Case Note & Summary
The litigation arose from a Suo Motu Public Interest Litigation initiated by Dr. Jaya Sagade, a Professor of Law and Director of a service provider under the Protection of Women from Domestic Violence Act, 2005 (DV Act), challenging a circular dated 24th July 2014 issued by the Department of Women and Child Development, Government of Maharashtra. The circular directed that counselling or mediation under the DV Act could only be carried out after a case was filed in court and upon the court's directions, and that outside agencies could not conduct such activities without court orders. The petitioner contended that this circular violated Articles 14 and 21 of the Constitution of India and was contrary to the objectives of the DV Act. The High Court issued notices to the State and various institutions, and several non-governmental organizations intervened, including Majlis Legal Centre, Lawyers Collective, TISS, Stree Mukti Sanghatana, and Bhartiya Stree Shakti, all of whom submitted their ground-level experiences. The central factual issue was that counselling and mediation are distinct processes under the DV Act, with counsellors having the primary duty of preventing violence through feminist counselling, but in practice, cases were being referred to mediation judges instead, leaving counsellors' services underutilized. The impugned circular effectively restricted pre-litigation counselling, allowing only information about rights and encouragement to file cases. The court considered the meaning of counselling, noting that it involves professional advice to resolve personal, social, or psychological problems, not mere information. The legal issues revolved around the constitutionality of the circular, specifically whether it was discriminatory under Article 14 and arbitrary under Article 21, and whether the DV Act itself prohibited pre-litigation counselling. The petitioner argued that the circular was discriminatory as it treated registered service providers differently from unregistered NGOs providing similar counselling, and that it deprived women of the right to sound advice before accessing justice. The interveners supported these arguments, emphasizing that many women do not wish to litigate and require counselling to make informed choices. The State's position was not explicitly recorded but appeared to be that the circular was issued in the interest of women. The court analyzed the DV Act's provisions, particularly Sections 12, 14, and 26, and concluded that pre-litigation counselling is not prohibited; in fact, such counselling is essential for the Act's purpose of empowering women and preventing violence. The court observed that counselling must involve more than mere information, and that restricting it to post-litigation stage would reduce counsellors to clerical functions. The court also noted that the circular, by allowing unregistered NGOs to continue advising women while restricting registered service providers, created an arbitrary classification without any rational basis, thereby violating Article 14. Further, by denying women the benefit of expert advice before litigation, the circular infringed upon the right to access justice under Article 21. The court also highlighted that before directing counselling or mediation, magistrates must pass interim relief orders to protect the woman during the process, a requirement missing in the circular. Ultimately, the High Court quashed the impugned circular, holding it unconstitutional, and directed the State to formulate a policy ensuring that women are advised about their rights and the best course of action before filing cases, utilizing the services of registered service providers and other counselling agencies.
Headnote
A) Constitutional Law - Right to Equality - Discrimination in State Action - Constitution of India, Article 14 - The impugned circular restricted counselling by registered service providers to post-litigation stage, while unregistered NGOs could continue providing pre-litigation counselling - The High Court found this differentiation arbitrary and violative of Article 14 as similarly situated entities were treated unequally - Held that the circular discriminated between registered and unregistered service providers without a rational basis (Paras 10(c)-10(d)). B) Constitutional Law - Right to Life and Personal Liberty - Right to Access Justice - Constitution of India, Article 21 - The circular permitting only post-litigation counselling effectively deprived women of expert advice on the best course of action, which is integral to accessing justice, particularly for vulnerable women who may not wish to litigate - The Court held that restricting counselling to merely informing about rights without advising of the right action defeats the purpose of the beneficial legislation and violates Article 21 (Paras 8-10, 10(b)). C) Protection of Women from Domestic Violence Act, 2005 - Counselling and Mediation - Sections 14, 12 - The impugned circular treated counselling and mediation as court-directed activities only, ignoring that pre-litigation counselling is not prohibited under the DV Act and that counsellors play a distinct role in preventing violence through feminist approaches - The Court held that the Act does not prohibit pre-litigation counselling; in fact, such counselling is crucial for empowerment and preventing recurrence of violence - Held that the circular's restriction was contrary to the Act's objectives and counsellors' services must be utilized to the fullest extent (Paras 3, 7, 9, 10(b)). D) Protection of Women from Domestic Violence Act, 2005 - Procedure for Counselling under Section 14 - Requirement of Interim Relief - The DV Act contemplates that upon an application under Section 12, the Magistrate must pass some order granting relief, even ad-interim, before directing counselling or mediation, to ensure that the woman is not left without remedy during the process - The Court observed that the impugned circular did not incorporate this requirement, which could lead to delayed justice (Para 8). E) Statutory Interpretation - Meaning of Counselling under Domestic Violence Act - Distinction from Mediation - The term 'counselling' in the context of the DV Act includes providing professional advice to resolve personal, social, or psychological problems, which goes beyond mere information-giving - The Court relied on dictionary meanings and accepted that restricting counsellors to merely informing women about rights would reduce their role to clerical work, contrary to the Act's intent - Held that counselling must be comprehensive and may include pre-litigation advice (Paras 10(b)).
Issue of Consideration
Whether the circular dated 24th July 2014 restricting pre-litigation counselling under the Protection of Women from Domestic Violence Act, 2005 is violative of Articles 14 and 21 of the Constitution of India; and whether the circular discriminates against registered service providers compared to unregistered NGOs providing similar counselling services.
Final Decision
The Bombay High Court quashed the impugned circular dated 24th July 2014, holding that it violated Articles 14 and 21 of the Constitution, and directed the State of Maharashtra to formulate a policy ensuring that women are advised about their rights and the best course of action before filing cases, utilizing the services of registered service providers and other counselling agencies.
Law Points
- Legal points not extracted
- Pre-litigation counselling not prohibited under DV Act
- counselling distinct from mediation
- restriction to post-litigation stage violates Article 14 due to discrimination between registered and unregistered service providers
- violates Article 21 by depriving women of right to advice
- interim relief must be passed before directing counselling
- counselling includes professional advice not mere information
