Author: Anushka Tiwari, B.A.,LL.B from School of Law , Devi Ahilya Vishwa Vidyalaya.
Co-author: Mehvish Khan, B.A.,LL.B from School of Law , Devi Ahilya Vishwa Vidyalaya.
A recent report titled “My body is my own”, published by UNFPA, revealed some shocking facts about women’s right to their bodily autonomies and how men still have a greater say in women’s personal choices. Bodily autonomy is the right to govern our own bodies. It’s taking decisions about our own physical and mental health. Unfortunately, women’s bodily autonomy is not seen as her right. This eye-opening report is a clear indication to the countries to evaluate and re-consider their policies and laws related to women.
The report revealed that only 55% women are empowered to make choices about their sexual relations. In countries like Mali and Senegal, more than 90% women are deprived of their bodily autonomy. Nearly 50% of women don’t have any say in the use of contraception, seeking health care, abortion, saying ‘yes’ or ‘no’ to sex, etc.
Out of the 57 countries which were surveyed, 20 countries have “marry your rapist” laws, i.e., the rapist can escape criminal prosecution if he marries the girl he has raped. Very few nations of the world have addressed the issue of marital rape.
Sexual intercourse without consent is a violation of Human Rights, but the society believes that after marrying, the husband owns the wife and has the liberty to have sex whenever he wants. This resonates with the concept of modern slavery, which can be referred to situations of exploitation that a person cannot refuse or leave because of threats, violence, coercion, deception or abuse of power. Although the concept of slavery was abolished centuries ago.
All these findings clearly suggest that women don’t own their bodies and their decisions are governed by others. Governments and society continue to affect the right of women to their bodily autonomies.
Even in the twenty-first century where women have progressed and in no way are less than men, these inequalities exist. India is no exception, and it is gripped by patriarchy.
While hearing a rape case, ex- CJI S.A. Bobde, asked the rapist whether he would marry the victim. Such questions being put in the highest forum of justice clearly suggest the weak position of women in Indian society. A lady judge of Bombay High Court, Justice Pushpa Ganediwala recently passed judgements related to the interpretation of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. She acquitted a man accused of groping a 12-year-old girl's breast because he did not make skin-to-skin contact and, in another case, ruled that holding the hands of a five-year-old girl and unzipping the trousers do not amount to "sexual assault" under the POCSO Act. These judgements are a stark reminder that even if women have the right to dignity under Article 21, in reality they don’t have a privilege to safeguard their dignity. It also suggests that patriarchy is so deeply rooted in our society that even women do not take a stand for other women.
The Constitution of India and other statutory laws provide and protect the rights of women, but this existing legal framework is yet to achieve its objectives. Women have reproductive rights provided by virtue of The Constitution of India under Article21. These rights include decisions as to being a parent or not, deciding when to be pregnant, the number of children, etc. Medical Termination of Pregnancy Act, 1971 also mentions that a decision about abortion can be taken by women alone, but in reality, these decisions aren’t taken by women, society and family decide for them.
A major violation of the right to bodily autonomy is female genital mutilation (FGM). It is also a violation of basic human rights. Unfortunately, India does not have any laws that ban FGM, the primary reason being that Indian lawmakers and the society at large deny its existence.
According to the World Economic Forum’s Global Gender Gap Index 2020, India ranks 112th out of 153 countries in providing equal opportunities to women and men, due to prohibition of FGM in several countries, including Australia and the USA, India is soon becoming the new hub for FGM. The ongoing practice of FGM violates Articles 14 and Article 15 of the Indian Constitution.
India will never be able to ensure equal opportunities for men and women if practices such as FGM continue to persist. The international day of Zero Tolerance for Female Genital Mutilation is observed on February 6, but the reality is heart wrenching as Female Genital Mutilation is still being practiced in some communities in India and around the world. The case filed in SC in 2017 is still pending.
