Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and P. Velmurugan, JJ., while addressing the present petition observed that, Court fails to ascertain how women consent to get married to life convicts.

The present petition was filed by the wife of the life convict who got married to him when he got married when he came out on parole. The petitioner sought leave for 30 days for her husband to make arrangements for the livelihood of her family members.

S.G. Vedha Priyadharshini, Counsel appeared for the Petitioner and R. Prathap Kumar, Additional Public Prosecutor appearing for the Respondents.

Probation Officer in its report recommended 30 days’ leave to the convict which was sought by the petitioner.

Taking into consideration the above-stated report along with earlier orders of the Court, the bench is inclined to grant 30 days’ leave to the convict.

Accordingly, the life convict was directed to be released on 01-10-202 without a police escort and the Convict was directed to surrender before the prison authorities on 30-10-2020.

However, the petition was kept pending as the Court had impleaded National Commission for Women and the State Commission for Women to device a mechanism by which it is ascertained as to whether women are getting married to life convicts on their own accord or by force or coercion.

Hence, the Court raised the query:

“Whether the women marrying the life convicts are examined by the State Commission for Women or National Commission for Women to ascertain as to whether the willingness of the marriage or sign for the acceptance of the marriage has been obtained from the women?”

Bench noted that in many cases, women get married to the life convicts and this Court fails to find out as to how the consent of the women has been obtained. The rights of women have to be safeguarded. Usually, no girl will come forward to marry a life convict.

Nowadays, it is seen that it is difficult for a normal man to get married as modern girls are putting so many conditions for marriage. When that is so, it is unbelievable or surprising to see that a woman on her own volition giving consent to marry a convicted person for a life without husband’s companionship, love and care, which will amount to a violation of human rights.

National Commission for Women filed the response and the State Commission for Women’s response is still awaited. [Saibunisha v. State, 2020 SCC OnLine Mad 2733, decided on 30-09-2020]

COVID 19OP. ED.

Abstract

India has always followed the path of patriarchal society. This age-long tradition has never died due to the circumstances and upbringing of youth in such an environment which glorifies it. Gender inequality is an extensive issue in communities taking forms of violence against women, and particularly domestic violence, which then forms a vicious cycle that always keeps women subordinated, disempowered and unequal. This gender parity needs to be looked after. In the recent times of the COVID-19 pandemic where economic, social, political, personal, professional positions are at stake and facing huge repercussions. The most hardly hit area is the women community. The crime of domestic abuse suddenly ramped up after the announcement of lockdown not only in India but all over the world. The pandemic has ended up leaving the domestic violence victims helpless and nowhere to go for the enforcement of their rights. Amidst this corona pandemic, a hidden pandemic is emerging out i.e. domestic violence which will not end unlike the lockdown will one day. This paper will go in deep lengths analysing the domestic violence in the pandemic, reasons of surge in cases, measures taken and provisions in the Protection of Women from Domestic Violence Act, 2005[1]. There is an urgent need for this issue not to get ignored this time. We (the government, the society, the individuals) should not wait for such pandemics to erase out one of the gravest menaces in our society. 

Introduction

Liberty, equality, fraternity were the ideals on which the French revolution was based, led by Robespierre, resulted in the establishment of people’s rule commonly known as democracy. Our Constitution upholds these ideals by accommodating them as a fundamental right of every individual. In the past 70 years, the State has successfully ensured the political equality to its citizens but social and economic equality are still a far-reaching dream to ordinary women and especially to women. In the words of the former Chief Justice of India R.C. Lahoti, women, children, tribal and minority communities, victims of militancy, crime, disaster, drought-hit farmers, and sex workers needed urgent attention.[2] “Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women…”[3] The concept of domestic violence is not a new phenomenon nor are its consequences as it is a long-aged menace still existing in our society. The violence perpetrated on women is not only a social issue but also a health, economic, developmental, educational and above all a human rights issue. It is one of the most pervasive of human rights violations globally. The family is often equated with sanctuary – a place where individuals seek love, safety, security, and shelter[4] but research shows evidently that it has also become the place where lives are put in peril and breeds drastic violence against girls and women. In 1992, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee)[5] stated in Article 6 that gender based violence, violence that is directed against a woman because she is a woman or that affects women disproportionately” and that is “is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men” (Article 1)[6].  Certain variations in the existence of violence between and within the communities proves that it is not inevitable and can be rooted out by preventive measures.

