Intersectionality of Sexual Violence against Migrant Women in India

The author of this blog is Anureet Kaur. She is a second year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab with interest in International Law, and can be reached at anureetkaur23266@rgnul.ac.in

Introduction

“It is vital that we respect, protect and fulfil the rights of all migrant women and girls, at all stages and in all types of migration.”

~UN Women

India is one of the most diverse countries in the world and has seen a wide range of intersecting forms of discrimination affecting women. Across centuries, Indian women have faced various kinds of discrimination on grounds such as caste, class, religion, etc. One such form of discrimination that has affected Indian women is migration. Sexual violence against women has never been new in India. We have seen various cases such as the Nirbhaya case, Kathua Gangrape case, Mathura case and recently Kolkata’s RG Kar case where women have suffered from various kinds of sexual violence in the form of rape, sexual harassment, domestic violence, eve teasing, and other kinds of violations. 

Sexual Violence suffered by women has always remained a grim reality in the country, however, its impact on migrant women has often been overlooked. Migrant women in India constitute one of the groups that have been suffering from various forms of sexual violence both in their home and their workplaces. Moreover, there have been very few studies analysing the violence and exploitation suffered by these women. In this blog, the author has tried to analyse the intersectionality at the heart of sexual violence against migrant women in India and the ways by which migrant women are marginalised through multiple and overlapping sources of subjugation and discrimination.

Women and Migration in India

Women migration has never been new to India. In traditional times, women used to migrate to join their partners or family, thus marriage was one of the major reasons for women’s migration in earlier times. However, due to globalisation, westernisation and modernisation, an increasing number of women are now migrating independently for various reasons other than marriage such as job, education, etc.

The National Census of 2011 reported that around 100 million women in India had migrated for reasons other than marriage, such as work, education, economic reasons, etc. However, the major reason for migration among Indian female migrants still remains marriage with about two of every three women migrants having moved due to marriage, as reported by the Census of 2011.

Moreover, there has been no primary study on female migration in India, thus, there is significant lack of data available on the sexual violence and exploitation faced by migrant women. The Census further suggests women migrants constitute ¼ of India’s population. However, the available statistics don’t cover the extent of the above issue and point towards the recognised data-based gap. Furthermore, the available data suggests that due to various factors such as economic, health, physical safety, etc., women migrants are more vulnerable to exploitation than their male counterparts in India.

Sexual-Based Violence Against Migrant Women in India

Sexual-based violence (SBV) against women in India has always been one of the major issues that the Indian society has been suffering. In this larger circle of vulnerability, migrant women form a more marginalised circle facing particular challenges both in their workplaces and at homes due to their gendered roles in society. Moreover, human rights organisations have frequently pointed out that migrant women are at higher risk of experiencing and being victimised by the SBV.

Unfortunately, SBV against migrant women is one of the critical issues that has often been ignored. Moreover, there are very few cases that get reported due to fear of victim shaming, retaliation, lack of support, political and other reasons. Gender is not a singular dimension leading to sexual violence against migrant women. It intersects with various other dimensions such as race, ethnicity, age, religion and others, widening the vulnerability of sexual violence against women migrants in India.

Legal Gaps: In Protection of the Rights of the Migrant Women

Significant gaps exist in the Indian legal framework when it comes to the protection of the rights of migrant women. Indian policies have often appeared haphazard when it comes to the protection and safeguarding of the rights of migrants. Article 19 of the Indian Constitution guarantees every citizen the freedom to move to any corner of the country. The internal migrants in India constitute one of the major sections of India’s working class, despite this, a large section of them is part of the informal sector of the economy and are paid meagrely. 

General Comment No. 26 to the landmark Convention on the Elimination of All Forms of Discrimination Against Women, 1979 addresses female migrant workers. However, in India, there is no direct legislation covering the issues of migrant women. The Indian government through various statutory legislations such as the Interstate Migrant Workmen Act, 1979 and MGNREGA, 2005 has tried to provide safeguards to protect the rights of migrant workers, especially women, by regulating various provisions relating to their employment, hiring, paying and working conditions. The ineffective implementation of these Acts has rendered them obsolete to protect the rights of the migrants. Thus, obtaining justice especially in the case of migrant women seems like a distant dream under the Indian legal framework.

