Domestic Violence Act: The Supreme Court took a progressive turn, writes Gautam Bhatia

 

The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights

In 2005, Parliament enacted the Protection of Women from Domestic Violence (DV) Act. The DV Act was a critically important law that recognised and codified a set of rights intended to protect women from domestic violence and domestic abuse. The Act recognised that domestic violence is triggered — and enabled — by the vast differences of power that exist within our family structures. Long-standing norms that operate to make the husband’s family home as the default matrimonial home, or create and sustain disparate earning capacities between the spouses, ensure that, in many cases, women lack the social and economic support structures that would enable them to effectively resist domestic violence, or to leave abusive relationships.

To mitigate this situation, the DV Act prescribed a set of remedies that women could avail of in situations where they were faced with domestic violence. One of these remedies is the right to residence, codified under Section 17 of the DV Act. The right to residence is based on the recognition that in a significant number of relationships, the marital household will either be under the legal control of the husband, or of his parents, and the woman will not always be in a position to return to her own family home. In such a situation, the threat — or the potential social shame — of homelessness creates a situation of “no exit” from the abusive relationship. To prevent this, the DV Act specifically provides that “every woman in a domestic relationship shall have the right to reside in the shared household”, and that she cannot be excluded or evicted from it, except through legal process.

Soon after the passage of the DV Act, in 2007, the Supreme Court (SC) provided a narrow and restrictive meaning to the right of residence. The court held it would apply only where the “shared household” either legally belonged to the husband, or where it was joint family property. In cases where — for example — the married couple was living with the husband’s parents, in a house that legally belonged to the parents, there would be no right of residence. The judgment based its interpretation on a strained reading of the phrase “shared household” under the DV Act, and by raising the spectre of the “chaos” that would ensue if every place the married couple had ever stayed in could be treated as a “shared household”, where the wife could claim residence rights.Needless to say, this interpretation defeated the very purpose of the DV Act, which was based upon a recognition of the structural vulnerabilities faced by women within the social institution of marriage. By drawing a line around the cases in which residence rights could be claimed, the court effectively deprived a large number of women, subjected to domestic violence, of the very remedy that had been designed for their protection.

However, after 13 long years, in 2020, the SC has now finally corrected its error. In Satish Chander Ahuja v Sneha Ahuja, the court acknowledged that its old reading was wrong, and the specific purpose of the DV Act — which was to protect the rights of women subjected to domestic violence, within the Indian social context — required a broad reading of “shared household” and residence rights. The SC, therefore, held that residence rights were not limited to situations where the shared household was joint family property, or belonged to the husband. As for the “chaos” that would seemingly ensue, the court pragmatically noted that only the last household in which the parties had lived together — and access to which was sought to be deprived — would count, a judgment that could be made on a case-to-case basis.The court’s judgment is important not just for its progressive outcome, but also for its reasoning: The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights.

It is, therefore, an important step forward in making the DV Act an effective rights-legislation.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

Source: Hindustan Times, 26/10/20

Quote of the Day October 22, 2020

 “Happiness is only found by those who are striving to make others happy.”

‐ Anonymous

“खुशी केवल उन्हीं लोगों को प्राप्त होती है जो दूसरों को खुश करने में प्रयासरत रहते हैं।”

‐ अज्ञात

Virtual courts cannot fully replace a process that demands direct human interaction

 

The dispensation of justice is a human endeavour made up of laws, ethics, morality, wisdom and compassion. The absence of any one of these five ingredients, short-changed by restrictive virtual situations, would render the exercise of justice only partially satisfactory or even downright unjust.

The Parliamentary Standing Committee on personnel, public grievances, law and justice, in its recent report, recommended holding virtual courts even after the pandemic ends. The chair said, “the parliamentary panel strongly pitched for virtual courts… digital justice is cheaper and faster besides addressing locational and economic handicaps; ensures safety of vulnerable witnesses providing testimony, expedites processes and procedures and are an improvement over traditional courts as they are most affordable, citizen-friendly and offer greater access to justice”. Meanwhile, there is a large group of lawyers of the Delhi High Court clamouring for more physical hearings and a smaller group of them objecting, citing health concerns.