Domestic Violence in Current Pandemic

“Confinement is a breeding ground for domestic abuse.”[7] As recently noted by the UN Secretary General, global lockdowns have resulted in a “horrifying surge” in gender-based violence (GBV)[8]. The whole world is witnessing a sharp rise in the violation of rights of women. Not only the developing countries like India became victim to this curse during the pandemic but also highly developed countries like UK, USA, Australia, France, Germany, Hong Kong and many more countries succumbed to it. Imposition of nationwide lockdown has deteriorated the situation in India. India’s National Commission for Women (NCW) said it registered 587 domestic violence complaints between March 23 and April 16 – a significant surge from 396 complaints received in the previous 25 days between February 27 and March 22[9]. It is most likely that the number of domestic violence is much more higher than the real figure as one more factor exists which is liable for exaggerating this problem is that the victim locked in with the abusers might not get access to a mobile phone and time to call for help. Most of the avenues which help them to fight these situations are impaired. And to worsen the situation, opening of liquor shops post lockdown, added fuel to the fire.

Causes of Surge in Cases in Pandemic

There is no single factor responsible for the violence perpetrated against women. Several researches have indicated that there is an interconnectedness of various social, economic and cultural factors which accounts for this worst form of violence. According to Sociologist Marianne Hester, “domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations.”[10] The data shows that amidst this lockdown the complaints of domestic violence have nearly doubled evincing the idea of patriarchy being dominant till today. Stress, the disruption of social and protective networks, and decreased access to services is exacerbating the risk of violence for women.[11] Women’s unpaid care work has long been recognised as a driver of inequality. It has a direct link to wage inequality, lower income, poorer education outcomes, and physical and mental health stressors. The unpaid and invisible labour in this sector has been exacerbated exponentially by the COVID-19 pandemic[12].

Another important aspect responsible for this surge in domestic abuse is domestic labour. Gendered roles all over the world have placed domestic work on women’s shoulders, which is socially and culturally often demarcated as “women’s work”. During this pandemic the work load of women has increased due to all the members being at home. With housekeeping staff being unavailable, the expectation is for women to do all the tasks and that too with full efficiency and productivity, and chances of violence increase if she fails to do so. Economic factor has played a crucial role in surging this violence. A large chunk of women population is suffering from the economic dependence on the male counterpart. According to the Centre for Monitoring Indian Economy, the national lockdown did not just throw 72 million people out of the labour force but it also drove another 85 million to some kind of desperation to look for jobs in the midst of a national lockdown when none were available[13]. This scenario suggests that people are highly vulnerable to a loss of livelihood. Men are not able to prove themselves at the economic front. They are workless doing absolutely nothing and the burden to make a living for the family with the inability to do it has led to frustration of which then women are the victim. The increasing financial burden and the needs of the family especially in poor strata of the society is making the situation worse. Such sorry state of affairs definitely comes under the umbrella of factors which perpetuate this violence.

Domestic violence is in the form of rapes and sexual harassment as well and COVID-19 time sets out the classic example of it. 2 crore babies are to be born in India till December 2020[14]. This is the highest number recorded so far. The question it raises now is that will all these babies be born with the consent of women. India has still not penalised marital rape. It may happen that women during the time of pandemic were subjected to force and since they are always considered to be subordinate and disempowered, they had to give in.

Government Measures

With cases of domestic violence swelling every day, the situation is becoming very grim. And it becomes the duty of the executive and the judiciary to implement the laws and take effective measure in cases of non-compliance. Recently, to tackle the situation better the Delhi High Court has directed the Delhi Government to mull over the appointments of protection officers. The National Commission for Women (NCW) also launched WhatsApp helpline numbers to protect them from harassment and in grave cases Crisis Intervention Centre (CIC) through counsellors accompany the aggrieved person and  make possible the recourse to public authorities. A laudable initiative by the UP Police has also been launched named as “Suppress Corona, not your voice” which encourages them to be vocal against the crime. The Tamil Nadu Government has also made a fruitful decision on protection officers. Clearly, the steps taken are appreciated but they are not sufficient to handle the emerging statistical numbers in cases of domestic violence.