Virginity is still seen as a sign of purity and women are expected to have physical relationships only after marrying. This again amounts to transgression of a woman’s right over her body. Virginity tests are a clear violation of the right to privacy, and yet many women have to go through these ordeals. In Maharashtra, two sisters were divorced just because they couldn’t pass the white sheet test. In Lilu @ Rajesh and Another vs. State of Haryana, it was held that the two-fingers test is unconstitutional and should not be practiced. It is also noteworthy that even when the law of evidence in India says that the character of a woman is irrelevant in a rape case still it is still mostly contended by the defence that a virginity test of the victim be conducted.
There has been a surge in the cases of honour killing in India. The so-called ‘honour’ of the family is compromised when a girl marries outside the permitted social strata and, to protect the ‘honour' of the family, family members take away her right to live. Indian courts have condemned this practice on various occasions. In the case of Lata Singh, it was held that there’s nothing honourable in honour killings. The act of honour killings infringes fundamental rights. Cases of honour killing remind us time and again that in India, honour is much more important than the life of an Individual.
In Shafin Jahan V. K.M Ashokan, it was held that adults have the right to marry the person they chose too, but in reality, the Indian society doesn’t give this right. Women are often forced to marry the person of their families’ choice, and they being more prone to outrage of society have no say in decisions affecting their lives. It is a matter of concern that the bill on this subject titled 'The prevention of crimes in the name of honour and tradition and prohibition of interference with the freedom of matrimonial alliance' is pending since 2017, and Rajasthan is the only state having a law on this subject.
Bodily autonomy as a right is given the least consideration in respect to women. Instances of child marriages, marriage to rapists, no say in contraception, forced sterilisation exists. Women in India are at the mercy of men. Husbands and family members usually take these decisions, and the implications are faced by women, they are the ones who suffer.
When will Indian women be able to say that their bodies are their own?
Achieving gender equality - the concept of gender equality has been defined under various international instruments like CEDAW and the convention on the Rights of the Child. It is also one of the sustainable development goals. India has to achieve this goal through social, political, cultural, legal and economic reforms.
Connecting the dots – Bodily autonomy has many facets, and it is important to interrelate and interconnect these facets from their personal and professional lives.
Formulating laws – though laws cannot themselves give bodily autonomy, but they set standards and help in ensuring accountability from the society as they guarantee recourse when the prescribed standards are infringed.
Legal recognition of women’s choices – Social and cultural norms are infiltrated deep in the society and even in the judicial systems. The judiciary and law enforcement agencies have to think beyond these existing norms and defend the rights of women to make choice at all levels.
Health infrastructure and choices of health centres -The health infrastructure of India is weak, choices are limited. The existing COVID19 scenario has further weakened the whole system, thus directly affecting bodily autonomy.
Access to information- Women at all levels should have access to information regarding their health, their rights and the remedies they can take recourse to when their rights are violated.
Recognising women’s right defenders – the people and institutions which work for promoting women empowerment and defending rights of women need to be recognised by the State. This is because Indian women still hesitate in communicating with the authorities due to various reasons like family pressure, the pardah system or lack of knowledge, and these defenders help them by becoming their voices.
Change in attitude of men – if we are able to achieve this, we are halfway done in ensuring autonomy to women. Men need to remove their cape of dominance and superiority. They need to respect and value the choices and decisions women make. Through the younger generation of men is sensitive towards women, there is a lot to achieve.
Financial investment – A substantial amount needs to be invested in educational, health and social sectors for reducing the vulnerability and eliminating the risks faced by women.
Measuring the progress – All these efforts have to be evaluated and their impact on the lives of women be measured on a regular basis so that the ones which are effective be promoted and the lesser effective ones be altered and updated as per the requirements.
Making it happen together – The most significant step towards stopping violations of rights is spreading awareness and sensitising people. All the stakeholders have to come together to achieve an environment where rights of weaker sections are protected.
"I do not wish women to have power over men but over themselves."
-Mary Wollstonecraft Shelley, English writer, philosopher, and advocate of women's rights.