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To understand the formal and informal systems of crime control, including domestic violence, in India, it is important to review the historical, social, political, and cultural perspectives that shaped these systems. The formal system of crime control relies on official agencies and laws to maintain order, deter crime, and respond to criminal activity. Informal crime control depends on families, peers, neighbors, and the communities to settle disputes, maintain peace, and promote lawful behavior. This topic covers domestic violence from historical and contemporary perspectives, specifically focusing on formal and informal methods of addressing the domestic violence in India.
Formal And Informal Systems Of Addressing Domestic Violence
During medieval times, formal systems of control were enforced by various dynasties (Unnithan 2005). The kings administered justice under the Hindu religious concept of dharma (rules of right conduct), taking into account the circumstances under which the crime was committed. Dharma was supposed to sustain society, maintain social order, and ensure well-being and progress of humanity (Hayden 1984). To live in peace, proper education and training must be imparted and individuals must be taught not to transgress the freedom and liberty of others. The religious scripts also included threats of severe punishment for transgressors in their current life and the afterlife. For example, during the Mauryas Dynasty (321–185 B.C.E.) people were sentenced to punishments such as mutilation and the death penalty for minor offenses. In the second and third century C.E., Manu, an important Hindu jurist, drafted the Dharmasastra code, which was called Manusmriti. The laws of Manu were based on jurisprudence, philosophy, religion, and varna (caste), and described how life should be lived by lower caste, priests, kings, women, and men (Doniger and Smith 1991).
In 1500s, the Moguls conquered most of northern India. One of the most influential Mogul emperors, Shah Jahan, ruled India from 1628 to 1658 C.E. During the decline of Mogul Empire, the British East India Company arrived in India as a trading company and slowly gained control. Realizing that the East India Company was becoming a powerful virtual ruler in India, the British Crown took control of India in 1858 and ruled India until 1947. Under the British rule, although formal and informal systems of justice coexisted, the formal mechanisms were strengthened. The British used the approach of “divide and conquer” to rule: they rewarded those who supported them and punished those who sought independence or protested the British rule using the formal system of justice – police, laws, and courts. The formal system was not popular in rural areas because many people either did not understand the laws and procedures of the British or were unwilling to abide by them. Moreover, asking formal criminal justice agencies to settle disputes was not a common phenomenon, because resources such as transportation and access to lawyers were not readily available, especially for poor and disadvantaged populations. In addition, those who failed to seek reconciliation or dispute resolution, whether it was a dispute, a moral issue, or a crime, through informal justice system were shunned by the community. During this time, most of the disputes in rural communities were settled by the traditional caste panchayats (village councils).
The panchayats consisted of at least five elders, usually from Hindu upper castes, and are often referred to as caste panchayats. The caste hierarchy dictated the rules, format, and outcomes of the cases. The four main Hindu castes are Brahman, Kshatriya, Vaisya, and Sudra. Brahmins were at the top of the hierarchy and were considered arbiters of learning, teaching, and religion. The Kshatriyas were warriors and administrators. The Vaisyas were artisans and known for business ventures. The Sudras were farmers and peasants. The fifth class, which does not fall under the caste hierarchy, were once known as Harijans (untouchables) or, more recently, Dalits (oppressed people). The caste system continues today with many subtypes (jatis) in each caste.
After India gained independence from the British rule in 1947, the country moved towards a more formal system of crime control based on the British colonial model and English common law. The traditional (caste) panchayats, headed by village elders, were considered out of tune with the democratic processes. The Indian government created a criminal justice system with centralized control and enforcement. Although the police are organized at the state level, the high-ranking police officers (Indian Police Service) are recruited, trained, and appointed by the central (federal) government. In addition to the state-controlled police, the Indian government directed the states to establish elected nyaya (justice) panchayats as local government units in 1950 (Meschievitz and Galanter 1982).
