Law
Vision
The
long, winding road to empowerment
Saira
Rahman Khan
Empowement
of women not only means broadening the choices and expanding
the options and alternatives available to women, but also
creating an atmosphere where they will be able to independently
asses the course of their lives and determine their destinies.
It means enabling women to participate fully in decision
making processes both at home and in the public arena
and creating the atmosphere and awareness of social, political
and economic values and opportunities for women. In the
Subcontinent, women, throughout the decades, have taken
serious steps to change political discourse, social norms
and laws, enabling them and the future generations of
women to have more social, economic and political empowerment.
Unfortunately,
such enthusiasm for change in economic, social and political
empowerment of women has taken a back seat in recent years.
In 1971, through the independence of Bangladesh and the
introduction of a Constitution on a socialist framework,
opportunities for women were created and women's rights
organisations took a lead role to help women victims of
war atrocities and attracted many donor agencies. Young
women took an active role in the political arena by being
elected to their student organisations, in the local government
and some contested in the parliament. Unfortunately such
opportunities for women in Bangladesh has waned due to
the gradual erosion of ideology-based politics. With the
changinging global political and economic scenario, women
in the country are now victims of trafficking, cheap labour
and almost at the level of goods and chattel. We are going
backwards.
Furthermore,
donor organisations have changed their agenda; and issue
of trade, business and the protection of corporate interest
of multi- and trans- national organisations have preceded
the issue of poverty alleviation. For example, the garments
manufacturing industry in Bangladesh, where many young
women found economic independence, has been greatly affected
by recent occurrences which have made Northern countries
feel insecure. Many factories are on the verge of closing
business and a large number of women will become jobless.
Furthermore, the health and security standards of such
factories are so poor that women are constantly at risk
of being electrocuted or burnt due to faulty machinery
and wiring. Again, given the recent trend of xenophobia
and that Bangladesh in a predominantly Muslin country,
foreign trade is occasionally obstructed and the country
looses its cue in the world of trade. It is distressing
and shameful to note that some local vested interest groups
are giving the country a bad name from within and sending
negative reports internationally, harming the country
more. So much for seeking development and empowerment
of women.
Woman's
organisations have not yet been able to deepen the dent
in the side of negative attitudes towards women's empowerment
and the so-called women's wing of political parties merely
follow the party dictates. Furthermore, not much has been
done to enhance or improve on what reforms were made in
the last century and till the early seventies. To date,
the empowerment of women seems to lie merely in NGO agenda's
of credit schemes, vocational training and legal awareness.
All such programmes are extremely necessary, also with
other awareness raising programmes. However, more needs
to be done in the area of awareness raising for men in
order to change male attitudes of women and 'women's work'.
One of the ways this can be done is by strengthening the
economic power of women and ensuring that they are paid
equally as men. Donor-driven projects are restricted mainly
to micro-finance programmes and government bodies are
not equipped (neglect?) to safeguard women's political
empowerment. Human rights and women rights organisations
working towards the empowerment of women can protest and
lobby till they are blue in the face, but unless donor
attitudes change globally and government attitudes brought
to improve, expand and become positive and responsive,
women will continue to take a back seat in decision making
and policy planning. The agenda of empowerment of women
will also take a backseat.
Despite
constitutional provisions that everyone is equal in the
eyes of the law and that there will be no discrimination
of sexes in public life, since the institution of the
Constitution in 1972, there have not been many significant
changes in the political status of women. Since 1991,
we have had two female Prime Ministers in the country.
However, these heads of state have done almost nothing
specifically to contribute to the empowerment of women
in all spheres of life. Furthermore, they did not achieve
their powers through their active political involvement;
rather they were put on the pedestal in a dynastic manner.
Politics is still considered to be a male domain and the
involvement of women in politics is an irregular phenomenon.
Despite democratically elected female Prime Ministers,
women have little to be proud of. It is true that in the
eighties and nineties, women's rights organisations protested
violence against women and pressured to bring about women-friendly
legal reform measures. Furthermore, due to their constant
pressure, new laws were enacted to safeguard women's rights.
