In a far-reaching judgment, the J&K High Court has taken cognisance of domestic violence being perpetrated on women now and issued a slew of directions to authorities in order to give relief to them
By Prof Upendra Baxi
J&K Chief Justice Gita Mittal and Justice Rajnesh Oswal have rendered a signal service to the motto “women’s rights are human rights” by issuing a slew of directions during the Covid-19 infestation to keep Indian women safe and secure from domestic violence. This growing everyday menace now stands aggravated during this sinister pandemic. There is so much governments have to do that not all vulnerable individuals and groups receive equal attention and priority. In these circumstances, courts have an important role to play in reiterating the fundamental rights declared by the Constitution and core human rights established by international law, which is the duty of all nation-states and people to fulfil. These may not, even in times of Covid-19, be judicially ignored or suspended.
The Court issued a large number of directions to authorities under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), particularly referring to the duty cast upon the government under Section 11(a) of the enactment to “take all measures to give wide publicity to the provisions of the law through public media including the electronic and the print media for protection of rights of women who are victims of violence of any kind occurring within the family”. This accentuation to fulfil the duties of legal literacy is especially important during the confrontation with Covid, as emphasised by the first and the last direction.
The second direction is equally critical as it urges creation of a “dedicated funding to address issues of violence against women and girls” as part of the Covid-19 response by the Union Territories of Jammu and Kashmir and Ladakh and that it respond to some urgent requirements overlooked in state programmes.
Two additional sets of directions relate to (1) access to call-in and counselling facilities and (2) provision for “safe places” for women. The former relates to: “Increased availability of call-in services to facilitate discreet reporting of abuse”; “increased tele/online legal and counselling service for women and girls” and designated “informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators”.
Canada and Australia have already integrated the needs, and the rights, of women in anti-Covid plans and the Court notes that “Prime Minister Justin Trudeau of Canada has set aside tens of millions of dollars to support women’s NGOs, shelters and sexual assault centres across Canada”.
In addition, the judgment said that there should be “[I]mmediate 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”. Secure access and shelters, besides protecting dignitarain interests of women and girls, have the additional advantage of amelioration of the “trust deficit” between adversely affected women (and indeed all women) and the state. Many nations have acted with alacrity and the Court, for example, notes that “France’s government also recently announced that it had reserved 20,000 hotel rooms for victims of domestic violence”.
Sociologist Parul Bhandari has written: “In India, the lockdown has imposed a situation where the victim has to cohabit with her abuser for days in end. Uttar Pradesh’s police has already pre-empted this situation and has launched a special hotline to deal with the pressing issue of domestic violence especially during the lockdown period”. (Scroll.in., April 20, 2020).
Educationally, the Court cites the statement of Antonio Guterres, the Secretary General of the United Nations, saying that “nearly 60% of women around the world working in the informal economy, earning less, saving less are at greater risk of falling into poverty because of the COVID-19 pandemic”. Besides as “markets fall and businesses close, millions of women’s jobs have disappeared”. Guterres further observes that “the women are losing paid employment, women’s unpaid care work has enhanced exponentially, as a result of school closures and the increased needs of elder people. These currents have been observed to combine as never before to defeat women’s rights and deny women’s opportunities”.
The Court’s performance, by no stretch of imagination, can be called judicial overreach! It is merely sculpting interim reliefs to redress a gender-challenged scheme of the anti-Covid regime of lockouts and other measures. What is true of J&K and Ladakh is true of most of India and not a single judicial direction is unreasoned and out of sync with comparative constitutional and international law obligations. It is much hoped that this judgment becomes an aspect of the national anti-Covid programme.
Civil society groups have been urging additional measures. For example, in an open letter to Delhi CM Arvind Kejriwal, lawyer Vrinda Grover and other signatories (https://fightcovidnotpeople.in/2020/04/04/ensure-womens-rights-during-the-lockdown-an-open-letter-to-delhi-cm-kejriwal/ April 4, 12020) urged a whole shift of engendering the fight against the pandemic. It pleaded a review of “[L]ockdown as a public health measure….” This must develop into ways to discourage “Non-Secular, Racist, Sexist and Casteist Messaging”, uphold “substantive equality for women” and transpersons and ensure respect for reproductive rights. Above all, “lockdown outside the framework of health rights, women’s rights and human’s rights has created a mammoth humanitarian crisis that must not be treated only with a framework of policing and punishment”. This statement must be read and acted upon, by all-anti-Covid policy makers and workers.
Similarly, it has been urged that the state deliver “reproductive health services, contraceptives, menstrual health supplies and maternal health care”, provide “90 days of wages to all pregnant from 3rd trimester and lactating women with infants aged less than 6 months”, facilitate “women’s continued participation in paid work”, organise “necessary support” for the single, disabled, infirm, and “elderly” women, ask panchayat organisations “for organizing regular water supply to every household in order to avoid women and girls congregating at the village water source for bathing, washing and fetching drinking water” and show greater regard for the needs and rights of transgender peoples. (Counterview.Org., April 6, 2020).
These suggestions need to be integrated and implemented in the framework of a national policy, despite the rather perplexing disregard by the High Court of the sage counsel of civil society groups so earnestly proffered.
A further feature of misogynist landscape is the status of women in live-in relationships and the much-delayed definition of it. Section 2(f) of PWDVA defines a relationship as “between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.
However, the phrase “in the nature of marriage” is not crystal-clear and the Supreme Court (per Justices KS Radhakrishnan and Pinaki Chandra Ghose in Indra Sarma, 2013) has urged Parliament to clarify the law further to settle the question as existing law only protects the lawful rights of the spouse and legitimate children.
Parliament has still to act as Covid-19 threatens us all with its toxic sway. A suitable provision ought to be made in the national anti-Covid policy at least for women in a live-in relation who are victims of such violence. It is high time to engender the law so that we may endanger the male bias in it.
—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer