white black legal international law journal ISSN: 2581-8503

Peer-Reviewed Journal | Indexed at Manupatra, HeinOnline, Google Scholar & ROAD





Authored By-Aastha Thakur





The phrase "Gender Based Violence" is used to separate acts of violence against specific people or groups of people based on their gender from other types of violence committed by individuals or groups. Acts that cause or are likely to cause bodily, sexual, or psychological injury are included. Other examples of gender-based violence include threats of such behaviour, coercion, and arbitrarily robbing someone of their freedom. Such gender-based violence may be committed by members of the state, members of the family, or members of the community during "peace times" or times of conflict. It may be committed by close friends, distant strangers, or members of your family.2

This violence is present within the patriarchal framework as a symbolic system that produces a variety of everyday behaviours that deprive women of their rights and perpetuate the current disparity and unfairness between the sexes. This type of violence differs from other types of assault and coercion in that the risk factor or source of vulnerability in this instance is the simple fact that the victim is a woman.3

There are several provisions for the benefit and protection of women in the Indian constitution, which is the grundnorm.   The Indian Constitution gives adequate consideration to the ideas of equality and non-discrimination. Additionally, it gives the state the power to implement affirmative action policies in favour of women. In addition to fundamental rights, the Directive Principles of State Policy include several special rules to protect women's rights. However, gender discrimination and unfairness persist despite constitutional protection and several laws. This is mostly due to the fact that individuals who interpret or implement laws do not always completely adhere to the notion of gender justice.





Despite frequent confusion and interchange, there is a clear difference between gender-based violence (GBV) and violence against women (VAW). The phrase "gender-based violence" highlights the gender elements of the violence, both from the perspective of the offenders and victims, even if VAW covers any act of GBV against women and girls. Gender-based violence is a term used to describe violence that targets people or groups of persons based on their gender as opposed to other types of violence committed by both individuals and organisations. Such gender-based violence may be committed by state agents or non-state actors, and it may take place within the family, in the neighbourhood during "peace times" or times of conflict. It could be committed by close friends, relatives, strangers, or cohabitants.4

Human Rights And Gender Based Violence


The premise underlying the international human rights framework is that people have certain rights just by virtue of being people. These rights are seen as being universal, unalienable, indivisible, equal, and non-discriminatory and were enshrined in the Universal Declaration of Human Rights, which was signed in 1948. Many nations throughout the world have ratified a number of treaties and covenants that safeguard them. Each state is required to maintain and implement human rights with assistance from the Office of the High Commissioner for Human Rights, despite the fact that they are beyond the purview of national governments' legal authority. A broad network of international and humanitarian organisations seeks to guarantee that these rights are generally upheld in most jurisdictions.

Gender-based violence constitutes a flagrant violation of the rights to equality and dignity upheld by the human rights movement. It imperils the victim's dignity and sense of independence. It has severe economic, social, physiological, psychological, and behavioural repercussions that survivors must negotiate over time. Despite law and policy being enacted as early as the 1970s, it wasn't until the 1990s that gender was acknowledged as a significant element in the violence that is committed internationally.5

It was only with the Declaration on the Elimination of Violence against Women (DEVAW) in 1993 that GBV was acknowledged as a major issue pertaining to gender justice on a global scale.6 The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) focused on mainstreaming women and their access to human rights for the first time. Following this, regional and national governments, including the European Union, the African Charter, and the Dhaka Declaration, have attempted to address human rights breaches while concentrating particularly on gender-based violence.7

GBV is a complicated problem that affects society on many different levels, including the economic, social, cultural, and political ones. It is oversimplified and leaves opportunity for error to characterise it as merely violence committed by one biological sex against another biological sex. The structural inequalities and access to power that permeate the social, economic, cultural, and political realms in most nations must receive more attention under GBV. Instead of only being violence based on a specific gender, GBV then becomes a result of not adhering to the gendered standards and norms as required to be done by a patriarchal social order.8


Gender Based Violence To Transgender


There are several factors that make transgender people more vulnerable. One of the major factors that make transgender people more susceptible to gender-based violence is views on gender roles. Several civilizations use methods including institutionalisation, forced sterilisation, and marital restrictions to regulate people's sexual orientation.9 In order to receive care, transgender people are also taught to be submissive. They become internally oppressed and compliant as a result of this indoctrination, which prevents them from reporting abuse and motivates them to stay in abusive relationships. The prevalence of gender-based violence against transgender people in India is exacerbated by social norms that support societal devaluation of this group.

Gender Based Violence Against Disable People


Both men and women with disabilities are more susceptible to gender-based violence as a result of social prejudice based on gender and disability. However, because of physical,



7 ibid


sexual, and mental abuse, women and girls with disabilities are more vulnerable. It was found that the preceding instruments failed to adequately address gender-based violence in India and lacked a clear description of this offence.