While the government popularly believes digitisation is the answer to all the problems of governance, and these are often excitedly referred to as “game changers”, issues related to digital technology solutions need careful analysis and an overhauling of both laws and existing systems before they are introduced. While I am neither a lawyer nor a digital expert, I have attended court hearings more than 180 times since the 1980s on cases related to trespass, defamation, right to livelihoods of artisans and against administrative injustices. Over almost two decades, 150 of these were related to a CBI case emerging out of the Tehelka.com allegations. Of these, the last 12 were video hearings on final arguments, verdict, sentencing and appeal, which took place during this pandemic. One personally experienced the benefits and flaws of the virtual system.

“Justice delayed is justice denied” is a notoriously abused maxim in our court system considering there are 3.1 crore cases pending in the lower courts (83 lakh pending for over 10 years), 44 lakh in the high courts (32 lakh pending for over 10 years), and 60,000 cases pending in the Supreme Court (the figures are as of 2019). Prisons are over capacity by 114 per cent, of which two-thirds are undertrials, who have had no justice at all. The massive injustice already done to them is unforgivable.

It is hoped that virtual courts will reduce the pendency of cases by reducing the time taken on small financial issues like insurance, traffic claims and challans that clog the system. But major policy changes always have unintended consequences, so careful thought is required on what types of cases and what parts of the judicial process are amenable to going online. It should also be a matter of choice if participants on either side want to use the virtual route. Certain cases of tax, insurance and some corporate matters could move to the online dispute resolution processes through negotiation, arbitration and conciliation. Reducing pendency through virtual courts will reduce travel costs, although lawyers are unlikely to reduce their fees. When government agencies file cases or appeals, they ignore these costs as they come out of the public exchequer. Very often, the police and other criminal investigative agencies take years to produce witnesses. Judges hesitate to compel them. Repeated adjournments are sought, not just by the accused, but by prosecuting agencies who are nonchalant. Examination of the causes of pendency should, therefore, extend far wider afield.

Essentially, technologies alone do not improve the system, people do. Adoption of new and evolving technologies requires careful preparation to ensure that “justice delivery services” created by software engineers is matched by local court systems and the level of training given to those who handle them in India’s courts. Currently, judges have had to speak from landline phones or without video, and lawyers have been compelled to argue cases from inside their cars if the network in their homes is faulty. There are audio failures, and lack of connectivity in rural areas. Unless connectivity is established, it cannot be presumed and compelled. Rushing into new protocols without understanding uses and applications will disempower the poor even further, especially undertrials who cannot afford lawyers.

In India, we are already applying digital services to industry, businesses, agriculture, defence, governance, education and health. Today, court rulings have been applied not only to human beings but to animals, rivers and even gods. Therefore, any case involving decisions affecting the life and liberty of persons must remain in the realm of physical courtrooms. Forceful interventions, and often repeated stressing of a point is required in a courtroom. Lawyers need to interrupt when they feel the arguments of their counterparts are factually inaccurate — we are, after all, according to Amartya Sen, “argumentative Indians” — but this cannot happen unless the “host” of the video court hearing unmutes you. Facial expressions such as fear, guilt, regret, sadness, anger, which can affect a case, are constricted and almost frozen into a small space. Faces are often out of proportion and distorted. Nuanced arguments that are most important in law sometimes need perseverance to get across, as is the ability to display evidence creatively (recall OJ Simpson’s famous glove), or the room for presenting many crucial options to create reasonable doubt. Appealing for compassion for the elderly and the disabled, and pleas for leniency of punishment for senior citizens with co-morbidities in COVID-19 times are easily ignored by judges, when the accused is only a small square on a screen and not a frail human being standing before them in flesh and blood.

Seminal and crucial matters that need direct human interaction should never be replaced by virtual courts. The dispensation of justice is a human endeavour made up of laws, ethics, morality, wisdom and compassion. The absence of any one of these five ingredients, short-changed by restrictive virtual situations, would render the exercise of justice only partially satisfactory or even downright unjust.

 Jaya Jaitly

This article first appeared in the print edition on October 22, 2020 under the title “No software for justice”. The writer is former president, Samata Party

Inclusion of the word fraternity in Preamble is of historic importance and contemporary relevance

 

In any case, what the world’s present condition needs, namely bonding between humans, may be more important than the alphabet letters that make up “fraternity”.

Two months ago, Harsh Mander wrote in The India Forum of the significance of the word “fraternity” in our Constitution’s Preamble. Reading the article nudged me to explore the story behind that word’s inclusion.

