By Joshika Saraf, Jindal Global Law School.
Law is defined as a set of rules and regulations enforced and enacted by well-defined government agencies that are governed by concepts of ethics and etiquettes which everyone has to obey and abide by. Since it is a regulator of both the society as well as individual behaviour of the members within it and functions through its widespread organisations or practices as a prominent body of beliefs, law cannot be a static instrument. Its role in the society and the fact that it binds the contrasting human aspects is vital. Support from the state party in power and the acceptance of change through law enforced by them are important in experiencing the effects law brings into the society. It brilliantly balances the two extremes of the complexity of the overall worldly changes on one hand and the everlasting values embedded in law on the other.
The worldly changes or the social changes in the words of Lawrence Friedman and Jack Ladinsky refers to ‘non repetitive alteration in the established modes of behaviour in the society’ (Friedman and Ladinsky 1967: 50). It is bound to occur only when the prevailing norms and social structure as a whole undergo some variation. Law is an integral part of the society and thus cannot be looked at as a separate entity that requires professional isolation. It was regarded that any arbitrary power over human beings undermined the very notion of liberty and therefore only regulations in the light of social good that seek to promote the common good of the society must be adhered to. ‘Law permeates all realms of social behaviour. Its pervasiveness and social significance is felt in all walks of life’ (Vago 1988: 1). Early sociologists such as Durkheim and Gurvich view that ‘the law in any social system is, in fact, a fundamental framework (a skeleton, if you like) of the nature of all its forms of associations and institutions. If we know the law of any society, we have an excellent outline of the nature of the social system as a whole’ ( Fletcher 1981: 33; quoted in Cottrell). Friedmann looked into depth of the legal system and regarded that ‘legal culture in the form of climate of social thought and social force determines how law used, avoided or abused’ (W. Friedmann, also quoted in Law and Social Transformation). Aristotle, keenly envisioned a perfect society and stated that ‘We call that legal and just which makes for and preserves the well-being of the community through common political action’ (Aristotle). Thomas Aquinas stated that, ‘Law, strictly understood, has as its first and principal object the ordering of common good’ (Thomas Acquinas). In the words of Stammler, law is inevitably implied in the idea of corporation and harmonisation of individual purposes with that of the society (Stammler). In the views of Bentham, ‘Public good ought to be the purpose of every legislator and general utility ought to be the foundation of every reasoning’ (Jeremy Bentham; 1894). His approach specifically was based on the theory of utilitarianism, wherein, utility is defined as “greatest good for the greatest number” (http://en.wikipedia.org/wiki/Utilitarianism ). Ihering’s theories in contrast focus more on social utilitarianism. He establishes that ‘between human purpose and human action there is a relation analogous of cause and effect’ (Ihering). According to him, the mutual balance between the individual interests and social obligations can be bought by law. The task of legislation is to create the scenario perceived and expected by the individuals at every point of time. Duguit quoted that, ‘ law’s function was to promote social solidarity, and its validity grew from its competence to prevent or remedy social disorder’ (Duguit, also quoted in Law and Social Transformation). This concept of social solidarity enabled limiting powers of the legislation. Roscoe Pound emphasizes on the idea of analysing the individual desires and social lives of each and every individual to gradually bring them all under the ambit of law. Karl Marx held that class conflict determined the morality of law to a great extent. His approach ‘that law is an instrument of approach warns against misuse of law and focuses on economic restructuring of resources and eliminating exploitations’ (Karl Marx). Laws have to be prepared keeping in mind the fact that there must perfectly bridge the gap between the makers of law and the common man. Law clearly regulate each and every segment of the society, such as, Family by keeping a check on exploitation in the name of norms, State through protecting, regulating and facilitating vital activities, managing Non Profit Bodies and Market by monitoring