MEMORANDUM FOR A GENDER JUST LEGISLATIVE AGENDA
12 March 2007
The Honorable Prime Minister
Shri Manmohan Singh
Government of India
Dear Shri Manmohan Singhji,
In the course of the twenty-five years of struggle by the All India Democratic Women's Association for gender equality, the agenda for gender just laws has been a significant component of our multidimensional campaigns. Our legal interventions have been based on the needs and concerns of women of different sections of our society. Several important reforms in women related laws have been made in a positive response to women’s movements.
However there are still many crucial legislations and amendments to pending laws which are essential to promote and strengthen gender justice and equality. In the area of family law for instance Indian women are still not equal guardians of their children and do not have a right to the assets acquired by the marital home. As workers they do not have laws which ensure them proper working conditions including in the unorganized sector. The criminal law, in so far as it deals with women, is also archaic and completely inadequate. Sexual offences against women need to be redefined in several particulars and the criminal procedure and laws of evidence need to be made more women sensitive. In particular the change in law and procedure for cases of child sexual abuse is most urgent and requires immediate action.
On this occasion of AIDWA’s 25th Anniversary, we highlight our demands for gender just laws and reiterate our commitment to struggle for women’s interests in the legislative arena.
BILLS THAT ARE REQUIRED TO BE PASSED URGENTLY
1. Women's Reservation Bill guaranteeing 33 per cent reservation for women in Parliament and State Legislative Assemblies:
- We demand that the process of consultation be expedited and that the Bill be introduced in the next session of parliament.
2. A Comprehensive Bill to address Rape and sexual assault:
- AIDWA has redrafted the Criminal Law Amendment Bill which re-models the laws relating to rape and sexual assault and makes them more inclusive and comprehensive. The amendments are based on the 172nd Report of the Law Commission on India which suggested necessary amendments to the law relating to rape, molestation and eve-teasing, etc. in the IPC, CRPC, and the Indian Evidence Act. The Amendment Bill was widely distributed and discussed and was recommended and sent to the Government by the National Commission for Women in 2005. The Home Minister had given an assurance that a bill will be introduced based on these recommendations but this has still not been done.
- These amendments are necessary as the definition of rape does not address forced oral and anal penetration, or penetration by objects or parts of the body which often occur in the case of child rape amongst others. This redefinition would be in accordance with international legal standards, including the definition by the International Criminal Tribunal for the former Yugoslavia (ICTY).
- Child sexual abuse of various kinds urgently needs to be defined.
- Various forms of sexual assault like incest and protracted sexual assault and offences like stalking are not even recognized or defined in the IPC.
- The offence of molesting a minor or inviting counseling or inciting a minor to touch with a sexual purpose has been defined as a separate offence and a higher punishment has been imposed for this. The Bill in fact redefines molestation as unlawful sexual contact and does away with the patriarchal provision in Sec. 354 IPC which punishes sexual assault only if it is with the intention of outraging the modesty of a woman. Similarly the offence of eve-teasing has also been redefined.
- The Bill also suggests various procedural amendments relating to police investigation, medical examination, videotaping of evidence and giving of evidence in a women sensitive court environment. Apart from this, changes in the Evidence Act to allow for a proper interpretation of a child’s evidence have also been suggested.
3. A Bill for Marital Property Rights for Women
- It is a shame that after almost six decades of independence, Indian wives have no right to the assets acquired by the parties during marriage. There is no recognition of the contribution which is normally made in the household by a wife/partner. A law stipulating that Indian wives are joint owners of all the immovable and movable assets acquired by either party to the marriage during the period that the parties have lived together, is an urgent necessity. At present a wife only has a right to maintenance/alimony and a right to residence in a situation of domestic violence. Consequently women, even years after marriage, have no right to claim even a piece of furniture in the marital home unless she can show that she has paid for it.
4. Bill for Protection Against Sexual Harassment of women
- Though a draft legislation has been formulated by the NCW and the ministry of Law and Justice, this still has to be formalized and introduced in parliament
- Even while cases of sexual harassment of women at workplaces increase, the central government has failed to backup the Vishaka judgment with appropriate legislation. Consequently the refusal of private institutions and even public institutions to implement the Vishaka guidelines cannot be proceeded against.
- It is essential that this legislation be introduced after consultation with organizations of workers and women so that a law which will benefit all sections and classes can be introduced and implemented on the ground.
5. Unorganised Sector Workers Bill
- The absence of legislation for the unorganised sector has led to a denial of social security for a very large section of poor women. The demand for a comprehensive Bill for unorganised workers, including agricultural workers and for home-based workers have been pending before the government for a long while, and in spite of an assurance in the CMP, this has not yet been implemented. This has led to denial of support for a large section of poor women, who fall within these categories.
BILLS THAT NEED URGENT REDRESSAL
1. Micro Financial Sector Development and Regulation Bill 2007:
- This Bill seeks to regulate the micro finance sector but has exempted Non banking financial Institutions, and Non profit section 25 companies from the scope of regulation.
- In its current form, the Bill will put the Self Help Groups (SHGS), a large number of which comprise of poor women, at the mercy of profiteers.
- There is no cap on interest rates being charged by MFIs. In fact the Bill states that the market should determine the rates of interest, and no ceiling should be placed. This is extremely detrimental to the interests of women.
2. Communal Violence (Prevention, Control and Rehabilitation of Victims Bill, 2005:
- This Bill does not introduce any new rules of evidence and procedure including those relating to witness and victim protection, thus making it impossible for fleeing victims to file charges.
- Though this is meant to be a criminal law, it does not create any substantive clauses to address the specific nature of crimes perpetrated during communal violence, especially the extreme forms of violence like gang rape, sexual violence, etc. perpetrated on women. It is pertinent to mention that the need for a change in the definition of rape law in the Indian Penal Code is crucial to this Bill also. In times of communal violence women’s private parts are penetrated and violated in a variety of ways by objects, weapons, etc. In fact the International Criminal Tribunal for Rwanda has defined rape in extremely broad terms, as being “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”
3. A New Law for Trafficking in Women and Children:
- It is shame that in spite of the increasing incidents of cross-border trafficking, India has still not introduced a separate law for trafficking in women and children.
- While the UN Protocol covers trafficking for purposes other than prostitution, Indian law does not address the other kinds of trafficking such as “other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
- We recommend that trafficking in persons for other purposes should also be addressed by a suitable legislation. Trafficking in children should be treated as a separate and more severe offence.
We feel that the legislations and amendments that we have recommended should be immediately introduced by the government and passed by parliament so that women can have better access to equality and justice, which they urgently require.
Subhashini Ali Brinda Karat Sudha Sundararaman Kirti Singh
(President) (Vice President) (General Secretary) (Legal Convenor)