Hayden (1984) argues that the caste panchayat system is different from the courtlike nyaya panchayat. Unlike the nyaya panchayats, the caste panchayats take all considerations (e.g., the individual, place, and times) and not base decisions on predetermined rules and laws (Darrett 1978). In caste panchayat system, the determination of facts is not essential because the participants are already aware of what occurred. The caste panchayat considers known behavior and weighs its propriety (Hayden 1984), rather than labeling the act as criminal or deviant. Unlike the caste panchayat who applied indigenous norms, the nyaya panchayats relied on statutes, majority ruling, and members are selected by popular elections (Iyengar 2007). By the 1970s, these courts were considered failures due to declining caseloads and client dissatisfaction (Baxi and Galanter 1979). Scholars have asked why attempts to revive the informal justice system after the country’s independence failed. Some claim it was due to deficiencies in funding and state control of legislative function, whereas others believe that the Indian elite is comfortable with the formal justice system and does not want a change (Baxi and Galanter 1979). In addition, caste rivalries, class difference, and growing egalitarianism and individualism disrupted communities, and contributed to their failure (Vincentnathan 1992). In order to promote indigenous character within the justice system and to provide an alternative to the Anglo-Saxon model of adjudication, the central government passed an amendment to the Constitution in 1992 giving the elected panchayats constitutional status and institutionalized them in a three-tiered system (except in states with a population of fewer than two million people): village level, block level, and district (county) level (Panchayat system in India 1995). In addition, because of a backlog of cases in the formal justice system, the government legislated for the establishment of Lok Adalat (people’s courts) and Family Courts throughout India. The Lok Adalats are governed by Legal Services Authorities Act 39 of 1987 and are presided over by retired judges and private legal practitioners. These are court-linked mediation entities, sit on weekends, and hear a large number of gender violence cases (Relis 2011). Their main goal is to encourage parties to settle their disputes through mediation/conciliation. The Family Courts were established to handle the increasing number of marital disputes through speedy process using conciliation (Iyengar 2007).
Historical And Contemporary Views Of Women
Some scholars believe that in ancient India women enjoyed equal rights along with men (Mishra 2006), whereas others hold contrasting views (Pruthi et al. 2001). During the early Vedic period (1500–500 B.C.E.), women were allowed to obtain an education. Around 500 B.C.E., following the Islamic invasion and Moghul Empire, the status of women began to change. Women and children faced religious and social restrictions. During medieval times, the practice of child marriages, Sati (self-immolation of women following her husband’s death), and a ban on widows remarrying became part of social life in some communities. Ancient Hindu religious scriptures (i.e., the code of Manu) illustrate the secondary status of females – they have to be subservient to their fathers in childhood, to their husband after marriage, and to their sons after the death of their husband. With Muslim conquest of India, the practice of wearing a purdah (veil) became prevalent among Muslim women. In some parts of India, the Devadasi (temple women) were exploited by wealthy, upper-class men. During the colonial era, there was a cultural resurgence. Notable social reformers stood firm against all forms of social bigotry, orthodoxy, idol worship, and encouraged Western/English education. Others brought public awareness of social evils such as child marriages, polygamy, and child widows, and fought for the rights of women. These efforts resulted in widow remarriages, and prohibition of child marriages and bigamy.
Although India’s independence has brought some social reforms for women and children, traditional social evils such as dowry and child marriages continue to the present day. According to the United Nations Population Fund Report, many married women in India suffer from domestic violence (Bhat 2006). “Dowry” is a cultural practice in many Indian communities. It involves giving property or valuables to the bridegroom or his family by the bride’s family in consideration of marriage.
The traditional definition of domestic violence includes physical, sexual, or psychological abuse, or threats of violence inflicted by an intimate partner related to the victim through marriage, family relationship, or an acquaintanceship (Sahoo and Pradhan, n.d., p. 1). In the Indian context, the definition also includes dowry harassment, dowry death, and economic abuse. The most common causes of domestic violence include dissatisfaction with the dowry, wives refusing to have sex with their husbands, alcoholism of the spouse, the wife’s inability to give birth to a male child, to minor acts such as not cooking food properly, not taking care of in-laws, or being too social with male coworkers at workplace (Kumar 2010).
