Woman’s Rights Over Her Body- A Critical and Comparative Analysis

The article 'Woman’s Rights Over Her Body- A Critical and Comparative Analysis' by Saakshi Singh Rawat analyzes that although India has legal amendments and regulations designed to protect woman's bodily rights, the research finds that there are significant differences in the execution and monitoring of these laws. The analysis highlights the challenges and limitations women face in India and the United States when seeking safety and justice after experiencing physical exploitation.

Women's autonomy over their bodies has been a contentious topic of debate for many years. This research uses a comparative approach to examine commonalities and distinctions in the legal systems of the two countries. It examines the constitutional guarantees, statutory protections, and judicial decisions of both countries as they relate to woman's authority over their bodies.

The author's emphasis is on human rights, particularly the right to defend their bodies, which should be protected and promoted in all contexts. In the end, suggestions are made for reforming legal frameworks and strengthening the protection of women's rights over their bodies, aimed at policymakers, MPs, and civil community organisations in India.

Overview of Women's Rights and Bodily Autonomy in India

1.1. Analysis of Women's Bodily Autonomy in India, and Concepts Related to Sexual Violence

Bodily autonomy is a phrase used to describe the entitlement of women to exercise action over the way they look, encompassing the power to make decisions regarding reproductive health, sexuality, and general physical welfare. In India, there currently exists a significant amount of discourse and deliberation surrounding the issue of women's bodily autonomy in the past few years. This is due to the prevalence of numerous instances of bias and abuse against women, particularly in their hormonal health and entitlements.

The Indian Constitution, which came into effect in 1950, protects several basic liberties, counting the rights to life and privacy and to freely express oneself. Articles 14 through 32 of the Indian Constitution provide basic protections for all residents. All people, regardless of race, religion, caste, or sexual orientation, should be afforded the same protections under the law.

The provision of Article 21 of the Constitution is of great importance for the bodily freedom of women, as it guarantees their right to life and dignity. Our Indian judiciary has interpreted the aforesaid Article to include both the entitlement to bodily autonomy and the entitlement to confidentiality.

The SCI, in the notable case of K.S. Puttaswamy v. Union of India, recognized that the right to privacy is a part of the fundamental right as per Article 21. The judiciary further ruled that this privilege encompasses the liberty to make autonomous decisions concerning one's physical being. Indian Constitution includes Article 15, which prohibits prejudice based on gender, as a significant aspect concerning the physical autonomy of women. This particular clause has been employed as a means of contesting laws and practices that are discriminatory towards women, particularly in the areas of education, employment, and property rights.

The Concept of Sexual Violence

Sexual violence refers to the intentional utilization of sexual acts as a means of demonstrating dominance and causing physical and emotional harm to another individual. Sexual violence can be characterized as any form of violence, whether bodily or mental perpetrated using sexual methods or by directing aggression towards an individual's sexuality. Sexual violence refers to the range of forced and mental attacks that target a person’s sexual characteristics. Instances of sexual violence may unavoidably entail direct physical interaction between the offender and the affected party. Rather, acts of sexual abuse may manifest in the form of persuasion disappointment, or danger.

The usage of the word 'sexual violence' is for instance employed synonymously with 'gender violence.' However, the broad definition of sexual violence may obscure the distinctively sexual nature of the violence and the associated distress. Conversely, a definition that is overly limiting and only considers explicit acts of physical aggression may prove inadequate in conveying the extensive breadth and magnitude of the issue. Sexual violence should be perceived as a spectrum that encompasses both subtle or less severe manifestations, such as sexual harassment in the workplace, and more severe forms, such as female genital mutilation, rape, trafficking, and coerced prostitution, among others.

Sexual violence is a potent tool of control in patriarchal societies, causing significant harm and limitations to women's lives. It also catalyzes both solo and in-group resistance among women, thereby perpetuating the existing gender disparity, subordination of women, and power dynamics. Sexual violence is a pervasive phenomenon that establishes itself in various domains of human existence. It is sustained by the community, sanctioned by the state, and even the private scope of the home is not immune to its presence.

As per Gladys Acosta's perspective, each conflict inflicts agony upon us. Battles, in particular, highlight the most devastating potential of mankind. However, there exists an additional battle. Women are subject to an imperceptible struggle within the boundaries of their homes, where some flourish whereas other women don't.

Forms of Sexual Violence

1) Direct Violence - rape, molestation, forced into prostitution, female genital mutilation, etc.

2) Indirect Violence - harmful, deadly situations, cause of human inference, no direct relationship between the victims and institutions or persons responsible for their situation. child marriage and arranged at times no choice in marriage.

3) Repressive Violence - for suppressing movements of women in certain cases, e.g. rape or sexual abuse, targeting, Dalit women, mass rape during International or internal armed conflicts.

4) Separating feelings of violence or intellectual depriving growth, women of cultural, marital rape, strict dress codes for regulations of female sexuality.

Sexual Violence Occurring in the Family

Throughout history, the familial unit has come to be widely recognized as a haven among people seeking solace and security, serving as a secluded abode where tranquillity and concord prevail. On the contrary, the family unit may serve as a breeding ground for violence against women who are victimized by domestic abuse. Female minors are forced to submit to genital mutilation, compelled to adhere to a rigorous dress code, and coerced into engaging in commercial sex work, and sexual abuse within the familial context. The phenomenon of domestic abuse is frequently obscured by notions of intimacy and the private sphere, as the belief that the preservation of family unity is paramount impedes numerous women from seeking external aid.