Unfortunately, 10 years on we see that the violence has
not decreased, the legal process is slow, corruption is
rife in the law enforcing agencies and in other government
sectors and laws are not implemented. What use, then,
are these new laws when not even the century-old penal
laws are implemented properly or effectively? Empowerment
of women not only means giving the women the right to
decide. It involves other matters such as legal and economic
security, non-discrimination, and eradication of impunity
and change in social attitudes. Furthermore, one cannot
separate women from men in the empowerment process. Both
parties need to be aware and responsive.
What
measures are then necessary to ensure women's empowerment?
Here are some suggestions:
*Women's groups and organisations should make a great
effort to emphasise the issue of gender equity and of
gender and development.
*A strong political will is required to ensure the full
participation of women in the policy-making process and
in the political process.
*Women themselves should be politically aware and free
from influence. Those in political parties should be able
to work for the good of women in the country and not merely
bend to the leader's decisions.
*Women should form a coalition to protest the negative
impact of globalisation, as women are the worst victims
of this.
During
elections, the potential of women candidates, their leadership
qualities and their competence as candidates should be
highlighted. If they have no such qualities, they should
not be made candidates just for their affiliation to a
political party. There may be less female candidates because
of this, but in this matter competence is a big factor.
There
should be a positive discrimination within political parties
during parliament and all local level elections to nominate
at least 35% active, responsible women candidates. There
is a great necessity for the proper implementation of
existing laws and all forms of impunity and corruption
in the law enforcing agency and lower judiciary must be
stopped. Domestic violence and all things related to it
must be treated as a legal offence and not merely as a
social issue. Awareness raising in this matter is a must.
Empowerment
begins in the home. Men must be made conscious of the
contribution their wives and daughters make to the home,
even if they are not earning members of the family. Education
of girls and women is a must. The school curriculum at
a certain level should include topics related to constitutional
guarantees and gender equality. Students should not have
to wait till they are in University and studying a relevant
topic, to be made aware of these.
Most
importantly, like charity, the idea of women's empowerment
should start from the home. Mother's are constantly blamed
for favouring sons, while ensuring that daughters have
a hard life from the very beginning to 'get them used
to what it is like to be a woman and suffer'. This practice
really needs to change. 'Masculine' behaviour and social
attitudes also need to go through a revolution which may
come across to some as a culture shock. Unless both genders
get together to ensure that empowerment for women can
become a reality, it never will.
The author is Assistant
Professor, School of Law, BRAC University.
Criminal
responsibility for torture
An
Indian perspective
Saumya
Uma
Contexts
of torture
Some of the most common contexts of torture are police
stations, detention centres and interrogation centres,
although it is a practice that is decried by human rights
activists and the Supreme Court. Despite the establishment
of the NHRC to deal with such abuses more than a decade
ago, police torture continues unabated. The severity of
the incidence of torture is much worse than the statistics
indicate, because victims, fearing reprisals, rarely report
cases against the police. Some police officers justify
the use of torture to extract confessions and instill
fear. However, it is also true that the police in India
are under tremendous pressure, as people need quick results.
In a recent attempt to impact the practice of torture,
most police stations in Delhi have been equipped with
a camera in order to make the police functioning transparent.
Torture
is frequently resorted to in situations of armed insurgency
and militancy, such as in Punjab, North Eastern states
and the state of Jammu and Kashmir. Another context of
torture are situations of communal violence. India has
witnessed several such situations, some of which include
the anti-Sikh attacks in Delhi in 1984, attacks against
Muslims in Mumbai, Surat and other places following the
destruction of Babri Masjid in 1992-1993, attacks on Christians
in 1998-99 and attacks against Muslims in Gujarat in 2002.
In all such situations, some form of torture has been
used against members of religious minority communities.
Dalits are victims of one of the most cruel and exploitative
systems legitimised by religion. Various forms of torture
are perpetrated upon dalits ('untouchables' in the prevailing
caste system) by members of "upper" castes,
aimed at maintaining status quo within the social hierarchy
mediated by caste and untouchability. Assault, rape, torture,
butchery and massacre of dalits, as well as practices
of segregation and discrimination are rampant. Over 40
million dalits are bonded labourers, and are the worst
victims of torture, exploitation and coercion in bondage.