Domestic Violence And Formal Justice System
Beginning in 1980s, women’s organizations and other nongovernmental organizations (NGOs) made the public aware of the magnitude of the problem, the ineffectiveness of existing laws, and lack of enforcement. The prevalence of domestic violence and women’s fight for equality and social justice prompted the legislators and policy makers to recognize that violence against women is not only a crime but also a violation of human rights. As a result, legislators have revised old laws and drafted new ones to criminalize offenders and provide more protection for women. These include amendments to the Indian Penal Code (IPC), the Indian Evidence Act, and the Dowry Prohibition Act, as well as changes in police procedures (Ranchhoddas and Thakore 1987).
The IPC was amended in 1983 and 1986 to specifically define crimes dealing with marital violence and abuse. Section 498A of IPC recognizes domestic violence as a cognizable (i.e., felony) offense and allows police officers to arrest the perpetrator without a warrant. Under this section, if the victim or the relatives of the victim complain to the police that the victim suffered “cruelty by husband or relatives of husband,” the police have no option but to take action. The perpetrator can face imprisonment for a term in prison for a minimum of 3 years, as well as a fine. The definition of “cruelty” is broad and covers not only serious injury or bodily harm, or danger to life, limb, or physical health, but also includes mental health, harassment, and emotional torture through verbal abuse. In India, “harassment” includes such acts as coercing the wife or relatives of the wife, making an unlawful demand regarding property or valuables by the husband or his family members (generally inlaws). The law not only discourages the taking of a dowry but also the giving of a dowry. Both offenses are punishable with imprisonment for a term in prison of 6 months to 2 years, a fine, or the amount of the dowry paid or received. The law also allows women to retrieve their dowries under Section 406 of IPC (Ranchhoddas and Thakore 1987).
More important, section 304B, which was added to the IPC, deals with a new category of crime: “dowry death.” This section states that if the death of a woman is caused by burns or bodily injury or occurs under unusual circumstances within 7 years of the marriage, and it is shown that prior to her death she was subjected to cruelty or harassment by her husband or his family, such a death would be considered dowry death. In such cases, the dead woman’s husband or his family members would be deemed responsible for her death and shall be punishable with imprisonment for a term in prison of 7 years to “life” (generally 20 years). The inclusion of dowry death in the IPC brought about a change in the evidentiary standards in dowry death cases and a new section (113b) was added to the Indian Evidence Act. The previous section, 113(a), states that when a married woman commits suicide within 7 years of marriage and it is shown that her husband or his family members were cruel to her prior to her death, then it is presumed that her husband or his relatives aided in her suicide. The new section (113b) shifted the burden of proof to the accused, who must show why he should not be charged with the crime (Lawyers Collective Women’s Rights Initiative 2010).
In addition to IPC and the Indian Evidence Act, the Dowry Prohibition Act of 1961 was amended in 1984 and 1986. These amendments made giving or receiving dowry a cognizable (felony) offense. Like dowry death cases, the burden of proof is on the person accused of taking or demanding a dowry: he must prove otherwise. A more recent piece of legislation, the Protection of Women from Domestic Violence Act (PWDVA 2005), allows civil remedies, such as a woman’s right to reside in her matrimonial home or shared home. The Act recognized domestic violence as a violation of human rights. It required states to appoint regulatory authorities, such as Protection Officers (POs) and NGOs, as service providers. The Act meant that complaints of domestic violence had to be filed with the magistrates. In addition, it prohibited police officers from providing mediation in domestic violence cases (Maya 2006).
