WUNRN

http://www.wunrn.com

 

Smita S. Pendharkar

April, 2007

 

Domestic Violence Act (2005, India): Marking the End of Intimate Colonialism for Women?

 

 

In India the case of ‘men’s laws and women’s lives’[1][1] is routinely justified under the pretext that “western” human rights paradigms are imperialistic in nature and reminiscent of colonial assertions. Post-independence, grassroots movements have regularly sought to distance the emergent democracy from its colonial legacy, however, the Indian judiciary, while cautiously denying its lineage, has trudged forth with the skeleton of a colonial constitution while maintaining its commitment to total democracy. Today, cleverly dressed personal laws with romantic pluralistic overtones convey the patriarchy’s underlying agenda to regulate women’s bodies and their agency. The vestiges of Victorian social order permeate the secularity of India’s legal system through ‘modesty laws’ as judicial and ecclesiastical polities re-articulate and reinforce colonial patriarchy through customary and religious laws limiting women’s access to meaningful livelihoods. Standing at a crossroad with culture dictating divine subordination and neo-liberalism urging revolution, women in India broach the question of equality sensing the country’s dependence on their productive and reproductive labor, and socio-political and intellectual capital. The Domestic Violence Act (2005), a calculated risk for the patriarchy, lumbered into force on October 26th, 2006 in response to the inadequacy of previous legislation, and in acknowledgment of the dynamic bargaining power of women in contemporary social, political, and economic fora. Like most gender-sensitive legislation, its effectiveness will be measured by its ability to sustain a momentum for the development of a more women-centered judicial mechanism.  

The DV Act (2005) is an expression of the legislative body’s understanding of the changing social, political, and economic landscape. With the women’s question taking center stage the pressure to democratize legal provisions is of the essence. Conscious of the existing system’s inability to wholly divest itself of the colonial discourse on selective equality, liberty, and justice, the male orthodoxy has extended the Rights continuum to expand the constitution’s capacity to, at least, textually afford all of its citizens equal rights and protections. The troublesome passage of this Act suggests that several cultural and religious norms were de-centered during its conceptualization. Relevant to this de-centering is the sub-continent’s historical acquiescence of ethnic and religious diversity which post-independence translated into special provisions protecting and/or preserving customary practices even when they were in violation of women’s and dalit rights. The Nehruvian Uniform Civil Code (UCC) with its potential to secularize Indian social and political fora proved too controversial with its directive principle to supersede the right of citizens to personal laws based on their religion or ethnicity. Independent India chose to identify with a secular constitution which maintained religious laws as a recourse for crucial vote banks: the Hindu majority and Special Minorities. The “secularity” of India’s constitution has cost women and dalits their equality for 61 years, one must therefore be vigilant in reading a favorable interpretation of the DV Act (2005) despite its pledge to broaden the scope of women’s rights to protection and due process.        

Briefly, the Domestic Violence Act (2005) articulates that women, regardless of the nature of their live-in relationship, are entitled to legal protection from domestic abuse. Essential to this Act are three key developments: (a) The change in live-in legalities as symbolic of the paradigmatic shift towards more inclusive and progressive legislation entitling all women, not just those who adhere to hetero-norms, to the basic right to protection from abuse; (b) the multi-dimensional understanding of domestic violence and its myriad implications for women; and, (c) a departure from the orthodoxy of private-public binaries where marital / intimate rape and violence fall under the private domain. However, the romance of this Act is short-lived as committees and legal experts, mostly anti-feminist, congregate in their shared apprehension of its anti-men language. Casting a wide net over women and their perceived vindictive psychology, critics of the Act claim that its loose language has opened the flood gates for false cases against men and their families. The court’s backlog of domestic violence cases has been attributed to the Act’s accommodation of a perceived culturally degenerative modernity, not its supportive, dynamic pro-women / victim reasoning. The urgency to re-examine the Act is a symptom of gynephobic attitudes infecting judicial processes. In August 2007 the Ministry of Women and Child Development (WCD) set up a panel to review the Act and identify the loopholes that were giving women an undue advantage over their alleged abusers. The committee, comprising mostly of high profile women lawyers, was directed to accept suggestions from men’s organizations. Not satisfied with the censuring of one Act, the ministry keenly set up another panel to reassess the oft-criticized Dowry Prohibition Act (1961) and impending Sexual Harassment Bill. Any glimmer of hope, it seems, is suffocated by a pathologized patriarchy raring to promulgate, through customary laws and religious propaganda, the idea that women are imprudent creatures eager to exploit victimhood.