Adivasis (indigenous peoples), like the dalits, are illiterate
and vulnerable to various forms of atrocities, motivated
largely by an appropriation of forests and natural resources
to serve the ends of economic globalisation. In addition,
vulnerable groups such as women are specially targeted
for gender violence in all the contexts discussed above.
Torture of children in various contexts, including refugee,
dalit and tribal children, arrest of children under POTA,
corporal punishment and sexual exploitation by police
has also been the subject of a detailed report. (Suhas
Chakma, The Status of Children in India, Asian Centre
for Human Rights, October 2003)
Torture
as a women's rights concern
Torture is not only a human rights concern in general,
but is also a women's rights concern. The physical and
mental pain inflicted by rape and other forms of sexual
violence has been clearly recognised in international
jurisprudence as one of the most severe forms of torture
(Prosecutor vs Delalic et al, IT-96-21, ICTY, November
1998, paras 495 and 496).
Reports
also highlight the fact that in situations of armed conflict,
women bear the brunt of sexual torture from both sides
the insurgent / militant groups and the armed / paramilitary
forces. Women face more impediments to legal redress due
to the stigma attached to sexual assaults and the fear
of facing discriminatory treatment from the community.
In addition, sexual assault of women in situations of
communal violence is rampant. In the anti-Sikh attacks
in Delhi in 1984, many Sikh women were raped, sometimes
repeatedly, by Hindu men. The communal attacks in Mumbai
in 1992-3 also witnessed widespread sexual assaults of
women. However, the Gujarat carnage of 2002 is unprecedented
in its scale, nature and brutality of sexual violence
perpetrated against Muslim women and young girls. Rape
is also used against dalit women as an instrument of subjugation
by dominant castes.
Dalit
women are often stripped, raped and molested by upper
caste men. In some areas this extends to the killing of
women as witches or dayans. Adivasi women are similarly
targeted. Many such cases are motivated by property disputes,
camouflaged by superstitious and traditional practices.
In
addition, many instances of violence against women exist
in the Indian society. The home has become a torture chamber
for many women, who face domestic violence. According
to the statistics of National Crime Bureau, in 2002, cruelty
and torture perpetrated by a husband and his family made
up 36 percent of all reported crimes against women in
India. Yet, it is ironic that a special provision brought
into the Indian Penal Code (S. 498A) to deal with the
menace is constantly under fire due to alleged misuse
by a few women. Feminists have advocated for an understanding
of domestic violence as torture.
Investigation
of allegations of torture
There exists a backlog of complaints pending before the
NHRC and human rights commissions of various states, and
hence the victim has to endure great delay. While the
commissions can award compensation, they have no power
of prosecution and hence the errant officials remain at
large. Investigations by the police do not inspire the
confidence of the public, as such processes are largely
seen as sham, aimed at shielding the errant police officers.
Most investigations are handled by junior, inexperienced
and untrained police officials. Investigations by the
Central Bureau of Investigations (CBI) bear some credibility,
but CBI enquiry is directed only in extreme cases of torture.
Investigating allegations of torture by the armed forces
is much more difficult. Internal inquiry proceedings exist,
but do not inspire public confidence. Torture in contexts
of communal violence, and upon dalits and adivasis are
largely taken up for investigation by independent fact-finding
committees or commissions set up by the government for
the purpose. Many fact-finding reports remain in cold
storage and are not acted upon. Many torture victims do
not approach the police for registering complaints due
to fear of reprisals and a lack of guarantee that a sensitive,
unbiased and efficient investigation into the allegations
will be conducted.
Conclusion
There is no dearth of judgements where the Supreme Court
and the High Court have denounced the use of torture by
law enforcement officials, and provided redress to victims.
However, a climate of impunity continues to exist in India
in dealing with allegations of torture. The key to ending
this climate of impunity is to inspire the confidence
of victims in coming forward with registering complaints,
and providing victims and witnesses protection from intimidation
and coercion during and after the litigation. The Law
Commission of India has made an important initiative in
this regard, by preparing a consultation paper on a proposed
law for witness protection. This effort requires to be
taken to its logical end.
The
author is a co-ordinator of 'Justice and Accountability
Matters' programme of Women's Research & Action Group,
Mumbai.