To better understand the nature and extent of violence against women, the states are required to document crimes against women under a special category. An annual report is published by the National Crime Records Bureau (NCRB). The report includes IPC offenses such as rape, kidnapping and abduction, dowry deaths, mental and physical torture, sexual molestation, sexual harassment, and trafficking of girls (NCRB 2006). In addition to IPC offenses, the NCRB also documents gender-specific offenses under Special and Local Laws (SLL). These laws include the Immoral Traffic (Prevention) Act (1956); the aforementioned Dowry Prohibition Act (1961); the Child Marriage Restraint (Amendment) Act (1979); the Indecent Representation of Women (Prohibition) Act (1986); and the Commission of Sati (Prevention) Act (1987).
Many state governments, by a special order, established All Women Police Stations. These police stations are staffed by women police officers (taken from all level, line staff to supervisory levels). They have the authority to handle both serious and nonserious incidents of domestic violence (e.g., family disputes). AWPS have been established in both urban and rural areas to make police stations “more approachable and less intimidating to women” (Poonacha and Pandey 1999, p. 30). It is presumed that women police officers will have a better understanding of women’s needs. The police may register a cognizable (i.e., felony) case either by themselves or on the basis of a victim’s complaint. These cases are registered in the First Information Report (FIR). FIR cases include dowry death, cruelty by husband or relatives, rape, intimidation and harassment of women, and demanding or receiving dowry. The noncognizable offenses include less serious offenses that are entered in the Community Service Register (CSR). CSR cases include minor dowry-related cases, drunkenness by husband, adultery, bigamy, family quarrel, seeking the custody of children, false promise of marriage, and desertion by husband. Officers try to resolve CSR cases through counseling or mediation. If the case is not resolved, the police may refer it to a family court or an appropriate court or register a criminal complaint. With the new law (PWDVA 2005), the women police officers must report the case to the magistrate and are not allowed to mediate domestic violence cases.
Formal Court Structure
The court system in India is a unified court structure in which the Supreme Court is the highest court in the country, followed by the high courts (i.e., the highest court at the state level), and other appellate and trial courts at the state level. Under the PWDVA (2005), a woman can avail herself of free legal services. The court of the chief judicial magistrate of the first class or the metropolitan magistrate (lower courts) have jurisdiction over domestic violence cases. The complainant or a protection officer (appointed under the Act) may present an application to the magistrate seeking relief. The order may include payment of compensation or damages for the injuries. A woman may also file for a separate civil suit for such compensation or damages. If the award is given in civil court, then the amount is deducted from the overall damages. The magistrate may also order the parties to receive counseling. The Protection Office must maintain a list of all service providers that offer legal aid or counseling, shelter, and medical assistance within the jurisdiction of the magistrate. A medical report of the injuries must be submitted to the police stations and the magistrate. The courts may also issue a protective order at the request of the woman, which can be modified or revoked if the circumstances of the case changes. The magistrate may also require the respondent to execute a bond with or without sureties. While passing the order, the court may direct the nearest police station to provide protection to the complainant or the person making the complaint on behalf of the victim. The protective provisions enumerated in the Act are comparable to those found in similar laws in the United States.
Those who are seeking redress through the formal justice system are often women from the middle and upper classes. The PWDVA (2005) was hailed as the most important legislation providing protection for women against physical, mental, economic abuse/violence. Some criticized the law as (1) being gender biased, (2) heavily favoring women with the potential for misuse by women, and (3) having too broad a definition of domestic violence. First, the law assumes that only women are victims and only they have rights under the law. A man who is a victim of domestic violence has no rights under the law. Second, such exclusive power will lend itself to misuse by women who want to teach their male relatives a lesson. Such trends were noticed in the case of anti-dowry law (Section 498a). A third flaw is that the definition of domestic violence includes insults and name calling as abuse, which are extremely subjective. Considering these frivolous acts, domestic violence may increase litigation and hurt the foundation of marriages. Those who opposed the law claim that the law in the present form is grossly inadequate (Deshpande 2008).
