Dr. Sarasu Thomas of the National Law School of India joined the Robson Hall seminar series Nov. 28, 2018, by Skype to compare Canadian and Indian laws on sexual and reproductive rights.
She said India’s precolonial customary laws gave women limited protection and often left them disadvantaged. Relevant colonial laws include the Indian Penal Code, which includes laws related to:
– sexual violence against women
– sexual acts against the order of nature (s. 377), recently interpreted by the Supreme court as not applying to same-sex couples,
– adultery by the wife, a crime struck down last month, and
– causing miscarriage.
Thomas said the Constitution of India now features more provisions intended to protect women. The focus in recent years has been on equality and affirmative action for women.
She said child marriage still happens in India with girls 15. Although colonial laws states that it is illegal to have sex with an individual under the age of 18, family law is governed by precolonial customary laws that contradict the colonial law.
Thomas said the character of the victim is often questioned in Indian rape trials. She spoke about the 2012 fatal Nirbhayagang rape case in the capital Delhi, which shocked the country and sparked rape law reform.
Sexual harassment law was originally drafted by India’s Supreme Court in response to the gang rape of a grassroots worker by upper caste men. The subsequent POSH Act lays down sexual harassment guidelines, and each workplace must have an internal committee to deal with complaints. The code is gender neutral, which is problematic in India because the man accused will often file a complaint at the same time.
Abortion is dealt with through the Indian Penal Code, which states that causing miscarriages is usually a crime, and under the Medical Termination of Pregnancy Act. This Act only allows a woman to get an abortion under limited circumstances, including: a risk to the woman’s life, a risk to the physical or mental health of the woman or fetus, if the pregnancy resulted from rape, or if it was due to failure of a contraceptive for married women only. Thomas noted that the last circumstance is a particularly unusual prohibition, and many women still cannot access abortion in India.
Sex-selective abortions in India may be historically linked the practice of female infanticide in smaller communities. Where pregnant women can find out the sex of the fetus, the ratio of girls born has plummeted.
“We are a patriarchal community,” Thomas said. Families want a son and then a “spare son.” Families must pay a dowry to the husband upon marriage.
The Preconception and Prenatal Diagnostic Techniques Act now requires hospitals to post signs saying they will not disclose the sex of a fetus.
Thomas also discussed the two-child norm in some Indian states, where parents cannot run for office if they have more than two children.
The Immoral Traffic Prevention Act penalizes sex trafficking, soliciting in a public place and running a brothel. Many sex worker collectives across India have joined together to advocate for and protect their rights. “I’m so glad we have these collectives because it’s listening to what the women want for themselves,” Thomas said.
Thomas noted that in India the focus with respect to HIV is on harm reduction, rather than the Canadian approach of criminalization. India has banned surrogacy for non-residents, single parents and homosexual couples, as well as banning commercial surrogacy.
Thomas said Indian law still has a long way to go, including more successful rape convictions, getting rid of the marital rape exception and child marriage, and making work spaces safe for women.
How is a decision made as to whether or not to prosecute in the case of child marriage?
Most of them don’t get prosecuted at all. There are concerns that there is misreporting of the age of girls, especially if they seek medical advice when pregnant.
What is the conviction rate in rape cases in India?
There’s likely about 3-6 per cent that are convicted. Rape law changed in 2012, so we’ll probably get more convictions now, and the definition of rape is broader now. However, a lot go unreported because women attach value to being a virgin when they marry. Some women commit suicide because they believe they bring dishonour on the family. If the person committing the act is of an upper caste, then the victim will likely not report. There aren’t many cases being brought forward.
Do students in India ever make sexual harassment complaints against professors?
No, it’s very rare. I’ve heard of maybe one case where students had complained against a professor, for the most part it is peers. We’ve never had one at our university against professors. I only hear about this by word of mouth because people won’t file cases.
Has there been any attempt to change some of the policies that make having a daughter less desirable? Such as restricting dowries?
We do have laws preventing dowry. We know in dowry there is extortion. Therefore, both the giver and the taker are punished by law. People know what the law is, however they accept dowry and give it anyway.
What are sex worker collectives? We don’t have these in Canada.
Sex worker collectives are sex worker groups that have come together to campaign for their rights. The size of the collectives varies from 15 to 10,000 women. There are collectives in every state throughout the country. [Note that University of Manitoba professors work with these collectives to prevent HIV transmission.]