Violence Against Women and Marginalised Genders:  Legal Mechanisms of Protection in India

Abstract

The phenomenon of gender-based violence in India, while long acknowledged, remains a continuous and deeply  entrenched social issue. While women have historically borne the pressure of such violence, things identifying as  transgender, non-binary, and queer often wait invisible within the guarding ambit of the legal structure. This article  undertakes an inclusive examination of the Indian permissible framework concerning intensity against women  and marginalised genders. It analyses constitutional supplyings, statutory protections, and key judicial  pronouncements while evaluating the efficacy of these mechanisms in contribution real-world aid and redress.In  doing so, the article climaxes systemic lacks and proposes pathways for reform proposed at achieving substantive  similarity and justice for all genders.

Introduction

Intensity implanted in gender is not merely a social evil it is a breach of fundamental civil rights and an obstruction  to the realisation of constitutional principles. In India, the legal method has tried to tackle gender-located violence  through an developing mixture of sanctioned enactments, legal involvement, and policy pushs. Still, the  construction of these devices mainly centres the cisgender woman as the basic subject of guardianship, frequently  disregarding the lived realities of additional gender youths.

This article endeavours to analyze the legal protections applicable in India against gender-located intensity. It  investigate the extent at which point these regulations surround and put oneself in the place of another the  experiences of marginalised genders, and either the guarantees of balance and excellence under the Establishment  have interpreted into accessible remedies. The focus is not only on the manual of the regulation but still on the  breach in allure implementation and understanding, specifically from the prospect of the most vulnerable.

Background

India’s socio-legal discourse on gender-based violence has traditionally been framed around the experiences of  cisgender women, often failing to capture the intersectionality of caste, class, gender identity, and sexual  orientation. Crimes such as domestic violence, rape, dowry deaths, and honour killings are routinely documented.  Yet, the violence faced by transgender persons, queer individuals, and gender non-conforming persons remains  largely unreported and unacknowledged.

Despite significant strides in legal reform post the 2012 Nirbhaya incident ¹, the terrain remains fraught.  Institutional apathy, social stigma, and the fear of ostracisation discourage victims from seeking justice. For those  at the margins trans persons, Dalit women, and others the legal system often becomes a site of further violence  rather than refuge.

Constitutional and Human Rights Framework

The Indian Establishment², in allure preambular concept and fundamental rights division, lays the bedrock for  gender lawfulness.

• Article 14 guarantees equality before the standard and equal care of the standards. • Article 15(1) prohibits bias on estates containing sexuality,
• While Article 15(3) empowers the State to form distinguished provisions for women and youngsters. • Article 21, elucidated broadly by the Supreme Court, encompasses the right to accept excellence, that inevitably contains privilege from intensity.

In Vishaka v. State of Rajasthan (1997) ³, the Court conjured worldwide tools in the way that the Convention on  the Eradication of All Forms of Injustice Against Women (CEDAW)⁴, to fill legislative voids, enunciating a  rights-based approach to sexual harassment. In NALSA v. Union of India (2014) ⁵ , the Court protracted  constitutional protections to transgender persons, recognising their right to self-recognition and maintaining their  right absolutely array of fundamental rights.

Aforementioned rules of a government indicates an intentional understanding of constitutional provisions,  regulating household society accompanying international civil rights principles. Notwithstanding, the lived  experiences of gender adolescence imply an absolute breach between formal rights and substantive security.

Statutory Protections for Women

Indian Penal Code, 1860

The IPC holds various provisions focusing on felonies against women⁶:

• Section 375 and 376 criminalise rape, even though the interpretation remnants centred on penile-vaginal penetration and forbids male, transgender, or non-binary survivors.
• Section 354 manages outraging the virtue of a woman, a term inadequate strict description. • Section 498A penalises brutality apiece husband or his relatives.
• Sections 326A and 326B criminalise acid attacks.
• Sections 354C and 354D address surveillance and following, individually.

While the Criminal Law (Amendment) Act, 2013 , was a watershed moment, allure purview remains limited to  binary notions of gender.

Protection of Women from Domestic Violence Act, 2005 (PWDVA)⁷

This civic statute accepts sentimental, intercourse, spoken, and financial abuse alongside physical violence . It  allows for protection orders, residence rights, and monetary remedy. Nevertheless, the Act applies only to women  in domestic relationships and expels male and transgender survivors, accordingly preserving a heteronormative  legal foundation.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)⁸

Emergent from the Vishaka judgment, the Act authorities redressal mechanisms within workplaces. However, it  is restricted to cisgender women and frequently poorly executed, exceptionally in the unorganised sector. Skilled  is also uncertainty concerning its application to queer or trans persons.