Humane Framework: Necessary to Combat

As a responsible citizen of the country under Article 51-A of the Constitution, we have certain  fundamental duties to perform on our part of which one is  to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”[15]  We need a comprehensive nationwide campaign to bring awareness among the people and make them sensitised towards this issue. These issues must be highlighted through various modes like, radio channels, national news channels. These platforms must be strategically used in the same way as the government has used for washing hands and social distancing to combat COVID-19. Efforts like in France and Spain, where pharmacies are being trained in a way to identify the victim of abuse through code words like “Mask-19” for the people who cannot speak openly on social platforms should be adopted. The non-profit organisations, civil society organisations are a key to unlock the unawareness in the society. A lot of these organisations enable shelter needs, counselling, legal aid, medical assistance and many more.

Provisions Of the Domestic Violence Act, 2005

The effectivity of the legal framework in India is at stake during COVID. We will analyse if the women are protected by the provisions of the Protection of Women from Domestic Violence Act, 2005.

First and foremost, domestic violence leads to abuse of human rights and fundamental rights for example, right to live with dignity (Article 21), right to live in healthy environment and in good health (Article 21) granted by the Indian Constitution is violated. In Francis Coralie Mullin v. The Administration[16], the Supreme Court recognised the right to be free from physical violence. Moreover, in  Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[17], right against emotional and sexual abuse was also protected by the Supreme Court. 

Coming to the Act, Section 11[18] of the Domestic Violence Act describes that the Government is obliged to raise awareness in the society by regular publicity of issues through the use of print and media which has not been adhered to. In addition to this, Sections 8[19] and 9[20] of the Act have not been implemented in its whole as only some of the States are considering doing this. What is even more problematic is the restricted access or recourse to the public authorities. Section 7[21] of the Act which provides for medical facilities is also not acted upon as the list of essential items lacks sanitary napkins which is a necessity.

The Way Forward

There is no doubt in the fact that the judiciary even in these tough times has imparted its services in a very hardworking way by establishing virtual courts and ensured justice to the victims. But still the efficacy of policies and redressal mechanisms needs re-assessment in one way or the other. Not only the physical but also the emotional and psychological health is at stake when an act of domestic violence takes place against her. So, we need to build a safe and secure place for the women by ensuring checks and balances. This menace can be banished completely by way of “community-based network” between the societies/communities and among people which will instil a sense of fear or shame before the commitment of such act by the abuser.

These crimes are committed not only against the women but also against the democracy, humanity, natural laws and most importantly our legal system.  The “Intimate Terrorism” needs to be curbed as soon as possible before the human rights issue especially (women’s right issue) become a joke for the abusers in the time to come. The Government along with the NGOs can protect the vulnerable section and help them to survive the pandemic by the setting up of emergency warning system so that women could reach out to the authorities without alerting the abusers. The issue of women’s sexual and reproductive health should be taken up as this is the need of the hour. It is high time that we, as responsible citizens of this country start taking this issue to as our priority. To sum this up, Swami Vivekanand truly said, “There is no chance for the welfare of the world unless the condition of woman is improved. It is not possible for a bird to fly on only one wing.”


*Students of Rajiv Gandhi National University of Law, Patiala, Punjab

[1] Protection of Women from Domestic Violence Act, 2005 

[2] Financial Express: http://www.financialexpress.com/news/legal-literacy- mission-launched/128689/ 

[3] The United Nations Declaration on the Elimination of Violence against Women, General Assembly Resolution, December 1993, Domestic Violence against Women and Girls, No. 6 – June 2000, Innocent Digest.

[4] Id.

[5] The CEDAW Committee is a body of 23 independent experts on women’s rights around the world; it monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women, 1979, http://www.scconline.com/DocumentLink/9Z9K6X50 which entered into force on 3 September, 1981. As of January 2014, 187 countries have ratified or acceded to the Convention. 

[6] UN, CEDAW Committee (1992), General Recommendation No. 19 on Violence Against Women, adopted at the 11th Session, 1992, A/47/38, 29 January, 1992.

[7] Abueish, Tamara (2020-04-06). “Coronavirus: A Jordanian woman pleads for help as domestic abuse cases rise globally”,  Al Arabiya English, Retrieved 2020-04-14.

