INTRODUCTION
“Where women are revered, there the gods rejoice; but where they are not, no rite bears any fruit”.
-Manu Smriti1
India, being a virtue-oriented, culturally rich society, women’s safety and laws concerning them are still a matter of debate. The debate often takes the political angle, resulting in election-oriented laws rather than logically tested principles. The crimes against women are increasing year to year, and 4,48,211 crimes have been reported according to NCRB in 2023.2 This includes the reported cases, but many go unreported. For instance, according to the Acid Survivors Foundation of India, about 500 to 1000 acid attacks go unreported in India.3 And these crimes have seen a rapid increase since 2006.4
According to the “Declaration on the Elimination of Violence against Women”, which defines violence in its broad sense, inclusive of all the violence which are gender based and ultimately, resulting in a kind of “physical, sexual or psychological harm, leading to their suffering”.5 This definition is relied upon by many “UN bodies, including the CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) committee, through General Recommendation No. 19”.6
In these matters of violence, the first notice goes toward the perpetrator, and the system proceeds with a long procedure to punish such a person. But the real victim of violence and welfare assistance that could be given to her gets eclipsed. The main concern in this evolving society is the victim-oriented justice system. There exist a lot of constraints in providing welfare assistance to victims of violence in India. Here, welfare assistance is deliberately used because the paper not only examines the compensation that is given to the victim but also their
implementation, assistance in litigation procedures, medical help, social integration, etc. The CEDAW, which is an international treaty protecting women against all forms of discrimination, have been reduced to weak international law due to the negative stance of different nations. This phenomenon must be analysed through the perspective of suffering and the problems faced by the women victims of violence in India.
ROLE OF CEDAW WITH RESPECT TO WOMEN VICTIMS OF VIOLENCE
“The United Nations General Assembly in the year 1979 adopted convention on elimination of All Forms of Discrimination against Women”.7 This treaty is also considered a women’s treaty because it tries to protect women against all forms of discrimination against them, and the treaty also requires parties to enforce this International Convention through their domestic legislation and make it a reality.8 The whole convention can be briefly divided into three. Firstly, the state obligations and their scope, secondly, the kind of discrimination, thirdly, their procedural, administrative, reporting and committee composition.9
To give an elaborate explanation of the convention, it has to be studied schematically. The CEDAW convention is divided into parts and it consists of six parts. The first part, that is from articles 1 to 6, deals with what discrimination means and how the domestic legal system that national Constitution or legislation, must abolish such “discrimination and create equality between men and women”.10 Part two, which is from articles 7 to 9, deals with what are the women’s rights that exist in their public life and how nations must provide such equality. For example, in voting rights, participation in government policies, non-government organisations, citizenship, etc.11
Part three, which is from articles 10 to 14, gives an elaborate explanation regarding the economic and social rights a woman should enjoy, whether it may be relating to her career or employment, Education, scholarship, Sports, physical education, paid leave, bank loans, etc.12 Part four is for articles 15 and 16 of the convention tries to cover and provide equality in the private life of a woman like equal legal capacity in matters of property, contracts, residence domicile, in addition, it also covers the rights which a woman enjoy during our marital life, whether it may be the right to enter into marriage or dissolution of such marriage and obligations with respect to husband, family name, etc.13
Part five that is from articles 17 to 22. The composition of the “Committee on Elimination of Discrimination against Women”, whose sole reason for establishment relates to the implementation of the convention, and members should be elected from the nominated persons of the state parties.14 Part six, which is from articles 23 to 30, deals with the adverse effect that the convention can cause against any “legislation of a state party or any other international convention or treaty, and it also speaks about the signature obligations, ratifications, revisions, and the steps involved in such related matters”.15
