Our Worst-Kept Secret

Violence against women in the private realm is relegated to secondary status, whether in India or in the United States. Strong laws and public policies are essential steps toward combating such violence. But the real solution lies in a culture shift, in the world, and in each of our homes

MALLIKA KAUR  TRIBUNE CHANDIGARH

Three friends walked home after another tiring rehearsal for the school function. It was barely dusk. When the man leapt out of nowhere to pounce on Bandana (name changed), no one was sure what happened. Then a yell grew out of one belly and found its way down the road, down their backs, and into small eighth-grade fists that pounded on the man. He ran. The girls were proud they had fought. When they got home, they told the story solemnly. “Well, that’s what happens when you go walking around in the evenings, going out like that alone!” Bandana’s father message was clear — Chandigarh, 1997.

Brushed under the carpet

The message young girls begin receiving from our families, friends, and society becomes engrained by the time they reach womanhood: that we must not make the unforgiveable mistake of becoming victims of violence. While violence by strangers at least provides some room for women expressing their agony and demanding redressal, violence within the home remains a taboo topic. And this taboo crosses geographic, ethnic, and racial borders.

Victims of domestic abuse

On 17 August 2011, the Inter-American Commission on Human Rights published its opinion finding the United States on the wrong side of human rights and domestic violence survivors. The Commission had considered the case of Jessica Lenahan (formerly Gonzales) whose three young daughters were abducted by Lenahan’s abusive husband, Simon Gonzales, in Castle Rock, Colorado in 1999. Despite Lenahan’s repeated calls and pleas to the police, reporting that she already had a domestic violence restraining order (a legal remedy the US has made relatively easily accessible to its residents) against Simon, the police failed to act for 10 hours. Eventually, Simon Gonzales drove up to the police department and opened fire. He was shot dead by the police. The three girls were subsequently discovered shot to death inside Simon’s truck. Jessica’s legal battle for this tragic loss yielded no results.

In 2005, the US Supreme Court even found that the police involved had not violated the US Constitution by their inaction. However, the Inter-American Commission found that the US had indeed violated human rights by failing to uphold its laws to protect its nationals from domestic violence.

Laws alone not enough

In India too, domestic violence is a punishable offense under the law, even if only rather recently. The Protection of Women from Domestic Violence Act, 2005, which became effective starting October 26, 2006, clearly recognised domestic violence as a punishable offence. However, the recent shaming of the US—a country that has innumerable times more extensive legal protections and services for domestic violence survivors-provides a moment of pause from comparing the wide (perhaps incomparable) chasm between the two legal systems and rather understanding a sad commonality. Laws alone cannot curb violence in the homes as long as domestic violence continues to be treated ‘special’. When it comes to such crimes, we often hear: “There must be two sides to the story” or “they both have strong personalities” or “he is frustrated since he lost his job.”

But, consider this scenario: if my neighbour loses his job, and proceeds to pick fights with me every day, gets drunk and curses me, breaks a window, wouldn’t you agree with my decision to call the police, whether or not he ever physically touches me? But if my partner does the same, why shouldn’t he conform to the standard of behavior, the law and society demand from my acquaintance-neighbour?

Breaking uneasy silence

Such uncomfortable discussions are thus largely missing in our living rooms. The domestic violence movement in the US has been asking precisely such questions more publically, loudly, and brazenly, than in many other parts of the world. For example, during October, nationally recognised as ‘Domestic Violence Awareness Month’ in the US, several public awareness activities are undertaken country-wide. During ‘Standing Silent Witness’ hours, women and men line up in busy city squares holding placards or wearing T-shirts with slogans acknowledging someone they know (or know of) who has faced domestic violence. During ‘Remembrance Days,’ survivors, allies, advocates, join together to remember those who have died because of domestic violence and also celebrate those who have survived. Purple ribbons, which have become the symbols of solidarity with anti-domestic violence work, are made into pins and passed out at local events; worn on bags and jackets; and hung on doors.

In India, we saw the Bell Bajao campaign, by the non-profit Breakthrough in 2008. TV, radio, online and print media were employed to circulate catchy calls for action by society to take a stand against domestic violence. To break the uneasy silence.

Measuring domestic violence

The anti-violence movement in the US has also promoted the measurement of domestic violence crimes, and the publicising of the statistics, so as to respond to the universal reaction—“We aren’t that kind of a family!”

On an average, according to the US Bureau of Justice Statistics, more than three women and one man are murdered by their intimate partners in the US every day. The Center for Disease Control has found that one in four women and one in nine men in the US report being victims of domestic violence at some points in their lives. Also, more recently, teen dating violence has been studied as a priority: approximately one in five female high school students report being physically, sexually, or emotionally abused by a dating partner.