the inputs of the business and safeguarding the interests of the buyers, sellers and intermediaries. The fact that law too undergoes a change with the change in time and condition is evident through phases of LPG (Liberalisation, Privatisation and Globalisation) and evolution of anti-discriminatory policies . The government who makes laws must make them for the benefit of the citizens and the laws made must not be exploitative or a result of corruption. There must be transparency and accountability in the system and the society where the laws would ultimately be enforced, must be consulted. Governmental policies such as National Rural Employment Guarantee Act (NREGA) which helps in irradiating the problem of unemployment, Food for Poor (FFP) that provides two square meals to the poor, Education for All which aims at meeting the literacy problems and many such policies are examples of laws that act as an instrument of social change. Compared to other factors of social transformation like rebellion, social movement sit-in protests and violence, transformation through law is more systematic, conscious, rational, peaceful and based on social dialogue (Steven Vago). The elaborate institutional arrangements, explicit techniques and effective processes that law employs add to its strength of social control (A.R. Blackshield). Since law in a democracy reflects the general will of all the individuals, it is well accepted. Law appealing to the moral sentiments of the people appeal to their traditionalistic sentiments. The fear of punishment and the greed for rewards motivate the individuals to be abiding. Remedial mechanisms guaranteed by the legal mechanisms build in confidence among people that they would not be denied justice. However, it may not be possible to change the mind-set of the individuals in the society since many of the beliefs may have passed from generation to generation. H.L.A. Hart’s relation between “primary rule of obligation” and “secondary rules of recognition” talk about ‘how community’s will to eschew violence and to practice coexistence should complement the modern world’s systematic approach of formulating the legal rules, bringing orderly changes, and adjudicating the disputes’ (H.L.A. Hart). Social justice as a branch of law requires the legislation to be drafted in a manner that each and every individual of the society is placed at the same level and there is no disparity. Obviously, it calls for providing special advantages to the vulnerable sections of the society and puts pressure on the parties to treat every individual equally in the eyes of law within the democratic framework.
Domestic Violence, especially against women, is one of the most challenging social issues posing some serious complications in the field of social jurisprudence. It is extremely shocking and unfortunate how the very place that is expected to provide a protective shade to women by being a sphere of tranquillity and in-tune has gradually become the place that takes away her dignity through violence by the hands of her very relations. Behind the closed doors of her own homes, women have been tortured and beaten up without any mercy and fault. According to the Merriam-Webster dictionary definition, domestic violence is, ‘the inflicting of physical injury by one family or household member on another ; also: a repeated / habitual pattern of such behaviour’(Merriam-Webster dictionary, also quoted in http://en.wikipedia.org/wiki/Domestic_violence). Even though the definition makes it evident that violence could be against any member of the family, it is fair to say that most of the times, it targets women. They have been ill-treated and deprived of their right to life and personal liberty as provided in the Constitution (http://www.legalindia.in/domestic-violence-against-women-in-india). The violence could be physical; in the form of beating, punching, slapping, choking, pushing or even denying medical care thereafter. It could be sexual, which includes forced sex with the partner or sex without contraception thereby increasing the chances of STD’s. Emotional or psychological abuse is experienced when a woman is kept in a situation where she is constantly humiliated and embarrassed, isolated from relationships, blackmailed, controlled to do exactly what is told to her and constantly criticised and put on low self-esteem each time. It drives her into depression and many a times me may get into drugs or even worse, suicide. Economic violence occurs when a woman is financially dependent on her partner who has control over all her economic resources. Name calling, humiliating, falsely accusing and disrespecting are some aspects of verbal abuse.