Female Genital Mutilations

Female Genital Mutilation (FGM) is a cultural custom that is strongly embedded in certain cultures. Additionally, it has been documented in nations located in Asia. According to estimates, over 135 million females have gone through FGM, and approximately 2 million girls face the risk of undergoing this practice annually.

It is also known as Female Circumcision, which entails the surgical excision of a portion or all of a woman's extremely delicate female genital organs. The perpetuation of a centuries-old ritual in various communities worldwide is primarily attributed to its customary nature. FGM is a customary practice that is incorporated into certain tribes' rituals of passage, which celebrate the transition of a young girl into womanhood.

The practice of FGM is purported to serve the purpose of regulating a woman's sexuality, with the added benefit of ensuring her sexual purity before marriage and promoting her chastity thereafter. The practice of mutilation exhibits regional variation in terms of the young age at which it is carried out. FGM is a cultural practice that is performed on female infants as young as a few days old, as well as on girls between the ages of 7 and 10, and adolescents. This practice is commonly executed on individuals within the age range of 4 to 8 years, predominantly children. The methods and types of mutilation exhibit variations across different nations and ethnic groups. Female genital mutilation (FGM) can be categorized into four types:

1. The circumcision procedure also referred to as the excision of the inner foreskin or clitoral hood, is commonly known as sunna in Muslim nations.

2. The term "excision" refers to the surgical removal of the clitoris and either all or a portion of the "labia minora".

3. Infibulation is a form of FGM that involves the cutting of the clitoris, labia minora, and 2/3rd of the labia majora. After that vulva is closed by suturing the two sides together using silk or catgut sutures, or thorns, allowing a tiny gap for the flow of urine or blood from menstruation. The aforementioned 'operations' are performed utilizing specialized cutting tools such as knives, razor blades, scissors, or fragments of glass and stone.

4. The term "intermediate" refers to a type of female genital mutilation that includes the elimination of the clitoris and some or all of the labia minora. In certain cases, excision of portions of the labia majora may be performed.

The surgical procedures are often conducted in unhygienic surroundings, and the instruments employed are rudimentary and non-aseptic. The essential implements utilized in this craft comprise a culinary blade, a straight-edged cutting tool, a shard of glass, and in some instances, a keenly honed fingernail. The duration of the surgery may vary between 10 to 20 minutes, contingent upon its severity. The potential consequences of infections include both local and systemic manifestations, such as abscesses, ulcers, delayed wound healing, septicemia, tetanus, gangrene, significant pain, and haemorrhage that may result in shock, bladder or rectal injury, damage to other organs, or fatality.

The enduring ramifications encompass urinary retention, culminating in recurrent urinary infections; hindrance of menstruation, resulting in frequent reproductive tract infections and infertility; protracted and obstructed labour leading to the formation of fistulas and urinary incontinence; excruciating pain during intercourse; highly distressing menstruation; and psychological implications such as chronic anxiety and depression.

In 2018, Independent Thought v. Union of India a remarkable decision was passed by the Supreme Court of India. As per our Indian Constitution, the judiciary has established sexual privacy as a fundamental right, and any behaviour violating this right is considered unconstitutional. The court has established that the practice of Female Genital Mutilation/Cutting (FGM/C) is an infraction of the law that is subject to punishment under both the Indian Penal Code (IPC) and POCSO.

Before this verdict, there was no explicit legislation in India that prohibited the practice of FGM/C. The Indian Penal Code (IPC) and POCSO Act stipulate sanctions for offences related to bodily harm, injury, and conspiratorial conduct. The laws can be utilized to commence legal action against individuals who partake in the practice of mutilation/cutting.

In 2021, the Maharashtra State Government took action against female genital mutilation/cutting, thereby becoming the first state in India to do so. The Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition, and Redressal) Act, had been modified to include a provision that prohibits the practice of FGM/C. The amendment includes provisions for imposing penalties on individuals who participate in, support, or facilitate the practice of FGM/C.

Pledging of Girls for Religious Appeasement

It is a custom in Asian cultures to commit young girls to the deities. Traditionally, it is the female's family members who facilitate her provision of amenities at the temple. These services may encompass sexual services, and in some cases, the female may be purchased from her family by rich people to make similar offerings to the deities. The Devdasi system is a prevalent religious and culturally sanctioned practice in India, whereby young girls are dedicated for life to temples by their parents at a tender age. Before reaching puberty, young girls exhibit devotion to a deity or goddess and subsequently engage in temple prostitution, an act which is not deemed a transgression of human rights.

The women referred to as devadasi are recognized as either sex workers or servants of the divine, and they lead a lifestyle characterized by sexual subjugation. The repeated occurrences of pregnancies, abortions, and deliveries have detrimental effects on the health of women who are engaged in the devadasi practice. Individuals experience reproductive tract infections and sexually transmitted diseases due to engaging in sexual activity with multiple partners.

In the case of Sarika Ravindra Pande v. State of Maharashtra emphasis was on the issue of rehabilitating devadasis, which was adjudicated by the court. The court told the Government of Maharashtra to take steps towards the reintegration of devadasis and to prevent their involuntary participation in prostitution. The judiciary has issued a mandate to the governing body to provide monetary assistance to the devadasis to facilitate their educational and vocational pursuits.