The definition of violence has been interpreted by the CEDAW committee through its general recommendation number 12. 16It also asserted that the parties to the convention must give their reporting of the legislation or rules that are brought for securing or eliminating violence against women and other support services that are given to the women victims, and statistical data of such incidents, etc.17
The main rule or the Principal having the capacity to enforce the rights of women has been provided under the “Optional Protocol (OP) to the CEDAW, which was adopted by the “United Nations General Assembly in the year 1999”. 18 This protocol is a powerful tool in two ways: firstly, through a communication procedure where women can submit the claim of violation of rights to the committee and secondly, the power of the enquiry procedure of the committee.19
In one such instance of sex stereotypes, cruelty peaked, and the legal system also failed in providing valid assistance. This was the case of “R.P.B. v The Philippines” where a woman of 17 was subjected to sexual violence and the justice system, knowing that she was disabled and could not speak or listen, did not give translator assistance and, in addition, imposed gender oriented principle that the woman did not resist the attack in order.20 This shows how society is still doomed by gender-oriented principles and without giving due importance to women and their sufferings. Later, when this matter was referred to the CEDAW committee, it mandated that these types of rulings are gender stereotypes and exhorted the state party to conduct a fair trial in this matter.21
INDIAN LEGAL SYSTEM AND THE WELFARE OF WOMEN VICTIMS OF VIOLENCE
In India, there exist multiple laws concerning victim compensation, and the Supreme Court has also highlighted this in many cases.22 “The Supreme Court of India has interpreted the right to compensation as an integral part of Article 21 of the Constitution, which provides for the protection of life and personal liberty and has repeated its order, in the following cases Rudal Sah v. State of Bihar, Bhim Singh v. State of Jammu & Kashmir, Dr Jacob George v. State of Kerala, Manju Bhatia v. N.D.M.C., etc”.23
According to the criminal procedure code under sections 357, 357(1), 357 (2), 357 (3), 132x provides the discretionary power to “the court imposing a sentence of fine or a sentence of which fine forms a part a amount of compensation out of the fine so recovered to the person who has incurred such loss”.24 But the problem with these provisions is that the victim has to wait till conviction of the offender or the substantive sentence. And currently, the court ordered compensation formerly section 357 and its subsections of CRPC (criminal procedure code) is covered by section 395 of BNSS (Bharatiya Nagarik Suraksha Sanhita).25
As these concerns were rising, “Section 357A was inserted in 2009 (Code of Criminal Procedure, 1973),26 to give effect to Victim Compensation Schemes (VCS)” now covered under sec 396 of BNSS.27 In addition, the medical expenses that can be claimed by the victim are now covered separately under section 397 of BNSS.28 So the laws try to compensate for any loss suffered by the victim through either the accused, in other cases, through the state fund.29
And the courts also reiterated the concept of compensation, making it include all kinds of things and not only constrained to monetary relief.30 Moreover, the courts have also said that “the victim reparation is still the vanishing point of our criminal law”.31 This means that, still after having laws and regulation the Victim compensation, restitution, and rehabilitation remain neglected and side-lined in the justice system.
INCONSISTENCIES IN WELFARE ASSISTANCE TO WOMEN VICTIMS OF VIOLENCE IN INDIA.
The welfare assistant can be of any kind of help, given to the woman, it may be related to litigation or compensation in the form of monetary relief or medical assistance, given to the victim of violence, etc. The Inconsistencies concerning the compensation or the victim compensation scheme, which is implemented in India, vary in the proportion of monetary relief provided from one state to another state. For example, the amount of compensation is decided by the states by taking into consideration various parameters, and also there states monetary capacity or the state’s monetary fund.
This can be clearly understood by the following example. 1) Chhattisgarh provides compensation of 25,000, whereas 1,50,000 is given by Odisha state to the victim of rape.32 2) Arunachal Pradesh provides ₹1 lakhs whereas Delhi has fixed the limit of 3 lakh to 7 lakhs for victims of acid attack.33 This clearly shows there exists a lot of inconsistency in providing compensation to victims, which will simply lead to discrimination to victim. Because the pain and harm suffered by the victim is same in all states. So, there must be a more feasible legal framework to provide a uniform compensation scheme in the states of India.