In India, the National Family Health Survey (NFHS), 2005-06, recorded that 37 per cent women reported being survivors of spousal abuse; that is more than 1 in 3. These statistics show that most of us know someone who is a survivor of such violence, and all of us then are in fact ‘that kind of a family.’

Violence knows no bar

When I began representing domestic violence survivors in Californian courts, one of my mother’s friend’s asked her in all earnest, “So is wife-beating really a problem with Americans too?” (She clarified later that she meant ‘white’ Americans, of course.) My work has borne out the statistics that domestic violence knows no race, class, or religious boundaries. However, socio-economic factors can increase vulnerability for such violence: for example, if someone has no source of income, her abuser knows that her economic situation will prevent her from speaking about the violence or seeking help.

Domestic violence is a human rights problem that exists across borders, as the Inter-American Commission recently reminded the US—It is not a ‘women’s issue’ rather affects boys and men very severely. Indeed, India’s Protection of Women from Domestic Violence Act, 2005, does not cover men, and most commentaries on domestic violence-including this one-refer to the perpetrators of violence as male and the victim as female. This is simply because domestic violence victims are disproportionately female. However, men can be and are victims of violence by their partners in some cases as well, both in homosexual and heterosexual relationships. Moreover, this violence does not take place in a vacuum.

Children, girls as well as boys, are witnesses to such violence. Even if they are themselves never the direct targets of the violence, they bear the emotional costs of growing up in an environment of repeated cycles of fear, escalation of tensions, outbursts of violence, and misleading periods of calm. Studies show that children who grow up in violent homes, either themselves become vulnerable to being abused as adults or have a higher likelihood of becoming abusers in the future. This ‘cycle of power and control,’ which broadly describes domestic violence, has its immediate and collateral victims.

Move beyond campaigns

Campaigns such as ‘bell bajao’ or ‘standing silent witness’ or ‘remembrance days’ focus on cases where there are identifiable victims, in already violent relationships. Some of us might then still participate in these campaigns and still claim, “We aren’t that kind of a family!”

What would truly make us not one of ‘those’ families is if we start to check our everyday responses to gender inequalities and discrimination. Unless we stop calling street harassment ‘eve teasing;’ stop worrying about protecting our girls’ reputations even at the costs of their safety; stop spending more time, money and energy on weddings than on talking about healthy relationships and marriages, we will not stop domestic violence. Only when three friends can walk with safety as well as the security of the knowledge that they will not be judged should they face harm by someone, whether on the street or in the home, can we begin to feel assured that we are progressing towards equal justice for all.

Cycle of Power and Control 

Intimate partner violence or domestic violence (DV) is controlling, abusive, and aggressive behavior in an intimate relationship . It includes verbal, emotional, physical, and/or sexual abuse.

DV usually comes to public notice only in extreme cases of physical abuse.

However, behind closed doors, such violence typically follows a regular pattern of three phases that repeat themselves:

One, the ‘tension-building’ phase. The abuser becomes increasingly irritable, moody, impatient, resulting in his partner “walking on eggshells,” not knowing what might make the abuser more angry.

Two, the ‘acute’ phase. There is some sort of explosion and violence that may be verbal, physical, and/or sexual.

Third, the ‘honeymoon’ phase. There is calm again. The abuser may apologise or pretend like nothing happened and may bring flowers and chocolates. The partner starts to feel relief. That is till the ‘tension-building’ phase begins again.

There is thus a clear difference between common, everyday disputes between couples and domestic violence.

Three things to tell someone who is facing such violence: I believe you / You are not alone /You have options

The writer is a lawyer who focuses on  gender and minority issues in the United States and South Asia.

http://www.tribuneindia.com/2011/20111102/edit.htm#6

 

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Rape & Remedy

Rape - A henious Crime
Rape - A henious Crime

VANDANA SHUKLA IN THE TRIBUNE CHANDIGARH

The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‘settlements’ to getting the victim married with the culprit. The woman’s need for dignity of course takes the back seat.

Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals.

From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting.

The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions.

Cash compensation ?

Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation.

But compensation — call it restorative justice or whatever —is tricky.

It is instructive to recall the experience with Prevention of Atrocities Act 1989 ( for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.

Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU.

The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman’s compensation money for rape can be shared by the rapist under the Act.

The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST were paid compensation of Rs 5000 for rape.

The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‘assistance’ ( here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple.

It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance!

Other obstacles

Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved , remains to be seen.

A study conducted by MARG in Uttar Pradesh throws up more questions.

Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age.

But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no medical record with the police. Yet, the compensation was ‘liberally’ sanctioned.

Although the police had no ‘medical examination report’ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn!

The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer.

Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose.

On the one hand rape cases are held in camera, on the other hand this display of ‘help’ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ?

Little research

In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government.

A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes’ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi’s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old.

Laws inadequate

Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman’s word to be trusted for her non-consent, there has been no monitoring of judgements.

From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms.

A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low.

Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen’s wives cannot complain of being raped by husbands ( because it is a husband’s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when
they agree to marry their victims). Incest of course hardly ever gets reported because of the family’s insistence on silence.

Marry the rapist

Sakshi, an NGO, had released a study called ‘Gender and Judges’, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials.

Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‘Judges were of the view that penetration of a woman is physically impossible without her ‘consent’ and that in any case women are ‘partially to blame for such abuse.’

Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon.

The court thus ‘restores’ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case.  Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims’ kin, local authorities and the police, with judges looking the other way for the most part.

Power game

Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment.

In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‘lesson.’ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.

It is reminiscent of Bhanwri Devi’s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter’s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri’s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system.

Society must change first

Nandita Das

I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through.

It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators, we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women.

As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it.

What’s wrong if state takes responsibility?

Urvashi Butalia

There was a time when, after the Bhawnri Devi case, women’s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so there is that element also. But if the state takes responsibility, then that can’t be altogether a bad thing

http://www.tribuneindia.com/2011/20110918/edit.htm#1

Let us amend the law, it is only fair to women

THE HINDU / JUSTICE DR  A R LAKSHMANAN

This refers to the article “A law that thwarts justice” ( The Hindu , June 27, 2011) by Ms. Prabha Sridevan, former Judge of the Madras High Court. I have analysed it and am in agreement with the views expressed by the author for my own reasons.

As Chairman of the Law Commission of India, I took up for consideration the necessity of amending Section 15 of the Hindu Succession Act, 1956 which deals with the general rules of Succession in the case of female Hindus dying intestate — not having made a will before one dies — in view of the vast societal changes that have taken place.

The Hindu Succession Act, 1956 is part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Hindu Succession Act made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. The Act was amended in 2005 to provide that the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

Scheme of succession

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu.

Source of acquisition

The group of heirs of the female Hindu dying intestate is described in 5 categories as ‘a’ to ‘e’ of Section 15 (1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her sons and daughters so also the husband. The children of any pre-deceased son or daughter are also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above, i.e., sons, daughters and husband including children of any pre-deceased sons or daughters (as per clause ‘a’) living at the time of her death, then the next heirs will be the heirs of the husband ;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and father ;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs of the father which means brother, sister, etc ;

The last and the fifth category is the heirs of the mother upon whom the property of the female Hindu will devolve if in the absence of any heirs falling in the four preceding categories.

This is the general rule of succession, but the Section also provides for two exceptions which are stated in Sub-Section (2). Accordingly, if a female dies without leaving any issue, then the property inherited by her from her father or mother will not devolve according to the rules laid down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her from her husband or father-in-law, the same will devolve not according to the general rule, but upon the heirs of the husband.

The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not contain any clause corresponding to Sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father.

So also under Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and after acquiring the full right, would not, in any way, alter the rules of succession given in Sub Section (2) of Section 15.

The 174 {+t} {+h} Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

The basis of inheritance of a female Hindu’s property who dies intestate would thus be the SOURCE from which such female Hindu came into the possession of the property and the manner of inheritance which would decide the manner of devolution.

The term ‘property’ though not specified in this Section means property of the deceased heritable under the Act. It includes both movable and immovable property owned and acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion or by purchase or prescription. This Section does not differentiate between the property inherited and self-acquired property of a Hindu female; it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband’s heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband’s, but to the heirs of the father and mother.

This is very aptly illustrated by the following illustration:- A married Hindu female dies intestate leaving the property which is her self-acquired property. She has no issue and was a widow at the time of her death. As per the present position of law, her property would devolve in the second category, i.e., to her husband’s heirs. Thus, in a case where the mother of her husband is alive, her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate, i.e., if the father of her deceased husband is alive, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in the case of the self-acquired property of a Hindu married female dying intestate, her property devolves on her husband’s heirs. Her paternal and material heirs do not inherit, but the distant relations of her husband would inherit as per the husband’s heirs.

The case for change

The Hindu Succession Act, 1956 was enacted when, in the structure of the Hindu society, women hardly went out to work. There has been a vast change in the social scene in the past few years and women have made progress in all spheres. The consequence is that women are owning property earned by their own skill. These situations were not foreseen by the legislators.

If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fallout of a gradual disintegration of the joint Hindu family and the emergence of nuclear families as a unit of society over the years in the context of law of succession governing the issue at hand?

A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case. The fact that women have been given the right to inherit from her parental side also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in re-defining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:

1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.

2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.

3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.

The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of the status quo. We have seen earlier that socio-economic changes warrant corresponding changes in the law as well.

We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects a gender bias. It will be relevant to refer to a passage in Pradhan Saxena – Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.

The supporters of the said approach contend that the joint family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family, a married woman’s dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law.

Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman’s husband’s heirs above those who belong to her natal family like her father and mother and thereafter, her brother and sister. It is contended that when a man dies intestate, his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property. In view of this, parity is sought in the case of a female by applying the same rules as applicable to male’s property.

Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a woman, but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be the property that a woman acquires from her husband’s family.

The second option in this regard is that the property of a female Hindu dying intestate devolves upon the heirs depending upon the source from which, the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to and dependence on her natal family, her relations with her husband’s family are not separated and uprooted in entirety. She continues to be a member of her husband’s family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a Will.

Conclusions

In the present scenario, when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self-acquired property at the time of her death, the only surviving relatives being her mother-in-law (L) and her mother (M).

Pre-Amendment

As per the present law, her property would devolve entirely on ‘L’ and ‘M’ will not get anything from her property.

Post Amendment

By the proposed amendment, her mother-in-law and mother should equally inherit her self-acquired property.

A married Hindu female dies intestate leaving self-acquired property and she has no heirs as per Clause ‘a’ of the Schedule, the only surviving relatives are her husband’s brother and sister (BL & SL) and her own brother and sister (B&S).

Pre-Amendment

As per the present law, her property would normally devolve upon ‘BL’ and ‘SL’. ‘B’ and ‘S’ do not inherit anything from her in this property.

Post Amendment

By the proposed amendment, her own brother and sister should equally inherit along with her brother-in-law and sister-in-law.

The above amendment, suggested by me as Chairman of 18 {+t} {+h} Law Commission as early as in June 2008 in the public interest, is still pending with the Union Law Ministry.

(The writer is a former Judge of the Supreme Court of India and former Chairman, Law Commission of India. His email id is jusarlakshmanan@ gmail.com)

Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

Amendment to Article 243 D of the Constitution of India for enhancing reservation for women in Panchayats

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The Cabinet today approved the proposal for moving an official Amendment to the Constitution (One hundred and Tenth Amendment) Bill, 2009 for enhancing reservation for women in Panchayats at all tiers from 1/3rd to at least 50%. The Constitution (One hundred and Tenth Amendment) Bill, 2009 was introduced in the Lok Sabha on 26.11.2009. The official Amendment proposes to add word ‘rural’ before the word ‘population’ as and where the same occur in 1st Proviso of Clause (2) (iii) of the Constitution (One hundred and Tenth Amendment) Bill, 2009. This Provision will apply to the total number of seats filled by direct election, offices of Chairpersons and seats and offices of Chairpersons reserved for Scheduled Castes and Scheduled Tribes. Enhancement of reservation for women in Panchayats will facilitate more women to enter the public sphere and this will lead to further empowerment of women and also make Panchayats more inclusive institutions, thereby improving governance and public service delivery. The addition of word ‘rural’ before word ‘population1 occurring in the 1st Proviso of Clause (2)(iii) of the Rill will reflect appropriate demographic representation of categories of population for whom reservation is made.

At present, out of the total elected representatives of Panchayats numbering approximately 28.18 lakh, 36.87% are women. With the proposed Constitutional Amendment, the number of elected women representatives is expected to rise to more than 14 lakh. Having more elected women representatives would benefit the entire population of the States and UTs where Panchayati Raj is in existence.

Ministry of Panchayati Raj had moved a Bill for amendment to Article 243D of the Constitution on 26.11.2009 after approval of the Cabinet for enhancing reservation for women in (i) the total number of seats to be filled by direct election, (ii) offices of chairpersons and (iii) in seats and offices of chairpersons reserved for SCs and STs, to 50% in all tiers of Panchayats. The proposed official amendment, as indicated above, in the original Amendment Bill will be moved in the Lok Sabha at the earliest.

All States / UTs are parts thereof to which Part IX of the Constitution applies would be covered (Part IX does not apply to Nagaland, Meghalaya and Mizoram, tribal areas of Assam and Tripura and hill areas of Manipur).

Background

The Constitutional Amendment Bill for enhancing reservation for women in Panchayats at all tiers from one third to one half was introduced in Lok Sabha on 26.11.2009 with the approval of Cabinet in its meeting on 27.08.2009. The Bill was referred to Parliamentary Standing Committee on Rural Development by Hon’ble Speaker on 21.12.2009. The Committee has recommended that word ‘rural’ be added before word ‘population’ occurring in Clause 2 (iii) of the original Amendment Bill in order to maintain better demographic representation to SCs and STs class. In view of this, it has been decided to make official amendment accordingly in the Bill already under consideration of Lok Sabha.

Socially beneficial tool turning into legal terrorism mechanism?

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

It is too early to say whether Dominique Strauss-Kahn was framed by a woman employee of a hotel. It cost him his job as IMF chief and cast a shadow on his ambition to become French president. After prosecutors developed doubts over veracity of the victim’s charges, Kahn got unconditional bail. Will the relief save his image, reputation and political prospects? It is difficult to say but, generally, allegations of sexual assault or exploitation against the rich, powerful and famous are taken to be true.

