Violence against women has been a pressing concern since the early Eighties. Each time a gruesome incident becomes a media spectacle, the government responds by finding quick-fix solutions — a magic wand that will make violence against women disappear. There is also a constant desire to discard the old and find newer and fancier solutions. Latest is the announcement of setting up 660 rape crisis Nirbhaya Centres across the country, though several others have preceded this.
Stringent Laws: The first, in the early Eighties (a tendency that continues today), was to enact laws with stringent provisions — arrest without warrant, mandatory minimum punishment, shifting the burden of proof to the accused. The latest in this realm was the rape law amendment of 2013, which introduced death penalty or imprisonment for remainder of life.
Ironically, while stringent laws are enacted, whenever women use them it is labelled as “misuse”. The recent Supreme Court judgment in Arnesh Kumar vs State of Bihar, which turned Section 498A (which deals with cruelty to wife) into a non-congnisable offence, is a case in point.
On the other hand, the fear of approaching the police coupled with the threat that criminal action against their husbands will end the marital tie often results in most women not using the law at all.
Analysis of judgments in cases involving women who committed suicide or were burnt for dowry reveals that in most cases the women never filed police complaints. Thus, a parallel discourse ensued — enacting stringent laws is not the answer; women need softer options such as “counselling” and “mediation” to “reform” their violent husbands.
Counselling Centres: So the next magic wand was counselling centres which were touted as a great scheme to provide women better access to police stations. They were welcomed within the criminal justice system as they reduced the burden on the police of investigating a criminal complaint. A GR issued by the home department directed the police to send the couple for “counselling” before filing a case under Section 498A. This despite the fact that such a move is unconstitutional. Under no other category of crime were victims made to negotiate with their violators before an FIR is lodged.
The common practice of counselling centres is to call both parties and attempt to “settle” the dispute, though the “consent terms” arrived at during these negotiations have no legal binding. When the husband violates the terms, the counsellors put up their hands as nothing more can be done.
Convergence under the Domestic Violence Act: At the turn of the century, it was felt that civil remedies of protection, shelter and maintenance were the key to ending domestic violence. The campaign for a law to provide a one-window remedy culminated in the enactment of the Protection of Women from Domestic Violence Act, in 2005. A completely new office, that of the protection officer (PO), was created to help women with their pre-litigation needs such as approaching hospitals or shelter, as well as providing them easy access to courts. The magistrates would pass orders upon a printed form where relevant columns are ticked, and the PO would then help in implementing the orders. And pronto, all domestic violence will disappear and women will live happily ever after. It was a new magic wand. Huge amounts of money were spent to support the campaign prior to its enactment as well as for creating awareness about it after the enactment.
The reality today is that in most states POs with independent charge have not been appointed. A convergent model between the PO, shelter homes, hospitals, legal aid and the courts has not been put in place. Magistrates ask women to appear with their lawyer, as the opposite side advances lengthy legal arguments to dodge the reliefs claimed. Most NGOs registered as “service providers” have reverted to the comfort zone of pre-litigation counselling. After nine long years and huge resources spent, the Domestic Violence Act, too, has become passé and we need to move to something new.
Nirbhaya Centres: The proposed “one size fits all” scheme that the new National Democratic Alliance government appears to be in a great haste to launch is One Stop Centres (OSC) or Nirbhaya Centres to provide “all” services to “all” women affected by violence. The services to be provided are — paramedical staff, ambulance service, a retired police officer to help lodge the FIR, empanelled counsellors, legal aid lawyers, short-stay shelter with food and clothing, and video conferencing facility. One such centre for each district is to be located either in a district hospital or within five kms of its radius, in a rented premise.
Myriad situations of violence: The lack of basic understanding of the various types of violence faced by women and children and the specialised remedies required by each category of victims makes it apparent that this cosmetic experiment is doomed to fail.
It is important here to contextualise the myriad situations of violence. Most cases of domestic violence involve physical or verbal abuse, mental harassment, non payment of maintenance, throwing the woman out of the home, threats to deprive her of the custody of her children, harassment for dowry, etc. All these would come within the purview of the Domestic Violence Act and the PO is meant to guide the woman and help her to access all facilities.
Where a woman wants to take criminal action for violence or dowry harassment, she has to lodge an FIR in a local police station in her own vicinity. Why should she come all the way to the OSC, only to be told that the complaint has to be lodged in the local police station? What help can a retired police officer give her?
For cases involving serious injuries — burns, fractures, grievous hurts with or without weapons, acid attacks, gangrapes, cases of life and death emergencies — the victim needs to be rushed to the nearest hospital which is equipped to offer these facilities. Taking the victim first to an OSC will lead to loss of precious time.
Our research of sexual violence cases in Mumbai for the past five years reveals that cases registered under Section 376, which deals with rape, can be broadly categorised as — elopement (parents file cases against the boy, if they disapprove of their daughter’s choice); promise of marriage (a woman who has been sexually exploited by a man under a false promise of marriage); incest or rape by known persons and stranger rapes. In the first two categories, what the “victim” desires is to marry the “accused”. We cannot medicalise a social problem. Even in other categories “rape” cannot be treated as a “medical” problem. The evidence collection in most cases can be done by any public hospital where the staff is trained and sensitised and is well versed with the medical protocols.
Over-emphasis on hospitals: The other glaring misconception is the over-emphasis on hospitals. One wonders why suddenly “hospital” and “treatment” is foregrounded? Perhaps due to the shadow of the gruesome gangrape hovering over it, which has led to generalising all cases of violence as “medical emergencies”. If the Nirbhaya Centre is projected as a specialised centre, all hospitals will shun their responsibility.
Leaving out children: It is indeed ironic that the scheme makes no reference to children and their special needs despite the fact that an overwhelming number of cases of sexual assault (over 70 per cent) concern children — more specifically, vulnerable children, orphans, children with disabilities both physical and/or mental, cases of incest, sexual abuse by fathers, pregnant children. The scheme does not contextualise Protection of Children from Sexual Offences Act and its child friendly protective measures.
The writer is a women’s rights lawyer and consultant to RAHAT a collaboration Department of Women and Child Development Maharashtra and Majlis Legal Centre to provide support to survivors of sexual violence.