Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality

Abstract

This Article analyzes whether domestic violence laws in India comport with international human rights standards set forth in a recent decision of the Inter-American Commission on Human Rights. In Lenahan (Gonzales) v. United States of America, the Inter-American Commission found, inter alia, that the U.S. violated one of its citizen’s right to equality and non-discrimination under Article II of the American Declaration. The Commission stressed that international law requires states to act with 'due diligence' to protect women from domestic violence. Moreover, the Commission recognized that because domestic violence is one of the most pervasive and pernicious forms of gender-based violence, states should adopt special protection measures to protect at-risk groups, including young women. It urged the United States to enact legislation to make the enforcement of protective orders mandatory and to create 'effective implementation mechanisms' accompanied by 'adequate resources to foster their implementation' and 'training programs' for law enforcement and judicial officials.

The Indian government, unlike its American counterpart, has passed laws that meet the Commission’s recommendations. In 1983, India’s Parliament added Section 498A to the Indian Penal Code, which allows women to file criminal complaints against their husbands and husbands’ relatives for any 'cruelty' suffered at their hands. In 2005, the Parliament passed the Domestic Violence Act, a wide-ranging law that protects women from various types of violence (physical, sexual, verbal, and economic) and, in the spirit of Lenahan, imposes positive obligations on the state to protect women from violence.

While the Indian government should be applauded for taking seriously its obligations to protect women from domestic violence, this paper shows that its positive approach has been stymied by: (1) the victimization of male partners and their female relatives as a result of special protections accorded to women; and (2), police harassment and rent-seeking under the guise of enforcement. These negative consequences have overshadowed the benefits these laws were intended to provide to domestic violence victims. The Article therefore seeks to demonstrate that even a domestic violence regime that theoretically meets international human rights standards can be limited or counterproductive due to powerful cultural and institutional obstacles.

Keywords: domestic violence, human rights, gender equality, Inter-American Commission on Human Rights