But the most equipped investigation, able prosecution and hawk-eyed judicial scrutiny sometimes fail to unravel the facts. Actor Shiney Ahuja, who probably would be finding similarities of his case with that of Strauss-Kahn, will agree. The Supreme Court faced an identical dilemma just last year, relating to dowry harassment cases under Section 498A of Indian Penal Code. “It is common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country… this clearly demonstrates discontent and unrest in the family life of a large number of people of society,” it said.

On the one hand, the law was the social legislation giving women protection against harassment at the hands of the husband and his relatives, who demand more and more dowry. The court was concerned with the rapid rise in such cases. But on the other hand, it was aware that “a large number of such complaints are not bona fide and are filed with oblique motive”.

It admitted, “To find out the truth is a herculean task in a majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth.”

The SC wanted a way out of the vicious cycle of litigation that mostly ruins innocent husbands and in-laws, who are falsely roped in, but seldom affects the real perpetrators who exploit loopholes in the system to escape the law.

The court was worried by the overkill of Section 498A. It did not want a socially beneficial legal framework to be turned into a mechanism of legal terrorism. It requested the Law Commission to examine the issue and suggest changes that could help create an ambience where the perpetrators could be adequately punished and at the same time, leave some room for negotiations to arrive at an amicable settlement. The commission invited suggestions from all quarters, including NRIs. And the overwhelming response was in favour of thorough investigations into the complaint of the wife under Section 498A before police arrested the husband and in-laws.

The commission is in the process of finalizing its decision which appears to be in favour of providing for a settlement clause between the victim and in-laws, which could be a welcome breather. However, it is against making the offence under Section 498A bailable.

Before any change is made in the law that was enacted to protect women from dowry harassment, it needs to be debated whether a woman’s complaint under Section 498A be thoroughly probed before effecting arrest of the husband and her in-laws.

Right now, once a Section 498A complaint is lodged, the police arrests the person named by the wife. The SC had said, “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.”

The commission, before sending its recommendation to the government, must examine this aspect — what should be the protection to husbands and in-laws who have been framed in a complaint under Section 498A. But it must also not lose sight of the gruesome treatment meted out to women who fail to satisfy the greed of husbands and their in-laws.

http://timesofindia.indiatimes.com/Socially-beneficial-tool-turning-into-legal-terrorism-mechanism/articleshow/9092395.cms

The Protection of Women Against Sexual Harassment at Work Place Bill, 2010

PRS LEGISLATIVE REVIEW

The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints.  It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels.  A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Highlights of the Bill

  • The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints.  It also provides safeguards against false or malicious charges.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.  The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
  • Penalties have been prescribed for employers.  Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000.  Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

Key Issues and Analysis

  • There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
  • The Internal Complaints Committee has been given the powers of a civil court.  However, it does not require members with a legal background nor are there any provisions for legal training.
  • The Bill provides for action against the complainant in case of a false or malicious complaint.  This could deter victims from filing complaints.
  • Two different bodies are called ‘Local Complaints Committee’.  The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
  • Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill.
  • Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.

PART A: HIGHLIGHTS OF THE BILL

Context


India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). However, India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place.

In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place.1 The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.

A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.

Key Features


The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Prohibition of Sexual Harassment at the Work Place

  • Sexual harassment is defined to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature.
  • The Bill prohibits sexual harassment at the work place which may include promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems.
  • The Bill defines a work place to include all organizations, and any place visited by an employee during the course of work. It covers every woman at the work place (whether employed or not) except a domestic worker working at home. It defines employer as the person responsible for the management, supervision and control of the work place.

Duties of the employer

  • The Bill assigns certain duties to each employer. These include (a) providing a safe working environment; (b) constituting an Internal Complaints Committee and conspicuously displaying the order constituting the Committee; (c) undertaking workshops and training programmes at regular intervals for sensitizing employees; (d) providing assistance during an inquiry; and (e) initiating action against the perpetrator.

Structure for redressal of complaints

  • Every employer is required to constitute an ‘Internal Complaints Committee’ at all offices and branches with staff strength of 10 or more employees. Members of the committee shall include a senior woman employee, two or more employees and one member from an NGO committed to the cause of women. A member of this Committee may not engage in any paid employment outside the duties of the office.
  • A ‘Local Complaints Committee’ is required to be constituted in every district. An additional ‘Local Complaints Committee’ shall also be constituted at the block level to address complaints in situations where the complainant does not have recourse to an Internal Complaints Committee or where the complaint is against the employer himself.
  • The ‘Local Complaints Committee’, to be constituted by the District Officer, shall include an eminent woman as the Chairperson, a woman working in the area, two members from an NGO committed to the cause of women, and a Protection Officer appointed under the Protection of Women from Domestic Violence Act, 2005.
  • At least 50 percent of the nominated members in any Internal or Local Committee must be women.