The Harsh Realities: Examples of Sexual Violence Against Migrant Women

The issue of sexual violence against migrants has been largely overlooked. There have been various cases in India, reported as well as unreported, where the migrant women have been the target of sexual violence both at their workplace and their homes. One such case is of Gujarat’s fish processing industries, where the female labour force of Kerala suffered from various kinds of exploitation in the hands of their employers. 

On July 29, 2023, five-year-old girl child of a migrant girl was abducted and then brutally raped and murdered in the Aluva district of Kerala. Anti-migrant sentiment is rapidly increasing in India, especially in South Indian states such as Kerala and Tamil Nadu, where migrants are seen as a threat to available job opportunities. 

The most important issue remains the underreporting of sexual violence cases due to societal pressure. Bihar and Uttar Pradesh contribute the largest chunk to the migrant population of India. The migrants from the above states are often looked at as “outsiders” and a threat to the local jobs. This has even led to a rise in movements against their migration in states such as Maharashtra, Gujarat and Punjab. The exploitation of migrants in India is a major problem, however, the vulnerability of migrant women is much more concerning. Women are seen as a “property” in Indian societal structure and are more likely to be subjected to sexual harassment and violence. 

Steps to be Taken: Ensuring Protection and Empowerment

Justice in simpler terms is the use of the Rule of Law to benefit those who have the least access to it. One such group is the migrant women in India. The lack of legal recognition and documentation exposes them to several forms of sexual violence, trafficking and other forms of crime, thus, their legal documentation and recognition is the first step for their empowerment. 

Moreover, the author is of the opinion that to empower and help this community, four areas need to be covered:

1. Awareness: This can be done by finding ways to increase the awareness about their legal rights and the way they can protect them. For example, conducting legal awareness sessions regularly can be a step in the right direction.

2. Building grassroot structures: Building strong grassroot structures can help them to map the services that they can access, for example, establishment of one stop centres, mahila panchayats, etc. can be beneficial to them to a great extent.

3. Digital Capacity: Greater knowledge of technology will increase their access to the required services and support.

4. Access Justice: This is the most important step for the empowerment of this community. Government and judicial bodies should pursue effective reforms to fulfil the collective mission of making justice accessible, meaningful and tangible to these marginalised communities. 

The Hon’ble Supreme Court in the landmark case of Alakh Alok Srivastava v. Union of India, 2021 highlighted that the government needs to deal with the migrants in the most humane manner. The former CJI L Nageswara Rao pointed out that:

“Considering the situation, we are of the opinion that the State Governments/Union Territories should endeavour to engage volunteers along with the police to supervise the welfare activities of the migrants. We expect those concerned to appreciate the trepidation of the poor men, women and children and treat them with kindness.”

Moreover, there is an urgent need to integrate legal information about sexual and gender rights into the community. Providing accessible legal, health and other ancillary services can further ensure their protection and empowerment. 

Conclusion

Gender inequalities pave the way to heightened risks of sexual violence, disproportionately affecting migrant women and girls. Thus, the multiple forms of sexual oppression that migrant women experience need to be recognised and addressed through an intersectional approach, alongside promoting laws and initiatives that support their rights. There is a need to shape policies and practices at various levels to ensure that the human rights of these migrant women are effectively protected and safeguarded. 

References

• Premi, M. K. (1980). Aspects of Female Migration in India. Economic and Political Weekly, 15(15), 714–720. http://www.jstor.org/stable/4368564

• Census of India 2011, http://censusindia.gov.in/census.website/data/stories/women-and-migration-in-india 

• Department for International Development. (2015, January 1). Female migrants in India. GOV.UK. https://www.gov.uk/research-for-development-outputs/female-migrants-in-india 

• Jenna Allard, Maulik Jagnani, Yusuf Neggers, Rohini Pande, Simone Schane & Charity Troyer Moore, Indian female migrants face greater barriers to post−Covid recovery than males: Evidence from a panel study, 53, https://www.thelancet.com/journals/eclinm/article/PIIS2589-5370(22)00361-3/fulltext 

• Insights from the Intersectional Dialogues on Migration | Women in Migration Network. (n.d.). https://womeninmigration.org/2023/07/report-intersectional-dialogues-on-migration/ 