The Dowry Prohibition Act, 1961⁹

Dowry-related violence persists to plague Indian society. Regardless of the criminalisation of dowry, social  compliance is littlest and prosecutions infrequent. The Act, while gender-specific, abandons to address the more  expansive cultural underpinnings of gendered exploitation within marriage.

Legal Framework for Marginalised Genders

Transgender Persons (Protection of Rights) Act, 2019¹⁰

This statute, while a landmark in recognising transgender persons, endures from various deficiencies. It authorities  a certification process for gender correspondence, that undermines the autonomy affirmed in NALSA.  Additionally, the Act does not expressly address violence, nor does it enact a prosperous enforcement mechanism  or affirmative action order.

Absence of Comprehensive Anti-Discrimination Law

Regardless of judicial recognition of gender similarity under Articles 14 and 21, India lacks an extensive anti discrimination statute including all marginalised genders. Consequently, approach to healthcare, residence,  education, and justice debris conditional and uncertain for abnormal and trans persons.

Judicial Advancements

In Navtej Singh Johar v. Union of India (2018)¹¹, Section 377 IPC was express down, decriminalising consensual  same-sex relations. The judgment emphasised nobility and non-discrimination but stopped lacking authorize  statutory protections against violence or abuse established sexual orientation.

In Shafin Jahan v. Asokan K.M. (2018)¹² , the Supreme Court supported an adult woman’s right to choose her  partner, reaffirming autonomy as principal to personal liberty a law evenly applicable to abnormal persons.

Challenges in Enforcement and Access to Justice

The mere existence of laws is insufficient in the lack of persuasive prosecution. The following integral issues  prevent access to justice:

Police Apathy and Prejudice: Survivors, particularly from marginalised societies, frequently face ridicule,  skepticism, or hostility at police stations. FIRs are not immediately registered, and investigations are frequently  postponed or compromised.

Judicial Insensitivity: Despite progressive rulings, lower courts concede possibility not usually administer  constitutional principles. Survivors are endanger moral policing or victim-blaming in open court.

Lack of Awareness: Many things, particularly from rural and economically weaker qualifications, remain  ignorant of their legal rights or the procedural steps necessary to insist bureaucracy.

Social Stigma: For trans and abnormal persons, social rejection and lack of family support frequently prevent  them from pursuing institutional redress, aggressive ruling class into cycles of vulnerability.

Inadequate Institutional Means: Protection Officers under the PWDVA , Within Committees under POSH, and  Welfare Boards under the Transgender Act are frequently non-functional or gone in various states.

Conclusion

India’s legal system has certainly progressed in allure engagement accompanying gender-based violence. Still,  the construction of guardianship is still leaning, privileging a narrow explanation of femininity while  marginalising the experiences of other genders.

To doubtlessly advance gender justice, the State must attempt the following:

• Enactment of a Comprehensive Gender-Neutral Anti-Discrimination Law that covers employment, education, shelter, and access to public services.
• Expansion of Existing Laws to definitely involve trans and non-binary individuals as benefits. • Institutional Reforms to ensure proper, courteous, and non-discriminatory redressal. • Widespread Legal Literacy Campaigns to empower individuals to insist their rights. • Gender-Sensitisation Training for police, judiciary, and other public officials.

As we look toward a more inclusive and just society, it is critical that the legal regime not only recognises the  complete range of gender identities but further responds adequately to the singular harms they face. Justice,  however, must not solely be pledged it must be brought fundamentally.

Reference(S):

Constitution of India, 1950

Indian Penal Code, 1860

Protection of Women from Domestic Violence Act, 2005

Transgender Persons (Protection of Rights) Act, 2019

Sexual Harassment of Women at Workplace Act, 2013

Dowry Prohibition Act, 1961

Vishaka v. State of Rajasthan, AIR 1997 SC 3011

NALSA v. Union of India, (2014) 5 SCC 438

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368

Justice Verma Committee Report, 2013

NCRB Crime in India Report 

¹ Mukesh & Anr. v. State for NCT of Delhi & Ors., (2017) 6 SCC 1.

² Constitution of India, 1950, arts. 14, 15(1), 15(3), 21.

³ Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011.

⁴ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), United Nations, 1979.

⁵ National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

⁶Indian Penal Code, 1860

⁷ Protection of Women from Domestic Violence Act, 2005

⁸ Sexual Harassment of Women at Workplace Act, 2013

⁹ Dowry Prohibition Act, 1961

¹⁰ Transgender Persons (Protection of Rights) Act, 2019

¹¹ Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

¹² Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368