Birthed with the intention of democratizing the law and policy-making process, the Act in its preliminary draft confirmed the judiciary’s resounding effort to, “on being prima facie satisfied that domestic violence has taken place or is likely to take place”[2][2], extend all protections to women citizens. Initially optimistic of the enactment, pro-women advocates observed the Act as a tool to flatten the gender hierarchy in legislative tabling processes. The Act engaged in an inclusive discourse by destabilizing the male hegemonic order while calling for the inception of a new socially harmonious and equitable democracy. Post-enactment however, unable to contain the disturbance within male orthodox polities, the governing body has launched into prosecutorial attacks against the Act, its advocates, and beneficiaries. Media hoardings portray the Act as a veiled threat against men, the Indian family, Indian cultural norms, and the nation’s patriarchal heritage. Grounded in the simple idea of equality for women, the Act has sought to dispel India’s international reputation as an imaginative democracy: as a (i) theoretical democracy lacking praxis, and (ii) a nation with no regard for female members of its citizenry. The patriarchal autarchy, however, promises to pursue a barbed homily on the culturally degenerative effect of pro-women legislation; their war against legislation rabid with feminism is predictable, to say the least. One wonders, is the DV Act (2005) symbolic of democracy’s potential to catalyze controversial but groundbreaking legislation? or simply a side-effect of India’s chimeric attitude towards women?

The erosion of India’s theoretical democracy is apparent in the rising number of acid attacks, sati, domestic violence, sexual harassment, female feticide, honor killings, and rape. As women in Jharkhand, Bihar, Uttar Pradesh, Assam, and Bengal are hacked to death if branded witches by village panchayats, child trafficking and prostitution continue to be lucrative industries. As the DV Act (2005) gains careless recognition in India's metropolitan hubs, the Supreme Court routinely rules in favor of pedophiles under customary statues. Celebrating the DV Act (2005) seems unfair as it clearly does not have the power to reform India’s culture of violence and ritual collective silence. The judicial system, one spidery appendage among several others, remains grounded in traditions of heterosexist exploitation; pro-women legislation continues to be maneuvered by masculine polities, and around male-centered objectives. Recent reform offers are crafted in a humanist idiom to fossilize age-old regulatory strategies that construct and deconstruct women’s identities and reinforce the classic model of Victorian femininity. The need to democratize the language of legal discourse, to “de-masculinize” it and find androgynous and generic terms remains an unabated challenge. Even with the wave of female super-economic empowerment surging towards the sub-continent, the moral debris and remnants of phallic imperialism continue to stagnate women’s social worth.

In the Indian context, it is imperative to scrutinize the colonial legal code that has calcified within the last half century. Recent constitutional amendments have been determined by a body politic that does not represent the needs of women. The micro resistances to caste-based discrimination secured the DalitBahujan constituency the Protection of Civil Rights Act (1955) and Prevention of Atrocities Act (1989). Inciting a lexical movement whereby caste practice became a non-bailable offense, Dr.Ambedkar’s historic rejection of Hinduism and Manushrama was received as revolutionary. Comparatively, India’s obsession with rigid heterosexist mores enjoys a normative and culturally sound location in both legal and political discourse. The chronological parameters of Indian women’s history therefore indicate the urgency for change. Women’s advocates urge the dismantling of conservative ideologies and structures as a means for creating space for developmental and protectionist provisions that center on the women’s question. In so doing, advocates hope that women will be entered permanently into the constitutional canon as citizens who are entitled to justice, equality, and liberty.”[3][3] 

Despite having stirred the hornet's nest, the DV Act (2005) is yet in its nascent stage and little more than a paper dragon. As more questions surface about it effectiveness and adequacy in addressing gender violence, Indian women need to evaluate the value of their productive and reproductive labor, their role as social caregivers, and the realm of their influence in global political and economic activities. As transnational borders shift to facilitate India's entry into global leadership, Indian women must scan each transition to determine whether they are benefiting from it. The DV Act (2005) could well be India's strategic move towards securing a favorable position with international investors and human rights watchdogs. For the moment though India remains draped in relentless assaults on female agency and a powerlessness that has managed to seep into grassroots initiatives. As constitutional guarantees of equality are confounded by discriminatory personal laws, debates on whether:                                                                   

(i) the adoption of a secular constitution has made any difference to the legal status of women? ;

(ii) the transition from colonialism to constitutionalism in the era of human rights has made any difference to the rights of women? ; and,

(iii) constitutions that recognize equal rights make any difference to the institutionalized private/public divide?

underscore the universality of womens inequality, and the failure of emergent democracies to secure human rights for their female citizens. Shirley Chisolm captured the essence of this struggle from embryo to womanhood when she said, The emotional, sexual, and psychological stereotyping of females begins when the doctor says, ‘It's a girl’.







================================================================
To contact the list administrator, or to leave the list, send an email to: wunrn_listserve-request@lists.wunrn.com. Thank you.



[1][1] From the title of Jaising, Indira (ed.) (2005). Men’s Laws Women’s Lives. New Delhi: Women Unlimited.

[2][2] The Protection Of Women From Domestic Violence Act, 2005, Section 22, Protection orders:  http://www.vakilno1.com/bareacts/Domestic-Violence/s22.htm

 

[3][3] Constitution of India: http://indiacode.nic.in/coiweb/welcome.html

____________________________________________________________________

 

Smita Shashank Pendharkar - smita.africa@gmail.com - University of Pennsylvania School of Social Policy & Practice - MSW, Clark University, Center for Study of Social Exclusion & Inclusive Policy & Center for Women's Studies - Tata. Smita Pendharkar is a Research Associate for the Women's UN Report Network - WUNRN.