse as separate
from ‘real-world’ experiences. However, reviewing the online abuse directed at women and,
particularly, those engaged in feminist debate online reveals three important and related points.
First, there is a glaring lack of gendered analysis of a phenomenon that is frequently gendered.
Second, the focus on online abuse as a form of communication overlooks commonalities with other

16
forms of Violence Against Women and Girls (VAWG). Third, accounts from recipients of online
abuse which would reveal the experience and impacts of it are not considered.

PERSPECTIVE ON ONLINE ABUSE-

Firstly, research has rarely foregrounded a gendered analysis of these aggressive communications.
While some refer to the sexualized or sexist nature of the content, many scholars have not
acknowledged—let alone prioritized—this aspect. In mitigation, the sexualized and sexist nature
of abusive communications need not always be the focus. Indeed, given the diversity of terms for
the phenomenon being investigated—‘flaming’ , ‘trolling’, ‘provocation’ , ‘invective’, ‘cyber
hate’ and ‘hate speech’, and ‘gendered vitriol’ -there is a need to set parameters around the
phenomenon. However, for an investigation of gendered online abuse against women and girls, it
is important to move beyond a focus on definitions and a tendency to group together diverse forms
of hostile communication, without acknowledging specific features of misogynistic
communication that require distinctive classification and explanation. O’Sullivan and Flanagin
(2003: 80) begin to move away from this monolithic approach. They offer the ‘interactional norm
cube’ to identify ‘the possible combinations of message interpretations, as a function of various
message sender/receiver and third-party viewpoints, and as informed by normative cues’. This
highlights that flaming is varied, contextual and relational, distinguishes it from other forms of
harassment and hate speech, and provides a platform for understanding sexualized and
misogynistic abuse.

Twitter and Facebook are a social media platform used by hundreds of millions of people around
the world to debate, network and share information with each other. From high-level female
politicians to journalists, activists, writers and bloggers, to women who simply want to know
what’s happening around them - Twitter can be a powerful tool for women to make connections
and express themselves. In fact, the company has touted itself as a place where ‘every voice has
the power to impact the world’. While Facebook helps to connect with family and friends and like
minded people.

But for many women, Twitter is a platform where violence and abuse against them flourishes,
often with little accountability. As a company, Twitter is failing in its responsibility to respect
women’s rights online by inadequately investigating and responding to reports of violence and
abuse in a transparent manner.
17
The violence and abuse many women experience on Twitter has a detrimental effect on their right
to express themselves equally, freely and without fear. Instead of strengthening women’s voices,
the violence and abuse many women experience on the platform leads women to self-censor what
they post, limit their interactions, and even drives women off Twitter completely.

At a watershed moment when women around the world are using their collective power to speak
out and amplify their voices through social media platforms, Twitter’s failure to adequately respect
human rights and effectively tackle violence and abuse on the platform means that instead of
women using their voices ‘to impact the world’, many women are instead being pushed backwards
to a culture of silence.

Trolling is often enacted against women and minority groups on social media platforms, such as
Twitter and Facebook as well as other medium of social network, as a means of limiting or
undermining participation in virtual space(s).

Trolling is a form of gendered and symbolic violence. Drawing on an analysis of British national
newspaper reports focusing on cases of trolling, we demonstrate that trolling can be viewed as a
‘silencing strategy’. Trolling leaves its victims in a powerless position as freedom of expression
for perpetrators is defended via social media ideologies. The initial promise of social media – to
provide democratizing spaces – in practice creates space for the percolation of misogynist, sexist,
racist, and/or homophobic attitudes.

Misogyny has found a new platform. The barrage of trolls subjecting women to online abuse is a
new menace which has reared its head in the aftermath of the social media explosion. An incident
of online abuse is never a single incident. It is a form of violence against women which is recurring
in nature.

Not only that, the faceless trolls revel in the apathetic policing on the online space, where the focus
area is on cyber-terrorism, and online abuse takes a backseat. The provisions of the Information
Technology Act, 2000 (IT Act) and the Indian Penal Code, 1860 (IPC) notwithstanding, the
solution is not purely legal but requires a closer look. For this, I decided to talk to some of the
prominent women intellectuals and political activists on social media who have faced online abuse.