Scholars have long noted a few milestones in the history of India’s constitution-making. A major one was the 1931 “Fundamental Rights” resolution of the Indian National Congress. Meeting in Karachi under the presidentship of Sardar Vallabhbhai Patel, the Congress resolved that “any [future] constitution should include fundamental rights of the people such as freedom of association and combination, freedom of speech and press, freedom of conscience and the free profession and practice of religion”.

Furthermore, the resolution added, such a constitution should prohibit discrimination against persons of any “religion, caste or creed in regard to public employment, office of power, and the exercise of any trade or calling” and should rule out any “civic bar on account of sex”.

It should assure “equal rights to all citizens of access to and use of public roads, public wells and all other places of public resort”. Also, the state was required, under the proposed constitution, to observe “religious neutrality”.

There is evidence that close collaboration between Gandhi and Jawaharlal Nehru produced the text of this consequential resolution, which Gandhi moved in Karachi in 1931. But it had the approval also of Patel and of everyone else who counted.

Subhas Chandra Bose, for example, played an active part at the Karachi session. Also present was Khan Abdul Ghaffar Khan and, we must assume, Abul Kalam Azad. Definitely present, too, in Karachi were the passionate spirits of Bhagat Singh, Sukhdev and Rajguru, who had been hanged a few days earlier in Lahore.

The “constitution” resolution, as this Karachi resolution may also be called, was thus adopted during a landmark moment in our journey towards independence.

Another milestone on the journey to the Constitution was Ambedkar’s powerful 1936 text, Annihilation of Caste, where he wrote: “What is your ideal society if you do not want caste, is a question that is bound to be asked of you. If you ask me, my ideal would be a society based on liberty, equality, and fraternity. And why not?”

In history’s light, it is thus Ambedkar who injects “fraternity” into India’s constitutional conversation.

Seven months before Independence, in January 1947, the Constituent Assembly passed its “Objectives Resolution”, which had been discussed from November 1946. This resolution declared: “All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities and equality before law; and fundamental freedoms — of speech, expression, belief, faith, worship, vocation, association and action…”

While these words bear a clear resemblance to the Preamble to come, they do not include the word “fraternity”.

Two weeks after Independence, on August 29, 1947, the Constituent Assembly appointed a Drafting Committee, with Ambedkar, the Law Minister in free India’s first cabinet, as chairman. A Draft Constitution prepared by this Drafting Committee was the basis for the Constituent Assembly’s deliberations on the Constitution.

The volumes entitled The Framing of India’s Constitution: Select Documents, edited by B Shiva Rao and available online, contain much information about the Drafting Committee’s work. Page 484 of Volume III of this series shows the word “fraternity” in the draft preamble for the first time, while providing minutes of the Drafting Committee’s meeting of February 6, 1948.

This date suggests that the inclusion of “fraternity” may have been connected to the assassination of Mahatma Gandhi, which had occurred a week earlier.

Such a conclusion is strengthened by a letter that Ambedkar, writing as the Drafting Committee’s chairman, addressed on February 21, 1948, to Babu Rajendra Prasad, president of the Constituent Assembly. In this letter, Ambedkar said:

“The [Drafting] Committee has added a clause about fraternity in the preamble, although it does not occur in the Objectives Resolution. The committee felt that the need for fraternal concord and goodwill in India was never greater than now and that this particular aim of the new Constitution should be emphasised by special mention in the preamble.” (p. 510 of The Framing Of India’s Constitution: Select Documents, Vol. III, edited by B. Shiva Rao (Digital Library of India Item 2015.278539).

If available, any record of discussions within the Drafting Committee that led to the inclusion of “fraternity” in the eventual Preamble might throw additional light on the inference that Gandhi may have contributed posthumously to it.

Nearly two years later, in his famous speech of November 25, 1949, to the Constituent Assembly, Ambedkar would say: “Without fraternity, equality and liberty will be no deeper than coats of paint.”

As Mander has pointed out, the Hindi for fraternity, bandhuta, sounds more inclusive than male-centred “fraternity”. In any case, what the world’s present condition needs, namely bonding between humans, may be more important than the alphabet letters that make up “fraternity”.

