Rewriting the “Rajesh Sharma v. State of UP” judgment from a Feminist Perspective [Part-II]


Part I of this article can be accessed here.


- Atharv Gupta*


THE WAY FORWARD

The Indian State has responded to the contemporary women’s movement and their issues by enacting new laws. However, after looking at how the issue of domestic violence has been handled by the State, it is clear that these legislations have been enacted from the male perspective and to further male domination in society. To quote Flavia Agnes,


“If oppression could be tackled by passing laws, then the decade of the 1980s would be adjudged a golden period for Indian women, when protective laws were offered on a platter. Almost every single campaign against violence on women resulted in new legislation. The successive enactment would seem to provide a positive picture of achievement.”[1]


I agree with the notion that it is the lack of will on the part of the legislators and, a large part of the judiciary too, that has resulted in the overlooking of the issues I have raised. Unfortunately, this has also resulted in the experiences of victimised women from getting excluded when it comes to decision making.[2] In order to improve the condition of women subjected to violence and those who are extremely vulnerable, it is important that courts stop looking at families as revered institutions. It is equally important for law enforcement agencies and courts to understand that in a male dominated society, women at every stage are both the objects of desire and control. If they fail to do so, it would only result in furthering the perspective of male dominance and control that is a result of the prescribed norms of behaviour within a family. As this Court held in Vishaka, every incident of violence, being a result of the inaction on part of the State, would be a violation of the fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. This in turn would be a clear violation of the rights under Articles 14, 15 and 21 of the Constitution of India.


Unfortunately, the very term ‘domestic violence’ fails to capture the plight of women in the country and gives the false impression that the violence takes place within a physical unit. In reality, the problem is deep-rooted and scholars have gone as far as to say that it is the patriarchal structure of the family that results in a desire to control the body of the woman.[3]


At this stage, I would like to make it clear that law enforcement agencies need to drop their non-intervention policy in domestic violence cases forthwith as the same legitimizes the acts of the perpetrators indulging in wife beating among other offences.[4] There can be no “legal neutrality” in domestic violence cases as this leads to the strengthening of position of males in the family who continue to exercise control over the women.[5] What is happening today is that the State has taken measures to prevent domestic violence and cruelty through legislations but has not permitted the same in reality.[6]


The jurisprudence and legal principles on Section 498-A and Domestic Violence in general that have evolved over time are all from the male perspective. They have been mostly written by men in power who have paid little heed to asking the woman question in order to make and adjudicate these supposedly “gender neutral laws”. Therefore, I feel that it is important that women, who have been subjected to violence, both in their marital and natal homes, discover an identity different from that of the oppressor and make it visible to the world.[7] This has been done by women in the past in search for solutions to the problem of domestic violence. Instead of relying exclusively on precedents and the statute, I now intend to briefly study some of the responses of victimized women and case studies regarding these, done in the different parts of the country.


Breaching the Artificial Public/Private Divide

The experience of organisations combating domestic violence in the State of Rajasthan shows that when panchayats are given the task of reconciliation in cases of cruelty and violence, women actively protest. They protest to make sure that the crime is formally investigated because any reconciliation attempts made at the community level not only deprives them of the justice they deserve but also ends up undermining their identities as their sexuality becomes a topic for debate in such meetings.[8] They also feel that this leads to a decrease in their bargaining power and does not help in increasing the consciousness of the people on issues of domestic violence.


Another example is the Anti-Arrack Movement in Andhra Pradesh which effectively dispels all notions that say that it is women who do not want to bring issues like domestic violence in the public sphere. This movement not only exposed the double standards of the policy makers but also became a catalyst for people to ask the “woman question.”[9] Despite the disproportionate response of the State, the women of the Anti-Arrack movement continued the movement with the sole purpose of protecting each other as a majority of them were victims of domestic violence. They wanted that the issue of alcoholism and violence be addressed by the policy makers. This led to ‘sensitive’ issues like these being debated and discussed in the public sphere.


Best Responses to Domestic Violence by various organisations

Moving on, many studies have been conducted on domestic violence by Centres such as the International Center on Research on Women, Washington.[10] In this particular study, research was done on how different organisations like “Historically Significant” organisations, “Government Initiatives” and “Feminist Organisations” tackle the problem of domestic violence in the states of Karnataka and Gujarat. This court would like to place on record, its appreciation for the kind of work being done by these organisations. However, it is only prudent to learn from past mistakes and choose those practises which truly empower the victim, in this case, women who have been subjected to violence in their homes. In doing so, it is imperative to ask the “Why” question along with the “What” question with regards to the problem of domestic violence.[11]


Organisations like the ‘Association for Social Health in India’ have done a lot to help the victims of domestic violence. By making use of the community based programmes, they impart literacy and vocational trainings to women, thereby making them self-reliant to an extent.[12] However, the counselling cells that are established by these organisations mainly aim at maintaining the family.[13] The disturbing fact is that the counsellors and members of these organisations try to convince women that their marriage is not too bad and it is important to make it work.[14] This needs to be discouraged because when women are being encouraged to become self-reliant, they cannot be simultaneously told to bow down before the very patriarchal structures that will continue to oppress them.


Then there are Government initiatives like the ‘All Women Police Station’ in Bangalore and ‘Mahila Police Station’ in Ahmadabad. Although the objective behind having these Police Stations is laudable, after going through the various case studies conducted, it becomes clear that though the complaint is filed officially, the first response of the policewomen is to seek the intervention of the community elders to resolve the problem. This is highly problematic as it provides the perfect chance for them to encourage and force the woman to go for reconciliation.[15] It is my considered opinion that the policewomen are caught in a serious dilemma as they too operate within the realms of patriarchy. On one hand, they have to maintain the image of being extremely stern so that people take them seriously and on the other hand they are told to be sympathetic to the women. These policewomen need to be trained in such a manner that they understand that protection of the victim and strict investigation of the crime are the two roles that have to be performed by them with utmost diligence.


Finally, I have looked at case studies involving the work done by ‘Feminist Organisations’ like ‘Astitva’ and ‘Ahmedabad Women’s Action Group’ (AWAG) in Gujarat. These organisations have done some remarkable work and courts have made use of their help in domestic violence and cruelty cases. Organisations like Astitva have made an effort to ask the woman question by having a thorough understanding of why the violence takes place and then chalking out a solution.[16] Seeing the case studies, I am extremely impressed and direct all District and High Court Judges, along with those in the law enforcement agencies which handle such cases to take cues from organisations like Astitva. These organisations not only remain by the side of the woman for the entire period of investigation but also help the women in understanding what violence means and why it is not prudent to go back to a violent home. Along with this, they organise “consciousness raising” activities like singing songs that challenge violence and talk about the empowerment of women through education, self-reliance and collective action.[17] I direct all courts to ensure that the testimony of the victim is recorded in a lawful manner. The victim should not be put under undue pressure; instead she should be made conscious of her rights and identity. Feminist organisations like Astitva and AWAG should be asked to assist the court as they focus on pro-women counselling which does not entail sending the woman back to the violent home. Their practices should also be emulated since they help the women in three stages- provide psychological help, then social assistance and finally provide legal remedies.[18] They do not believe in being neutral like other committees because they understand that it is a male dominated society and men exercise control over women. They encourage the women to challenge stereotypes and recognise even subtle forms of violence.


The Ideal System?

Before ending this Judgment, I would once again like to place reliance on Vishaka v. State of Rajasthan.[19] In light of the increase in cases of domestic violence and a violation of the fundamental rights of victimised women under Articles 14, 15 and 21, an effective redressal requires that certain directions be issued to fill the vacuum created by the legislature and executive.


Additionally, this court in Vineet Narain v. Union of India[20] held that, “There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution....if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.”


