A National Alliance of People’s Movement (NAPM) note, prepared during the Feminist Week of Resistance and Reflections (March 7 to 14) marking the International Women’s Day and the Savitri Bai Phule’s Death Anniversary, on (a) recognition of personhood by the state and judiciary through legal frameworks; (b) implementation and lived Experience: some ground realities; and (c) claiming agency in resistance:
A. RECOGNITION OF PERSONHOOD BY THE STATE & JUDICIARY THROUGH LEGAL FRAMEWORKS: A FEW EXAMPLES
There is no doubt that negotiating with the State is time consuming and difficult, but especially since 2014 due to an overall right-wing entrenchment in legislative, institutional and societal spaces, many of the struggles we are part of, which have been asking for recognition of personhood, equal citizenship and human rights to be ensured, have become increasingly wary of state intervention.
From NALSA to the Transgender Persons Act: The NALSA judgement (2014) drew on community consultation and took important steps in upholding self-identification rights to gender non-conforming people as constitutionally mandated by Articles 14, 15, 19 and 21. It viewed the insistence on gender confirming surgery by the State as illegal, and directed the Centre and State Governments to address issues of sanitation and health, social welfare (through reservations and schemes, seeing the community as part of the socially and educationally backward classes) and social awareness. The Transgender Persons Act (2019), on the other hand, has been passed without adequate and fair community consultation, in spite of repeated protests and appeals.
The Act denies the right to self-identification, subjecting the person who applies for the certificate to medical and District Magistrate scrutiny for ‘correctness’, and also disallows self-identification as male / female without a surgery, thus brazenly contravening NALSA. Additionally, the Act requires trans* persons to furnish intimate details and produce multiple documents which many trans* persons may not be able to access. Once obtained, the Act does not indicate whether such a certificate will guarantee access to welfare schemes.
Even more horrifyingly, the Act does not acknowledge and address discrimination against transgender persons. It does not treat sexual harassment and rape at par with penal provisions under existing legislation. Instead, it establishes transgender persons as second-class citizens who are not entitled to the basic constitutional safeguards that cisgender women are. While the Act mandates the formation of a National Council for Transgender Persons, tasked with reviewing policy and implementation in line with the Act and the Rules (2020), the actual appointments to the national council reflect an attempt to bring Hindutva ideology into the institutional frame.
In this disturbing context, occasional judgements like that of the Bombay High Court (Jan, 2021) upholding the constitutional right to self-identification of a transgender woman contesting the polls under the women’s seats, are a significant affirmation of an inalienable right.
Anti-Conversion: A similar ideological leaning is evident in the attempt to bring in a legal framework severely restricting inter-religious marriage, through anti-conversion ordinances. Already passed in states like UP, and promised within BJP campaigning in West Bengal and Gujarat, as well as Karnataka, the proposed ordinances are proof of state supported communal hatred and patriarchal attitudes towards women. The need for the ordinances is argued on the myth of ‘love jihad’, further demonizing Muslim men, and on an understanding of women, especially of SC/ST communities, as ‘victims’, lacking a will and agency of their own.
The ordinances prescribe severe punishment for couples perceived as converting for marriage, and allow for any relative of a woman to dispute her agency in choosing her partner. Moreover, they go against the provisions of the Special Marriage Act, by requiring an additional notice period. The ordinances have already led to arrests which clearly target people of the minority and working classes, who do not have access to legal support. Reports indicate that police violence while in custody is common, including on pregnant women.
Triple Talaq: While the anti-conversion ordinances focus on ‘saving’ Hindu women, seen as property of the community, the grossly unconstitutional Muslim Women (Protection of Rights on Marriage) Act, 2019 goes beyond criminalizing triple talaq, by selectively demonizing Muslim men and presenting Muslim women as victims in need of rescuing from their own community. This too, was an Act passed in spite of significant protests by many muslim women and feminist groups who only feared further backlash. The legislation further limits the scope of redressal for Muslim women.