According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide (http://www.legalindia.in/domestic-violence-against-women-in-india ). The number of cases of Domestic Violence have gone up drastically. A report in The Times Of India stated that the rate had increased to 44% women in 2006 (The Times Of India, 9th November 2006).A woman undergoes violence all her life right from pre-birth, when a she is forced to go through sex selective abortion, thereby dropping the sex ratio drastically. This stage is followed by infancy where she becomes a victim of female infanticide and emotional and psychological abuse, as a result of which she ends up losing the capabilities to contribute to the society in any form and end up being a “burden” on her family who gradually becomes indifferent to her basic needs and in many cases end up getting the household work done from her. In India, a recent survey reported 10,000 cases of female infanticide annually. The figure does not take into account the number of abortions performed to prevent the birth of a child (The U.S. State Department’s annual survey of human rights , published 25 February, 2000; quoted in http://www.unicef-irc.org/publications/pdf/digest6e.pdf ). This is followed by girlhood where a woman may experience brutalities in the name of norms and customs, such as child marriage, female genital mutilation, incest and physical, sexual and psychological abuse. It has been estimated that nearly 130 million women worldwide have undergone FGM and that approximately two million undergo the procedure every year (http://www.unicef-irc.org/publications/pdf/digest6e.pdf ). These social beliefs follow the system of patriarchy, thereby leaving the women in a condition worse than slaves in their own houses and exploiting them to an extent that they end up losing their identity in the world. Often, women are subjected to child prostitution and pornography which make them immune to sexual diseases , specially AIDS, for which they may not even seek any medical treatment, keeping in mind their supressed state in the community. Women are tricked and trafficked by their own families who can no longer afford to bear expenses at their cost and thus sacrifice them. While in countries like Nepal child prostitution is seen as a tradition, in Northern Ghana and parts of Southern India, the girls are ‘denoted’ to priests or temples. During adulthood, women are subjected to acid attacks due to reasons like denial of proposals, insufficient dowry or family related issues. This stage also makes the woman prone to dowry death, homicide and honour killings which are murdering women in the name of protecting the honour of the family since the woman killed was suspected to have committed adultery or was raped. In 1997, more than 300 women were victims of these so-called “honour” crime in just one province of Pakistan (http://www.unicef-irc.org/publications/pdf/digest6e.pdf ). There are diverse causes of domestic violence against women but the cultural definitions of the role of each sex and the different expectations out of two individuals in a relationship together with the acceptance of age old, sexist customs play a key role establishing male superiority and female inferiority. The very notion that family is under male domination is the root of the cultural cause. The economic causes of women discrimination include her financial dependence on men because of their limited access to training and education for employment. There are a number of legal aspects contributing to the same. These apart from the fact that there is low literacy among women to actually understand and interpret laws include, insensitive and unhelpful treatment from police and other members of judiciary, unfavourable laws regarding child custody, inheritance and divorce and lack of legal status given to them both in written law as well as practice. Limited participation and under representation of women in all spheres of politics, the notion that families are beyond the control of the state and the fact that domestic violence is not taken seriously heave the women vulnerable and helpless.Many psychiatric disorders are risk factors for domestic violence, including several personality disorders: all Cluster B PDs,especially antisocial), paranoid and passive-aggressive. Bipolar disorder, schizophrenia, drug abuse, alcoholism and poor impulse control are also risk factors. It is estimated that at least one-third of all abusers have some type of mental illness (http://en.wikipedia.org/wiki/Domestic_violence ).It has been proved that men addicted to alcohol take their frustration on their wives and thus need counselling (The Times of India, 24th May 2012). Several social theories have been offered to explain the menace of domestic violence. The Resource Theory established by William Goode (1971). He states that women who depend on their respective partners for their financial needs are more likely to tolerate domestic violence as they figure it to be the easiest solution out of conflicts, thereby not risking the future of their children or in case they are handicapped. Another social theory explaining domestic violence is the stress theory. According to this, males living in poverty may see domination over their wives as the only way to keep up to their “successful manhood”. Domestic Violence may not be a cause of stress due to poor financial state but may be a response to it. Social learning theory is yet another cause. It is obvious that one tends to practice what one experiences. Someone who has seen only violence throughout his life is bound to carry on with the same vicious circle. The effects of domestic violence are not just the physical injuries and chronic health conditions of the woman whose basic fundamental rights have been violated, which might ultimately lead to her suicide, they on the contrary impact the society as a whole. The child who witnesses domestic violence may face psychological as well as developmental issues. It might put his self-esteem low and impact not only his intellectual abilities and health but also his social life and outlook of the world. The traumatic experience might put him and the primary victim in depression and they may suffer from nightmares and flashbacks.
