India: Justice On Domestic Violence: Next Steps – Pamela Philipose
February 23, 2012
Mr. Wadhwa is a senior citizen living in Delhi. He is also the father of a college lecturer who suffered grievous domestic violence. He tells his story, head bowed, voice faltering: “I married my daughter into a good family. She was a college lecturer earning Rs 4,000 in the early nineties. Her husband was a chartered accountant. She only stayed for seven months in her matrimonial home, during which period we, her natal family, tried our best to help her find acceptability within that household. But despite our efforts, her husband would beat her… One day, her hands were pinned down by family members and blows were rained on her, so much so that her nose was smashed. We went to the civil hospital and an X-ray of her nose was taken. But this evidence was not used. Although an SPO was entrusted with the case, it was not registered at first. It was only after two years, in January 1995, that the case got registered. It is still going on…”
Gaining justice is sometimes like attempting to fill a bucket, thimble full by thimble full from a dry well. It takes patience, perseverance and, of course, money. In Wadhwa’s case, 20 years have passed waiting for closure. If there is an argument that the Protection of Women from Domestic Violence Act 2005 (PWDVA) needs to deliver better, this father has just made it.
The PWDVA came into force inIndiaa little over five years ago. Looking back, Indira Jaising, Executive Director, Lawyers Collective Women’s Rights Initiative (LCWRI), which had anchored the process of getting this law passed, puts it this way, “Enacting laws for women’s rights have become symbolic acts, which is why the monitoring and evaluation of a law like the PWDVA becomes so crucial.”
The PWDVA been hailed internationally and has proved something of a template for legislation of this kind internationally. WithinIndia, it expanded the vocabulary of justice and broadened the definition of domestic violence in a way that went beyond the physical abuse, to encapsulate the sexual, verbal, economic and the psychological. It has also widened the category of women who can seek relief, covering not just married women but anyone who is in a ‘domestic relationship’ – including sisters and live-in partners. The PWDVA also introduced new concepts like ‘right to residence’ and ‘shared household’, so that the assaulter cannot arbitrarily evict the aggrieved woman from the home.
Since in most domestic violence cases, action had either not been taken or delayed interminably, the PWDVA introduced a note of urgency by envisaging urgent civil reliefs, known as ‘protection orders’, ‘stop violence’ orders, as well as orders for maintenance, compensation, custody of children, and so on. But because most women in such situations have no idea of their legal entitlements or how to access justice, this law also instituted the office of Protection Officers (POs) to be the bridge between the aggrieved woman and the legal system.
So how have these brave new approaches fared in the hurly burly of justice delivery? The LCWRI, in collaboration with the International Center for Research on Women, and supported by the UN Trust Fund to End Violence Against Women, undertook an unprecedented monitoring and evaluation exercise of the gains and gaps in the functioning of the PWDVA over five years.
The fifth report of this gargantuan exercise, which was released recently, notes that this law has helped to establish the normative principle that domestic violence is unacceptable and that it is not just a “family affair” but a violation of a woman’s human rights. In more specific terms, one of the PWDVA’s big gains has been the growing acceptability of the concept of ‘right of residence’, with the courts displaying a greater willingness to issue ‘stop the violence’ orders. Remarked Jaising, during the event that marked the release of the report, “Such orders come as a huge relief to the woman. The moment she gets it, she feels empowered to carry on, rebuild her life. An order that seems so small has such tremendous power to transform her existence.”
On the debit side, the law has failed in its ambitious mandate to dispose of cases within 60 days. This, of course, is hardly surprising given the huge backlog of pending cases inIndiatoday. But in a situation where women live in constant fear of their next tryst with abuse, delayed justice has particularly painful consequences.
ThePOis seen as the central pivot in the working of this law. This office has, as we know, been envisaged to help the woman access the court and put her in touch with other support services as well as assist the court and ensure the enforcement of orders. Unfortunately, Jaising said, things have not worked that way largely because those functioning as POs are not adequately qualified or trained, and are overwhelmingly predisposed to attempt reconciliation between the couple rather than protect a woman’s human rights.
The same approach marks police functioning. The police is the first point of contact for the woman seeking justice, but, as the report expressly observes, “In most cases … the police do not provide adequate information to the AP (aggrieved person) regarding her options under various Acts. They continue to discourage her to file a FIR under Section 498 A of the Indian Penal Code, and do not provide her with possible alternatives.” In fact, according to a survey conducted by the International Center for Research on Women, the attitudes of the police on domestic violence – incidentally, they routinely consider domestic violence as a “family issue” and even believe women deserve to be beaten in certain situations – have remained unchanged and, possibly, become even more adverse in some states.
The big disadvantage the PWDVA has faced right from its inception has been the lack of State resources for it proper functioning. According to a budgeting exercise conducted by the Centre for Budget and Governance Accountability (CBGA), as many as 19 states did not have a separate budget for it, including states likeBihar, Rajasthan and Jharkhand that have reported a high incidence of domestic violence. Those that have a separate budget have earmarked very little for this purpose, and sometimes not utilised even these modest amounts.
The fear among women activists who have fought doggedly for this law over three decades is that the lack of governmental will and poor financial support, on the one hand, and, on the other, the abysmally low levels of awareness and training among those required to deliver on the law, could see its gains slip away. That of course would be tragic, not just for those traumatised women forced to face their attackers within the home on a daily basis, but for society in general.
The PWDVA, then, demands a greater sense of ownership. Sarika, the popular film actress, also present at the release of the report, argued that getting young men – those who will become husbands and fathers in the next few years – into supporting the law could be one sure way to mainstream it. Justice delivery also needs specific attention. This includes training members of the judiciary on the use of the law and reviving the institution of free legal aid, which has almost fallen off the map. Justice A. Kabir, Justice Altamas Kabir, Judge, Supreme Court of India, was only recognising this when he said that he stood for “zero tolerance of violence against women” and for greater gender sensitivity on the bench.
Today, the PWDVA is at a crucial juncture. Its status and relevance hinges on how committed the Indian state and civil society are to expanding the notion of equality within that hierarchical, fraught, ‘invisible’ and sometimes brutal space called the home.