Equal Marriage: In one of the latest hearings asking for ‘equal marriage’ for members of the LGBTQAI+ community, the Delhi Government’s stand has been that the reading down of Section 377 IPC has merely indicated a de-criminalization of homosexuality, not a condoning of it, while ‘marriage’ as an institution needs to maintain its conventional, discriminatory understanding as being between a ‘biological man’ and a ‘biological woman’. This stand is clearly in violation of the Navtej Singh Johar judgement. Be this as it may, it is worth pointing out that the grounds of the writ petition before the Delhi High Court are a departure from the feminist principles which challenged the casteist, oppressive institution of marriage itself, which informed the struggle for de-criminalization since the 1990s through significant community participation. While it is important to uphold civil liberties, it is a worrying sign that some sections within the queer community are raising demands towards the same patriarchal family structures.
B. IMPLEMENTATION AND LIVED EXPERIENCE: SOME GROUND REALITIES
State and family discrimination: If the legal frameworks themselves show these biases, the actual struggles of people marginalized on grounds of gender and sexuality are even more complex. Sex workers and transgender people in particular are criminalized by the police and are subjected to violence, including sexual violence, extortion and threats. This comes in addition to the discrimination already faced from families. Women living with disabilities are often treated as burdens, and denied access to education and other basic rights accessible to ‘able-bodied’ persons.
Violence within natal families compels young people to leave their homes to escape it. In the attempt to find acceptance and community, women who claim their agency through relationships with people of different religious communities, trans* persons and people who identify as genderqueer, agender, gender non-conforming, as well as LGBTQIA+ people end up living precarious lives. These lives are further complicated when they attempt to claim bodily integrity, through access to sexual and reproductive health services and termination of pregnancies.
Livelihoods and social security: Finding work when faced with discrimination is close to impossible; when people earn through sex work, especially single women and trans* persons, finding a place to live opens them up to further discrimination. Lack of recognition of sex work as informal work means that provisions for informal workers are not accessible, in situations like the pandemic or during floods and other times where livelihoods are threatened.
Where provisions are made, such as direct cash transfers to informal workers during the beginning of the pandemic, these are impossible to access in practice by people living on the margins, who do not have the required documents. The technocratic approach and the demand for means of identification which are not available to young people who leave their natal homes to escape violence, and to people who migrate for work which is not recognized, cuts the most vulnerable people from access to basic necessities, denying healthcare, education, food rations, etc.
In this context, women and girls with disabilities face multiple layers of discrimination. Thanks to inaccessibility of roads, infrastructure, public utilities and public transport, a huge number of disabled women are confined to their homes and subjected to abuse. They lag behind in education, employment and have very poor visibility. The global literacy rate is as low as one per cent for women with disabilities, according to a UNDP study. Women with disabilities often experience unequal hiring and promotion standards, and they are half as likely as men with disabilities to find jobs.
The Rights of Persons with Disabilities Act, 2016 mandates that women enjoy their rights equally with others; it guarantees them the right to information on reproductive rights, priority in allotment of agricultural land, housing, poverty alleviation and various other development schemes. However, these mandates have remained on paper.
Forced rescue interventions: Women and gender non-conforming people must be entitled to state support through interest free loans, skill development and other facilities to undertake livelihoods of their choice. In practice, there are very few proactive support systems available for women in the informal sector, in particular for those whose livelihoods are already neglected or criminalized, like rag pickers, sex workers and transgender persons.
Instead, raids and forced rescue stemming from a conflation of sex work with sexual trafficking leads to imprisonment in the garb of ‘rehabilitation’. This also has severe consequences on actual instances of trafficking, which can be addressed with the help of the community itself.