A study conducted by researchers from the Harvard School of Public Health established that victims of domestic violence are more likely to suffer through asthma (The Times of India, 11th May 2007). On hearing about the stories of pains and discrimination, professionals too might undergo Vicarious Trauma (VT). A number of laws have been made by the State parties to protect and safeguard women from getting discriminated against. One such effort was CEDAW (Convention on Elimination of Domestic Violence among Women which was adopted by the United Nations General Assembly on 1993. This was the first ever instrument dealing exclusively with violence against women and provided. Further, through the means of The Vienna Accord (1994), during the World Conference of Human Right, it was held that the rights of women are ‘an inalienable, integral and indivisible part of universal human rights’ (http://www.unicef-irc.org/publications/pdf/digest6e.pdf ). The Beijing Platform of Action (1995) established prevention of women against domestic violence as one of its 12 strategic aims. In 1992, the committee looking over CEDAW adopted General Recommendation 19 that accounted to penalize anyone who questioned a women’s right to enjoy their freedom to the extent that men do. The UN General Assembly adopted an Optional Protocol to CEDAW in 1999 to ensure that the complaints are received, recorded and action is taken instantly. ‘The Protection of Women from Domestic Violence Act 2005 was brought into force by the Indian government from October 26, 2006. The Act was passed by the Parliament in August 2005 and assented to by the President on 13 September 2005. As of November 2007, it has been ratified by four of twenty-eight state governments in India; namely Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Orissa. Of about 8,000 criminal cases registered all over India under this act, Rajasthan had 3440 cases, Kerala had 1,028 cases, while Punjab had 172 cases registered’ (The Tribune, Chandigarh, India – Punjab; also quoted inhttp://en.wikipedia.org/wiki/Protection_of_Women_from_Domestic_Violence_Act_2005 )Other such provisions where women can seek remedy are Inter American Convention on the Prevention; Punishment and Eradication of Violence against Women; The African Convention on Human and People’s Rights , including its Additional Protocol on Women’s Rights; Domestic Violence to Women Prevention Bill, etc. Even though, law is playing its role in improving the existing gravity of the problem, serious efforts must be taken to educate the women about her rights and consistent support must be provided to her through the means counselling, shelter, financial upliftment, a more sensitive and effective judicial staff, employment through the means of vocational training and increase in the existing number of health centres. Men must be held accountable for the consequences of their immature actions and not set free in the name of customs and traditions. They must be introduced to alternative models of masculinity. They must be counselled to solve the problem of drug and alcohol abuse. Adolescent girls must be taught to live with dignity and self-esteem while the boys must be taught to respect women. They both must be educated on safe sex and drug related issues. Also, textbooks highlighting gender stereotypes must be eliminated. While religious leaders and scholars must re-evaluate religious texts to promote equality, scholars must take out accurate statistics to study the roots and seriousness of the problem. It is the task of the government as well as non-governmental organisations to not only ensure that the victim gets compensated but also her safety after she leaves the house of the offender. The government must be accountable for its actions and ensure it is extremely gender sensitive. It can thus be concluded that despite the fact that laws are present to curb the problem of domestic violence, it continues to exist due to the prejudices and in fact more often due to the fact that people who are benefitting out of the customs do not want to open their eyes to change and people who really need change are too oppressed to raise a voice. Efficiency in the existing laws together with education and training alone can make a difference. A woman is a silent soldier who will continue to be imprisoned in a room with a door that’s unlocked and opens inwards; as long as it does not occur to her to pull rather than push. The fact of the matter is, it’s “Patriarchy” that says men are stupid, monolithic, unchanging, and incapable. It’s patriarchy that says men have animalistic thinking and just can’t stop themselves from harassing/assaulting. It’s patriarchy that says men can only be attracted by certain qualities, can only have particular kinds of responses, and can only experience the world in narrow ways. “Feminism” holds that men are capable of more-that they are much more than that.
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- Vago (1988:1); Law and Society; Englewood Cliffs, N.J. : Prentice Hall, (1987) c 1988
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- A.R. Blackshield; Law and Social Transformation; P. Ishwara Bhat; Eastern Book Company
- Domestic Violence; Merriam Webster; retrieved, 14th November 2011
- Goode, William (1971); Force and Violence in the Family; Journal of Marriage and Family (National Council on Family and Relations) 33(4)624-36
Written By: Joshika Saraf