• Vijayaraghavan, Hamsa (2020). Gaps in India’s Treatment of Refugees and Vulnerable Internal Migrants Are Exposed by the Pandemic, https://www.migrationpolicy.org/article/gaps-india-refugees-vulnerable-internal-migrants-pandemic 

• Pulikkan, P. (2016). Migration and Integration from the Indian Perspective. In: Stüwe, K., Hermannseder, E. (eds) Migration und Integration als transnationale Herausforderung. Springer VS, Wiesbaden. https://doi.org/10.1007/978-3-658-11645-3_4

• Chishti, A. J. (2024, August 12). Migrant labours from up, bihar allegedly asked to leave punjab village by passing panchayat resolution, high court seeks state’s response. https://www.livelaw.in/high-court/punjab-and-haryana-high-court/punjab-haryana-high-court-migrant-labours-from-up-bihar-asked-to-leave-266488 

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An Analysis of Elderly Abuse in India: A Human Rights Perspective

The author of this blog is Komal Sangwan, a law student at Bharati Vidyapeeth University New Law College, Pune, India.

Picture of an old man, Photograph by Shubh Lingwal

“Trees grow stronger over the years, rivers wider. Likewise, with age, human beings gain immeasurable depth and breadth of experience and wisdom. That is why older persons should be not only respected and revered; they should be utilized as the rich resource to society that they are”

~Secretary-General Kofi Annan (UN)

Introduction

The onset of senior citizenship is inherent once individuals reach the age of 60 and voluntarily discontinue their employment or professional activities. Instances of elder neglect, which result in a loss of identity due to lack of post-retirement employment, have led to discussions on the topic of human rights. They experience memory impairment, which results in a decline in societal regard and an increased reliance on others. Senior adults, due to their natural conditions, require specialised care and should be handled with utmost care and empathy by those around them, whether it be in their own homes, in old age care centres, old age homes, or hospitals.

Old age can be considered a form of disability, leading to age-based discrimination that violates international human rights law. In India and other Eastern countries, there is a considerable degree of reverence for older individuals, but it appears to be diminishing in Western culture. Simultaneously, the issue of elder abuse has gained global attention as a result of the growing elderly population, economic changes, and shifting family demands and priorities. The well-being of the elderly is declining due to the evolving lifestyle trends. Mistreatment and disregard for the elderly is a prevalent societal issue both globally and inside India. According to the 2011 census, 8% of India's population was aged 60 and beyond. It is projected that this percentage will climb to 12.5% by 2026 and 20% by 2050. (HelpAgeIndia) India's demographic change has raised worries regarding the safety and security of the elderly population. Therefore, it is imperative to prioritise the issues related to elder abuse and guarantee the well-being and protection of the elderly.

In this light, the present article aims to analyse the conditions of elderly people in India, with respect to the violation of their human rights, highlight the loopholes and address the need for any reforms required to cater for the existing issues. 

Human Rights of Elders

Human rights are universally applicable, inherent, and fundamental rights that are possessed by every individual from the moment of birth. Until the end of one's life, this right is applicable in every aspect of human existence, including the civil, political, social, cultural, and economic spheres. These rights are immutable and cannot be violated through any means or individuals. Additionally, the elderly are protected by these liberties. The UNGA approved the "Universal Declaration of Human Rights" in 1948, which was an all-encompassing declaration on human rights. This eventous occasion commenced when nations convened to formulate such a declaration. Although Article 1 does not specifically mention the rights of the elderly, it does establish a fundamental principle of human rights. In 1966, the UNGA enacted the “International Covenant on Civil and Political Rights” and the “International Covenant on Economic, Social, and Cultural Rights”. The UNGA approved an international treaty in 1979 aimed at safeguarding women from all types of discrimination. According to Article 11(1)(e) of the “Conventions on the Elimination of All forms of Discrimination against Women”, 'age' is included as one of the forbidden reasons for discrimination. The inaugural global manifesto on ageing, titled the “Vienna International Plan of Action on Ageing”, was established by the “1st World Assembly on Ageing” in 1982. Resolution 37/51 was subsequently adopted by the United Nations General Assembly. The document concentrates on and delineates the fundamental concepts and suggestions for social welfare, income security, family, and health.  1991 the “United Nations Principles on Older Persons” was established, 40 years after the UDHR. These principles provide guidance for promoting independence, dignity, and caring for older individuals. However, this document lacks enforceability, rendering the principles useless. The principles, which were tailor-made to ensure the rights of old persons hold importance in ensuring that governments across the world make necessary policies and legislations to ensure the protection of this vulnerable class of persons. However, with the effective policy in place to ensure its proper implementation, considering its non-binding nature, the principles have become ineffectual.  In 2002, the “Second World Assembly adopted the 'Madrid International Plan of Action on Ageing”, which marked a significant milestone by combining social and economic development with the rights of older individuals. Furthermore, there exists General Comment No. 6 on the International “Covenant on Economic, Social and Cultural Rights”, which offers guidance on the application of laws and ensures comprehensive protection for older individuals. The “Convention on the Rights of Persons with Disabilities” was adopted on December 13, 2006. This treaty explicitly addresses the needs and rights of elderly women with disabilities. However, the primary concern is determining the degree to which old age can be regarded as a component of incapacity. It is necessary to move away from the conventional understanding of disability, which primarily encompasses physical or mental limitations. (Paul Harpur) 