The National Human Rights Commission v. State of Karnataka case holds academic importance. The Supreme Court received a petition from the National Human Rights Commission, urging the Karnataka legislature to take necessary steps towards enabling the reintegration of devadasis. The judiciary has issued an order to the state authorities to conduct a thorough investigation to ascertain the number of devadasis in the area, and to establish measures to enable their rehabilitation subsequently. The judiciary has issued a mandate to the governing body to implement measures to increase cognizance regarding the unlawful nature of the devadasi practice.

Abortion

The Medical Termination of Pregnancy (MTP) Act outlines the permissible and restricted circumstances under which abortion may be performed. The aforementioned Act underwent amendments in the years 2002, 2003, and 2014, 2021 to enhance its efficacy and relevance to current contexts and situations. The annual documents on abortion from various organizations, including the Health Management Information System (HMIS), indicate a consistent rise in documented cases of unplanned and provoked abortions.

MTP Amendment Act (2021): It raised the threshold for pregnant women to have an abortion from 20 weeks to 24 weeks.

The courts have demonstrated a praiseworthy approach in their interpretation of the act, exhibiting flexibility on a situational basis and taking into account practical considerations for such matters. Furthermore, a limited number of verdicts acknowledged the psychological distress experienced in specific instances, which could persist and impede the mental well-being of the victim if the abortion is not authorized.

The issue of mental distress remains a contentious topic in various legal domains, including breach of contract cases. However, it is comparatively more straightforward to address instances related to abortion. The aforementioned rulings about this matter raise a conspicuous and consequential inquiry as to whether the populace at large is cognizant of these evolving circumstances. The current status of abortion can be viewed as a topic that is either socially stigmatized or a choice that women have the agency to make, contingent upon legal provisions outlined in the Medical Termination of Pregnancy Act. Upon conducting a meticulous examination of global abortion regulations, it can be argued that the existing laws about abortion are characterized by a progressive and inclusive approach that takes into account the multifaceted factors that must be considered to achieve genuine justice.

Indian judiciary has repeatedly ruled that pregnancies resulting from rape, faulty family planning, or those that may endanger the mother's life or hurt her mental health are valid reasons for seeking the termination of the fetus. In some cases, this may be permitted even after the 20-week gestation period. As a result of these occurrences, numerous legal experts contend that the current abortion regulations in India can be perceived as efficacious, adaptable, and progressive in addressing contemporary circumstances. The judiciary's function in interpreting and presenting the relevant law in the aforementioned context is increasingly recognized.

The new MTP Amendment Act, 2021 permits termination up to 20 weeks for rape survivors and beyond 24 weeks for substantial fetal abnormalities.

The case of Savita Halappanavar garnered global recognition due to its tragic nature. Upon her admission to University Hospital Galway in Ireland on October 21, 2012, Savita, 17 weeks pregnant, reported experiencing severe back pain. The patient was diagnosed with a miscarriage and requested an abortion; however, the medical professionals declined her request citing the detection of a fatal heartbeat.

Savita's health status experienced a rapid decline, ultimately resulting in her passing due to septicaemia on October 28th, 2012. The demise of the individual in question triggered widespread indignation and demonstrations in Ireland and beyond, culminating in a modification of Irish legislation about the termination of pregnancy. The aforementioned case brought attention to the stringent abortion legislation in Ireland during that period, which authorized abortion solely in cases where the mother's life was in jeopardy. After her demise, an official investigation was conducted by the Irish Health Service Executive (HSE), which ascertained inadequacies in the administration of Savita's treatment and concluded that her passing could have been averted.

The demise of Savita serves as a poignant indication of the significance of guaranteeing women's access to lawful and secure abortion facilities, as well as the necessity of medical practitioners being equipped with the requisite knowledge to administer the appropriate care to women who are encountering pregnancy-related complications.

In Mrs X v. Union of India, the SC authorized the termination of a 22-week pregnancy based on the findings of a medical board, which concluded that the woman's physical and mental well-being would be severely compromised if the pregnancy were to continue. The SC's recognition in this case of a woman's right to choose abortion has far-reaching implications. The SC has ruled that a woman's ability to control her reproduction is a fundamental right protected by Art. 21 of the Constitution.

In Murugan Nayakkar v. Union of India & Ors. where termination of pregnancy of a 13-year-old child was allowed when the gestational age was 26 weeks. Several criteria went into the ruling, including the petitioner's age, the severity of the trauma she suffered as a result of the sexual assault, and the pain she is in right now. Additionally, the bench considered the report of the medical institution that was established by the Court.

Marital Rape and Dowry Death

In many countries worldwide, husbands are granted immunity from criminal prosecution for the act of raping their wives. The phenomenon of marital rape has been present throughout the history of marriage. As per the statement made by Lord Mathew Hale, a prominent English lawyer of the 17th century, it is believed that make spouse cannot be held accountable for raping his lawful wife. This is because the wife has voluntarily surrendered herself to her husband through mutual matrimonial consent and contract, which is irrevocable. The issue of marital rape is frequently disregarded by legal systems globally. The legal hesitancy in this regard can be attributed to the cultural perception that wives are regarded as the possessions of their husbands. To be more precise, the notion of a woman being considered the exclusive sexual possession of her husband is an inescapable consequence of patriarchal traditions.

Dowry death is one of the factors of domestic violence prevalent in India, whereby a bride is either killed or compelled to commit committing suicide by her husband or members of his family due to their dissatisfaction with the dowry payment made. Dowry is a customary practice that involves transferring wealth to the groom's family through the trade of monetary gifts, property, or other valuable assets. Although dowry has been prohibited in India since 1961, it remains a prevalent and deeply rooted custom in numerous regions of the country.