After going through the various case studies and looking at some of the practises established in a Domestic Violence Court in Salt Lake City, Utah,[21] this Court considers it fit to issue a brief set of directions that are to be followed by all District and Family Courts in the country:-


a. After looking at the relevant facts and appreciating the evidence of every case, the Judges presiding over matters of domestic violence need to conduct the court proceedings in a manner where the aggressor/his family understand what abuse is and the serious implications of their actions on the victim’s life.

b. If found guilty, apart from the punitive action, direct the accused male and his family to undergo extensive counselling sessions for them to understand the real implications of their acts of violence on the lives of women. This will be of immense help once the jail term ends and the aggressor goes back to leading a normal life in our society.

c. Even in cases where the trial is ongoing, the criminal investigation needs to be done along with these counselling sessions. This will encourage offender accountability and prevent the victim from assuming all the blame. The Police shall not be present in the room where the counselling is taking place to ensure that the accused is not threatened/ tortured.

d. The Presiding Judge needs to initiate a dialogue with the victim to ensure they she does not blame herself for any of the unjustified violence meted out to her.

e. This Court requests the assistance of Senior Advocate Indira Jaising and her team at Lawyer’s Collective to conduct sessions where Judges and the Police undergo sensitisation trainings which will make them aware of the lived experiences and systemic difficulties that women face when they opt for legal recourse. This will go a long way in ensuring that focus is primarily on two things: proper investigation and sensitivity towards the victims of abuse and violence.


…………...…………….J.

(Anonymous1)

…………...…………….J.

(Anonymous2)

…………...…………….J.

(Anonymous3)


New Delhi;

July 27, 2017


ORDER OF THE COURT

1. The Judgment on behalf of Justice A.K. Goel and Justice U.U Lalit was delivered by Justice A.K. Goel. The Judgment on behalf of Justice Anonymous1, Justice Anonymous2 and Justice Anonymous3 was delivered by Justice Anonymous1.


2. In view of the different opinions recorded, by a majority of 3:2, send copies of the majority opinion, authored by Justice Anonymous1, to the Registrars of all High Courts and the DGP’s of all states in the Indian Union for immediate action.


3. The Appeal is accordingly dismissed leaving the parties to bear their own costs.

…………...…………….J.

(Adarsh Kumar Goel)

…………...…………….J.

(Uday Umesh Lalit)

…………...…………….J.

(Anonymous1)

…………...…………….J.

(Anonymous2)

…………...…………….J.

(Anonymous3)


New Delhi;

July 27, 2017




*Atharv Gupta is a 3rd year student at the National Law School of India University, Bangalore. He would like to thank Professor Dr. V.S. Elizabeth and Professor Dr. Sarasu E. Thomas for their valuable comments on this case during his History-2 and Family Law-1 Courses. He would also like to thank Ms. Sregurupriya Ayyappan and Ms. Riddhi RS for their insightful editorial comments.


[1]Agnes, supra note 44, at 19.


[2] M. Kishwar, and V. Ruth, The Burning of Roop Kanwar, 42(43) manushi 15, 23 (1987).


[3] M. Karlekar, Domestic Violence, 33(27) economic and political weekly 1741, 1742 (1998).


[4] E.M. Schneider, The Violence of Privacy in the public nature of private violence, 36, 38 (M. Albertson, and R. Mykitiuk ed(s)., 1994).


[5] S.F. Goldfarb, Violence Against Women and the Persistence of Privacy, 61(1) ohio state law journal 1, 27 (2000)


[6] C. Mackinnon, feminism unmodified: discourses on life and law, 5 (1987).


[7] C. Mackinnon, toward a feminist theory of the state, 84 (1989).


[8] Fernandez, supra note 24, at 131.


[9] B.S. Rao, and G. Parthasarthy, anti-arrack movement of women in Andhra Pradesh and prohibition policy, 41 (1997).


[10] V. Poonacha, and D. Pandey, responses to domestic violence in the states of Karnataka and Gujarat, 1 (1999).


[11] A. Mullender, rethinking domestic violence: the social work and probation response, 276 (1996).


[12] Poonacha, and Pandey, supra note 63, at 26.


[13] Id., at 29.


[14] Id., at 32.


[15] Id., at 91.


[16] Id., at 251.


[17] Poonacha, and Pandey, supra note 63, at 254.


[18] Id., at 262.


[19] (1997) 6 SCC 241


[20] Vineet Narain v. Union of India, (1998) 1 SCC 226 (Supreme Court of India).


[21] R. Mirchandani, hitting is not manly: domestic violence court and the re-imagination of the patriarchal state, 20(6) gender and society 781, 781 (2006).

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