Shruti Chaudhary, Student, Dr. Ram Manohar Lohiya National Law University, Lucknow
Introduction
The COVID-19 emergency has struck the globe in the past two months, which has caused multiple countries to impose a period of absolute lockdown, one of which is the hugely-populated India. India has been under lockdown for almost fifty days now.
In the course of this period when the planet has been emphasising on affairs such as health care, economy, sanitisation; the issue of domestic violence has been rising at the rear with zero or hardly any attention being paid by the government of different countries. Since the world has pushed the motto of ‘Stay Inside Stay Safe’, the confines of homes that were expected to be safe for everyone are turning into dark places, housing continuously growing instances of domestic violence. In China, the number of domestic violence cases recorded by the local police increased three-fold in February as collated to the previous year.[1] There has been a corresponding rise in the number recorded all around the globe in countries including India.
The Scenario of Domestic Violence during the Lockdown
Even when the days used to be healthy and the country did not face a prime setback, the problem of domestic violence has been a significant reason of concern which examined in the National Family Health Survey-III (NFHS-III), issued in 2005, which brought to light that while 37.2 per cent of all women who had ever been married had been a sufferer of spousal abuse, only 2 per cent reached out for help from the law. As reported by the same survey, about half of these women ended up in a hospital at some point because of the violence they were exposed to.
In the course of the lockdown period, this has only been becoming adverse. The National Commission for Women (NCW), which entertains complaints of domestic violence from across the nation, has reported that there has been more than two-fold rise in gender-based violence in the National Covid-19 lockdown period. The overall complaints from women increased from 116 in the first week of March (March 2-8), to 257 in the last week (March 23-April 1).[2] Invisible Scars, an NGO which functions to aid and assist domestic violence sufferers, has also seen a surge in domestic violence complaints.
In the isolated places, the NGOs that operated, for this reason, disseminating awareness and performing as a mediator between the government and the sufferer, making it facile for women to file a complaint in such cases where they have their hands tied down during the lockdown. The various difficulties that arose during the lockdown such as unavailability of alcohol for the addicts, the pressure of bringing home the necessities have also been an advancing factor to this rise.
Measures taken by the Indian Government and its Effectiveness
Taking into consideration the increasing number of cases in the country regarding domestic violence[3] the National Commission for Women (NCW) introduced a helpline number — 0721-7735372 to empower the victims to send a WhatsApp message to gain help on the ground that it is trouble-free for women to reach out via WhatsApp than via e-mail.[4]
The collected data also observed that approximately 40 messages were received in two days complaining of domestic violence since the initiation of the number, which is an accurate depiction of how nervous and uncertain the victims are in reporting such kind of cases.[5] The primary concern here is how this measure was taken by the government overlooks the vast mass of women who might not have ingress to WhatsApp/ internet or even cell phones and thus, is in absolute disregard of Art. 39A of the Indian Constitution as it is not providing an equal opportunity to justice to all the victims. A substantial number of domestic violence cases take place in secluded areas and in the lower-income households where most of the women do not have access to cell phones or even a stable network connection, complaining cases through WhatsApp appears to be an implausible idea.
It is spectacularly tricky for women to come out and speak up openly and report any such abuse even under the most encouraging conditions. However, with the immediate lockdown, when women find themselves lonesome and, in some instances, dependent on the men for the attainment of their basic amenities, they do not discover the valour to file a complaint against them. We are in a circumstance where our homes are manifesting to be a secure setting for us and safeguarding us from the lethal virus. However, the victims of domestic violence come across peril inside as well, having to live with the perpetrators that wreak harm on them every day. While the government has been concentrating on dispensing the people with their necessities and necessary facilities but these sufferers are being divested of their fundamental human right, and the government has not been of great assistance either, by giving a way which does not recognise these hardships that women face throughout the country. By not taking comprehensive steps, the government is also disregarding Art. 37 of the Constitution; which formulates that it shall be the duty of the State to apply these principles in making laws and Art. 38; which propounds that ‘the State shall endeavour to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life’.
The Statement of Objects and Reasons of the Domestic Violence Act, 2005 declared that the Act was passed keeping in consideration the fundamental rights promised to the citizens under Articles 14, 15 and 21 of the Indian Constitution. Article 21 bestows upon the citizens the right to life and liberty in negative expression, declaring that the right cannot be taken away except by procedure established by law.
In the famous case of Francis Coralie Mullin v. The Administrator, Union Territory Delhi and Ors.[6], the Apex Court stated that ‘any act which damages or harms or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the obstruction of Article 21.’ This right is consolidated in the statute within the definition of physical abuse, which comprises domestic violence (and is hence unlawful and actionable under the Act). The Act also incorporates several other definitions of domestic violence as given in the Indian Penal Code, 1860.
Similarly, in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[7], the Supreme Court highlighted the fact that the right to life comprised in its scope the right to live with human dignity, establishing its views on several cases that had been adjudged in favour of this idea. The right to live with dignity would involve the right against being subjected to humiliating sexual violence and include the right against being abused. These two aspects of the right to life find introduction under the definitions of sexual abuse and emotional abuse, respectively, in the statute.
Therefore, as can be viewed from the precedents, the right against domestic violence is assured under Art. 21[8] as a fundamental right and by not moving towards comprehensive and integrated measures, the state denies the victims of their elemental right.
