Two Years On: Are Women Staying Alive?

New Delhi (Women’s Feature Service) – It was a long pending demand of the Indian women’s movement: a law to address domestic violence. So when the Protection of Women from Domestic Violence Act, 2005, came into force in October 2006, it was generally welcomed by women activists as a step in the right direction.

The PWDVA is a gender-specific law that recognises the fact that women are disproportionately affected by domestic violence because of their socially ordained position of inequality vis-a-vis men. The law draws its rationale from Article 15(3) of the Constitution of India that allows the State to take special measures for women to remedy historical disadvantages and equalise relationships within the home.

But two years down the line, how effective has this Act really been? The Lawyers Collective Women’s Rights Initiative (LCWRI), a non-governmental organisation, with assistance from UNIFEM’s South Asia Office, attempted to evaluate the impact of the law by monitoring its implementation. It also collated best practices with regard to the use of the law in order to understand how it could be better implemented. This is the second such evaluation that it has undertaken. A seminar was organised recently in Delhi by the LCWRI and the National Commission for Women, to discuss the findings of the evaluation, entitled, ‘Staying Alive: Second Monitoring and Evaluation Report 2008’.

The Report highlighted several trends but what came through clearly was the great variability in the implementation of the law. While some states did relatively well, others had barely got off the block. For instance, while Maharashtra had appointed 3,687 protection officers, Assam had only 27 on its rolls, and Gujarat, only 25. While Andhra Pradesh, with an allocation of Rs 100 million (US$1=Rs50) for the implementation of the PWDVA, topped the table, other states like Orissa lagged far behind. Not surprisingly, the states that had invested in the implementation of the Act, in terms of funds and personnel, were the very ones that also reported the highest number of cases filed. Maharashtra had filed 2,751 cases between July 2007 and August 2008, while Orissa could only manage 64 cases between October 2006 and August 2008.

The role of the protection officer, who plays a central role in facilitating women’s access to justice under the Act, came in for a lot of attention. There were questions raised about how qualified the protection officers were. According to the LCWRI study, for instance, the majority of protection officers do not have a background in social work or law.

The issue came up for animated discussion at the seminar, with women activists from all over the country sharing their personal experiences. Many spoke about the acute shortage of protection officers in their states – indicating that the problem was a common one throughout the country. Activists also pointed out that while these protection officers have been appointed at the district levels in all the states, they were in actuality government officials from various departments vested with this additional charge. This affected their capacity to intervene effectively. According to the participants, it must be made mandatory that protection officers have a background in law and be appointed in a full-time capacity.

Inadequate budgetary allocation and lack of proper infrastructure for the implementation of the PWDVA also emerged as areas of concern, both in the LCWRI Report and in the observations of women activists.

Collecting relevant data proved to be a major challenge for the LCWRI. For instance, according to the Report, orders from the lower courts, where almost all the applications under PWDVA have been filed, were just not available for analysis despite repeated requests to the Chief Justice of India. A major reason for this is that while Supreme Court and High Court judgments are computerised, the verdicts of the lower courts are not. So far only 22 cases have been filed in various High Courts under the PWDVA.

The report also highlighted the fact that the medical profession has not really acknowledged domestic violence as a public health issue, despite the fact that it is a stakeholder to the PWDVA, along with the police and the judiciary.

This reflects the need for better public awareness about this law. Many have labelled the PWDVA as a law that propagates inequality. There are, at the moment, five petitions challenging the PWDVA in various High Courts which argue that the PWDVA violates the constitutional right to equality as it provides relief only to women. Till date, a judgement has been delivered only in one case (Aruna Pramod Shah vs Union of India) by the Delhi High Court.

The Delhi High Court, in its verdict, had rejected the claims that the PWDVA violated Article 14 of the Indian Constitution, i.e., the Right to Equality. The Court also stated that the gender-specific nature of the PWDVA was so mandated for the purpose of achieving equality for women. The petition had challenged the definition of ‘Domestic Relationship’ as stated in the PWDVA, which put both married women and women in live-in relationships on an equal footing. The court opined, in response, that the similar status accorded to women in live-in relationships does not in any way undermine the status of a married woman. The court also acknowledged the vulnerability and the lack of negotiating capacity of women in live-in relationships, which many activists saw as a welcome and progressive stance.

One of the impediments to the effective implementation of this law has been the Supreme Court judgment in the S R Batra vs Taruna Batra case, which had ruled that married women were not entitled to reside in premises owned by the mother-in-law in cases where their husbands had separate property. This judgment poses a problem for women living in a situation of violence within households they share with their in-laws. The judgement, however, has been reinterpreted by various courts. In P Babu Venkatesh & Ors vs Rani, the High Court of Madras upheld the married women’s right to residence in a ‘shared household’. There is at present a collective demand by women’s activists urging the Central Government to seek a review of the Supreme Court’s decision in Batra vs Batra.

Public opposition to the PWDVA only points to the urgent need for a change of mindset. Society must take ownership of this Act and deploy it to address the unacceptable and rampant crime of domestic violence. As Indira Jaising, Director, LCWRI, put it, “It is time to make domestic violence a public issue rather than a private problem.”

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