On the occasion of the 70th anniversary of the UDHR in 2018, the United Nations observed "International Day for Older Persons" and reaffirmed its commitment to safeguarding the fundamental liberties and human rights of the elderly. This dedication is predicated on the notion that as an individual grows older, their right to lead a life characterised by dignity and esteem is not compromised. The lack of enforceability is the principal concern associated with each of the aforementioned international declarations and agreements. Notwithstanding state ratification of international documents, the ultimate determination regarding their incorporation into domestic legislation rests with each individual state. In the event that a country neglects to enact such legislation, no authoritative entity possesses the authority to rigorously enforce said laws. These are therefore considered non-binding international laws.

The Indian Legal Framework

The prevalence of elder abuse in India varies by state from 9.6% to 61.7%, according to some studies; however, the actual rate may be significantly higher than what is reported. One out of every twenty-four cases of elder maltreatment reported in the country is considered to be the exception. In this light, it becomes important for proper awareness of the Indian laws which protect the rights of the elderly in the nation. Some of the important legislations and policies are as follows:

1. The Constitution of India

According to Article 41 of the Constitution, the rights of the elderly to employment, education, and public assistance are guaranteed.  Moreover, it ensures that the state bears the responsibility to uphold these rights in circumstances such as old age, infirmity, or illness. As per Article 46, it is the responsibility of the state to ensure the protection of the educational and fiscal rights of the elderly.

2. The Criminal Procedure Code, 1973. 

Section 125 of the CrPC stipulates that parents may request financial assistance from their offspring, including married daughters. However, this only applies in the scenario where the parents are self-sufficient and the offspring have the means to provide for their parents.

3. The Indian Penal Code, 1860

As per the provisions of Section 506 of the Indian Penal Code, individuals who antagonise senior citizens are liable to face criminal intimidation charges.  A legal action may be initiated under Section 294 in the event that an individual subjects elderly individuals to severe maltreatment, crude language, and mental torment. 

4. Maintenance and Welfare of Parents and Senior Citizens Act, 2007, along with amendment bill

This legislation imposes responsibilities on offspring to support their parents/grandparents, as well as on the relatives of elderly individuals to support those individuals. Additionally, it offers a cost-effective and expeditious process to request monthly maintenance.

The new legislation has explicitly defined maintenance as encompassing the provision of essential necessities such as food, clothes, housing, safety and security, medical attention, healthcare, and treatment required for parents to maintain a dignified standard of living. Hence, those who mistreat or desert their parents may face a prison sentence lasting six months, a fine of up to ten thousand rupees, or both penalties concurrently.

5. National Policy of Older Persons, 1999

This Policy expedites social welfare initiatives and enhances the autonomy of the aged in a manner that is advantageous to them. The measures encompassed the establishment of pension funds, concessions in train and plane fares, as well as tax reductions for senior residents. 

6. Personal law

Various personal laws, such as Hindu laws, Muslim laws, Christian laws, and Parsi laws, incorporate statutory measures to safeguard the rights and welfare of elderly individuals. In Hinduism, individuals have a lifelong obligation to support their lawful/unlawful offspring as well as their elderly or disabled parents. An individual is required to support their elderly and sick parent or unmarried daughter, as long as the parent or daughter is unable to support themselves financially through their own income or assets. 

