Is the Indian law on domestic violence fit for purpose?

In the first of this three part series, we examine the effectiveness of one of the major planks of the domestic violence law in India: the post of Protection Officers.

Prita Jha
13 January 2017
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Group discussions during training on women's rights legislation. Credit: Peace and Equality Cell

As women’s groups in India celebrate the 10th anniversary of a historic and monumental achievement in India – the coming into force in 2006 of a comprehensive law on domestic violence, the Protection of Women From Domestic Violence Act (PWDVA) – we reflect on the roadblocks encountered in three key areas: functioning of protection officers; provision of shelters and counselling; and the workings of the lower Judiciary. The passing of the Act was the culmination of a long campaign by the women’s movement, starting in the 1990s, demanding a civil law to address the multiple forms of violence affecting women in their homes. The first bill was drawn up by the Lawyers Collective (LC) in 1992 and widely disseminated and discussed in public forums for 13 years. When UPA (United Progressive Alliance) came to power in 2005, it put the bill before the legislature and the PWDVA was passed.

PWDVA is a mixture of civil and criminal law aiming to secure a range of remedies quickly for women suffering domestic violence from one court, as opposed to having to run to various different courts and importantly without having to file criminal cases against husbands or other close family members. Women needed civil remedies such as protection orders and residence orders that gave them some scope to renegotiate the extremely unequal and often abusive terms of the relationship, so that they could continue to live either without violence in their homes or live separately with assurance of safety and financial security provided by maintenance orders.

PWDVA remains a ground breaking piece of legislation for many reasons:  

It recognises that domestic violence impacts women on a number of fronts; it requires a coordinated multi-agency approach to provide effective remedies to survivors in the long and short-term.  An important feature of this law is the way it imagines connectivity, communication and involvement of district, state and national level nodal departments: Women and Child (overall implementation); Home department (Police); Social welfare/ Social defence department (responsible for recruitment and training of Protection officers;  registration of service providers) and Health (Counselling and provision of medical facilities) and, of course, the judiciary and NGOs to raise awareness, provide training, monitoring and specific services.

For the first time, it clearly defines domestic violence in terms that are not limited to physical violence and cruelty but extended to include mental, sexual and economic abuse. Unlike previous laws which were limited to married women, it covers live-in relationships and any women living in a shared household in a domestic relationship, not just wives. “Preytna”, a tribal woman from Madya Pradesh who sought the assistance of Peace and Equality Cell, an NGO which I run, and who, as per tribal culture, was cohabiting but had no documents, proof or date as to the day she started living with her husband, was able to apply for a protection order successfully under PWDVA.

Daughters, daughters-in-law, mothers, mothers-in-law, sisters and sisters-in-law can also use this law to escape domestic violence. Lawyers can now successfully negotiate suitable settlements for daughters facing threats and violence to coerce them to get married. In 18- year-old “Tanya’s” case, violence was used to force Tanya to discontinue her education.  Peace and Equality Cell negotiated with Tanya’s family, using the possibility of filing a case under PWDVA as a last resort to stop her family from doing so.

The law also creates the post of protection officers who are supposed to be the first port of call for women facing domestic violence: their role is not only to provide guidance and information on the available range of options but importantly to ensure that women can access courts, shelters and counselling services. It is their job to interview survivors of violence, investigate and write a Domestic Incident Report (DIR) to inform the court of the ground realities facing the survivor, details of the violence and the remedies sought.

The law allows aggrieved women themselves, protection officers or service providers to file Domestic Violence (DV) cases – since there is a huge variance in the way in which the states are implementing the DV act, we have no idea how many cases are being filed by women themselves or through private advocates, how many by protection officers and service providers.  This information is necessary to build an overall picture so that resources, training and capacity-building efforts can be directed towards those who are primarily responsible for helping women.

But, thanks to the persistent efforts of LC to assess the functioning of the DV act, we have some amazingly useful data, research and information in various published evaluation reports. I rely chiefly on their reports, and the functioning of the DV act in Gujarat where I am based. The case study of Gujarat (see below) and the evaluation of LC concur on the main issue. There are not sufficient qualified and trained protection officers with the required three years security of tenure to do their multiple tasks efficiently.

It was six years after the PWDVA came in to operation that I and my justice team were very perplexed to find that the very purpose of this woman-centric law was being subverted – women were facing a barrage of obstacles in securing access to a protection officer! Take the case of “Pragna” who was seeking protection, residence and maintenance orders both on an interim basis (till court proceedings were finalised) and also as final remedies. She was told by the protection officer in Ahmedabad to come back after three months as they were simply too busy to handle cases within a few days as stipulated under the PWDVA rules. We encouraged women in similar situations to Pragna to approach the newspapers who took up the issue which led eventually to the Gujarat High court ordering the state to appoint more protection officers.

The Gujarat High Court concluded that the delay that survivors were experiencing in accessing emergency remedies was due to a shortage of protection officers. Additionally, the working conditions of protection officers left a lot to be desired as their contracts were temporary, insecure and they were not being provided with the basic amenities and facilities to be able to fulfil their multiple obligations under the Act. The High Court judgement stipulated that the Act should not be rendered toothless by starving the system of the required number of protection officers and the lack of facilities to fulfil their mandate. The state was asked to put its house in order within eight weeks and it was directed to set up systems for monitoring the manpower needs of each district separately to enable effective implementation in the long term. To date there is no report publicly available of any system set up in compliance with this order, but after some delay a number of protection officers were appointed. However, we have no information regarding their caseload or performance.

Since the local context varies district by district and state by state, any effective monitoring system has to be set up by the state itself and that requires political will backed up by action and resources. Sadly that appears to be missing as demonstrated by the lack of collection of data. At present, there is no national level data available from all states so we don’t know how many DV cases were filed from 2006 through to 2015. We don’t know in any detailed way, how the key stakeholders are functioning year by year in each state. The NCRB (National Criminal Record Bureau) data captures only criminal cases which include section 498A (cruelty) of the Indian Penal Code, dowry death and rape cases.  If it were not for the monitoring carried out by the LC we would have to rely purely on anecdotal evidence. There is lack of coordination and monitoring systems at state level demonstrating a clear lack of priority in preventing violence against women. 

See here for the second piece in the series: "A jail not a shelter: women's refuges in India.

Part three is here: "The Indian judiciary are paper tigers."

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