[8] https://news.un.org/en/story/2020/04/1061052

[9] https://www.aljazeera.com/news/2020/04/locked-abusers-india-domestic-violence-surge-200415092014621.html

[10] https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do

[11] https://apps.who.int/iris/bitsream/handle/10665/331699/WHO-SRH-20.04-eng.pdf

[12] https://www.unwomen.org/-media/headquarters/attachments/sections/liabrary/publications/2020/policy-brief-the-impact-of-covid19-on-women-en.pdf?la=en&vs=1406

[13] https://www.businesstoday.in/current/economy-politics/india-unemployment-rate-falls-to-21-per-cent-lowest-during-coronavirus-lockdown   cmie/story/402240.html?utm_source=recengine&utm_medium=WEB&referral_sourceid=400902&referral_cat=Jobs

[14] https://new.rediff.com/commentary/2020/may/07/2-crore.indian-babies-will-be-corn-amid-covid/129996638a4372c1e9c79399a76

[15] Article 51-A of the Constitution. 

[16] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 .

[17] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121

[18] The Protection of Women from Domestic Violence act, 2005

[19] Ibid

[20] Id.

[21] Id.


Image Credits: The Week

Case BriefsCOVID 19High Courts

Jammu & Kashmir High Court: A Division Bench of Gita Mittal, CJ and Rajnesh Oswal, J. took suo motu cognizance of increasing domestic violence cases against women during COVID-19 lockdown and suggested measures to handle the situation. The Court also passed direction upon the Government and various authorities. The matter was directed to be listed as a writ petition in public interest (PIL).

Even at the best of the time, women and girls face tremendous barriers in accessing means to meet for help and securing justice. Illiteracy, financial incapacity; ignorance of available assistance; family and societal barriers; fear of formal institutions like police; insufficient legal aid; lack of information, etc impede women and girls from accessing resources against domestic violence being faced by them.

Observing that unfortunately all crises disproportionately impact women, the High Court noted that globally, while the pandemic is having a tremendous negative impact on societies and economies, the adverse social and economic consequences of the pandemic for women and girls are devastating. As the lockdown is implemented, societies as a whole are having reduced access to resources. There is increase in stress due to loss of jobs and strained finances. Lack of income, unemployment, insecurity about the future or the fate of children creates tensions amongst the adults leading to abuse of all kinds. This is exaggerated in families with prior histories of such behaviour. Women and children are found to be specially vulnerable to such domestic violence which has seen a worldwide spike.

… the biggest obstacle to a woman seeking assistance against abuse and domestic violence is the fact she has to go against intimate domestic partners or her own family members.

Looking at the stats, the latest data released by National Commission for Women, within a week after the lockdown began on March 24, a total of 257 complaints relating to crime against women, have been received by its Complaint and Investigation Cell. This data, shows a steep rise during the lockdown, compared with the figures available for the week between March 2-8, that stands at a total of 116 complaints. The cases of domestic violence, specially, rose to 69 from 30.

The lack of enforcement as well as alternative source of residence also impedes women filing complaints with officials or the police. There is also a huge trust deficit.

It was noted that one factor in the mode of lodging a complaint, which has been noticed in India, is the inability of women and children from the economic weaker sections of the Indian society to accessing online platforms for assistance. Any measure for assistance to victims of domestic violence must provide for women and children from this group.

Judicial notice was taken of the fact that plight of victims of domestic violence in the UTs of J&K and Ladakh must be no different as that of similarly placed victims in other jurisdictions. It was held that to ensure adequate means and tools to address domestic violence to victims in these two Union Territories, women’s leadership and adequate contributions must also be at the heart of the COVID-19 planning and implementation measures.

Adverting to the Protection of Women from Domestic Violence Act, 2005: the statutory mechanism in existence for protection of rights of women who are victims of violence of any kind occurring within the family, the Court stated that a duty is cast upon the Government under Section 11(a) to take all measures to give wide publicity to the provisions of the law through public media including the electronic and the print media.

Considering gravity of the situation, the High Court suggested following measures to grant immediate assistance:

(i) Creation of dedicated funding to address issues of violence against women and girls as part of the COVID-19 response by the Union Territories of the Jammu and Kashmir and Ladakh.

(ii) Increased availability of call-in services to facilitate discreet reporting of abuse.

(iii) Increased tele/online legal and counselling service for women and girls.

(iv) Designated informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators.

(v) Immediate designation of safe spaces (say for instance empty hotels/education institutions etc.) as shelters for women who are compelled to leave their domestic situation. These shelters must be treated as accessible shelters.

(vi) Giving urgent publicity to information regarding all of the above measures as also the availability of the facilities for seeking relief and redressal against the issues of domestic violence.

(vii) Increasing awareness campaigns on all aspects of the issues.   

