Verdicts Diluting Sexual Assault Charges Hurt Not Just Gender Justice But Economy Too

Women's safety outside the home is a major determinant of women’s willingness to be part of the workforce.

Judicial latitude on sexual assault harm not just women but also the economy

It is welcome that a Supreme Court bench comprising Justice BR Gavai and Justice AG Masih have stayed the order of Justice Ram Manohar Narayan Mishra of the Allahabad High Court that had downgraded the criminal offence of attempt to rape determined by a lower court to a lesser charge of assault or use of criminal force with intent to disrobe, and aggravated sexual assault. This matters not just for gender justice, and social justice (the accused and the victim are from different castes separated by a power differential), but also for India’s economic prospects.

The accused were two men from an Uttar Pradesh village, socially powerful and bearing licensed firearms, who had, in November 2021, found the lower court, groped an eleven-year-old girl, broken her pyjama drawstring and tried to pull her down below a culvert. Passers-by intervened and they let the girl go. For two months, the girl’s family could not even get a First Information Report registered against the accused.

With the help of a social activist, the case was registered, investigated and prosecuted successfully. On appeal in the Allahabad High Court, Justic Mishra, saw in the accused’s actions only the preparation for a crime, and not sufficient determination to convert the preparation to ‘attempt’.

Justice Mishra is, presumably, a fine legal scholar, and capable of acute objectivity and powers of reasoning that allow him to deduce, from the accused’s failure to carry out the rape they had prepared for, and the nature of the intervention of the passers-by, a redeeming lack of criminal determination. So, presumably are the Supreme Court justices who have stayed his order. In matters of judicial disagreement, we should await the final verdict of the Supreme Court before we assume we know the right and wrong of the matter. But what we do know is that India’s economic performance is held back by low female participation in the workforce.

The World Bank presents data for the International Labour Organisation’s modelled estimates for female labour force participation for different countries and the world at large. The difference between the labour force and the workforce is, of course, that the labour force includes, along with those at work and therefore are part of the workforce, those who are willing to work and looking for work. The labour force equals the sum of those at work and the unemployed.

The Periodic Labour Force Surveys conducted by the National Sample Survey Office are the principal source of information on employment in India. PLFS is not the only source of such data, however. The Consumer Pyramids Household Survey, conducted by the Centre for Monitoring the Indian Economy, offers another set of data. Enrolment in the Employees’ Provident Fund gives yet another vantage point. The Annual Survey of Unincorporated Sector Enterprises, conducted by the National Statistical Office, offers yet another set of data. The PLFS findings record high work participation by women, as high as 41%, by including unpaid helpers at home. Some other surveys put women’s employment as low as 12%. The ILO’s estimates, comparable across countries, form a more reliable set of numbers for our purpose.

The female labour force participation rate, expressed as a percentage of the female population aged 15 or more, stood at 49 for the world at large in 2023. For India, that figure was 31, below 44 for Bangladesh, 60 for China, 53 for Brazil, 55 for Russia and 62 for Singapore, and 53 for South Africa. Among the original BRICS nations, India has the lowest female LFPR.

What would happen if Indian women started working in large numbers? This has been quantified. The International Monetary Fund came up with the finding that India’s economic output would be 27% higher, if the percentage of women who are in the workforce equals the percentage of men who are at work. The Male LFPR is 77% for India.

The IMF acknowledges that women face various barriers to full participation in the labour market, including societal norms, lack of access to education and healthcare, and discriminatory laws and practices. The Fund recommends a range of policies to promote women's economic empowerment, including investing in education and healthcare, ensuring equal pay for equal work, and addressing gender-based violence.

Most religions discriminate against women -- in their practice, if not at the level of theological precept. Religious practice gets woven into social convention and societal norm. India’s hoary text on law and ethics, the Manusmriti, says “protected by the father in childhood, the husband in youth, and the son in old age, woman does not deserve autonomy.” Islam seeks women’s modesty by covering them up, and forbids them to venture out except in the company of a man, according to conservative interpretations of the faith.

In India, women, of course, toil away at home, running the household and caring for the young and the old. Further, educated women of all faiths tend to work for remuneration, including by foraying outside the home. But low levels of education, stunted urbanization, a political culture that glorifies the past, and, thereby, convention that is definitely conservative, militate against expanding the role of women as workers. In very many states, women work when their family incomes are very low. As incomes rise, women drop out of the workforce, to demonstrate their households’ improved social status. When they are offered formal sector jobs with more decent work conditions, many rejoin the workforce, too.

The safety of women outside the home is a major determinant of women’s willingness to be part of the workforce. This is something that can be taken for granted only in a few places in India. Women face harassment during commutes and at the workplace. India has put in place specific legislation – the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) – to reinforce the protection offered by provisions of the Indian Penal Code, now the Bhartiya Nyay Sanhita.

But if the courts, interpreting the evidence and the law, offer sexual offenders maximum latitude, neither social practice nor social norms will improve in the matter of gender justice or women’s ability to participate in public life, including in the sphere of productive work.

We hope that beyond staying the Allahabad high court order, the Supreme Court would censure Justice Mishra’s conduct and set a precedent that would guide other judges at all levels of the judiciary in future. That would be one small, but vital, step in improving women’s LFPR and India’s economic performance.