Domestic Violence and Protection of Human Rights

Family violence is a global problem affecting families of all classes and cultures1. The term “domestic violence” is most commonly employed to describe the incidents of familial or intimate battering. Violence is an act of aggression that crosses the boundary of other persons autonomy and identity. It is a coercive instrument “to assert one’s will over another, to prove or feel a sense of power”2 In the legal sense, violence is an act of illegal criminal use of force.  The term domestic, historically, has referenced an idealized family unit functioning in a protected and secluded manner appropriately shielded from public3. Traditionally, the family has been considered a sphere of intimacy and devoid of conflicts of interests among the members, a “cultural ideal and focus of identity”4. This idealized conception, the rhetoric of inviolability of family as an institution, has shielded the domestic violence behind an iron curtain, as an unacknowledged phenomenon behind the “closed doors” of the family, a private matter between “intimates”, which is neither a concern of public scrutiny nor of interventions. Consequently, till recently, the domestic violence escaped the human rights attention internationally. The methods of combating domestic violence as a human rights issue are therefore still emerging under international law5, and within the country the domestic violence is yet to draw attention as a human rights issue.  Domestic Violence as a Human Rights Issue Human rights are fundamental to our very existence and they constitute what might be called “sacrosanct rights” from which no derogation can be permitted in the civilized society6. While human rights have evolved in scope historically, their source has always been the universal principles of morality and duties for guiding all human interactions. Emphasis of human rights thus vary under different perceptions of morality. The moral perspective is however neither unique nor static. Alternate moral perspectives co-exist and evolve and so do the scope, nature, content and reach of human rights. The liberals, for instance, emphasise the private property rights, equal treatment before law and political liberty. The socialists perspective on the other hand considers economic equality as a foundation for political freedom and legal equality7. Notwithstanding the varied perceptions, the evolutionary motive force for human rights is the mankind’s increasing demand for a decent civilized life in which the inherent dignity of each human being is well respected and protected8.  Conventionally, “civilized life” and “human dignity” are perceived within the public sphere. The human rights law has primarily aimed to protect against the limitations imposed on the individual rights by the State. This conception is aptly summed as “leitmotif of human rights movement in India, and elsewhere, is to resurrect the so vereignty of victims against that of the State”9. The trespass on civilized life and human dignity manifested in domestic violence, which occurs within the private sphere, has therefore eluded the human rights concern. Domestic violence, occurring as physical and psychological abuse, defiles the very existence of the abused person, who most often happens to be a woman.  Domestic violence thus contravenes the Universal Declaration of Human Rights (Article 3):10 “Everyone has a right to life, liberty and security of person” and the Section 2 (d) of the Protection of Human Rights Act, 199311 : “Human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the courts in India”. Immune from law, domestic violence perpetuates beyond legal boundaries, constantly challenging the university of human rights, i.e. their applicability in all places and domains.  Women and Domestic Violence Available data points to the fact that a large proportion of violence against women in the country is located in the family12 Victims are however not limited to women, and also include children and the aged. But, gender discrimination is especially startling due to its wide prevalence, persistence throughout a woman’s life span and across all resource sharing decisions in the family. A raison d’etre for domestic patriarchal dominance is appropriation of benefits of woman’s labour in productive as well as reproductive domestic work. The quintessence of domestic violence is control or subjugation, both over resources and persons, albeit under social sanctions rooted in traditions and reinforced by religious and other dogmas.  Domestic violence manifests as verbal, physical or phychological abuse, often in forms that are more subtle than the violence elsewhere in society. Familial identity and filial values deter resistance, “closed doors” alienate victim from remedies, resulting into a convenient status quo where victim reconciles and society can connive. The reconciliation with subjugation, in the wake of limiting social circumstances, violates the core of human rights— liberty and human dignity. The hopelessness harms the woman more than the violence itself, as it erodes her personality and also that of the children Ignoring the victim and not making any attempt to provide solace or restitution is a challenge to the human rights13 The victim’s inability to access to the law makes legal remedies ineffective. The inability of the law to reach the victim is even more tragic.  