The Court also passed certain directions on various authorities:

(a) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will submit a report informing about the steps taken regarding domestic or any other kind of violence being faced by the women on account of the implementation of the COVID-19 lockdown.

(b) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will examine suggestions given by the Court as enlisted above as also the innovative measures taken by countries world over and the spotlight initiative taken up by the United Nations. The said authorities will take a view regarding requirements and steps to be taken to mitigate the sufferings of the victims of domestic violence in the Union Territories.

(c) A report of measures in place, steps underway, and those contemplated, be placed before the Court before 28th April, 2020, the next date of hearing.

(d) The Secretaries of the J&K Legal Services Authority shall call for list of all cases involving cases of domestic violence which are pending as complaints with the police stations in the Union Territories or in the courts and ascertain the safety and well being of the complainants. 

(e) All the courts in the UTs of J&K and Ladakh shall treat cases of domestic abuse as urgent and proceed with the matters in accordance with the Circulars issued regarding the procedure to be followed ensuring social distancing.

Advocate Monika Kohli is appointed as an amicus curiae and the matter has been directed to be listed next on 28th April, 2020 for further consideration. [Court on its own Motion v. UTs of J&K and Ladakh, WP(C) PIL No. (unnumbered) of 2020, dated 16-4-2020]

Hot Off The PressNews

As reported by media, NCW urged Director General of Police (DGP), Uttar Pradesh to enforce the ban on the sale of acid in the state.

Proposal came after the commission took notice of media report captioned: “Greater Noida: Two men push sister out of the car throw acid at her”.

“A team of NCW officials visited the 22-year old woman who was reportedly attacked with acid by two brothers, the woman was later dumped in Kot Village.”


[Source: ANI]

Appointments & TransfersNews

S.O. 1136(E)— In pursuance of Section 3 of the National Commission for Women Act, 1990 (20 of 1990), the Central Government hereby nominates the following as Members of the National Commission for Women:—

                        1. Smt. Shyamala. S. Kunder

                         2. Dr. Rajulben L. Desai

2. Smt. Shyamala. S. Kunder and Dr. Rajulben L. Desai shall hold office for a period of three years or till the age of 65 years or until further orders from the date of assumption of charge of the office, whichever is the earlier.

[Notification dt. 05-03-2019]

Ministry of Women and Child Development

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The appellant, who was a Research Assistant at National Commission for Women, had filed an RTI application claiming that her term was not extended to “harass her for daring to raise her voice.” She alleged sexual harassment by the Deputy Secretary. When her term was extended then she complained that extension letter contained unjust questions regarding her performance. The RTI application was denied on the ground of it being “third party information.” It is to be noted that the first appeal was rejected by the same officer against whom the charge of sexual arrangement was placed.

The Commission noted that while hearing the first appeal, the Appellate authority has violated Section 19(6) of the RTI Act, and also failed to observe the principles of natural justice. The Commission also took note of the fact that there was a “sudden increase” in the remuneration of contractual employees who were on the enquiry committee and notice from the CIC was also left unanswered by the NCW.

The Commission observed that “the submission of the appellant reflect unhealthy environment at workplace in the forum which supposed to protect the rights of women. Her right to life, right to work and right to information were seriously endangered by sexual harassment by senior. If this is the fate of woman who is working as research assistant in National Commission for Women, what will be the plight of ordinary women outside the NCW?”

The Commission directed: (i) to give a timely response explaining reasons for breach of two statutes on Sexual Harassment and Right to Information in case of appellant; (ii) To facilitate inspection to the appellant; (iii) The CPIO Mr. G Nagarajan to show-cause why maximum penalty should not be imposed against him for not furnishing the information sought by the appellant within stipulated time, before 14.07.2017; (iv) The Deputy Secretary, Mr. V.V.B. Raju, considering him as deemed PIO, to show cause why maximum penalty should not be imposed against him; (v) The Member Secretary to explain why the NCW should not be ordered to pay compensation to the appellant for the harassment; (vi) In exercising the powers under section 18 (1) of RTI Act, the respondent authority to conduct inquiry in to the appellant’s complaints against Mr. VVB Raju, the increase in remuneration of inquiry committee members and witnesses before inquiry committee in case of complaint of sexual harassment, and provide the report to this Commission, before 14.08.2016. [Nammi Bano v. PIO, National Commission for Women, 2017 SCC OnLine CIC 737, Order dated 16.06.2017]