Recent Innovations In The Informal Justice System
Women in rural India, especially in western and northern states, formed the nari adalats (women courts). The nari adalat, an innovation by the Mahila Samakhya, is a grassroot effort by women collectives (Sanghas or groups) to address issues such as violence against women. The Mahila Samakhya is an autonomous program initiated in 1989 by the Ministry of Human Resources Development in 10 states with a primary purpose of empowering women, especially from socially and economically marginalized groups. They operate at the block and village levels and the members are trained on legal issues, discrimination of women, and women’s rights. As of 2010, there were 184 nari adalats in 9 states and presided over 6,000 cases (Purushothaman 2011). Because of their popularity and their success, they are often approached by the caste panchayat members if the case involves domestic violence.
These courts consist of a jury of village women and grass-root-level workers who meet regularly to address women’s issues, including domestic violence. In some villages, a group of five women, selected by the villagers, sit in a circle as part of the informal court. Many of these women have little education, but they have learned about the law and understand its implications and limitations. Although their caseload concerns women seeking justice, sometimes they hear grievances filed by men as well. Some of the cases they hear include divorce; disputes between women and their in-laws; complaints about husbands’ infidelity, domestic violence, rape, dowry harassment, widows, and elderly (Iyengar 2007). They not only mediate cases and propose mutually acceptable decisions, but also serve as a monitoring body to ensure that the decision is implemented. These informal courts have been widely accepted by communities (Sharma 2000, p. 7). This unique form of informal justice is carried out quietly in many villages in states such as Gujarat “through a process of social censure, cajoling, argument and persuasion” (Sharma 2000, 7).
Some examples of cases decided by these courts follow. In one village, the adalat (informal court) met on the verandah of the village government office. Although space was offered inside the office, the women preferred to have the court outside so that it would be more visible to the public. An elderly woman announces the start of the sessions. The parties include a young man and a woman with a young girl sitting in a circle facing the members of the adalat, which consists of the elderly woman, a facilitator from a local women-empowerment program, and women from various community organizations. The young man asked for divorce because his wife left him 2 years ago to live with her parents and he does not want her back. When the adalat women asked why his wife left him to be with her parents, he did not respond. The facilitator states that if he wants a divorce, he must pay his wife INR (Indian Rupees) 500 (about USD$10.50) a month for 7 years, and INR8,000 (USD$170) for his daughter’s education, for a total of INR50,000 (USD $1,063). He was told that he has 1 week to decide and, if he is willing to pay, he can get divorce. The second case involved dowry harassment by in-laws. The woman complains that her husband and her in-laws are insisting that her parents should buy an electric fan. Moreover, she states that she brought considerable amount of dowry into her marital home. The court told the husband, “Don’t look at other people’s palaces and in the process destroy your own house,” and “Why don’t you earn enough to buy yourself a fan?” (Sharma 2000, p. 16). The husband and his family agreed and provided a written assurance that they will not harass her any more by signing on a legal, stamped paper.
In another village, the adalat meets under a tree on the grounds of the government office. In a case heard at this adalat, a young woman complains that her husband has been unfaithful and has had affairs with her sister and sister-in-law. Her husband has thrown her out of the house and now wants a divorce. The accused replies that the women came after him. He then shouts at the adalat that it takes the side of the woman and stomps off. After a while, when tempers have cooled off, he returns and tells the court that he changed his mind because he cannot pay maintenance. The wife demands that she will return to him only if he asks for her forgiveness, which he does.
In addition to these traditional courts, recently Oxfam India, in collaboration with its partner organization, FARR (Friends Association for Rural Reconstruction) and other nonprofit organizations, conducted state-level public hearings for survivors of domestic violence in March 2011. The Oxfam India is a right-based organization that fights poverty and injustice in partnership with local NGOs. Among its five aims – the right to a sustainable livelihood, the right to basic social services, the right to life and security, the right to be heard, and the right to equality – the last one addresses gender and diversity issues. In addition, it aims to fulfill its overarching vision, “rights to life with dignity for all,” by empowering poor and marginalized populations. Its recent efforts targeted seven states (Assam, Bihar, Chhattisgarh, Jharkhand, Orissa, Uttar Pradesh, and Uttarakhand) and four social groups (Dalits, tribals, Muslims, and women) (Oxfam India, n.d.).