The reasons behind dowry-related deaths are diverse and complex and may differ depending on the particular circumstances of each occurrence. Several of the most commonly observed rationales include:

The practice of demanding a substantial dowry by the groom's family could be attributed to greed, to augment their financial status or wealth.

The concept of patriarchy is prevalent in various regions of India, where women are perceived as subordinate to men and are required to exhibit submissiveness towards their husbands and their kin. This may result in a scenario where the bride is subjected to mistreatment or abuse due to her inability to meet the expectations of others.

The practice of dowry is frequently perceived as a means of ensuring a favourable marriage and elevated social standing for the family of the bride, owing to social pressure. Consequently, families may experience a sense of obligation to provide substantial dowries, despite potential financial constraints.

The insufficiency of legal implementation is a prevalent issue in the context of dowry, whereby despite the presence of legal provisions against it, they are frequently inadequately enforced or disregarded. This can potentially foster a culture of impunity among perpetrators of dowry-related violence.

In the case of West Bengal v. Orilal Jaiswal, the SCI established guidelines about the proper investigation and trial procedures for cases involving dowry deaths. This legal precedent is widely regarded as significant.

Orilal Jaiswal, the accused, was charged with homicide in connection with the death of his spouse. The victim passed away due to burn injuries within seven months of their marriage. According to the prosecution, the defendant and his family allegedly solicited additional dowry from the victim's family, who were unable to fulfil the request. This led to mistreatment of the victim and ultimately resulted in her homicide.

The SC's ruling has classified dowry death as a serious social issue that necessitates rigorous measures to eliminate it. The aforementioned declaration emphasized the significance of performing comprehensive inquiries and accumulating substantial proof in analogous occurrences and required that the judicial procedures be executed promptly.

The case of Orilal Jaiswal garnered significant scrutiny regarding the matter of dowry-related fatalities in India, ultimately leading to the enforcement of the Dowry Prohibition Act. This legislation serves to forbid the exchange of dowry within the nation.

Child Marriage

In many underprivileged nations, young girls are often wedded before attaining puberty. One of the contributing factors to the violation of women's human rights is the practice of marrying at a young age. As per the World Health Organization (WHO), a significant proportion of initial childbirths in several impoverished nations are reported to be among females aged below 19 years. The prevalence of child marriages can be attributed to the societal emphasis placed on a young girl's purity and virginity as highly esteemed virtues. The practice of early marriage is believed to preserve a woman's virginity, alleviate the financial burden on her family, and ensure an extended period of reproductive capacity to bear a substantial number of male offspring. The prevalence of child marriages is rooted in customary practices that are influenced by religious and/or patriarchal ideologies.

In India, it is a common practice to arrange marriages for numerous young individuals on auspicious occasions like Akshaya Tritiya. Additionally, there have been instances where weddings are reportedly conducted even before the prospective bride is born. The legal matter of Gaurav Jain v. Union of India culminated in a directive from the Delhi HC for the government to implement aimed at curbing the incidence of child marriages, as well as providing support to underage brides who had already entered into matrimony.

Surrogacy

Surrogacy is a reproductive arrangement in which a woman agrees to gestate and deliver a child for another individual or couple. India emerged as a favoured destination for surrogacy tourism owing to its cost-effectiveness and the convenient accessibility of surrogate mothers. Over time, India's surrogacy laws have undergone various modifications with the objective of regulating the practice and safeguarding the welfare of surrogate mothers.

In 2005, the Indian Council of Medical Research (ICMR) released the initial set of rules for surrogacy in India. Although lacking legal enforceability, the guidelines were commonly adhered to by fertility clinics and surrogacy agencies. Nonetheless, the absence of a legal framework resulted in numerous cases of surrogate mothers being subjected to exploitation and mistreatment.

The Surrogacy (Regulation) Bill, 2019 was successfully ratified in 2019. On August 5th, 2020, the Surrogacy (Regulation) Act, 2020 was enacted after receiving the assent of the President.

The initial modification to the regulations was communicated through an official notice on October 10th, 2022, which is commonly referred to as the 2022 Amendment. According to Rule 5(2), the prospective pair must procure insurance coverage for 36 months, and this coverage must be secured using an affidavit. Previously, it was stipulated that the aforementioned affidavit must be attested using a signed affidavit beforehand by a Metropolitan Magistrate. The 2022 Amendment permits the option of taking an oath before either an Executive Magistrate, in addition to the previously authorized authorities. The 2022 Amendment has provided greater flexibility to prospective couples and streamlined the surrogacy procedure for a more expedient outcome.

The Rules have recently undergone a second amendment, as per the notification dated March 14, 2023. The aforementioned Amendment represents a significant modification to the substantive legal framework, as it prohibits prospective couples from engaging in surrogacy arrangements involving donor gametes. The 2023 Amendment involves the replacement of Para 1(d) in Form 2, which pertains to the Consent of the Surrogate Mother and Agreement for Surrogacy, as stipulated in Rule 7 of the applicable regulations.

Consequently, the 2023 Amendment limits the group of individuals who are qualified to engage in surrogacy arrangements. The eligibility criteria for surrogacy in India include age restrictions, marital status, and medical requirements, as well as the requirement for intending individuals to provide their gametes. Moreover, in the scenario of a widow, it would be necessary to examine to determine whether the term "donor sperm" encompasses the sperm of the deceased spouse.