This article first appeared in the print edition on October 22, 2020 under the title “The answer is fraternity”. The writer teaches at the University of Illinois at Urbana-Champaign

Source: Indian Express, 22/10/20

Why Punjab’s farmers oppose the new farm laws

 When the establishment ignores the historical context and the emotional component underlying any debate, mass protests can erupt to potentially shape the future. The people of Punjab would not have wanted a confrontation with the Union government, neither would I want to put it so bluntly, but around us, agitated farmers, with a strong common purpose, are energised in a way not seen in many decades. To nullify the possible impact of the three farm acts passed in haste by the Parliament, the Punjab government was compelled to pass its own bills on Tuesday. These broadly attempt to ensure continued procurement of wheat and paddy at the minimum support price (MSP), uphold the powers of the courts in dispute settlement and empower the state to regulate trade of foodgrain.

The three farm acts were preceded by a high-level committee in 2015, headed by Shanta Kumar, which suggested measures to reorient the Food Corporation of India (FCI)’s operations by shifting away from the public distribution system to cash transfers. This negates the very requirement of MSP procurement. The Commission for Agricultural Costs and Prices has been recommending reviewing the open-ended procurement of foodgrain, which is also reflected in the recent RBI annual report that says that the MSP is no solution to farmer’s woes. Similar views were expressed by a Union cabinet minister lately. Therefore, the farmers infer that a path that makes MSP procurement redundant is inevitable and fear it will become applicable after the 2022 assembly elections. To grasp the farmer’s resentment, I estimate the loss that may accrue to Punjab in the most probable way.

The MSP for wheat is Rs 1,925, and for paddy Rs 1,868. But in the absence of government procurement in Bihar and other places, normally crops sell 20 per cent below MSP. Similarly, without assured procurement in Punjab, the losses to the state could exceed.

Rs 15,000 crore. This has generated so intense an outcry that even BJP allies had to go to the extent of breaking long-forged alliances for fear of becoming politically irrelevant. Though it is more likely that the open-ended procurement of wheat and paddy will end.

In other states, procurement per farmer is capped at produce from 5 acres of land. For example, in Rajasthan, it is 25 quintals for moong and groundnut. Eventually, farmers fear that the same limits will be applied in Punjab; about 20 per cent of paddy and 25 per cent of wheat will not be procured and will sell below the MSP. This will lead to a loss of Rs 3,200 crore. Possibly, that is why central government functionaries have repeated that “MSP will continue” rather than clarifying that “procurement at MSP will continue as earlier”. To give them credit, their “truth” corresponds to Yudhishthira’s “untruth” when he stated, “Ashwatthama is dead”.

In adjoining states, central government agencies do not pay mandi fee on procurement. The new farm bills disallow imposition of mandi fee on produce procured outside the mandi’s physical boundaries. Should FCI or private traders trade outside the mandi space, the state will lose revenue of Rs 3,500 crore.Central government agencies do not pay commission to arhtiyas in their price support operations for oilseeds, pulses and cotton. If this practice is extended to Punjab, three-quarters of 24,000 arhtiyas and their employees will lose agency and employment. The annual loss will be about Rs 1,500 crore. Further, in the event of not being paid by the purchaser, they will start charging farmers extra fee under various pretexts.

After reneging on the promise of fixing the MSP by the C2+50 per cent formula, the government settled on the (A2+FL)+50 per cent formula where the derived MSP is far less. There are rumours that to stave off a financial crisis, MSP in the future will be calculated separately for each state depending on their cost of cultivation. If true, in Punjab, the MSP for wheat and paddy will reduce to Rs 1,035 and Rs 1,094 per quintal respectively — the loss could be more than Rs 26,000 crore.

An opportunity has been lost in the lackadaisical handling of the issue. Politics now threatens to complicate the process. I doubt if future historians will recall when Punjab changed course, and how an issue of farmer livelihoods morphed into one of Punjab’s survival. It is time to stop moralising.

This article first appeared in the print edition on October 22, 2020 under the title “A Question Of Survival”. The writer is chairman, Bharat Krishak Samaj

 Ajay Vir Jakhar

Source: Indian Express, 22/10/20

In Indian cities, the quest for dignity

 

Many cities still subscribe to an unhelpful policy which enjoins that the people living in “unauthorised” colonies are not eligible to get water and sanitation from the city, although they are “authorised” citizens, holding ration cards, working in the city and contributing to its economy.

Cities in India are characterised by institutionalised inequalities. Planners, administrators and mayors prioritise policies and resources in favour of the influential middle-class, with little thought spared for those less fortunate, despite their making up a substantial portion of any city.

Geeta Devi used to live and work as construction worker at Yamuna Pushta in Delhi. In the run-up to the Commonwealth Games, she and another 30,000 other households were moved to Savda Ghebra area on the outskirts. “It was like coming to a wild jungle, with nothing around, no water, no toilets, no electricity and we had no house. We had to build our own kutcha house, every second day a water tank would come and we spent hours carrying buckets of water. We used the jungle for defecation. My children were often ill and I had to stop working, so we had very little money. We were in despair,” she said. She was poor — and expendable.

Babuben Patni, a vegetable vendor, after marriage, came to live in Ahmedabad City. She found that her area — Sinheswari Nagar — had only one public tap, no toilets. It had garbage piled up at the entrance of the area and was water-logged every monsoon. Apart from the residents contracting water-borne diseases, women such as Babuben faced the humiliation of having to defecate on the railway tracks nearby.

Geeta Devis and Babubens abound in every city, always characterised by the contrast between areas dominated by multistoried buildings, parks, shopping centres, malls and gyms on the one hand and ramshackle, tightly-packed dwellings without infrastructure on the other.

In India, between 25% to 40% of city-dwellers are estimated to live in what are euphemistically called informal settlements. However, a slum need not remain a slum forever. And, that is the story we tell in our book, The City-Makers.

Today, 20 years later, Babuben is the proud owner of a two-storey pucca house with her own bathroom and toilet. Sinheswari Nagar has drainage, and sewage and garbage is collected every day.

How did the change come about? Not overnight.

We detail a long-drawn-out process, involving a chain of actors, from individual households to a non-governmental organisation — Mahila Housing Trust — to officials and elected representatives of the Ahmedabad Municipal Corporation, among others. My colleagues and I in the Mahila Housing Trust have worked for over 25 years to help convert slums into more liveable colonies. The real spark for change starts with the women in slum households who have to queue up to get water; who suffer humiliation when they have to defecate in the open or in badly-maintained public toilets; who have to look after those who get sick from the open festering drains. They are the most keenest on change.The first step for change is for the households in a slum to agree that they will work together. Women must take the lead and form a Community Action Group (CAG), which then becomes the spearhead for action, beginning with finding allies such as a sympathetic elected official or the local administrator.

This often requires a financial commitment from the slum-dwellers and it is the task of CAG to collect the money and maintain accounts. Trust is important because these slum dwellers, most of whom are poor and working in the informal sector, have been cheated so often in the past.

Many cities still subscribe to an unhelpful policy which enjoins that the people living in “unauthorised” colonies are not eligible to get water and sanitation from the city, although they are “authorised” citizens, holding ration cards, working in the city and contributing to its economy.Fortunately, the compulsions of electoral democracy assert themselves. Those in “unauthorised” colonies also happen to have votes; fortunately, programmes such as the Swachh Bharat Mission are kicking in. Consequently, the “unauthorised” restrictions are being relaxed — and where that happens, the slum slowly begins to transform.

Fourteen years later, Geeta Devi, says her “jungle” in Savda Ghebra has become a busy colony. This happened gradually as she and her neighbours formed a CAG, approached their MLA, the Delhi Jal Board and the municipal corporation. She took a loan and installed her own underground water pump and made her own soak pit. At first, her CAG was ignored by the authorities but as they persisted they began getting responses. Today, not only is she recognised by the authorities but was recently invited to be part of consultations for the Delhi Master Plan 2030.

The efforts of thousands of women like Geeta Devi and Babuben are paying massive civic dividends. Many planners no longer think of the poor as interlopers; instead, they are seen as useful citizens who need to be integrated into the physical life of the city if we are to have a sustainable future.

Renana Jhabvala is executive trustee, Mahila Housing SEWA Trust and co-author of The City-Makers

Source: Hindustan Times, 21/10/20

Quote of the Day October 19, 2020

 “Love is what makes two people sit in the middle of a bench when there is plenty of room at both ends.”

‐ Anonymous

“प्रेम ही है जो बेंच के दोनों किनारों पर जगह खाली होने पर भी दो लोगों को बीच में खींच लाता है।”

‐ अज्ञात