CAMPAIGN UPDATE ON DOMESTIC VIOLENCE BILL

UPDATE ON DOMESTIC VIOLENCE BILL

NEW SCENARIO POSES NEW CHALLENGES

Newsletter May - Aug 2002

In the last issue of the Saheli Newsletter (Jan-April 2002) we had discussed two Bills on Domestic Violence, one prepared by the Lawyers’ Collective and the other by the Government of India.

The Lawyers’ Collective has been campaigning for a civil law on domestic violence for the last few years. The Lawyers’ Collective Bill intends to provide civil remedies to women survivors of domestic violence. It emphasises the provision of such securities to women so that they are not forced to walk out of their homes empty handed in order to avoid domestic violence. It goes beyond the traditional approach of considering only wives and daughters-in-law as victims of domestic violence and includes mothers, sisters, daughters and widows in the family.

Another important feature of the Bill is that the term ‘shared household’ has been preferred over ‘matrimonial home’, in order to bring under the ambit of law relationships beyond matrimony as well as cases where involved parties have lived together over a period of time but where essential ceremonies of marriage have not been performed. The objective of the Bill is to immediately address the needs of the woman facing domestic violence, which may not necessarily include punishing the abuser. At the same time the Bill does not aim to replace the criminal remedies already available under Sec 498 (A) IPC.

On the 11th of December 2001, in response to the efforts made by the Lawyers’ Collective, the Government of India through the Ministry of Human Resource Development published and circulated a bill titled “The Protection from Domestic Violence Bill, 2001”. The Bill was introduced in the budget session of the Parliament, ironically enough on March 8th, International Women's Day. It is definitely a matter of political significance that by drafting such a Bill the government has finally recognised that domestic violence exists and that women need to be protected against it by law. But the content of the Bill is not only disappointing but also dangerous in its implications on women victims. If the objective of bringing in any law on the prevention of domestic violence is to secure women the right to live a life free of violence in their homes, the Government Bill falls short. The problem areas of the Bill range from the definition of domestic violence to mechanisms intended to give relief to the aggrieved women.

MAJOR POINTS OFCONCERN AMONGST WOMEN'S GROUPS

The definition of domestic violence in the GOI Bill is "habitual assault and making the life of the aggrieved person miserable by cruelty of conduct, forcing the aggrieved person to lead an immoral life or otherwise harming or injuring the aggrieved person." The Bill also states that "nothing contained in the above clause shall amount to domestic violence if the …conduct by the respondent was reasonable for his own protection or for the protection of his or another’s property." Such a definition leaves a lot of scope for the individual perception of the judge as to what constitutes violence. Also violence in self-defence or to protect one’s or other’s property means that the State does not want to look at the true dimensions of domestic violence as experienced by women.

The Bill contains no declaration of rights. There is no section indicating that the woman in a domestic relationship has the right to reside in the shared household, a right which has been vociferously espoused by the women's movement, and articulated in the Lawyers’ Collective Bill. The biggest threat to life and liberty for a vast majority of women comes from the matrimonial home and the biggest insecurity for them is to be on the roads, asset-less and without a roof over their heads. The recognition of these facts has to be the basis of domestic violence legislation.

The Bill provides for mandatory counselling for the woman along with the abuser. Such a provision places the victim and the abuser in an equal position. Joint counselling in such a situation would only lead to further disempowerment of the woman.

The Bill contain no budgetary provisions that may indicate the commitment of the government to the making of this law a success.

THE CAMPAIGN SO FAR

In view of the above problem areas of the GOI Bill, a campaign has been launched to put pressure on the government not to pass the Bill in the present form and send it to the Parliamentary Committee for Empowerment of Women and ask them to incorporate the amendments suggested by the women’s groups. A number of meetings have been held since January 2002 in Delhi and all over India, condemning various reactionary provisions of the Bill and also strategizing for the future. In Delhi, a Press conference was held on 14th March 2002. There have been regular meetings with Delhi-based women's groups Action India and Shakti Shalini. Presentations were made at Miranda House and the South Campus Law Centre, Faculty of Law, University of Delhi. At an advocacy seminar organised by the Centre for Social Research on the 15th March, where Law Minister Arun Jaitley was also present, women's groups systematically countered the government's arguments on the Bill.

In addition, women’s groups in Mumbai, Calcutta, Ahmedabad, Allahabad, Lucknow, Bangalore, Jaipur and Shillong issued statements against the Bill and also wrote to the Law Minister. In Delhi, Calcutta and Bangalore the State Women’s Commissions issued statements against the GOI Bill.

On 29th April 2002, a national level meeting on Campaign for a Comprehensive Law on Domestic Violence was held in Delhi. Two points of consensus that emerged in this meeting were: (i) absolute clarity and need for a comprehensive civil legislation on domestic violence, and (ii) the GOI Bill in its present form is not acceptable. A memorandum was drafted to this effect.

Several representatives of women's groups met the Minister of State for Women and Child Development, Sumitra Mahajan. She informed the delegation that she had written a letter to the Legislative Department indicating that the Bill should not come up for discussion but should be referred to the Standing Committee of the HRD Ministry. She also told the delegation that the Ministry is not rigid and would be willing to change as per the suggestions of the Standing Committee. She also assured the delegation that they could appear before the Committee for presenting their views.

The delegation also met then Law Minister, Arun Jaitley, who agreed to making some changes in the definition of domestic violence. He said that the term ‘habitual’ could be excluded from the definition and some more changes could be considered but he cautioned that such broad based changes should not be suggested that might not be acceptable to the Standing Committee.

While the Minister agreed to drop the plea of self defence vis-à-vis property, on the issue of plea available to a man that he hit his wife in self defence, the Minister argued that such a plea is already available to a man under Sections 96 & 97 of the IPC. when an offence is committed under Section 498 (A). Therefore according to this absurd argument a similar plea has to be extended in case a similar offence is committed within the purview of the Domestic Violence Law.

On the issue of woman’s right to reside in the shared household the delegation insisted on a clear and unambiguous statement in the law stating that a woman has a right to reside in a shared household until she is evicted by way of a court order following due process of law. No assurance on this was given by the Minister.

DECISIONS ARRIVED AT BY WOMEN'S GROUPS

Lawyers Collective (LC) will get a list of members of the new Standing Committee of the Ministry of Human Resource Development and circulate it. Everyone will then write to the members of the Committee and ask it to call them for their representations. Non- Delhi based groups will write to the Secretary, Women and Child Department, Dr A.V.V.Ayyar (phone: 3383586, fax: 3381495) and indicate their interest in making presentations before the Committee. Advance notice should be given so that these consultations can take place.

It was further decided that all the groups should collate their views and give one draft to the Committee. LC will redraft the definition of domestic violence; the provision relating to right to reside in the shared household and the powers of the courts to give residence orders, on the lines of discussions and will circulate the draft to other groups. Groups will consult other organisations in their region, so as to get the viewpoints of as many people as possible and will get back to LC again.

LC will synthesise all the changes and forward them to the Standing Committee. LC will also try to take another appointment with the Leader of the Opposition in the Lok Sabha and inform everyone as soon as it is done. It was decided that though the government has said that they will not place the Bill for discussion in the Parliament, both strategies are worth pursuing – of contacting the opposition Members of Parliament and also to draft a stand-by redraft to be submitted to the Committee.