Suggestions
To manage this emerging issue the state shall execute reforms that are incorporative of all women in the nation, especially considering the regional impediments and the predicament that women have to suffer on every single day basis in the present-day situations.
The viewpoint that the government has acquired to administer COVID-19 crisis can also be concerned to deal with the issue of domestic violence during this time, where the local and state governments and the local authorities like the Panchayats are entrusted with more responsibilities and powers. This will guarantee better adoption as well as the implementation of the strategies. Reinforcement of federalism, in addition, could also empower the State to draft policies that are well-suited to the circumstances of that region.
Some of the steps that could be taken to resolve this issue are:
§ A 24×7 phone helpline is crucial.
§ Immediate measures should be adopted to grow awareness about all the facets of this crime through several online campaigns.
§ To spread awareness about the helpline, the government could use the various mass media platforms such as television advertising, newspapers, and radio channels or even via hoardings.
§ An SMS alert could also be an option for the women who do not have ingress to WhatsApp.
§ India could draw on some of the measures administered by other nations, like in Spain[9] – where lockdown rules are exceptionally stern, and people are being fined for violating them – the State has informed the women that they will not be penalised if they leave home to report any abuse.
§ In some other countries, there have been ideas for changes in law or policy to indicate the rising risk to women and children in isolation. In the UK, Mandu Reid[10], leader of the Women’s Equality Party, has suggested for special police powers to dislodge perpetrators from homes for the span of the lockdown period, and for governmental authorities to renounce court fees for the protection orders.
§ The State should arrange shelter places and counselling centres in schools, hostels, hotels, guest houses which permanently remain shut during this lockdown, to provide social, physical and mental assistance to the victims.
§ The State should familiarise the use of a code-word through which the domestic violence sufferers can go to the pharmacy stores and grocery stores (which remain open during the lockdown) and open up if they need support and report the crime of domestic violence and open up if they need support. For example, the Spanish[11] Government, followed by the French government, introduced the use of the code-word ‘Mask-19’ which has been used by the women in these nations.
§ ASHA (Accredited Social Health Activist) employees could also be authorised to increase awareness about all the prospects of this crime, including the government ideas and policies introduced to help the victim.
If the measures mentioned above are not considered to take control of the condition, the High courts would have to take suo moto cognisance like in J&K.[12] The State should take expeditious efforts to confront this issue that has come with this life-threatening virus - COVID-19, otherwise, the women in the country would keep encountering such abuse like they used to, many years ago, retreating to the patriarchal and sexist society that the country had observed.
[1] Melissa Godin, As Cities Around the World go on Lockdown, Victims of Domestic Violence Look for a Way Out, Time (March 18, 2020 1:58 PM EDT), https://time.com/5803887/coronavirus-domestic-violence-victims/. [2] Domestic Violence Cases across India Swell since Coronavirus Lockdown, Outlook India, https://www.outlookindia.com/website/story/india-news-rise-in-domestic-violence-across-all-strata-of-society-in-the-coronavirus-lockdown-period/350249. [3] Akshaya Vijayalakshmi, Pritha Dev, No Lockdown for Abuse, The Hindu (April 09, 2020 00:15 IST), https://www.thehindu.com/opinion/op-ed/no-lockdown-for-abuse/article31292334.ece. [4] NCW launches WhatsApp Number to report Domestic Violence during Covid-19 Lockdown, Economic Times (April 10, 2020, 07.37 PM IST), https://economictimes.indiatimes.com/news/politics-and-nation/ncw-launches-whatsapp-number-to-report-domestic-violence-during-covid-19-lockdown/articleshow/75082848.cms?from=mdr. [5] India witnesses steep rise in crime against women amid lockdown, 587 complaints received: NCW, Economic Times (April 17, 2020, 05:29 PM IST), https://economictimes.indiatimes.com/news/politics-and-nation/india-witnesses-steep-rise-in-crime-against-women-amid-lockdown-587-complaints-received-ncw/articleshow/75201412.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst [6] Francis Coralie Mullin v. The Administrator, Union Territory Delhi and Ors , AIR 1981 SC 746. [7] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123. [8] INDIA Const. art. 21. [9] Emma Graham-Harrison, Angela Giuffrida, Helena Smith, Liz Ford, Lockdowns around the world bring rise in Domestic Violence, The Guardian (March 28, 2020, 05:00 GMT), https://www.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestic-violence. [10] Emma Graham-Harrison, Angela Giuffrida, Helena Smith, Liz Ford, Lockdowns around the world bring rise in Domestic Violence, The Guardian (March 28, 2020, 05:00 GMT), https://www.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestic-violence. [11] Ivana Kotasova, Valentina Di Donato, Women are using code-words at pharmacies to escape domestic violence during lockdown, CNN (April 6, 2020, 16:41 GMT), https://edition.cnn.com/2020/04/02/europe/domestic-violence-coronavirus-lockdown-intl/index.html. [12] COVID-19: J & K High Court takes suo moto cognizance of increase in Domestic Violence cases amidst Lockdown, The Leaflet (April 18, 2029), https://theleaflet.in/covid-19-jk-hc-takes-suo-moto-cognizance-of-increase-in-domestic-violence-cases-amidst-lockdown/.
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