The Amendment, while providing clarity to a previously ambiguous position, may present challenges for prospective parents seeking surrogacy arrangements who face medical issues with their gametes and necessitate the use of donor gametes for successful conception.

The present state of surrogate mothers in India is characterized by a combination of positive and negative aspects. The newly enacted legislation endeavours to safeguard the entitlements of surrogate mothers; however, apprehensions have been raised regarding the potential emergence of an illicit surrogacy market, where the practice of commercial surrogacy may persist. Altruistic surrogacy has raised concerns regarding the potential exploitation of surrogate mothers, who may not be afforded the same level of legal protection as those in commercial surrogacy arrangements.

The legal case of Baby Manji Yamada v. Union of India is a notable instance of judicial proceedings in India. The present case pertains to a Japanese couple who utilized surrogacy services in India to conceive a child. The commissioning couple underwent divorce childbirth, and subsequently, the surrogate mother declined to relinquish custody of the child to the commissioning father. The SC adjudicated the case and determined that the foremost consideration for the protection of the young one. After that, the court ordered the Indian government to provide the child with citizenship and travel documents to facilitate their journey to Japan.

Sexual Violence Occurring in the Community

The concept of community holds great importance within civil society for women as it shapes their social interactions and imposes certain values that limit their experiences. A woman's social identity is shaped by society in terms of her secular, ethnic, or religious identity. Communities can serve as a locus for regulating and constraining female sexuality. In societies where sexual expression is tightly regulated, the recognition of women's agency and financial autonomy is seldom valued. Females who venture beyond communal boundaries for financial purposes are often viewed as sexually available to males, thereby engaging in promiscuous sexual conduct.

The community presents a complex and intricate landscape of woman’s human rights. Woman's space can serve as a nurturing environment, offering social support and solidarity for specific causes. However, it can also be a site of aggression and brutality towards women. Presented below are some of the prevalent forms of sexual assault that transpire within communities.

Rape

Sexual assault in the form of rape is a prevalent occurrence that transcends geographical and cultural boundaries. It is frequently utilized as a tool of degradation and intimidation against women across all nations and societies. The act of rape constitutes disrupts a woman's intimate and individual body regions, and represents an attack on her fundamental sense of self. Rape is an act of seeking dominance, whereby the perpetrator unleashes feelings of animosity towards the victim, dehumanizing them and often leading to the onset of a "rape crisis syndrome." A study conducted on 42 convicted and incarcerated rapists revealed that the majority of them utilized rape as a means of retribution or discipline. Additionally, these offenders reported experiencing a sense of gratification and increased levels of self-worth as a direct consequence of their actions.

The crime of rape is often underreported due to various factors, including the fear of revictimization within the “justice system”, the lack of belief in the victim's account, shaming and self-blame, and the difficulty of aligning the experience of a person who has suffered with the legal definition of rape. The underreporting component is hindering access to reliable and credible data. The conventional reactions to instances of rape have resulted in a legal framework that exhibits a lack of confidence in the victim. In the majority of countries, rape is defined as the act of sexual penetration of the vagina by the penis. Sexual acts that do not involve vaginal penetration or the use of male genitalia are not classified as rape.

Instances of child rape are particularly disheartening as a result of the underdeveloped state of the sexual organs and reproductive system. Consequently, the method of violence employed is distinct from the typical form of vaginal penetration. The instances of child rape in question do not conform to the stringent, conventional definition of rape, resulting in comparatively lenient penalties for the perpetrator in cases of lesser violations than rape. The actuality is that the maltreatment and distress imposed upon juvenile individuals often lead to a range of intricate medical and psychological complications, which assume significant importance given the approximated data. The criminal justice system often exhibits a lack of empathy towards cases of sexual assault and the suffering endured by individuals who have been victimized by such acts.

The Hathras Gang Rape case is a topic of current interest and concern. In September 2020, a 19-year-old woman belonging to the Dalit community was subjected to gang rape by four individuals belonging to the upper caste in the region of Hathras, located in the state of UP. The decedent succumbed to the injuries inflicted upon them during the assault, a fortnight after the incident. The occurrence prompted widespread indignation and demonstrations throughout the nation, with numerous individuals censuring the administration's management of the matter.

Pawan v. State of Uttarakhand, this case is significant in terms of the legal entitlements of minors and the entitlements of a victim of gang rape. This case law holds greater significance for two reasons. Initially, the esteemed SCI established the test for ascertaining the legitimacy of circumstantial evidence. Furthermore, the Supreme Court has established significant ideologies regarding the admissibility of a plea of juvenility when it is raised before the Hon’ble SC. The court has appropriately determined that the courts cannot accept the plea of juvenility unless the judicial conscience of the court is content.

Marital Rape

Studies in the field of psychology have also established that the mind and body are interconnected. Consequently, sexual activity cannot be viewed as a purely physical act. Therefore, coerced sexual activity must be recognized as a form of mental constraint and torture inflicted upon the non-consenting individual. The Court has stated that in the matter of restitution of conjugal rights, which involves compelling an unwilling party to cohabit, such action contravenes the right to personal dignity as provided by Article 21 of the Indian Constitution.

Section 375, Section 376(l), and Section 376A of the Indian Penal Code (IPC) deal with sexual offences, including rape, but they do not differentiate based on marital status.

In recent times, there has been an increasing demand for the criminalization of marital rape in India. Women's rights groups and activists contend that marital rape constitutes a breach of a woman's essential entitlements to autonomy, dignity, and physical integrity.

