Gendering legal discourse: a critical feminist analysis of domestic violence adjudication in India.

• Author: Chattopadhyay, Sreeparna

ARTICLE INFO

Issue: 2016 (2).

This article was published on: 16 Jan, 2017.

Keywords: Gender, Domestic Violence, Law, Feminist Jurisprudence, India.

ABSTRACT

Domestic violence is a serious issue in India with 37% of women reporting being beaten at some point in their lives in national surveys. While this is likely to be an undercount given the stigma associated with intimate partner violence and women's lack of access to the justice system, it is noteworthy that conviction rates continue to be extremely low even for the those cases that end up in the Courts. Drawing from critical legal anthropology and feminist jurisprudence, I argue that legal language, procedures and discourses attempt to normalise domestic violence by deploying discursive strategies such as consistent and pervasive use of the passive voice diminishing perpetrator responsibility, trivializing violence by avoiding the use of violent attributions in describing violent acts, and shifting blame to victims. Of the 787 cases registered under Section 498(A), disposed by the Bombay High Court between 1998 and 2004, just 6% obtained a conviction where the victim was alive, and 35% to 39% were convicted where victims had committed suicide or had been murdered. Conviction rates were extremely variable with many judges acquitting all the cases that they tried and just two judges convicting a third or more of the cases brought for trial. This disparity was further consolidated by procedural inconsistencies including the treatment of evidence, extent of documentation required to prove a history of abuse, the classification of interested witnesses and retractions by medical examiners, who were seldom cross-examined. The findings present a very troubling picture for gender justice in India, suggesting that what we need are not additional laws but a gender-aware approach to the implementations of existing laws.

INTRODUCTION

Domestic violence (DV) is a serious problem in India with nearly 39% of women reporting physical, sexual or emotional abuse at some point in their lives (Gupta 2014). However most cases of DV are never reported to the police, as evidenced through the reporting gap between the National Family and Health Surveys, a representative, anonymous reproductive health survey in India and the National Crime Records Bureau, a central repository of all crimes in India (Ghosh 2013). While reported cases of DV have been increasing with a 55% increase between 2005 and 2009, there has been a commensurate decrease in the rates of the police filing a formal complaint by 2%, and arrests from a low of 2.19% to 1.95%. The slight increase in conviction rates for DV, up from 19.58% to 21.02% is negligible, and much lower than the average convictions obtained for all crimes (41.7%) and crimes against women (27.8%) (1).

In the last three years, there has been an expansion of women's protections in India through the legal system; for example new laws have been passed to prosecute sexual harassment at the workplace, acid attacks and stalking. These have been partly as a result of the extensive recommendations of the Justice Verma Committee, constituted after the brutal gang rape and murder of a Delhi student Jyoti Singh in 2012 inside a moving bus (2). Simultaneously and perhaps as a backlash, there have been demands from Men's Rights Organizations to repeal some of the more progressive laws, for instance Section 498(A), that protects women from DV, by arguing, that most of these cases are false and women are using these to extract alimonies during bitter divorce battles and to secure favourable child custody arrangements (Basu 2016; Oxfam 2013) (3). Men's rights groups and conservative groups such as Repeal498A.org and Save the Indian Family are discomfited by the expansion of laws to guarantee women greater rights in India, and argue that they allow for "persecution of men at every level (4), including through "fake" rape cases, prosecuting mothers and sisters' of husbands during "fake" dowry harassment and DV cases and other criminal offences against women. However just 10% of cases filed under Section 498(A) were found to be false in 2009, a much lower percentage compared to other criminal cases and just 0.03% of women who were subjected to DV in 2008, reported it to the police (Swayam 2011). Continuing in the same vein, in this paper I empirically examine domestic violence (5) in India using a mixed-methods approach that permit us to (a) to interrogate whether the claims of fake cases are real or imagined and (b) establish the relationship between the low rates of convictions for DV offences and discourses advanced during the adjudication of these cases. These questions will illuminate the contestations that result from the tensions between the forces of patriarchy and the demand for greater rights for women.