To elaborate on the issue, the front campaigner for acid attack survivors, Laxmi Agarwal, had petitioned the Supreme Court, and the court also ordered the framing of a uniform compensation scheme, but it is far from reality due to a lack of legislation and enforcement agencies.34 Moreover, in some cases, the compensation has not reached the victims, though when ordered by the “State Legal Services Authority (SLSA)”.35
The CEDAW, the conventions for protecting women from discrimination, in reality have many infirmities, such as 1) violence against women not included directly in the convention, where it is indirectly covered under General Recommendation No. 19. 2) There exist many reservations made to convention by different countries, which makes the convention to decrease its value or effectiveness. 3) And lastly, the optional protocol, which provides a redressal mechanism to victims of violence are not ratified by many countries, including India.
CONCLUSION AND RECOMMENDATIONS
The main problem that lies in providing welfare assistance to women victims of violence exists in two categories. Firstly, the Indian legal system’s compensation scheme is inconsistent throughout the states and fails to have a uniform compensatory mechanism. Secondly, India has not complied with the optional protocol of CEDAW, making the rights provided under CEDAW far from reaching to women victims of violence.
India being away from signing the CEDAW optional protocol may not have a direct effect on women’s rights in India, but it will have major effects for victims of crime. In India, corruption, delay in justice, and inefficient, stringent laws are among the major drawbacks. This finally shows that there are no concrete international laws for women subjected to violence in getting welfare assistance. However, the domestic laws can be availed, but they fail to have a policy-oriented implementing agency, and also the uniform compensatory rules. The feasible solution is to establish a similar redressal mechanism in line with the CEDAW committee, which must be constituted to ensure and provide proper assistance and compensation to women victims of violence.
So, to solve this, empowering a local body like Nari Adalat, which is presently a subsidiary alternative dispute resolution governance, is a feasible option. At present, these bodies have been established to oversee the family and marital disputes at the village level.36 This local-level governing body can be empowered with the following powers: [1] Ensure compensation to victims is paid, [2] Post social audit, [3] Monitoring compensation Scheme, [4] Assist women victims of violence to get timely justice, etc. Powers and functions should be conferred so that the instances of victim suffering due to inefficiency in providing compensation can be terminated.
The Nari Adalat is one such solution, but the real effort to solve the issue lies in the approach with which the agencies work. The current laws relating to the welfare assistance given to the women victims of violence are weak and inadequate to address contemporary realities. Also need legislative reconsideration and amendment. Ultimately, such changes must be done by giving due importance to the women’s sufferings and after making an in-depth survey of the women who have undergone such suffering.
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Footnotes
1. MANU SMRITI ch. 3, vv. 55–56 (Georg Bühler trans., Sacred Books of the East vol. 25, Oxford Univ. Press 1886).
2. India Records Close 4.5 Lakh Crimes Against Women in 2023: NCRB Report, ECON. TIMES (Sept. 8, 2024), https://economictimes.indiatimes.com/news/india/india-records-close-4-5-lakh-crimes-against-women-in-2023-ncrb-report/articleshow/124230733.cms
3. Mousavi Singh et al., Acid Attack on Woman: A New Face of Gender-Based Violence in India, 26 INDIAN J. BURNS 83, 83–86 (2018).
4. Sesha Kethineni, Murugesan Srinivasan & Suman Kakar, Combating Violence Against Women in India: Nari Adalats and Gender-Based Justice, 26 WOMEN & CRIM. JUST. 281 (2016).
5. Declaration on the Elimination of Violence against Women, G.A. Res. 48/104, U.N. Doc. A/48/49, art. 1 (Dec. 20, 1993).
6. Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, 1–24, U.N. Doc. A/47/38 (1992).
7. Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, U.N. Doc. A/34/46 (Dec. 18, 1979).
8. Dubravka Šimonović, Convention on the Elimination of All Forms of Discrimination Against Women, New York, 18 December 1979, AUDIOVISUAL LIBR. INT’L L.
9. Nora A., The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): With Reference to Violence Against Women and Trafficking in Women, J. APPLIED SCI. RES. 2326, 2326–2333.
10. Convention on the Elimination of All Forms of Discrimination against Women arts. 1–6, Dec. 18, 1979, 1249 U.N.T.S. 13.