The SCI, in the matter of Independent Thought v. Union of India, declared that the exception to the law that permitted physical relation with a minor wife, notwithstanding her age is below 18 years, violated the Constitution. The judiciary noted that engaging in sexual intercourse with an underage spouse constituted a type of sexual assault and that such conduct transgressed the minor's entitlement to personal autonomy, freedom, and self-respect.

Sexual Harassment

It is imperative to comprehend that sexual harassment is situated on the spectrum of sexual violence perpetrated against women. The act in question constitutes a direct affront to the mental and physical well-being of women, inducing a sense of apprehension and transgressing their entitlement to bodily autonomy, education, and unrestricted mobility.

Instances of sexual harassment are commonly observed in public spaces such as streets, places of work, schools, and subways. Over the past decade, two distinct forms of sexual harassment have emerged. The first issue pertains to the phenomenon of eve-teasing and molestation, which is characterized by unsolicited advances and physical contact that occur in public settings. In numerous nations, such as India, the focus is centred on the notion of 'outraging the modesty of a woman', thereby associating this form of sexual harassment with archaic beliefs regarding female sexual ethics.

The second pertains to instances of sexual harassment that occur within professional or academic settings. This is a newly acknowledged ancient phenomenon. Sexual harassment undermines women's economic autonomy by impeding their ability to earn a livelihood, resulting in their expulsion from the workforce or educational institutions. The issue of sexual harassment in the workplace can be classified into two distinct categories. The first category is known as quid pro quo harassment, which involves making employment-related decisions such as hiring, termination, promotion, or compensation based on a hirer's response to inappropriate advances.

This form of harassment involves issues of power, as the employer possesses the ability to influence the employee victim's continued presence within an institution. The second issue pertains to the formation of an adverse work atmosphere, which is alleged to have been caused by the accused. The aforementioned behaviours encompass engaging in conversations about sexual activities, making physical contact with another person without their consent, utilizing derogatory or inappropriate language, displaying indecent gestures, and offering employee benefits to individuals who engage in consensual sexual activity.

The SCI has made a significant ruling in Vishaka & Ors. v. State of Rajasthan & Ors., stating that international conventions and norms should be taken into account when interpreting domestic law, provided that there is no conflict between the two and there exists a gap in the domestic law.

The Hyderabad veterinary rape case occurred in 2019. In November of 2019, a 26-year-old individual who worked in the field of veterinary medicine was forcibly taken, sexually assaulted by a group of individuals, and subsequently killed in the city of Hyderabad. The legal matter garnered significant coverage from various media outlets and incited demonstrations across the entire country.

Prostitution

Prostitution is the act of engaging in sexual intercourse in exchange for monetary or non-monetary compensation, typically performed by a female individual. Diverse perspectives exist regarding prostitution, which gives rise to varying legal frameworks. There are divergent perspectives on prostitution. One perspective posits that prostitution represents a severe infringement of women's human rights, as they are often forced and subjugated into the sex trade. Conversely, another perspective regards prostitution as a legitimate profession, with sex workers being viewed as professionals who engage in physical labour and are thus entitled to the same rights and protections as other labourers and employees.

The conventional perspective has traditionally viewed 'prostitution' as an inherent 'evil' or a repugnant characteristic of any given society. However, over time, it has become apparent that prostitutes, as a collective, are in dire need of safeguarding their fundamental human rights, regardless of the specific ideological framework being espoused.

According to estimates, there are over two million women engaged in commercial sex work in India, with a quarter of them being under the age of 18. In the major urban areas of Bangalore, Calcutta, Delhi, Hyderabad, Madras, and Mumbai, there are reportedly at least 25,000 children who are involved in prostitution. In Mumbai, there is a significant number of girls between the ages of 10-16 years who engage in commercial sex work. Specifically, an estimated 40,000 girls fall within this demographic.

Prostitutes are exposed to significant health risks, including sexually transmitted diseases (STDs) and HIV/AIDS, which can have severe consequences for their well-being. Research has shown that the transmission of HIV/AIDS from males to females is three times more efficient than from females to males. This has led to a rapid spread of the virus within the prostitution community, particularly through male clients. Conversely, there has been a notable surge in the desire for sexually inexperienced females, commonly referred to as "fresh" or “virgin” girls. , partially attributed to apprehension surrounding HIV/AIDS. In addition to the economic exploitation and significant health risks, noncompliant behaviour or attempted escape from brothels may result in severe physical violence against women by brothel owners and their agents.

The issue of prostitution is typically approached through four main legal paradigms:

(i) Criminalisation,

(ii) Decriminalisation,

(iii) Legalisation and Regulation, and

(iv) Decriminalisation with a human rights perspective.

The 1949 Convention against Trafficking in Persons for Prostitution and Its Exploitation of Humans is based on a prohibitionist approach and aims to render illegal activities related to prostitution, while not targeting prostitution per se. The convention lacks a human rights perspective and regards individuals engaged in prostitution as vulnerable entities requiring safeguarding, rather than autonomous agents possessing rights and rationality.

The decriminalization approach posits that prostitution should be removed from the purview of criminal statutes, as it asserts that sexual conduct between mutually consenting adults is a matter of personal autonomy. The approach of regulation aims to remove prostitution from the realm of criminal law and instead regulate it through means such as zoning, licensing, and health check-ups. The advocacy for decriminalisation with a human rights perspective entails the elimination of criminal sanctions against prostitution and its associated activities while ensuring the protection and enforcement of the human and labour rights of individuals engaged in sex work.

Sexual Violence Perpetrated by the State

The state responsibility theory entails that it is held accountable for any violations of international obligations that are either committed by that nation or can be attributed to it. The misconception that the accountability of states for actions that undermine the rights of women is limited to instances where state agents or officials are the direct those responsible for human rights violations is occasionally observed. The protection provided by the law on human rights is significantly higher.

International law imposes a distinct obligation on states that transcends breaches committed by individuals serving on the orders of the government and its agencies. Human rights treaties delineate the responsibilities of the state. The categorization of the responsibilities of states by international human rights law is frequently condensed into 3 distinct categories, namely: respect, protect, and fulfil. The duty of respect pertains specifically to the actions undertaken by the government via its institutions and legal frameworks.

Sexual Violence during Armed Conflicts

In the year 1992, a total of 882 women were subjected to gang rape by Indian army forces in the region of Jammu and Kashmir. Women were compelled to become pregnant and deliver offspring of Serbian nationality without their consent. Rape perpetrated during armed conflict is frequently employed as a means of inflicting violence, as well as a manifestation of anger, a method of punishment, a tool for coercion, and a means of humiliation and degradation.

As per a human rights report referenced by the Rapporteur on Violence Against Women for the United Nations in its 1994 publication, instances of reported cases frequently entail the introduction of a foreign item into the vaginal canal. The use of anal torture in conjunction with other forms of torture, such as electric shock applied to the body, has been documented. The aforementioned text pertains to instances of sexual violence, including but not limited to the violation of pregnant women and minors, as well as the perpetration of mass rapes by law enforcement officials and other individuals tasked with maintaining security.

1.2. Discussion of Challenges and Limitations Faced by Women in exercising their rights over their bodies in India

Unequal Power Relations in Society

The occurrence of violence is not inherent to natural or biological processes but rather arises from the imbalanced power dynamics present within a given society. Sexual violence is a reflection of gender inequalities and serves as a manifestation of various other forms of social inequalities. Sexual violence is a phenomenon that is influenced by gender; its characteristics and prevalence are indicative of pre-existing inequalities in social, cultural, and economic domains between males and females.

The presence of sexual violence is a matter of political inquiry, necessitating an examination of both state and societal institutions, individual training and socialization, and the character of economic and social abuses. Sexual violence is primarily attributed to economic and social forces that abuse female labour and the female body. Women who experience economic disadvantage are at a heightened threat of experiencing many types of exploitation, such as sexual harassment, trafficking, and slavery.

The denial of economic independence and parity can lead to the prolonged dependence and vulnerability of women. The persistence of violence in society is contingent upon the degree of equity in economic relations towards women. Economic disparities have an impact on the advancement of women to positions of authority and power. This exclusion from information networks and conversation perpetuates the marginalization of women who accumulate less than men.

Cultural Practices and Ideology

Furthermore, to the numerous execution of harm that is excused or defended by custom, practice, faith, etc., violence resulting from disparities in power between male-female can also include the justification or exoneration of such conduct by practice, customs, religion, etc. There is a widespread acceptance of or tolerance for violence against women in many societies. Social and religious traditions like Devdasi and FGM and violence against women.

Cultural ideologies are founded upon a specific conception of sexual identities. Femininity necessitates that women be passive and submissive, while masculinity necessitates that manhood be equated with the capacity to exert power over others, particularly through force. Under such male-dominated ideologies, a woman is only valued for her reproductive capacity and sex object potential. Traditional values, which are frequently profoundly ingrained and seldom inquired, support negative assumptions about women and reinforce the patriarchal view that women are subgroups whose conduct and characteristics are aberrant from those of men and less capable. This cultural devaluation of women is a major prerequisite to sexual assault against women.

Control of Women's Sexuality

Many legal codes place a strong emphasis on the chastity of women and emphasize the regulation of female sexual behaviour. Violence is frequently used to control the sexual behaviour of women. Women's bodies and sexuality are closely associated with the concept of communal honour. In this setting, sexual violence against women is used to shame a competitor group since they are seen as the property of the males in that group. Dehumanizing and objectifying women begin when males see them simply as sexual objects. This is the first step in normalizing violence against women. The sexuality and physicality of women are integral parts of the social honour system. In this setting, sexual violence against women is used to smear the reputation of the males in the opposing group.

Since women are considered sexual property and have their place in a certain group or civilization, that community must protect its women from the brutality of outsiders. This safety often originates at the cost of women's autonomy, such as when tight dress standards or even FGM are implemented to keep women in their place.

Communal themes such as vindication of honour, a disgrace to the family and community, protection for 'proper' women and punishment for 'improper' women not only shape masculine attitudes toward women but also justify the use of violence against them.

The Private/Public Dichotomy

Almost all legal systems have historically taken the position that incidents of violence against women that take place in the open (such as in parks, on streets, on public transit, etc.) are committed by strangers. Within the doors of the family, the privacy and the values doctrine, associated with family sanctity operate, and the entire arena is beyond the reach of legal systems. This distinction between public and private has been the foundation of most criminal justice apparatuses and human rights mainstream, and it has posed significant obstacles to the achievement of equality for women.

Women have such deeply ingrained beliefs in the sacredness of the household unit and the privilege of privacy that they often fail to acknowledge the reality of violence against them. This tendency to disregard Private conflict violence serves as a catalyst for the escalation of violence, which remains largely invisible. Gradually, however, victims and states are becoming aware of the distinction between the private & public domains, but long-term and far-reaching initiatives are required to eliminate it.

Almost all variations and combinations of beliefs, religious codes, laws, and political strategies have one thing in common: they are conceived, created, and implemented by males, whose aim is to control women's sexuality and reproductive rights through the control over the bodies of women. In this type of social setting, sexual violence thus perpetuates and its determinants proliferate in combination and variation.

1.3. Discussing the Constitution of India, and other Major laws and Acts and their detailed pros and cons for women at current times.

The Indian Constitution has several articles that protect the rights of women and their bodies. Here are some of the key articles:

1. Article 14: All citizens, regardless of their gender, are guaranteed equal safeguards and equal standing under the law under the Constitution.

2. Article 15: prejudice based on religion, race, caste, sex, place of birth or any of them is forbidden under the Constitution. It involves a blanket ban on sex-based discrimination against females.

3. Article 21: everyone in India has the legal right to live freely, regardless of their gender.

4. Human trafficking, especially to use of them as human shields against forced labour or sexual exploitation, is prohibited under Article 23 of the international legal instrument under review.

5. As per Article 51A(e) of the Indian Constitution, it is incumbent upon every citizen of India to refrain from engaging in practices that are deemed derogatory to the dignity of women.

Numerous legislative and regulatory measures have been implemented to safeguard the rights of women and their bodily autonomy in conformity towards the Indian Constitution. The following are some of the principal laws and policies:

1. Protection of Women from Domestic Violence Act of 2005 is a legal provision that aims to safeguard women who have been subjected to parts of domestic violence, such as bodily, carnal, emotional, verbal, and financial abuse. In the case of Shalu Ojha v. Prashant Ojha, the court ruled that the aforementioned legislation applies to all females who have suffered from domestic abuse, irrespective of their marital or relational status with the perpetrator. The court has determined that the aforementioned act constitutes a civil remedy and does not serve as a hindrance to the possibility of criminal prosecution of the perpetrator.

2. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: The Vishaka Guidelines were formulated by the SCI in 1997 as a response to a case of sexual harassment of a female social worker by her employer. These guidelines pertain to the issue of sexual harassment at the office. In 1992, the legal matter referred to as Vishaka and Others v. State of Rajasthan and Others was initiated by Bhanwari Devi, a social worker in Rajasthan who was subjected to sexual assault by five individuals of a superior caste as a consequence of her intervention in child marriage. The dismissal of Devi's case by a subordinate court has led to the submission of a petition by organizations of women to the SC, urging it to address the issue of sexual harassment in the workplace.

3. The Dowry Prohibition Act of 1961 prohibits the giving or receiving of dowry in connection with marriage and renders such conduct a crime.

4. The Medical Termination of Pregnancy Act of 1971: This law allows for the termination of a pregnancy under certain conditions, such as to save a woman's life or to prevent a grievous impairment to her physical or mental health.

5. The Maternity Benefit Act of 1961 focuses on paid maternity leave and benefits including medical incentives and nursing breaks, to female employees.

6. The Prohibition of Child Marriage Act of 2006 prohibits the marriage of females and boys under the ages of 18 and 21, respectively. Jyoti Kundu v. State of West Bengal: The Calcutta High Court ruled that a girl who was married as a minor could petition the court for a declaration that her marriage was null and invalid and could not be legally recognized. The court also ordered the state government to assist these females to prevent their return to their husbands' residences. This policy seeks to empower women through education, economic and political empowerment, and protection against violence and discrimination.

7. The Immoral Traffic (Prevention) Act of 1956 and the Constitution of India: The Constitution's Article 23 guarantees the right against exploitation. This constitutional clause prohibits human trafficking. In Vishal Jeet v. Union of India, the SC held that human trafficking is in the form of the sale and purchase of human beings for prostitution. By Article 23 (1) of the Constitution, the legislature has enacted the Immoral Traffic (Prevention) Act, 1956, which seeks to outlaw human trafficking, prostitution, and other types of sexual exploitation as the "devadasi system."

References

[1] K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

[2] Independent Thought v. Union of India, (2017)110 SCC 800

[3] Sarika Ravindra Pande v. State of Maharashtra, (2013) 15 SCC 757

[4] National Human Rights Commission v. State of Karnataka, (2016) 8 SCC 615

[5] Mrs X v. Union of India, W.P (C)No. 593 of 2016

[6] Murugan Nayakkar v. Union of India & Ors, W.P. (C) No.1749 of 12017

[7] West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73

[8] Gaurav Jain v. Union of India, (2014) 4 SCC 407

[9] Baby Manji Yamada v. Union of India, 2008 (13) SCC 518

[10] Pawan v. State of Uttarakhand, Arising out of S.L.P. (Crl.)No.5209/2006

[11] Shalu Ojha v. Prashant Ojha, (2015) 2 SCC 99.

[12] Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241

[13] Jyoti Kundu v. State of West Bengal, (2015) 10 SCC 705

[14] Vishal Jeet v. Union of India, (2013) 15 SCC 730.

Bibliography

[1] Gender Justice, Human Rights And P.C. & P. N. D. T. Act, 1994 Critical Appraisal of Statutory And Judicial Perspectives by Dr Uday Prakash Warunjikar.

[2] Feminist jurisprudence and women rights in India, Dr. Kalpana Devi and Prof. Dr. S.N. Sharma.

[3] The Prevalence of Female Genital Mutilation in India Anjani Nanda and Vandanee Ramani

[4] Women & Law, Sexual violence Against women by Vandana, 2009

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