Women, Domestic Violence and Law Ample legislations coupled with the mandate of the Indian Constitution provide adequate instruments for delivering gender specific justice. The Parliament has enacted numerous legislations to eradicate discrimination against women. Judiciary has actively interpreted these provisions and advanced the law in the process of delivering of socio-economic justice to women. Taking cognizance of specific social customs, traditional and practices that may conflict with basic tenets of fundamental rights guaranteed by the constitution for women, specific legislations, such as The Dowry Prohibition Act, 1961 and The Suppression of Immoral Traffic in Women and Girls Act, 1956, The Maternity Benefit Act, 1961, The Indecent Representation of Women (Prohibition) Act, 1986, are enacted to protect the rights of women. Despite these legal developments and judicial activism to protect women’s rights, the laws which deal with remedying violations arising from deep rooted social practices, especially those in family circumstances, have proved to be ineffective.  An evident example of this is The Dowry Prohibition Act, The act recognizes and aims to remedy the coercive aspect of dowry transaction. The practice of dowry, whereby the bride’s family grants gifts to groom’s family, occurs under social circumstances which are generally unfavourable to women. The provisions of this Act, in conjunction with the provisions of The Indian Penal Code, The Criminal Procedure Code and The Indian Evidence Act, furnish effective redressal mechanisms to deal with coercive dowry demands made at the time of marriage or thereafter. Despite seemingly effective legislation against dowry, the wide scale prevalence of dowry has persisted. The failure can be traced not to the ineffectiveness of the legislation, but the circumstances which hinder the access to the legislation. While this is apparent, the conventional remedy is sought in making the law stringent, by way of amendments to the main acts, rather than in correcting the social circumstance whereby the victim is enabled to access the law.  The irony of the situation is not only that the woman is incapable to reach the law, but the law has been unable to break the barriers to reach her behind the closed doors of the family. As observed by the Supreme Court in Narotam Singh v. State of Punjab, AIR 1978 SC 1542 : “It is distressing that dowry or bride price should mar married felicity with feudal cruelty in India, largely because the anti-dowry law sleeps on the statutes book and social consciousness is not mobilized to ban effectually its vicious survival. Law, hanging limp, is a slur on the executive charged with its enforcement and its traumatic consequences................Will the administration awake to the urgency of a campaign so that the people may become participants in the observance of social welfare legislation.”  The peculiar feature of domestic circumstances it that all such legislations, like The Dowry Prohibition Act, are rendered ineffective due to inability of the victim to access the law. The concern of dealing with dowry or such domestic violations lies to a lesser extent in the failure to curb the original evil, rather in the chain of further violations and violence that is unleashed as a consequence. This is evident in dowry cases which result in wife battering, child abuse, bride burning and dowry death. The failure to deal with dowry thus leads to grievous human rights violations. This is equally true of violations within the family which go legally unaddressed and lead to gross domestic violence and abuse of human rights.  Judicial and Social Reforms Domestic violence presents a situation akin to the “chicken and egg” paradox. The laws are needed to protect victims against crimes rooted in social circumstances and social reforms are necessary for effectiveness of law. Evidently, letter of the law has gone ahead of social realities. The legal institutions and implementation of law have lagged. And, the social circumstances that germinate domestic violence have proved to be too stubborn to change. The situation thus requires reforms both in judicial and social spheres.  