Institutional Violence and Intimate Partner Violence: Facing daily discrimination and oppression, more so when also belonging to other oppressed communities on grounds of caste, religion, ethnicity, or when living with disabilities, people who identify as women, trans* persons and other gender-nonconforming people also lack access to sensitive and aware mental healthcare. Conversion therapy continues to be practised, at the insistence of ‘families’, even to the point of leading to the death by suicide of people subjected to it, fundamentally amounting to institutional murder. The lack of access to resources, continuous violence by external forces are also factors contributing to violence between intimate partners, within chosen families, and among the communities themselves. In the present political context, any such instance opens the community itself up to state intervention, likely to be as discriminatory and oppressive.
Domestic Violence: Despite attacks from many fronts, the Protection of Women from Domestic Violence Act, 2005 remains a crucial piece of legislation for women in distress. However, it suffers because of woefully inadequate budgets, infrastructural and human resource support, and multiple orders from sections of the judiciary that attempt to read down the protections and purpose of the Act. These have led to making the process of relief and redress difficult for the women who were supposed to benefit from this legislation.
The DV Act is also the only piece of legislation which can be considered to cover instances of marital rape, which are otherwise rendered impossible to address. Marital rape needs to be acknowledged and treated instead as a punishable offence, commensurate with penalties under Sec. 376 IPC. Likewise, the Act should move beyond its limited reference to cis-women, to provide relief to all transgender and gender non-conforming persons who face natal and domestic violence.
Gender-based Sexual Violence: Domestic workers, migrant workers, construction workers, hawkers and others engaged in informal labour are subjected to sexual harassment which is even more impossible to address than the one rampant and much more visible in educational institutions. Lacking resources and often forced to live in shelters, women face sexual violence there as well, as indicated by worryingly high numbers of deaths, in the states where these are visible.
Even 7 years after the Jst. Verma Committee recommendations and Criminal Law Amendment, 2013, there has been little respite for women on the ground who continue to face many forms of sexual assault and brutal rape. There is a sharp increase in the instances of gang rape, especially of dalit, adivasi women, in rapes and sexual assault within ‘shelter homes’, rapes by men in positions of political, administrative and religious power, enjoying impunity. Over the decades, there also have been numerous instances of sexual assault, rape, including mass rapes, of women in conflict regions (Kashmir, Central-Indian Adivasi regions and states of the NER), with barely any support for the survivors and no accountability fixed on the perpetrators. The abysmal convictions and point to the absolute lack of commitment of the State and often even the judiciary in dealing with the crime of sexual violence with all the seriousness it deserves.
According to reports, women living with disabilities are three times more vulnerable to sexual assaults as compared to other women. They are at higher risk of gender-based violence, sexual abuse, neglect, maltreatment and exploitation. There are multiple hurdles that they face while accessing the criminal justice system, which is compounded by a total lack of sensitivity to their needs and concerns at various levels. The NCRB does not maintain disaggregated data on violence against disabled women. Feminist movements and other struggles need to acknowledge the specific marginalities faced by women with disabilities, and ensure support, means of redress and fixing accountability of the perpetrators.
C. CLAIMING AGENCY IN RESISTANCE
Faced with an abject denial of recognition of personhood, and a lack of the bare minimum provisions for survival, and legal protections, sex workers have been working together for decades now, making sharp demands for recognition of sex work as dignified work, and for social security and human rights.
Similarly, while opposing the discriminatory core of legislation like the Transgender Persons Act (2019) and the consequent rules, there has also been an ongoing attempt by members of the transgender community to seek implementation of the directives in the NALSA judgement and access limited benefits under policies in certain states.
At another level, the past few years have witnessed remarkable feminist uprisings, be it in the form of the numerous Shaheenbaghs or the Farmers’ Movement, where women are leading from the front, challenging communal and corporate forces. At the same time, we have also seen a disturbing trend: regressive right-wing forces vilify, question and deny women’s agency as political beings, even as the ‘highest judicial authority, the CJI, asks why women are ‘kept’ in protests. That women continue to provide able leadership to movements, braving the many patriarchal assaults, is testimony to their strength and faith in struggle.