India's commitment to gender justice needs to be discussed both in the contexts of domestic demands for more gender-equitable laws from women's rights groups as well as India's international obligations as a signatory to the CEDAW and other international instruments. For instance the General Recommendation number 19 at the 11th session of the CEDAW in 1992 specifically addresses issues of violence against women including domestic violence through the following measures: "(a) criminal penalties where necessary and civil remedies in cases of domestic violence; (b) rehabilitation programmes for perpetrators of domestic violence; (c) parties should report on the extent of domestic violence and sexual abuse, and on the preventive, punitive and remedial measures that have been taken" (6). Yet as this article demonstrates the extent of criminality in DV offences are often contentious because of the tensions between feminist jurisprudence and the continuing hold of traditional ideas of gender differentiated behaviour that mandates that women treat marriage as a sacrament, even enduring abuse and violence. As a result, perpetrators of DV are often acquitted, with conviction rates as low as 6%, which this study demonstrates. There are almost no rehabilitation programs for perpetrators of DV and while NCRB records DV, given that marital rape is not a crime in India, there are no legal enumerations of the extent of sexual violence in marriages. However surveys like the NFHS, a nationally representative survey with nearly 100,000 women aged 15-49 indicate that 1 in 10 women report being subject to sexual violence in the last 12 months, with younger women reporting higher percentages (NFHS-3, 2005-2006).

At the 58th Session of the meetings of the CEDAW held with Indian delegates and expert committee, specific questions were asked with reference to the non-criminalization of marital rape. The responses of the delegates were vague and inadequate stating that "marital rape is not considered rape in the Indian constitution" (IDSN 2014, CEDAW 58th Session) (7). Despite the obligations imposed by the CEDAW, DV in India is often treated as a private, family matter, especially in the absence of dowry related violence. Police are often reluctant to file cases, frequently asking couples to resolve their differences amicably, outside the criminal justice system. The overreaction of the criminal justice system has been so acute that Delhi and Madras High Courts have passed orders, in contravention to the Indian Penal Code that the police do not file complaints unless there are "visible signs of abuse" on the complainant (Reddi 2012). Currently complaints filed under Section 498(A) are non-bailable, non-compoundable and cognizable offences (8). However there is a bill pending in the Parliament to make the law non-compoundable, implying that the complainant can withdraw the case at any time. One can only imagine the pressure on women by their families, to withdraw complaints of DV, if this bill were to be passed (9).

2.0 Methodology and Context

The analysis presented in this paper draws from a year of fieldwork in Mumbai during 2005/06 that employed a mixed-methods approach including archival analysis of the documents generated as part of trials in the Bombay City, Civil and Sessions Court in South Mumbai, statistical analysis of cases and observation of court proceedings, in conjunction with ethnographic fieldwork in a slum in one of the most deprived wards in north-eastern Mumbai (10). Documents reviewed here include judgments, post-mortem reports, First Information Reports (F.I.Rs), Spot Panchnamas (reports prepared at the scene of crime) and Inquest Panchnamas (reports prepared during autopsies), medical records, dying declarations, witness testimonies including statements of relatives, and other documents produced during the trial. Seven hundred and eighty seven cases for which records could be obtained for, form the basis for the numerical analysis in this study (11).

Section 498(A) of the Indian Penal Code prosecutes domestic violence offences and includes within its remit husbands and in-laws of complainants. This analysis suggests that legal language, procedures and discourses, disguise brutal violence normalizing or trivializing these acts through the deployment of specific discursive strategies. Using a feminist and critical anthropological lens I argue that strategies such as the consistent use of the passive voice that diminishes perpetrator responsibility, routinisation of violence by the avoidance of violent attributions in describing violent acts, and the portrayal of victims as aggressors undermines the element of violence in domestic violence cases that ultimately discourage convictions for these offences (12). Procedural flaws also contribute to the low conviction rates including the differential standards and treatment of evidence by different judges, sloppy investigations of crimes and the embellishment of non-dowry related cases with a dowry clause that ultimately results in the case losing its credibility (13). In the selection of case studies...