The continuance of domestic violence erodes confidence in the rule of law, the foundation of civil society. The need for judicial reforms vis-a-vis domestic violence is therefore most urgent. The vital issue in this context is to recognize domestic violence as a human rights problem and expand the laws appropriately. The next is to recognize the fact that victims of domestic violence are often unaware of legal remedies and in general are unable or handicapped to access law from behind the “closed doors” of the family. A most crucial aspect of judicial reforms is threfore reaching the victims. The judicial activism so called is required more in terms of institutional innovations and implementation strategies, rather than confined solely to legal interpretations. Specific judicial reforms should be targeted towards enacting a Domestic Violence Act, as in United Kingdom14, and constitute special courts which are empowered and equipped to reach victims behind the “closed doors”. The other vital consideration is to make the machinery for framing and implementing laws to be made gender sensitive.  The judicial reforms shall be blunted unless the radical social reforms are pursued on the domestic front. A primary issue here is the role of ideological movements that influence societal and family values. The other is the support for social institutions which have access to families and enjoy social sanctions to intervene in public and private matters. Unfortunately, the schism in these areas have widened, caused by the erosion in the esteem of political system and increased alienation of public from social movements and institutions. The fact that women are predominant victims of domestic violence indicates a need to enhance the opportunities for women in social, political and economic spheres. During the past few decades, development perspective in the country has shifted away from the wider mandate of overall human development proposed by the Directive Principles of State Policy towards a focus on economic growth as the sole criteria for State’s development policies. The neglect of social infrastructure is contributing to decline in social values and the perpetuation of violence. The State policies therefore need to be realigned to follow the spirit of the directive principles and aim at overall human development. In this context, an important area that needs to be examined is the increased ability of media to penetrate the “closed doors”. A “right” combination of media and the message can be an instrument to influence the domestic violence.  Conclusion Wide scale prevalence of domestic violence and little social or legal remedy for it is a challenge to the rule of law. Inability of the victim to reach out from behind the “closed door” of the family and the incapacity of the society and the law to reach the victim sustains a vicious circle that is difficult to disentangle. The fact that domestic violence is not recognized as a human rights issue has prevented the search for serious social and legal remedies. Since women are most often the victims of domestic violence, the social and legal reforms need to focus on gender sensitive areas.  Domestic violence violates, each day, the Constitution in letter and spirit. Social response is required to raise the veil that hides the violence, and the legal response is needed to bring justice to the doorsteps of the victim. The vicious circle then can be eliminated, and a virtuous circle can unfold that corresponds to the norms of civil society envisioned by the Constitution.
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1. World Conference on Family violence, Draft Declaration, Singapore, September 8-11-1998.
2. Robert Litke, Violence and Power, International Social Science Journal, 1992.
3. Fineman, MA, Preface, in The Public Nature of Private Violence : The Discovery of Domestic Abuse, Fineman M.A. and Mykitiuk R. Eds., Rutledge, New York, 1994, pp. xi-xviii.
4. Karlekar. M., Domestic Violence, Economic and Political Weekly, July 4, 1998. pp. 1741-51.
5. Beasley M.E. and Thomas D. Q. : Domestic Violence as a Human Rights Issue, in The Public Nature of Private Violence : The Discovery of Domestic Abuse, Fineman M.A. and Mykitiuk R. Eds., Rutledge, New York, 1994, pp. 323-346.
6. Anand A. S., Justice : Protection of Human Rights —Judicial Obligation or Judicial Activism, (1997) 7 SCC (J), pp. 11-24.
7. Ishay M. R. Introduction, The Human Right Reader, Is/jay M. R. Ed., Rutledge, New York. 1997, pp. xiii-xl.
8. Justice A. S. Anand, Human Rights — Law and the Society, in Human Rights and the Law : National and Global Perspectives — Chitnis V, Madam C. M. and Hirani M.H. Eds,. Show White Publications, Mumbai, 1997, pp. 3-16
9. Upendra Baxi, The State and Human Right Movements in India, in People’s Rights — Social Movements and the State in the Third World — Mohanty M, Mukherjee P.N. and Tornquist O Eds., Sage Publications, New Delhi, 1998, pp. 335-352.
10. Universal Declaration of Human Rights, 1948 United Nations, G. A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948).
11. Protection of Human Rights Act, 1993.
12. Anveshi Research Center in Women’s Studies, Women in India and their Mental Health, Communication Paper, Hyderabad, 1995.
13. Justice A. S. Anand, Victims of Crime — The Unseen Side, (1998) 1 SCC (J), pp. 3-13.
14. U. K. has domestic Violence and Matrimonial Proceedings Act. 1976 and the Domestic Proceedings and Magistrates Court Act, 1978. Â

Author Name: Amee Yajnik