The case for treating violence against women as a form of sex discrimination in India
| Author | Ayushi Agarwal |
| DOI | http://doi.org/10.1177/1358229120978865 |
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| Subject Matter | Articles |
Article
The case for treating
violence against women
as a form of sex
discrimination in India
Ayushi Agarwal
1,2
Abstract
Violence against women (VAW) is rampant in India, and rising every year. However,
Indian laws are geared towards punishing individual instances of such violence, instead of
attempting to eradicate the problem itself. This is owed in part to the incomplete
understanding of the causes and effects of such violence. Here, I advance a feminist
understanding of VAW, wherein it is seen as a result of gendered prejudices designed to
keep women in subordination. I show that international human rights law now endorses
this feminist understanding, and trace the evolving understanding of equality in Indian
courts to argue that given its current understanding as substantive equality, VAW can
and should be seen as a form of sex discrimination due the cycle of disadvantage it
creates for women. I critically analyse several decisions by Indian courts that show a
move towards acceptance of VAW as a form of sex discrimination, and point to the
limitations of these decisions. Finally, I propose various ways in which envisaging VAW as
a form of sex discrimination would lead to a better framework of laws for not only
countering such violence, but also eradicating it.
Keywords
Sex discrimination, violence against women, feminist lens, Indian equality law,
international human rights law
1
Jindal Global Law School, OP Jindal Global University, Sonipat, Haryana, India
2
University of Oxford, Oxford, UK
Corresponding author:
Ayushi Agarwal, Lecturer, Jindal Global Law School, OP Jindal Global University, Sonipat, Haryana,
India; DPhil candidate, University of Oxford, Oxford, UK.
Email: ayushiagarwal.spv@gmail.com
International Journalof
Discrimination and theLaw
2021, Vol. 21(1) 5–25
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1358229120978865
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Introduction
Violence against women (VAW)
1
acquired centre-stage in Indian legal and policy dis-
cussions after the brutal Nirbhaya gang-rape in Delhi (Karp et al., 2015), which resulted
in the Criminal Law (Amendment) Act, 2013 to the Indian Penal Code, 1860. This
amendment made significant progress by introducing provisions for inter alia sexual
harassment under Section 354A, voyeurism under Section 354C, stalking under Section
354D, acid attack under Section 326B, and by finally recognising them as offences in
their own right. It also expanded the definition of rape under Section 375, and increased
punishments for several offences.
This amendment joined other laws specifically legislated to counter VAW – Immoral
Traffic (Prevention) Act, 1956, Dowry Prohibition Act, 1961 (as amended in 1986) along
with the offence of ‘dowry death’ under Section 304B of the Indian Penal Code, Indecent
Representation of Women (Prohibition) Act, 1986, the offence of ‘cruelty’ to the wife by
her husband or his relatives under Section 498A of the Indian Penal Code, Commission
of Sati (Prevention) Act, 1987, Protection of Women from Domestic Violence Act, 2005
and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013. One may think that the arsenal of laws needed to eradicate the problem of
VAW is now complete. However, the claim of this paper begins with the understanding
that this is far from the truth.
Taken together, all these laws ultimately fail to understand, respond to, and remedy
VAW. Criminal remedies are incapable of accounting for the non-physical psychologi-
cal harm
2
to the victim, as well as the signalling effect of the crime. Individual criminal
cases reduce a societal and group problem to a case-by-case solution, without revealing
the many ways in which VAW cannot simply be captured by court processes, and thus
goes unaddressed. In effect, then, these remedies wait for a recognisable manifestation of
the many ways in which women continue to be suppressed, rather than providing an
active solution to eradicate the problem of VAW itself. Meanwhile, legislations and
public policy responses remain contingent on a watershed moment resulting from nation-
wide waves of disgust over widely publicised instances like the Nirbhaya gang-rape.
Such responses also heighten the standard for what is seen as a particularly problematic
form of VAW, when indeed, all VAW should be taken as problematic.
The aim of the paper is to present a legal scheme in which VAW receives recognition
as a structural problem, and is dealt with through structural remedies. Indian scholarship
is presently lacking on VAW and its relationship with Article 14 of the Constitution of
India, 1950 under which ‘the state shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India’ and Article 15(1), which
specifically mentions sex as one of the grounds on which discrimination is prohibited.
This paper seeks to bridge this gap and make a case for why VAW should be seen as a
form of sex discrimination, with a particular view to highlighting how doing so results in
better remedies.
I first discuss and advance a feminist understanding of VAW, where it is seen as a
product of harmful gender stereotypes and prejudices designed to keep women in sub-
ordination. In the second section, I chart the developments in international human rights
law that have now endorsed this feminist position. I also trace the evolving
6International Journal of Discrimination and the Law 21(1)
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