Procedure for filing complaints and initiating inquiry

  • An aggrieved woman may complain to the Internal Committee. In the absence of such a committee, she may file a complaint with the Local Committee. All complaints must be in writing. The complainant may also pursue other remedies, including filing a criminal complaint.
  • The Committee shall provide for conciliation if requested by the complainant. Otherwise, the Committee shall initiate an inquiry.

Penalties and appeal

  • If the allegation is proved, the Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act. In addition, it may provide for monetary compensation to the complainant.
  • If the allegation is proved to be false or malicious, the Committee may recommend action against the complainant. However, action may not be taken against a complainant merely on the inability to substantiate a complaint or provide adequate proof.
  • Appeals against the recommendations of either Committee shall lie with the courts.
  • Penalties have also been prescribed for employers who fail to comply with the provisions of the Act. Non-compliance shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration required for carrying on the business.

PART B: KEY ISSUES AND ANALYSIS

Feasibility issues in the composition of the Internal Complaints Committee


Constitution of an internal committee at each administrative unit

The Bill requires that every office or branch with 10 or more employees constitute an Internal Complaints Committee. This requirement differs from the one proposed in the draft Bill circulated by the National Commission for Women (NCW) in 2010.2 The NCW draft Bill prescribed that if units of the work place are located at different places, an Internal Committee shall be constituted ‘as far as practicable’ at all administrative units or offices. A similar requirement was laid down in the 2007 draft Bill circulated by the Ministry of Women and Child Development.3

NGO representation in Internal Committees

Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons.4 There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.

Bar on engagement in additional paid employment

No member of the Internal Committee is allowed to engage in any paid employment outside the duties of her office. This implies that even the external person in the Committee (who is with an NGO) may not hold any other part-time employment. It is not clear why this condition has been prescribed.

Powers of a civil court

The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. The composition of the Internal Committee does not require any member to have a legal background. Moreover, the Bill does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge.

Ambiguous guidelines for the constitution of the Local Complaints Committee


Two different bodies are called ‘Local Complaints Committee.’ The Bill provides that every District Officer shall constitute a Local Complaints Committee in the district. It also prescribes that an additional Local Complaints Committee shall be constituted at the block level to address complaints in certain cases.

The jurisdiction and functions of these committees have not been delineated. It is also unclear whether the block level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases.

Availability of Protection Officers


The Bill prescribes that a Protection Officer (PO), appointed under the Domestic Violence Act, 2005, shall be a member of the Local Complaints Committee. These Local Committees shall be established at the district level and may also be set up at the block level.

There is wide variation across states in the number of POs appointed per district.5 For instance, Maharashtra has appointed an average of 98 POs per district. Bihar, on the other hand, has appointed one PO for every two districts. This could lead to unavailability of POs in some areas for appointment to the Local Complaints Committees.

Scope for misuse of some provisions


Punishment for false or malicious complaints

The Bill provides that in case a committee arrives at a conclusion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. The clause also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.

Though there may be merit in providing safeguards against malicious complaints, this clause penalises even false complaints (which may not be malicious). This could deter women from filing complaints. Recent Bills such as the Public Interest Disclosure Bill, 2010 (commonly known as the Whistleblower’s Bill), penalise only those complaints that are mala fidely and knowingly false.6 The National Advisory Council (NAC) has recommended that the entire clause be removed as it might deter victims from seeking protection of the proposed legislation.7

Exclusion of domestic workers


The definition of ‘employee’ specifically excludes ‘domestic workers working at home’. The draft Bill circulated by the Ministry in 20073 and that circulated by the NCW in 2010,2 both included this category of employees in the definition.

The NAC recommendedthat the Bill should be applicable to domestic workers as these employees, ‘especially live-in workers, are prone to sexual harassment and abuse, without access to any complaint mechanism or remedial measures.’7 However, the government stated that ‘it may be difficult to enforce the provisions of the Bill within the privacy of homes and it may be more practical for them to take recourse to provisions under criminal law.’8

International experience


Sexual harassment is a form of illegal employment discrimination in many developed countries including the US, UK and the European Union countries.9 In these domains, the definition of sexual harassment includes employer-employee relationship as well as a hostile work environment. This is similar to the current Bill. However, those laws differ in one important aspect, in that they are gender neutral. This Bill provides protection only to women, and not to men.