The legal requirement for supporting parents in Hindu personal law is outlined in Section 20 of the “Hindu Adoption and Maintenance Act, 1956.” The Act in question is the inaugural personal law legislation in India, which mandates that children have a duty to provide for their parents.

According to Tyabji, under Muslim Personal Law, parents and grandparents who are in poor financial situations have the right to receive financial support from their children and grandchildren who are capable of providing it, even if they are capable of supporting themselves. Both male and female offspring are obligated to provide support for their parents according to Islamic law. However, the fulfilment of the requirement relies on their possession of the necessary resources.

 

Elder Abuse in India: An Analysis

According to the World Health Organisation, elder abuse is defined as a singular or recurring act, or the failure to take necessary action, occurring within a relationship that requires trust, and resulting in distress or harm to an older person. (World Health Organization) Approximately 16% of elderly individuals globally are victims of maltreatment, according to reports.

India is not exempt from the worldwide phenomenon of increasing elder abuse. Unfortunately, a considerable portion of the senior population in India experiences many forms of abuse, mostly including physical violence, neglect, and psychological abuse. Without any explicit policy, legislation, or public assistance programme to discourage perpetrators, instances of abuse are growing rapidly. It is probable that the prevalence of elder abuse in both household and institutional environments, particularly in metropolitan India, would continue to rise. According to a 2016 report titled "Policy for the Aged: Opportunities and Challenges" by the “National Institute of Rural Development and Panchayati Raj”, elderly individuals have increasingly fallen prey to fraud and abuse. (NIRDPR) Additionally, they are being coerced by family members to relinquish their ownership rights. According to a report published by HelpAge India in 2018, around 25% of older individuals in metropolitan India, out of a total of 5,014 respondents, experienced abuse. (HelpAgeIndia) The majority of this abuse was perpetrated by their sons (52%) or daughters-in-law (34%). The survey reveals that the most prevalent forms of abuse are: “(i) disrespect (56%), (ii) verbal abuse (49%), and (iii) neglect (33%)”. (HelpAgeIndia) Abuse was shown to be more common among individuals aged 80 years and older, as well as among those with limited financial resources and low levels of education.

The causes of elder abuse in India are intricate and diverse. Several reasons contribute to this phenomenon:

• Socio-economic transformations: The swift process of urbanisation, industrialization, migration, and modernity has gradually destroyed the conventional joint family structure and the associated values of respect, care, and reverence towards the elderly. The elderly are frequently perceived as burdensome, liabilities, or sources of conflict by their family members or society. (Irudaya Ranjan)

• Demographic transition: The process of population ageing, characterised by longer life expectancy and lower fertility rates, has led to a greater number of elderly individuals in the population. The elderly encounter obstacles such as social isolation, financial insecurity, prejudice, and a lack of targeted interventions and resources to address their needs and entitlements.

• Legal and policy deficiencies: The current legislation and regulations regarding the safeguarding and well-being of the elderly in India are insufficient, inefficient, and inadequately enforced. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the primary statute concerning the aged, possesses various limitations and loopholes. The legislation fails to encompass all manifestations of abuse, lacks sufficient punitive measures, does not guarantee expeditious dispensation of justice, and neglects to tackle concerns regarding institutional care, social security, and healthcare provisions for the elderly.

• Insufficient awareness and empowerment: The older population in India frequently lacks knowledge of their legal rights, entitlements, and available remedies. Additionally, individuals are hesitant to disclose or seek assistance for instances of mistreatment owing to apprehension, embarrassment, social disapproval, reliance, or a lack of confidence in others. Additionally, they are susceptible to being manipulated, intimidated, and coerced by their abusers. (Pamela Kinnear)

How to Deal with Elder Abuse

As discussed above, a significant number of elders face abuse and discrimination at various levels in India. In this light, it becomes important to understand what remedies are available for them and how to deal with such abuse. Some of the ways are as follows:

1. Contact Local NGOs:

• One of the most effective and easiest methods in case of elder abuse is to reach out to NGOs that specialize in elder care and protection. Some of such NGOs involved in this area are HelpAge India, Dignity Foundation, and Agewell Foundation.

