Friday, 15 November 2019

Implementation of the Domestic Violence Act, 2005 Procedural Impediments

Updated: April 24, 2010 10:41 am

The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act’) has been much awaited and has taken a long time in being legislated after intensive lobbying at various levels. The Act has set itself a rather exacting goal as it takes in its fold not only physical and economic abuse, but also sexual, verbal and emotional abuse caused to a woman or a child below the age of 18 years and does not limit itself to only women within a marital relationship. While enacting the statute was itself a champagne worthy moment resulting in much celebration, there are certain areas and issues of critical concern which have subject matter of discussion and debate and have elicited reactions from all segments of the society. Like most social legislations, the intent of the Act is commendable, but unless it is implemented in its true spirit it would either become another piece of paper adorning the shelves in libraries or a double edged sword that the masses shall come to fear. It is the procedural impediments in implementation of the Act that thus need to be addressed and are the prime focus of this article.

            Filing of a Complaint: Under the Act, the ball is set rolling only upon receipt of a complaint and reporting an offence, much hinges on the first stage for the purposes of effective implementation of the Act. Section 4 of the Act deals with information to Protection Officer and Section 5 deals with the duties of police officers, service providers and Magistrates. While Section 4 specifically states that information may be given to protection officers by any person in respect of an act of domestic violence, Section 5 provides that a complaint can also be made to a police officer, protection officer, service provider or a Magistrate. It is most common and natural that the moment any person has to file a complaint regarding domestic violence, the first agency that comes to the mind is the police, not only on account of their easy access, but also for the reason that protection officers and service providers

are not so easy to locate for a common person, given the fact that details pertaining to the aforesaid agencies are still not readily available. However, the provisions of the Sections 4 and 5 of Act having been drafted in such a manner, there can be some lack of clarity in the mind of the complainant about the authorities to whom a complaint can be made and that is also one reason why the police is found to be reluctant to admit their role as one of the primary agencies/authorities for receiving any information about an incident of domestic violence under the Act. This area needs to be addressed by sensitising the police agencies as to their role under the Act.

            Shelter Homes and Medical Facilities: The Act provides that if the aggrieved person or on her behalf a Protection Officer or a Service Provider requests the person in charge of a shelter home or the medical facility to provide shelter or medical facility to her, such person in charge of the shelter home or the medical facility shall provide shelter/medical aid to the aggrieved person. There has been a rather mixed reaction to these provisions. Considering the lack of infrastructure put in place by the State authorities, both in the case of shelter homes as also medical facilities, while the intention of the said provisions is salutary, its implementation is posing great difficulties.

            Service Providers and Protection Officers: The role of service providers under the Act has been given to voluntary organisations. On the one hand, a part of the society and some NGOs have welcomed their inclusion in the statutory structure, but there are others who believe that the provision is unrealistic as most of the NGOs and voluntary associations do not have the kind of infrastructure, resources and expertise and motivation required to act as service providers.

            The Protection Officers play a pivotal role in implementation of the Act and in the absence of a well oiled delivery mechanism, the Act may fall flat on its face. Under the Act, the responsibility of appointing the Protection Officer has been delegated to the state government. In some states already overburdened Officers have been assigned additional duty of acting as Protection Officers. Also, the Protection Officers so appointed lack training and the wherewithal to function as desired. Not many efforts have been made to spread awareness as to how and where the said Protection Officers can be accessed.

            The scheme of the Act is such that it vests a great deal of power and responsibility in the Protection Officers to assist the court in discharging its functions. That the duties of a Protection Officer are onerous can be seen from the fact that they are required to, amongst others, render assistance to the Magistrates, draft the domestic incident report, submit applications to the Magistrates, ensure legal aid, shelter, medical facilities and execution of orders for monetary relief under Section 20 of the Act.

            Thus, the state government is required to exercise great caution in appointing persons who are sufficiently qualified, trained and have working knowledge of law to be able to discharge their functions effectively. Considering the nature of duties assigned to the Protection Officers as specified in Section 9, it is necessary to provide them with proper offices, manpower and sufficient funds to meet the

requirements and exigencies of various and sometimes peculiar situations that may arise. Needless to state that when the duties required to be discharged by the Protection Officers are so onerous, they should be amply rewarded by being offered good salaries so as to retain qualified and dedicated officers for the purposes of implementation of the Act.

            Keeping in mind that the past experience in respect of a Protection Officer under the Juvenile Justice Act 2000 and the Dowry Prohibition Officers under the Dowry Prohibition Act, 1961 have not been very encouraging, the aforesaid aspect has to be addressed with seriousness.    The Act goes on to state that the Protection Officers as far as possible, be women, as aggrieved persons expected to seek their remedies under the Act are largely women. No doubt their interface with woman Protection Officers shall give them reassurance, however, there are certain security concerns for the women Protection Officers in ensuring implementation of orders of the court in discharging their duties effectively. Interestingly, there have been instances when Protection Officers have had to seek protection from the Magistrate for fear of danger to their life. To add to this is the negative impact of Section 33 of the Act which envisages imposition of penalty on a Protection Officer for not discharging his/her duties, including imprisonment for a term which may extend to one year and fine which may extend to Rs 20,000 can be seen from the fact that officers in Government departments are found rather unwilling to be appointed as Protection Officers and thus the Government has been compelled to appoint officers on contract basis which decision can have its own fall outs.

            The Act further provides that while disposing of an application under Section 12 of the Act, the Magistrate has to take into consideration the domestic incident report received by him from the Protection Officer. It is an issue of deep concern since any discrepancies, defects, errors or shortcomings in the domestic incident report shall have an adverse impact on the decision taken and the course adopted by the Magistrate to render justice and the Protection Officers lacking legal training for drafting and filing the domestic incident report are bound to overlook material information thus prejudicing the rights of aggrieved.

            The Act prescribes that even notices have to be served by the Protection Officer. If necessary infrastructure, resources and manpower is not made available to the Protection Officers for serving notices, the object of rendering speedy justice itself shall get defeated. The response of the Protection Officers in some cases has been that the local police agency neither co-operates nor recognises the authority of Protection Officer. In view of the fact that the provisions of Order V of the Code of Civil Procedure and Chapter VI of the Code of Criminal Procedure relating to service have been made applicable to the proceedings under the Act, perhaps the job of service of notices on the respondents could have been entrusted to the police agency or the process serving agency of the District Courts, thus lessening the burden of the Protection Officers and at the same time ensuring service in a timely fashion, without further burden on the exchequer.

            One can go on ad nauseam on procedural impediments in implementation of the Act. But as they say “It is better to try to do something and fail, rather than try to do nothing and succeed.” Far from being a failure, the fact is that the Act has started on a strong footing. Undoubtedly, the Act shall become a turning point in addressing the issues of domestic violence that women and children have been subjected to within their homes, however, it is too early to comment.

            Not only the stakeholders in the Act, but also the implementation agencies including the judiciary, the protection Officers, the police agencies, the service providers need an opportunity to acclimatise themselves to the Act and assess the same to see as to the best manner in which the Act can be implemented and give tangible results. The litmus test that any legislation must pass is that of giving relief to the ultimate stakeholders, in this case women and children. Time will tell if the Act shall actually become a turning point in ameliorating the grievances of women and children subjected to domestic violence.

By GM Padma Priya

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