 Notes


[1]. Vishaka and others V. State of Rajasthan and others [1997 (6) SCC 241]

[2]. Revised Draft Bill, ‘The Prohibition of Sexual Harassment of Women at Workplace Bill, 2010’, National Commission for Women, http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf

[3]. Draft Bill, ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’, Ministry of Women and Child Development, http://wcd.nic.in/protshbill2007.htm

[4]. 5th Economic Census (2005), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/index_6june08.htm

[5]. ‘Agenda No. 7 Review of implementation of Protection of Women from Domestic Violence Act, 2005’, Ministry of Women and Child Development, June 16, 2010, http://wcd.nic.in/agenda16062010/agenda_16062010_item7.pdf

[6]. Clause 16 of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

[7]. Press release, National Advisory Council, January 10, 2011, http://nac.nic.in/press_releases/10_january_2011.pdf

[8]. Rajya Sabha unstarred Question 3706, answered on December 13, 2010

[9]. The Civil Rights Act of 1964, United States;  Sex Discrimination Act (1975) and Employment Rights Act (1996), United Kingdom;  Sexual Harassment in the Workplace in EU Member States, Government of Ireland, 2004

Prepared by:

Tonusree Basu  Rohit Kumar

DISCLAIMER: This document is being furnished to you for your information.  You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”).  The opinions expressed herein are entirely those of the author(s).  PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete.  PRS is an independent, not-for-profit group.  This document has been prepared without regard to the objectives or opinions of those who may receive it.

http://www.prsindia.org/index.php?name=Sections&action=bill_details&id=6&bill_id=1402&category=46&parent_category=1

sexual harassment bill.pdf  Bill Text  (293.01 KB)
Bill Summary. Sexual Harassment.pdf  PRS Bill Summary  (70.89 KB)
Legislative Brief - Sexual Harassment - 20May11.pdf  Legislative Brief  (465.31 KB)
Vishaka.pdf  Vishaka Judgement  (36.38 KB)
draft_sexual_harassment_bill.pdf  Draft of 2007 Bill  (99.91 KB)

Related news articles

Bill on sexual harassment referred to parliamentary panel, DNA, Jan 16, 2011
NAC frowns on bill blow to maids, Telegraph, Jan 11, 2011
NAC for covering domestic workers in anti-harassment bill, Deccan Herald, Jan 10, 2011
Bill to prevent workplace sexual harassment tabled, Hindu, Dec 08, 2010
Sexual harassment bill tabled in Lok Sabha, DNA, Dec 08, 2010
Bill on sexual harassment at workplace introduced in Lok Sabha, Hindu, Dec 07, 2010

Protecting women from domestic violence

Husband beating his wife
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Notwithstanding many legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies.

Vineet Kapoor  in The Tribune

VIOLENCE in the private sphere of the family and the victimisation of women in the intimate relationships has acquired legitimacy and urgent attention in the legal discourse. Starting from its recognition as a crime in the last 40 years, the issue is now actively advocated by women’s rights group as an important concern of their human rights.

This recognition identifies violence in the private sphere not merely as a crime, but locates the context of this crime into the systemic process of structural subordination of women in a gendered social order where violence reconfirms and reproduces those gender hierarchies through fear, which produce this violence in the first instance.

That is why the criminal justice response is not similar to other crimes happening in the public sphere. There is a gap between the normative and legal framework on the one hand and the accessibility of justice and law enforcement on the other. Though progressive and social justice based laws have been enacted for the emancipation of the subordinated people and groups, the laws related to domestic violence remain victim to gaps.

The central context of the problem of domestic violence and women’s access to justice is that despite a proliferation of laws, domestic violence is still perceived as less condemnable than other forms of abuse. Locating violence against women as denial of human rights raises fundamental concerns for the women’s access to justice and how the legal order of any country addresses this issue.

The context of subordinated social existence of most women, when seen through a human rights angle, depends on how best a domestic legal order responds to these expectations (Dairam: 2004). Despite a proliferation of laws in this direction, there is a lack of proper law enforcement in case of domestic violence reflected by an international phenomenon cutting across different countries.

This phenomenon confirms to a gendered social order of subordination in which women exist and struggle against their victimisation. The high stakes the Indian Constitution attaches to the question of equality, by enshrining it as a fundamental right, whose mandate covers the issue of non-discrimination on grounds of sex, gives much credence to human rights readings of legal discourse and women’s rights in India.

The women’s emancipation and rights realisation on the ground, however, forms a different context. The brutalised and subordinated existence of a large proportion of women within their social environment gives formidable challenge to visions of equality and human rights which inform most of the ‘progressive’ laws designed to promote social justice and social change.

The evaluation of women’s access to justice gains primacy when we find that the progress in law has not often matched with the progress in providing justice to women.

Some scholars working on women’s human rights maintain that certain sections of society may encourage a culture of violence due to the socially constructed view of women as flawed and wayward creatures who require chastisement for their own and social good. The encouragement may stem from a dominant focus on male self-identity, using violence against women to define and differentiate men from the inferior ‘other’.

It was until late 1960s that the problem was seriously scrutinised and the public concern started mounting against it internationally. The issue of domestic violence came under the sharp focus of second wave feminism from 1970s onwards when the feminists attacked the patriarchal legitimacy of violence and talked of women’s rights to security within the family and their claims to equality and liberty within the private sphere.