The social model described disability as a social construct that develops when society renders persons with disabilities incapable of full participation, hence rendering them disabled. Additionally, there is essentially little evaluation of the services and treatments that address gender-based violence among PWDs. The glaring paucity of information on PWDs obscures the extent of gender-based violence in this community, preventing political commitment and thorough public health participation.10 Compared to those without disabilities, they experience more types of violence throughout the course of their lives from more offenders and over longer periods of time. PWDs are at risk of assault from familiar friends and family members.


Gender Based Violence Against Women


One in three women is a victim of gender-based violence, which is both a human rights violation and a public health issue. Due to their inferior social standing in society, it is also a severe example of gender inequality that targets women and girls. It can emerge as psychological, physical, or sexual abuse, and in any of these forms, it can have negative effects on a woman's ability to reproduce and sexually express herself. Every woman can encounter abuse and threats of violence, regardless of age, skin tone, religion, or economic or social standing. Violence may happen anywhere, including on the streets, at the job where there is sexual harassment, and at home where a woman may not be protected since she could potentially be raped and battered by her spouse.11


Gender-Based Violence Levels:




Gender-based violence occurs on three different levels. Home or family level, neighbourhood level, and state level are these.

Violence at Home: The most common type of gender-based violence is domestic violence. Usually, it happens when a man hits his female partner. Physical violence is always followed by psychological abuse, and the majority of women who are assaulted by their spouses are abused again. Battery, sexual abuse, female genital mutilation, and other forms of exploitation for women and girls, marital rape, dowry-related violence, incest, non-spousal violence like a son's violence against his mother, and violence related to exploitation and deprivation of freedom are all examples of physical, sexual, and psychological violence against women within a couple and in the family.12

Violence Against Women within the General Community: acid-throwing, "witch- hunting," sati, honour crimes, trafficking in women and children, forced prostitution, violence against women with disabilities, community violence, and violence against adivasi and dalit women are all examples of sexual assault, all of which are linked to increased poverty, which is primarily the result of unbridled economic liberalism—are examples of physical, sexual, and psychological violence that occurs in the general community. These forms of violence against people in general also include forcing women to use contraception, forcing women to have abortions or sterilisations, choosing which female foetuses to terminate, and killing female infants.13

States that prioritise tradition or custom over the respect for fundamental freedoms all too frequently engage in or allow physical, sexual, and psychological violence. The spread of religious fundamentalism and its impact on women's rights to economic independence and personal freedom are very concerning in several nations. Internment rapes, torture, and killing, gender-based violence in militarised settings, violence against migrant workers, refugees, and internally displaced people, as well as other situations when mass crimes are committed are all examples of such level of violence.14


Our digital and offline lives are more interconnected than ever in the digital age we live in today. As a result, GBV takes many different forms in online environments. Digital tools like social networking and GPS are increasingly used to target women and other gender minorities for stalking and sexual harassment.





Artificial intelligence-powered digital technologies have also made it simpler to create offensive sexual photos without consent. Furthermore, major instances of online gender- based violence include discrimination, hate speech, and cyber bullying. In a poll conducted by Plan International, 58% of young women reported experiencing online harassment, with 50% reporting that the harassment was worse than what they encountered in person. Gender- based violence in online environments is a common and urgent problem due to the anonymity and ease of access provided by the internet.15

Gender Based Violence In India


India presents a very concerning scenario when it comes to gender-based violence. Its highly patriarchal underpinnings and the state's ineffective approach to counteracting its influence throughout the nation are unsettling. India's response to GBV is frequently haphazard and out of proportion. The legislative and policy framework in place in the nation to address the disproportionate degree of violence experienced by women is outweighed by the cultural and social factors of the nation. Along the lines of class, caste, religion, and ethnicity, this violence spreads even more.16

In India, gender-based violence can take many different forms, including high levels of domestic violence, dowry deaths, human trafficking, sexual assaults, unnatural crimes, and honour killings. These crimes are a direct outcome of the gender-based structures that support India's cultural and social environment. These crimes are a result of the social, cultural, and political resources that are inaccessible in patriarchal society because to the power imbalance.17


7.3 % more crimes against women were committed in 2019 compared to 2018 according to the National Crime Records Bureau's Crimes in India Report. 30.9 % of all incidents reported involved domestic violence, and 7.9 % involved rape. A worldwide narrative indicating that 35% of women had experienced physical/sexual intimate and non-intimate partner violence supports the report's assertion that the crime rate per lakh of the female population was 33.2








%. Gender-based violence affects one in three women. There is a considerable portion of gender-based violence instances that are not reported and are mainly kept under wraps, therefore it is important to keep this in mind when considering these statistics as proof. In addition, these cases only reflect those groups of women who have access to avenues for redress. GBV cases nationwide have increased by double as a result of the coronavirus epidemic.18

Women from marginalised and minority cultures experience violence with varying degrees of severity and intensity. Women who are members of minorities, such as Dalit and Muslim women, frequently and severely endure violent threats. It is a well-known fact that the state cannot defend the rights of minorities, regardless of their caste, ethnicity, or religion.