18
"The solution here should be a political solution and not just a purely legal one. When women are
tagged on sexual posts online, the abusers intend to discredit their character. The violence against
women are in the forms of sexual harassment and of a sexual nature done by organised right-wing
groups," said Kavita Krishnan, member of All India Progressive Women's Association (AIPWA)
and an academic who has endured a fair share of online abuse on Twitter and other platforms.

Prominent women like Rana Ayyub, Kavita Krishnan and Kiruba Munusamy have also been
targeted by trolls for airing their own personal or political views on social media. The appalling
rap sheet includes circulating fake news about the individual to defame them, morphing pictures,
circulation of pornographic photographs, the creation of fake websites, sexually abusive language
etc.

By the book, Section 67 of the IT Act provides for the punishment of persons who publish or
transmit any material which is lascivious in nature or appeals to the prurient interest and tends to
deprave and corrupt the character and nature of the targeted persons. Yet, the question remains,
how far are these legal provisions being implemented today?

An individual subjected to online abuse and trolling has legal recourse under the provisions of the
IT Act such as Identity Theft (Section 66C), Impersonation (Section 66D) and Voyeurism (Section
66E). After the 2013 Amendments to the Indian Penal Code, 1860, several provisions have been
brought in which seek to address the problem of Violence Against Women(VAW) post-Nirbhaya.

A raft of changes was made especially under Section 354, where Section 354A was inserted which
protects a woman from sexual harassment and anyone outraging the same though sexually
coloured remarks, lewd comments and comments and abusive language can be punished with
imprisonment and a fine. Not only this, the provisions for online stalking (Section 354D) and acts
of voyeurism (Section 354C) were also brought about.

As was existing before the 2013 amendment, Section 509 IPC also makes a person liable if he
insults the modesty of a woman through words, sounds, gestures and Section 499 of the IPC
protects a woman's reputation from being defamed online. Any form of criminal intimidation
online is also covered under the IPC under Section 503 and 507. Such is the theoretical protection
afforded by the law. But what is the ground reality?

19
Munusamy, a practicing lawyer in the Supreme Court, has been especially targeted online by right-
wing groups for being a Dalit. Terms thrown at Dalit activists such as "black", which are
specifically targeting the Dalit community are the order of the day on Facebook and Twitter.

The same was ignored by Twitter with the defence that the abusive incident did not
violate community standards" as per their company's policy. Therefore, it can be seen that there is
a distinct lack of commitment to stop online abuse on the part of social media platforms.

Incidentally, it can be seen that abusers have a way of targeting women by circumventing the
'community standards' on social media, which are the legal minimum requirements in relation to
acceptable conduct or mannerisms within the community.

In the age of the 'meme-culture' usage of words such as 'vegana' for vagina and 'bobs' for breasts
against women in a "joking" way perpetuates misogyny, and this is exactly why online abuse is
not being taken seriously.

The first recourse for a person facing such abuse is to report the abuse on the social media platforms
– Facebook, Facebook Messenger, Twitter, Instagram, YouTube, WhatsApp and Reddit.
Thereafter, if the abuse persists then one should file a FIR at a police station or approach the State
Cyber Cell Units.

Yet, when women like Munusamy and Krishnan approached the police station to file the
complaint, no action was taken. One can only imagine how haranguing it must be for a woman to
be taken seriously and get a complaint lodged. In fact, this kind of police attitude is the reason for
re-victimisation.

The bias in police service is well known, as with every other report of VAW, they would either
register the complaint, then do nothing about it, or they would turn the victim away and not even
take cognizance of the same. When Krishnan approached Facebook administrators for help
regarding abuse she faced, they did take down the pages and posts, but the original link of the fake
news had already been widely circulated across multiple mediums on the internet and had already
caused massive loss to her reputation.

20
The damage caused to a person online is unquantifiable. The element of political violence on a
woman is highly prevalent in India as you have a shadow army of right-wing trollers, ready to take
down a woman through sexual posts and abusive content.

This stems from resentment and patriarchal mindsets where women voicing political opinions that
are not in tune with the dispensation of the day are to be shut down and maligned.

In one such instance, a Twitter handle, posted an image of Ayyub with the following tweet: "Minor
child rapists are also human, do they have no human rights? This Hindutva government is bringing
an ordinance for death to child rapists just to hang Muslims in larger numbers. Muslims aren't safe
in India anymore".

For outspoken women like Ayyub, the courage it takes to live with fake tweets and fake posts
online is enormous as they must be allowed to exercise their free speech right which has the status
of a fundamental right in the precincts of our Constitution.