2. File a Police Complaint (FIR):

• In cases of immediate danger, the elderly person should file a First Information Report (FIR) at the local police station to ensure their safety and well-being.

3. National Elder Helpline:

• The elderly person can call and contact the toll-free National Elder Helpline (Dignity Foundation) at 1800-121-1253, where they can seek guidance and assistance.

4. Connect with Senior Citizen Cells:

• Many police stations have special cells dedicated to addressing issues related to senior citizens. A visit or contact with these cells for support can ensure immediate help and protection.

5. Legal Aid Services:

• Various legal aid services provide assistance to elderly individuals facing abuse. Thus, in case of a legal battle to secure their rights, elder victims can approach Legal Aid Services in India which offers support to those who cannot afford legal representation.

Conclusion

The United Nations Principles on Older Persons and other international treaties are all-encompassing and centre on the societal obligations towards the elderly population. The State and Civil society are supposed to grant senior citizens and elderly individuals maximum autonomy and assist them in living a contented and productive life in their old age. What is even more disturbing is the lack of information among the general population regarding various national and international legislations/ treaties and the benefits thereunder, etc.  It is crucial to have extensive media coverage on elder abuse across all platforms in order to raise awareness among the general public about the needs of the elderly and to educate the younger generation about the care and well-being of older adults.  The government should disseminate information on the rights of elderly individuals, promote the advocacy of issues related to old age at all levels of governance, and ensure the effective implementation of policies aimed at safeguarding the interests of older persons. The education system should incorporate teachings on the disposition and conduct towards the elderly at all educational levels. An uncompromising legal and comprehensive approach to this serious issue has the potential to bring about some alterations in the present circumstances.

A senior citizen or elderly individual needs affection and respect in accordance with their personality requirements. The State and society should be dedicated to fulfilling that aspiration. A youthful individual of the present will eventually become an elderly individual in the future, and it is imperative for both age groups to prioritise and uphold the fundamental rights of one another. The elderly yearn for affection, esteem, and a chance to live a life of dignity. 

References

• United Nations’ Secretary-General Kofi Annan- https://news.un.org/en/story/2002/04/31702-un-forum-madrid-set-tackle-challenges-ageing-world-population. 

•  “Elder Abuse In India – 2018”, Help Age India, available at https://www.helpageindia.org/wp-content/uploads/2018/06/ELDER-ABUSE-IN-INDIA-2018-A-HelpAge-India-report.pdf. 

• “Universal Declaration of Human Rights, 1948”, Art. 1. 

•  “Conventions on the Elimination of All forms of Discrimination against Women, 1979”, Art. 11(1)(e). 

•  “World Assembly on Ageing adopted the Vienna International Plan of Action on Ageing, 1982”.

• “United Nations Principles on Older Persons, 1991”, available at https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-principles-older-persons. 

• “Madrid International Plan of Action on Ageing”, 2nd World Assembly on Ageing, 2002. 

• “Covenant on Economic, Social and Cultural Rights, 1976.” 

• Harpur, Dr. Paul, (2016) “Old Age Is Not Just Impairment: The Crpd And The Need For A Convention On Older Persons”, Penn Law: Legal Scholarship Repository, Volume 37. 

• Indian Const., Art. 41.

• Indian Const., Art. 46.

• Criminal Procedure Code, 1908, Sec. 125.

• Indian Penal Code, 1860, Sec. 506.

• Indian Penal Code, 1860, 294.

• “Maintenance and Welfare of Parents and Senior Citizens Act, 2007”.

• “Hindu Adoption and Maintenance Act, 1956.” 

• “Missing voices: Views of older persons on elder abuse.” World Health Organization.

• “Policy for the Aged: Opportunities and Challenges”, National Institute Of Rural Development & Panchayati Raj, available at http://nirdpr.org.in/nird_docs/PolicyfortheAged.pdf. 

• Irudaya Rajan, S., “India’s Elderly: Burden Or Challenge?” New Delhi: Sage Publications and London: Thousand Oaks.

• “Maintenance and Welfare of Parents and Senior Citizens Act, 2007.”

• Pamela Kinnear, “Abuse of Older People: Crime or Family Dynamics?”, Australian Institute of Criminology, trends & issues, in crime and criminal justice, May 1999, No. No. 113.

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