Examples of GBV that are typical of South Asian civilizations include dowry-related fatalities and violence, acid attacks, honour killings, and sex assaults. While addressing certain issues of GBV, the Indian legislative framework ignores others. To put it another way, while there are significant laws in existence to combat domestic violence and dowry-related crimes, honour killings and acid assaults do not have any significant legislation being passed to serve justice. Legislative actions turn into a tool for conceptualising human rights accessibility.19

It is challenging for survivors to receive justice and for persons to even get violations of regulations and laws to be acknowledged. The Domestic Violence Act of 2005 and the dowry-related Section 498A of the Indian Penal Code (IPC) are effective mechanisms that women may at least employ to demand justice. The lack of comparable rules for honour killings enables for arbitrary justice to prevail, which frequently falls prey to patriarchal values and norms—exactly the region from which these crimes need to be reclaimed. It is clear that law is crucial in the struggle for human rights when a Chhattisgarh court rules that forced sexual contact between a husband and wife would not be considered rape until 2021 under the definition of marital rape under section 375 of the IPC. Legal action, however, cannot serve as the only means of addressing gender-based violence and its effects. Even after decriminalising sexual activity between members of the same sex, Article Section 377 regarding sexual minorities did not lead to the inclusion and acceptance of sexual minorities.






Crimes against homosexual men and women, as well as transgender men and women, continue, and police personnel often commit these crimes while going unpunished. Human rights are still not fully realised in India due to the cultural stigma attached to homosexuality and gender-deviance. Legal protections are crucial, but they are ineffective without the support of cultural attitudes and norms.20

Key Indicator of GBV21


  • There must be legal structures in place to encourage, uphold, and monitor gender equality and non-discrimination.
  • percentage of women and girls who have ever been in a relationship and are at least 15 years old who had experienced physical, sexual, or emotional abuse at the hands of a current or past intimate partner in the 12 months before, broken down by kind of abuse and by age.
  • percentage of women and girls, ages 15 and older, who experienced sexual violence from someone other than romantic partners in the 12 months before, broken down by location and age.
  • by sex, age, and region, the amount of time spent on unpaid domestic and care duties.
  • number of female representatives in municipal and national legislatures.
  • women's representation in management roles.
  • the proportion of females between the ages of 15 and 49 who are capable of making their own decisions about romantic relationships, contraception usage, and reproductive health care.
  • Access to procedures for tracking and allocating public funds for gender equality and women's empowerment, as well as sexual and reproductive health care, information, and education

Social, Political, And Cultural Influences

  • oppressive social, cultural, or religious laws, customs, and behaviours that violate the rights of women and girls.
  • Frequently, violence against women is justified using gender stereotypes. Cultural standards frequently dictate that males should be assertive, in charge, and domineering while women should be submissive, meek, and dependent on men for support. These conventions may encourage a culture of overt abuse.





  • Women and girls are frequently exposed to risk due to the breakdown of familial, social, and communal institutions, which also affects their ability to cope and their access to avenues for protection and recourse.22

Judicial Constraints


  • Inaccessibility to legal systems and institutions leads to a society where abuse and violence are tolerated.
  • Inadequate and expensive legal counsel and representation.
  • Inadequate systems for protecting victims, survivors, and witnesses.
  • Inadequate legal framework that discriminates against women and girls, including national, traditional, customary, and religious law.


Individual Impediments


  • Fear of being subjected to future violence at the hands of the offender, the community, or the authorities, including arrest, custody, mistreatment, and punishment to the extent that there is a constant fear of shame, exclusion, and social ostracism.
  • lack of knowledge on human rights, as well as how and where to seek redress.


Due to the following reasons, gender violence is among the main obstacles to women's advancement23:

  • It has a significant negative impact on women's physical, sexual, and reproductive health as well as their emotional and behavioural well-being, preventing them from reaching their full potential.
  • Women's capacity to fully participate in all types of social and political interactions on an equal basis is impacted by violence and the fear of violence.
  • The employment rates and economic empowerment of women are impacted by domestic abuse and workplace harassment.
  • Girl’s educational prospects and accomplishments are hampered by sexual harassment.24









Existing laws to prevent Gender-based Violence and discrimination against Indian gender minorities are inadequate and out-of-date, necessitating significant and many modifications. Through the combined efforts of society, the government, and individuals, gender-based violence (GBV) may be abolished. The following actions would make a significant difference in eliminating the current gender inequality:

One of the most crucial means of identifying and helping victims is by teaching healthcare professionals how to recognise and respond to gender-based violence.

The media plays a crucial role in raising awareness of GBV, publicising remedies, educating policymakers, and teaching the general public about their legal rights and how to identify and handle GBV.

Education is essential for preventing GBV before it occurs in school settings. The message that violence is unacceptable and may be averted can be delivered through regular curriculum, sexuality education, school counselling programmes, and school health services.

One of the most effective approaches to eradicate GBV, according to a number of studies, is to include entire communities in its recognition, treatment, and prevention.










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