CONCLUSION-

"The change required is for human beings to take responsibility regarding the way they are
responding and to start recognising the politically organised phenomenon. New laws will not help,
the only solution is a political fix. The second people stop having tolerance for this sort of culture,
is the first step for online abuse to be tackled," said Krishnan.

Apart from women being wrongfully targeted online for the colour of their skin, their political
opinions and their religion, there are numerous unreported incidents of online abuse in India. Many
are unaware that 'online abuse' exists or even recognize the same as a problem requiring
sensitization and media coverage.

21
 UNIT II GENDER AND LAW
a) Protection of Women from Domestic Violence Act, (PWDVA 2005) DOMESTIC
VIOLENCE ACT-

INTRODUCTION-

Violence is an act of aggression, usually in interpersonal interactions or relations. It may also

aggression of an individual woman against herself, such as, suicide, self-mutilation, negligence of
ailments, sex determination tests, food denial and so on. Violence is not limited to one group. It is
a shocking revelation that violence begins within the family. The woman who does not accept the
traditional role of submissiveness and subordination needs to be ‘advised’ as ‘taxed’ into accepting
this position, and any means including violence is justified in achieving this good.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA), provides civil remedies
to women who are subjected to domestic violence. The law since its enactment has been severely
criticised in different quarters for being gendered in scope, i e, the protection is granted only to
women and is against the concept of equality enshrined in the Constitution. The law was envisaged
to bridge the gap in the then existing legal structure and also to provide immediate relief to women
who were subjected to violence. Although the constitutional validity of the same has been upheld
repeatedly by various high courts, it is important to realise that this law presumes and demands an
understanding of the history and the need for the law which perhaps the functionaries envisioned
in the law are not sensitive to.

The one issue that has influence feminists more than any others is that or violence against woman.
Violence against women is often seen as an assault against her body, but more importantly it is a
negation of her integrity and personhood. On 8th March 1984, an autonomous women’s group
across the country celebrated International Women’s Day. An examination of their reports showed
a growing concern over dowry deaths, abuse of amniocentesis test, rare, prostitution, sexual
harassment and wife beating. The struggle against the violence is thus the struggle against the
unequal distribution of power both physical and economic between the sexes.

22
What does Domestic Violence mean?
• It can be termed as Domestic violence in case it harms or injures or endangers the health,
safety, life, or well-being, whether mental or physical, of the aggrieved person or tends to do
so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse.
• The Act recognizes domestic violence as a human rights violation.
• It recognises a woman’s right to live in a violence-free home.
• To realize this right, the Act recognises a woman’s right to residence and her right to obtain
protection orders under the law.

Types of Domestic Violence

Under this Act, domestic violence includes the following:

1. Physical abuse – It means any act or conduct which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health or impair the health or development of the
aggrieved person and includes assault, criminal intimidation and criminal force.
2. Sexual abuse – It includes any conduct of a sexual nature that abuses, humiliates, degrades
or otherwise violates the dignity of a woman.
3. Verbal and emotional abuse – It includes
• Insults, ridicule, humiliation, name-calling and insults or ridicule specially with regard
to not having a child or a male child; and
• Repeated threats to cause physical pain to any person in whom the aggrieved
person is interested.
4. Economic abuse – It includes activities such as not providing money for maintaining the
woman or her children, not providing food, clothes, medicines, etc., deprivation of all or any
economic or financial resources, forcing the woman out of the house, preventing from
accessing or using any part of the house, preventing or obstructing one from carrying on
employment, etc.,

Salient Features of Protection of Women from Domestic Violence

Act, 2005 (PWDVA)
• Recognising that a woman requires assistance with legal procedures and other forms of
support, the PWDVA allows for the appointment of Protection Officers, and recognises the
role of Service Providers in providing medical, shelter, legal, counselling and other kinds of
support services.

• This act provides only temporary and emergency relief.

• It is a law in response to the needs of the woman.
• It has certain crossovers from civil to criminal law – so when the protection order or
Magistrate’s order is violated, the criminal law will start.
• The shelter homes and the medical facility are under a legal obligation to provide shelter or
medical facility to the aggrieved person.
• The Act does not make any changes in the existing personal law regime on family matters.