11. Convention on the Elimination of All Forms of Discrimination against Women arts. 7–9, Dec. 18, 1979, 1249 U.N.T.S. 13.
12. Convention on the Elimination of All Forms of Discrimination against Women arts. 10–14, Dec. 18, 1979, 1249 U.N.T.S. 13.
13. Convention on the Elimination of All Forms of Discrimination against Women arts. 15–16, Dec. 18, 1979, 1249 U.N.T.S. 13.
14. Convention on the Elimination of All Forms of Discrimination against Women arts. 17–22, Dec. 18, 1979, 1249 U.N.T.S. 13.
15. Convention on the Elimination of All Forms of Discrimination against Women arts. 23–30, Dec. 18, 1979, 1249 U.N.T.S. 13.
16. R.J.A. McQuigg, Is It Time for a U.N. Treaty on Violence Against Women? 22 INT’L J. HUM. RTS. 305, 305–24 (2018).
17. Ramona Vijeyarasa, CEDAW’s General Recommendation No. 35: A Quarter of a Century of Evolutionary Approaches to Violence Against Women, J. HUM. RTS. (2020), https://doi.org/10.1080/14754835.2019.1686347.
18. Bal Sokhi-Bulley, The Optional Protocol to CEDAW: First Steps, 6 HUM. RTS. L. REV. 143, 143–59 (2006).
19. Nora A., The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): With Reference to Violence Against Women and Trafficking in Women, 7 J. APPLIED SCI. RES. 2326, 2326–33 (2011).
20. Comm. on the Elimination of Discrimination Against Women, Views Adopted by the Committee at Its Fifty-Seventh Session, U.N. Doc. CEDAW/C/57/D/34/2011 (Feb. 10–28, 2014).
21. ibid
22. Sanjeeve Gowda. “Compensation to Victims of Crime in India – An Overview.” International Journal of Law Management & Humanities 3 (2020): 130–143.
23. Rudul Sah v. State of Bihar, A.I.R. 1983 S.C. 1086 (India); Bhim Singh v. State of J&K, A.I.R. 1986 S.C. 494 (India); Dr. Jacob George v. State of Kerala, A.I.R. 1994 S.C. 2218 (India); Manju Bhatia v. New Delhi Mun. Council, A.I.R. 1998 S.C. 223 (India); Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 S.C.C. 37 (India); People’s Union for Democratic Rights v. Police Comm’r, Delhi, A.I.R. 1989 S.C. 147 (India); People’s Union for Democratic Rights v. State of Bihar, (1987) 1 S.C.C. 265 (India).
24. Code of Criminal Procedure, No. 2 of 1974, §§ 250, 357, 357(1)–(3), 357A, 358, 359 (India).
25. Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 395 (India).
26. Code of Criminal Procedure, No. 2 of 1974, § 397(a)–(c) (India).
27. Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 396 (India).
28. Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 397 (India).
29. Dube, Dipa. “Victim Compensation Schemes in India: An Analysis.” International Journal of Criminal Justice Sciences 13, no. 2 (2018).
30. State of Gujarat v. Shantilal, A.I.R. 1994 Kant. 8 (India).
31. Ratan Singh v. State of Punjab, A.I.R. 1994 Kant. 8 (India).
32. Dube, Dipa. “Victim Compensation Schemes in India: An Analysis.” International Journal of Criminal Justice Sciences 13, no. 2 (2018).
33. ibid
34. Laxmi v. Union of India, (2014) 4 S.C.C. 427 (India).
35. Eisha Hussain, How Delays in Victim Compensation Fund Fail Trafficking Survivors, BehanBox (July 4, 2022), https://behanbox.com/2022/07/04/how-delays-in-victim-compensation-fund-fail-trafficking-survivors/. :contentReference[oaicite:0]{index=0}
36. Kethineni, Sesha, Murugesan Srinivasan, and Suman Kakar. “Combating Violence against Women in India: Nari Adalats and Gender-Based Justice.” Women & Criminal Justice 26 (2016): 281