The Oxfam India hearings were supported by the Department of Women and Child Development and other civil society organizations. The panel members included lawyers from the State Legal Service Authority, representatives from the State Women’s Commission, and distinguished feminists. The organization heard about 50 cases of domestic violence in various locations throughout the state. The primary reason for holding these hearings was to offer a speedy resolution of cases filed under the PWDVA (2005). Moreover, these hearings offered an opportunity for women, especially from tribal villages, who were victims of informal justice systems to be heard. In some instances, an informal justice system may not be favorable to tribal women – it may even be detrimental to them. These hearings provide a voice to the survivors of domestic violence, and the panel of experts can provide a quick resolution to their disputes (Oxfam India, n.d.). An example of a case that was decided by the panel involved a woman requesting that her valuables and dowry be returned to her. Her husband died after 2 months of marriage and her in-laws forced her to leave the marital house. She wanted her valuables and dowry back so that she could start a stationary store. A lawyer from the State Legal Service Authority assisted the victim in getting her valuables and dowry back from her father-in-law. Several other women benefitted from these hearings (Das and Bandi, n.d.).
The laws dealing with domestic violence (Section 113[a] of the Indian Evidence Act, Section 498[a] and 304[b] of the IPC, and the Dowry Prohibition Act [1961; as amended in 1986], and the PWDVA ) have had limited impact on the timely disposition of cases. For example, Amnesty International reports that an analysis of court decisions in one particular district of Maharashtra showed that only 2.2 % of cases filed under 498(a) of the IPC during 1990–1996 ended in convictions (Mitra 1999). The PWDVA (2005), which was hailed as a landmark victory for the women’s movement in India, faced with problems such as lack of enforcement mechanisms to implement the provisions of the Act. For example, many women who sought protection under the Act were turned away by the courts (Maya 2006) because several states failed to appoint protection officers.
A comprehensive study conducted by Relis (2011) in India covering eight states, and included interviews with victims, the accused, family members, lawyers from both sides, judges, judge-mediators, nonstates justice arbitrators (panchayats), court-linked mediators (lok adalats) in lower and high court, and nonstate women’s courts (nari adalats), public interest lawyers, and human rights commission members, found that victims have little to no education regarding human rights. More educated women know about the concept of human rights, but still lacked information about specifics. Her study also found that less educated victims of violence preferred quasilegal justice systems and wanted to resolve their cases through compromise so that they could return to their joint families. Victims wanted to maintain the honor of their families of origin. She explains that individuals in nonWestern cultures define their identity by their membership in a group or community, not as anonymous entities. Her study also found that the quasi-legal arbitrators (e.g., women’s courts) used human rights’ principles in gender violence cases far more than lower courts. In order to effectively use informal justice mechanisms (e.g., nari adalat or women’s courts), communities must have similar occupational experiences and common perspectives that bind them together (Vincentnathan 1992). Unlike the traditional caste panchayats, the newly emerged nari adalats have representatives from different communities. These adalats are referred to as “social justice forums largely of women, for women, and by women” (Purushothaman 2011, p. 52). These adalats have been very successful because their goal is to protect the woman’s rights and facilitate a change so that she could live a violent-free live.
In order for these informal control mechanisms to work effectively, the people in the communities must have collective orientation through occupation, caste, or religion. In tribal areas of India, NGOs are working with village panchayats by providing training to tribal people, including women, about the various issues undertaken by the panchayats (Kumar, n.d.). A more effective way to deal with violence against women is to strengthen the informal system of justice mechanisms for less serious offenses, increase awareness of domestic violence, and improve the performance of formal justice systems in serious cases through timely disposal of cases, enforcement of court orders, and other forms of assistance to the victims.
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