23
 • The reliefs under the Act are in addition to existing laws and have been recognised with the
objective of empowering a woman to tide over an emergency situation.
• Having obtained relief under the law, a woman can still go for relief under other laws later.
• The Act includes provisions for making Domestic Incident Reports, which will serve as
important records at the stage of evidence taking.
• The manner in which the applications for orders under the Act have also been mentioned in
the Act.
• Finally, the Act provides that the breach of an order obtained is a criminal offence.

Role of Government
The Central Government and every State Government, shall take all measures to ensure that:

• The provisions of this Act are given wide publicity through public media including television,
radio and print media at regular intervals.
• The Central Government and State Government officers, including the police officers and the
members of the judicial services, are given periodic sensitisation and awareness training on
the issue addressed by this Act.
• Effective coordination between the services provided by concerned Ministries and
Departments dealing with law, home affairs including law and order, health and human
resources to address issues of domestic violence are established and periodical review of
the same is conducted.
• Protocols for the various Ministries concerned with the delivery of services to women under
this Act, including the courts, are prepared and put in place
• CONCLUSION
• Domestic violence needs a coordinated and systemic response from the justice system.
While Sec 498A has been one of the most significant criminal law reforms protecting
women’s Rights, this reform is not enough. Ultimately we need to remember that criminal
law is indeed a blunt tool, as it is very difficult to change police culture; though the law
may consider domestic violence against women as an offence, the police may still not
comply with the law and not implement it effectively. Therefore, in order to move towards
an effective working of Sec 498A and other criminal law remedies, it is crucial that we put
in place a new model of policing – the victim empowerment. In addition to stepping up
measures for better policing it is imperative to have a civil law which addresses domestic
violence.

24
 b) SEXUAL HARASSMENT OF WOMEN (PREVENTION , PROHIBITIONAND
REDRESSAL) at WORKPLACE ACT (POSH ACT, 2013)

SEXUAL HARASSMENT OF WOMEN AT THE WORKPLACE -

BACKGROUND STUDY :
During the 1990s, Rajasthan state government employee Bhanwari Devi who tried to prevent child
marriage as part of her duties as a worker of the Women Development Programme was raped by
the landlords of the community. The feudal patriarchs who were enraged by her (in their words:
"a lowly woman from a poor and potter community") 'guts' decided to teach her a lesson and raped
her repeatedly. The rape survivor did not get justice from Rajasthan High Court and the rapists
were allowed to go free. This enraged a women's rights group called Vishaka that filed a public
interest litigation in the Supreme Court of India.

In 1997, the Supreme Court passed a landmark judgment in the same Vishaka case laying down
guidelines to be followed by establishments in dealing with complaints about sexual harassment.
The guidelines accord formal, legal recognition of sexual harassment at the workplace as a
violation of human right.
And as an aspect of gender-based violence, and comprehensively defined the range of behaviours
that constitute sexual harassment

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, came into force from December 9 2013. The act was formed on the basis of the guidelines
laid down by the Supreme Court in its landmark judgment, Vishakha v. State of Rajasthan (where
sexual harassment was first defined) but is much wider in scope now.

According to the Supreme Court order, sexual harassment is one or more of the following actions.
• Physical contact or advances
• Demands or requests for sexual favours
• Sexually coloured remarks including sexist jokes.
• Display of pornography including photos, videos, emails, images etc.
• Any other physical, verbal or non-verbal conduct of a sexual nature which is unwanted.

25
Under the new act the following circumstances amongst others constitute may also constitute as
forms of sexual harassment,
• implied or explicit promise of preferential/detrimental treatment at the workplace,
• implied or explicit threat about her present or future employment status,
• interference with her work and/or creating an intimidating or offensive or hostile work
environment for her, and
• humiliating treatment likely to affect her health or safety.

The Act will ensure that women are protected against sexual harassment at all work places, be it
public or private, organised sector or even the unorganised sector, regardless of their age and status
of employment. The act also covers students in schools and colleges, patients in hospital as well
as a woman working in a dwelling place or a house.

The Act creates a mechanism for redressal of complaints and safeguards against false or malicious
charges. Under the act, employers who employ 10 employers or more and local authorities will
have to set up grievance committees to investigate all complaints. Employers who fail to comply
will be punished with a fine that may extend to Rs. 50,000. If, however, they still fail to form a
Committee, they can be held liable for a greater fine. Every employer with a business or enterprise
having more than 10 workers will have to constitute a committee known as ‘Internal Complaints
Committee’(ICC) to look into all complaints of sexual harassment at the workplace. Further, in
every district, a public official called the District Officer will constitute a committee known as the
‘Local Complaints Committee’ (LCC) to receive complaints against establishments where there is
no Internal Complaints Committee or there being a complaint against the employer himself. This
committee would further handle all complaints of sexual harassment in the domestic sphere as well
as those coming from the unorganized Sector.