They argued that “personal is political” and that the inner world of family should be open to public scrutiny so that the inequalities and power relations within the family could be made visible.

Since the popular conception of violence at home did not merit much consideration as a punishable offence, the feminist movement, aimed at attaining substantive equality for women, regarded the domestic violence as one of the chief disabilities for the promotion of women’s rights and their claims to equality. Women’s rights movement struggled hard to campaign for the inclusion of various manifestations of domestic violence as a crime within the criminal justice system to get law on the side of the women in their struggle for justice. The feminist movement exerted influence in extending the reach of criminal law within the insulated world of private sphere manifested by family and the home.

By 1980s and 1990s, many countries legislated for inclusion of domestic violence within the criminal law while most countries still did not legislate and were slow to respond. Most countries which did not legislate against domestic violence as a distinct crime continue to treat it under its criminal assault laws.

There was growing realisation since late 1980s that domestic violence needs special attention and is closely associated with women’s rights. Due to the growing influence and impact made by the women’s movement between 1970s and 1990s, the issue of domestic violence attained a primacy in at least the formal stance taken in public policy and criminal justice system of many countries.

The local women’s movement in many countries, inspired and energised by the international women’s human rights movement greatly contributed in exerting pressure on their respective governments to change their policy stance especially in the criminal justice system to comply with the ongoing international standard setting.

The international developments in this direction gave strength to the demands from the women’s rights groups in India. The recognition of domestic violence as a crime in India was brought about in the early 1980s after a sustained campaign by feminist groups and women activists all over the country. There was a huge demand for tackling the criminalisation of dowry death and domestic violence which lead to the enactment of Section 498A in the IPC in 1983, Section 304B in 1986 and corresponding provisions in the Indian Evidence Act, 1872.

The criminalisation of domestic violence in the form of Sections 498A and 304B (dowry death) were considered significant developments in law in correcting historical, legal, and moral disparities in the legal protections afforded to abused women. It sought for the first time to bring the issue of domestic or family violence out of the protected private realm of the family and into the public domain in India.

Despite these legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies done by several organisations and NGOs.

There are problems in access to justice and implementation of these laws. The police often exercises discretion in avoiding arrest while responding to domestic violence incidents and emphasises on mediation and conciliation.

Public prosecutors fail to actively pursue cases of domestic violence under Section 498A, as often women turn hostile during the prosecution and agree to drop the charges. Sentences tend to be less serious for those convicted of domestic violence.

The result of these processes has been a higher dismissal rate for domestic violence cases at the prosecution stage, compared to other violence cases, and less serious sentences. The passing of the specialised legislation in October 2006, called The Protection of Women from Domestic Violence Act, is a significant development in this direction as it provides the much-needed civil law remedies to help victims of domestic violence.

These criminal laws and the civil law provisions now make an impressive set of laws designed to deal with the domestic violence and to provide justice to the victims of domestic violence. Despite this, the question that arises is how far these laws are being used by the victimised women.

The delivery of these laws within a gendered social order raises a number of concerns regarding the human rights of victimised women who exist in a position of structural subordination, which leads to formidable barriers in access to justice.

As a background to discuss women’s access to justice in case of domestic violence, it is useful to first discuss the domestic violence as an issue of women’s human rights. Violence against women is also an issue of the women’s human rights as the systematic perpetration of violence on women is a result of the subordinated position of women in society which in itself raises questions on the right to equality based on grounds of sex.

Since violence against women mostly occurs in the private sphere of the family, the human rights of women as an individual need to be considered while dealing with policy issues attached to domestic violence. The human rights tenets give credence to the responsibility of the state. Therefore, the role of the state in providing for need-based policy provisions for access to justice for women need to be urgently addressed.

As for policy, the government will have to consider that the women’s lack of access to justice in cases of domestic violence remains victim to the structural issues of women’s subordination which gets reflected in the delivery of justice and its distance from the victim, throwing challenges at law, justice and governance in the country. How this law reaches women and how and in what context it is delivered would determine whether women have access to justice as equal citizens.

THE LAW: ITS SCOPE & DIMENSIONs

  1. The Protection of Women from Domestic Violence Act, 2005, which came into force from October 26, 2006, is the first significant attempt to recognise domestic abuse as a punishable offence.
  2. Its provisions have been extended to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
  3. Of all forms of criminal behaviour, domestic violence is among the most prevalent and among the least reported. One reason for this anomaly is that till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited.
  4. Earlier, there was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser. Relationships outside marriage were not recognised.
  5. Women and children are the primary beneficiaries of this Act. Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.
  6. Children are also covered under the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
  7. The law recognises live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him. It also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in Law

The writer, a senior IPS officer of Madhya Pradesh cadre, specialises on human rights. He is the Assistant Inspector-General of Police (Training),Bhopal

http://www.tribuneindia.com/2011/20110319/edit.htm#6