Domestic Violence Policy in India : the mismarriage between policy and implementation

As we are weighing in the key issues that impact our decision at the ballot box this weekend, The Australian Labour party has come out with a National Gender Equality Strategy. This is an important policy issue with very real consequences in the lives of men, women and children. As a point of contrast and moment of reflection, todays’ blog post discusses domestic violence policy in India, potentially enabling interpretation of local experiences against discourses that circulate globally regarding gender inequalities. Our contributor for today’s original blog post is Amrita Mukhopadhyay (@amyan00). Amrita is a PhD candidate in the School of Social sciences and Psychology, Western Sydney University. She completed her Master of Philosophy from Jawaharlal Nehru University, New Delhi and is a first generation migrant to Australia. Her thesis examines the relevance of the formal domestic violence legislation in the context of the socio-cultural lifestyle of a small scale business community, kesarwani community, in the metropolitan city of Kolkata, India. So basically, the ideal person to take us on this quest for interpreting local experience via global discourse.

 

Public rally in Kolkata, India

Public rally in Kolkata, India

  In India, Domestic Violence (DV) became an explicit public policy following the enactment of the Protection of Women from Domestic Violence Act 2005 (PWDVA). The legislation implemented from October 2006 was the result of a long-protracted women movement calling on the Indian state to recognize women’s rights within the family. It was a legislative first in many respects – it provides a broad definition of domestic violence, encompassing physical, sexual, economic, verbal and psychological abuse, for the first time in India. Unlike Australia it does not distinguish between domestic violence and family violence. It addresses the local specificities of lived experiences of violence and recognizes multiple DV perpetrators in family structures. It appreciates the gendered consequences of domestic violence for women such that only women are recognized as DV victims. The significance of the Indian DV policy lies in altering the power relations within the family in favour of women while creating a social order that is more responsive to DV victims.

 

family democratizing unit.jpg

Democratizing the basic unit – family

In contrast to Australia, there is no universal civil code in India. Women’s’ entitlements within the family are regulated by a complex system of state laws and personal laws of communities which uphold gender discriminatory practices against women. It is difficult to navigate this system without a lawyer or a community contact for any woman, let alone a DV victim. Even though there is debate among researchers about the efficacy of the dual system of laws prior to the DV policy, the rights of women within the family remained subservient to the rights of communities to practice their ways of life. The primary change sought by the state DV policy is to democratize the basic unit of the family by explicitly providing a right to a domestic violence free life to every woman in India, irrespective of her religious or community identity.

 In my study of the implementation of the law, it was clear that the legal right was being exercised by women belonging to different communities. Moreover, women are accessing the legal relief under PWDVA – namely, home, money, custody of children, compensation, access to other economic assets of a family- in various legal proceedings as the PWDVA can be used in any kind of legal proceedings -civil, criminal and family. While the legal right is available to different categories of women (married women, mothers, sisters, women in intimate relationships, divorced and separated women) irrespective of marriage, the legal right is almost exclusively in the context of heterosexual marriages. Given that there is no concept of matrimonial property in India, access to family assets such as a share to a house or access to money is the most common form of legal relief sought by DV victims on grounds of experiencing DV. Successful legal outcomes are still stacked against DV victims due to various reasons like inordinate delays in the final judgment exceeding the legislative stipulation of 60 days, the gendered understanding of lesser entitlements of women in family than males;  the implementation of the DV policy makes it institutionally possible for women to make claims to the state legal forum for access to vital resources for survival.

 

Domestic Violence Response System

 A second feature of the domestic violence policy is the creation of a comprehensive domestic violence response system (DVRS), drawing on state and non-state organizations – to address the multiple needs of DV victims. This framework plays a critical role in recording domestic violence incident reports (DIR). The recording of the domestic incident report may seem innocuous but is significant as it does not automatically lead to a legal proceeding. The DIR is a state sanctioned forum to verbalize and record their suffering. Note that most acts of domestic violence, including marital rape, are not a crime under the PWDVA and hence all DV incidents cannot be recorded in police stations. Thus, the DIR is the first and the only public record of domestic violence which becomes a critical resource of DV legal evidence in a formal proceeding. Thus, the DVRS provides victims with a multi-agency access points to record their story in addition to arranging medical and legal assistance, police assistance, a home and employment.

 In my study of the implementation of the DV policy in a metropolitan city, I found it extremely difficult to locate the DVRS as I was moving from one institution to another - police station, a local court, government office, hospital and a Non-Governmental Organization (NGOs). There were no formal linkages between different state and non-state institutions. On the contrary there was a deep suspicion of NGO workers among governmental staff. The hospital staff denied DV as a problem requiring medical intervention. It emerged that the creation of the DVRS became the responsibility of Protection Officers– a special class of low-ranking government officers in the field who became the primary port contact for DV victims.  This has led to a growing understanding that while a legal right to a domestic violence free life is institutionalized, DV victims are left with no institutional support in real life.

 The momentum for the implementation of the DV policy is receding as there is  no long term central budgetary allocation for the implementation of the policy. The annual monitoring report on the implementation of the PWDVA was last published in 2013. Hence despite the many novelties in the DV legislation, the implementation of DV policy remains focused on the formal legal arena and formal legal outcomes rather than the creation of the DVRS in the social order. Further the peculiar design of the DV law and the functioning of the policy in the legal and the social arena shows the emergence of DV as a women’s problem, rather than a gendered phenomenon, confined to the responsibilities of DV NGOs and governmental social welfare departments. While the DVRS exists on paper, the state public policy is failing to build a comprehensive framework in the social realm in favour of DV victims who may not seek legal outcomes.

 While the context of social control of women in India appears as different to Australia, the culture of DV remains the same.