Key Obligations of the Employer-

1. Constitution of the Internal Complaints Committee
Every employer, with more than 10 employees, shall constitute an ‘Internal Complaints
Committee’ at the workplace and wherein the offices or administrative units of workplace are
located at different places, he will, constitute a committee in all such offices and administrative
units.

26
Membership of the Internal Complaints Committee
It will consist of the following members (to be nominated by the employer):
• A Presiding Officer who shall be a woman employed at a senior level at the workplace, unless
there is no senior women employee at the office or any other administrative unit. In that case the
Presiding Officer shall be nominated from any other workplace of the same employer or other
department or organisation.
• At least 2 members from amongst the employees either committed to cause of women or who
have experience in social work or have legal knowledge.
• One member from a Non-Governmental organisation or association committed to the cause of
women and familiar with the issues relating to sexual harassment. This member shall not be part
of the employer’s enterprise. Provided that one-half of the total members must be women.

The details of the complaints are confidential and if any member of the Committee, be it the
Presiding Officer, discloses any details of the same to the media or press or makes it public in any
way, will be liable for immediate disqualification from the Committee. Further, if any member has
been convicted or accused of any offence under any law, has been found guilty in any disciplinary
proceeding/has a disciplinary proceeding pending against him as per any law or has abused his
position in any manner, he/she shall be removed from the Committee.

The Act includes guidelines making it mandatory for every employer to provide a mechanism to
redress grievances pertaining to workplace sexual harassment and enforces the right to gender
equality of working women. This Act has been enacted with the objective of providing women
protection against sexual harassment at the workplace and for the prevention and redressal of
complaints of sexual harassment.

The Sexual Harassment Act makes it mandatory for all employers in India to organize workshops
and awareness programs at regular intervals for sensitizing employees on the issues and
implications of workplace sexual harassment and organizing orientation programs for members of
the Internal Complaints Committee. For all establishments having less than 10 workers, or for a
COMPLAINT AGAINST HER EMPLOYER, the aggrieved woman will approach the Local
Complaints Committee which is a body to check instances of sexual harassment at the district

27
level. Every complaint must be given in writing to the Internal Complaint Committee within a
period of 3months, from the date of the incident. An extension of a period 3 months can be granted
to the woman if she, due to certain circumstances, is unable to file the complaint or is prevented
from doing so. If however, she is unable to lodge the complaint due to physical or mental
incapacity or death; her legal heirs may do so.

2. Preparation of an Annual Report by the employer

The act casts a duty on employers to include information pertaining to the number of cases filed
and disposed of by them in their Annual Report.

Procedure followed by Complaint Committee to resolve a complaint-

The following are the guidelines that need to be followed by the members of the ICC:
• When the ICC receives a complaint, it must seek to resolve the issue by way of conciliation if
the complainant so wishes. However, no monetary settlement can be the basis of the conciliation.
If there is a settlement, a report must be sent by Committee, to the employer to take action in
accordance with the recommendations of the Committee.

• If however no conciliation can be met with, the ICC must start an inquiry into the complaint. All
inquiries must be completed within 90 days. However, in case of a domestic worker, the LCC must
transfer the complaint to the police, within 7 days of the complaint, for registering the case under
section 509, or any other relevant section, of the Indian Penal Code, if according to them a prima
facie case exists.

• For the purposes of making an inquiry, the ICC shall has similar powers as a civil court – it can
summon and enforce attendance of any person, examine him on oath, order production of
documents, etc.

• During the pendency of the inquiry interim relief may be granted to the aggrieved woman. The
ICC may recommend the employer to-
• Transfer the aggrieved woman or the respondent to any other workplace.
• Grant leaves to the aggrieved woman up to a period of 3 months.

28
 • Grant such other relief as may be prescribed.
• On completion of the inquiry, the committee must submit its recommendations to the
employer, within10 days. The employer must act on those recommendations within 60 days
in accordance with the conclusions of the inquiry.

Actions that can be taken by the employer after inquiry; if the respondent is found not guilty, the
inquiry will end. If, however, his guilt is proven, then the employer must:

• Deduct from the salary or wages of the person who has engaged in sexual harassment, an
appropriate sum which can be paid to the aggrieved woman (or to her legal heirs).

• Take action for sexual harassment as misconduct in accordance with the service rules
applicable to the respondent (in case of a government agency). In case of private
organizations, the employer can take such actions as may be prescribed – currently, no
rules have been framed explaining the actions that the employer can take.

FALSE AND MALICIOUS COMPLAINTS-

What can be done if a woman has filed a false complaint of sexual harassment against a colleague,
a senior or a junior employee? If the ICC or LCC is of the view that a malicious or false complaint
has been made, it may recommend that a penalty be levied on the complainant in accordance with
applicable service rules. However, an inquiry must be made in order to establish malicious intent.
Also, mere inability to substantiate a complaint will not attract action under this provision.

CONSEQUENCES OF NON-COMPLIANCE WITH THE ACT-

Employers who fail to comply will be punished with a fine that may extend to Rs. 50,000.If any
employer who has been convicted earlier of an offence subsequently commits a repeat offence he
will be liable for twice the punishment, which may have been imposed on a first conviction.
Further, his license for carrying on business may even be cancelled.

Identifying sexual harassment is not enough, a woman needs to fight it, openly or discreetly, and
she has to move on. Handling sexual harassment is a very tricky and a delicate matter. If the

29
offender is a senior, any action against him can jeopardize the woman’s career. Before taking any
step it is necessary to know in detail what the legal procedures would be. The victim has to be
prepared for fighting the harassment because it can be quite painful and tormenting.

c) The Transgender Persons (Protection of Rights) Act of 2019

30
Definition of a transgender person:

• The Bill defines a transgender person as one whose gender does not match
the gender assigned at birth.
• It includes trans-men and trans-women, persons with intersex variations, gender-
queers, and persons with socio-cultural identities, such as kinnar and hijra

Prohibition against discrimination:

• The Bill prohibits the discrimination against a transgender person,

including denial of service or unfair treatment in relation to:
• education;
• employment;
• healthcare;
• access to, or enjoyment of goods, facilities, opportunities available to the public;
• right to movement;
• right to reside, rent, or otherwise occupy property;
• opportunity to hold public or private office; and
• access to a government or private establishment in whose care or custody a
transgender person is.

Right of residence:

• Every transgender person shall have a right to reside and be included in the
household.

Employment:

• No government or private entity can discriminate against a transgender

person in employment matters, including recruitment, and promotion.
• Every establishment is required to designate a person to be a complaint
officer to deal with complaints in relation to the Act.

Education:

• Educational institutions funded or recognised by the relevant government shall

provide inclusive education, sports and recreational facilities for transgender
persons, without discrimination.

Health care:

• The government must take steps to provide health facilities to transgender

persons including separate HIV surveillance centres, and sex reassignment
surgeries.

Certificate of identity for a transgender person:

31
 • A transgender person may make an application to the District Magistrate for
a certificate of identity, indicating the gender as ‘transgender’.

Welfare measures by the government:

The Bill states that the relevant government will take measures to ensure the full
inclusion and participation of transgender persons in society.

It must also take steps for their rescue and rehabilitation, vocational training and
self-employment, etc.

National Council for Transgender persons (NCT):

• The Council will advise the central government as well as monitor the
impact of policies, legislation and projects with respect to transgender
persons.
• It will also redress the grievances of transgender persons

o The Bill also seeks to provide rights of health facilities to

transgender persons including separate HIV surveillance
centres, and sex reassignment surgeries.
o It also states that the government shall review medical
curriculum to address health issues of transgender persons, and
provide comprehensive medical insurance schemes for them.
▪ It calls for establishing a National Council for Transgender
persons (NCT).
▪ Punishment: It states that the offences against transgender persons
will attract imprisonment between six months and two years, in
addition to a fine.
Concerns
▪ The Bill does not have any provision for self-determination of
gender. The transgender community has questioned the certificate
of identity.
▪ It fails to address the lack of an effective mechanism to enforce the
legal prohibition against discrimination on the ground of gender
identity.

32
▪ It does not make provision for affirmative action in employment or
education despite the Supreme Court’s mandate in National Legal
Services Authority NALSA v. Union of India (UOI) case (2014).
▪ The Bill sets out lighter sentences for several criminal offences, such
as “sexual abuse" and “physical abuse", when they are committed
against transgender people.

33