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Tuesday, December 12, 2017

Punishing the victims

Friday, 11 August 2017 12:06
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Jayanthi Natarajan


On July 27, 2017, the Supreme Court in Rajesh Sharma & Ors vs State of U.P. & Aanr, dealt another punishing blow to what has become a toothless anti-dowry law. When first enacted in 1961, the law sought to protect women from being killed or tortured in their marital homes by greedy husbands and in-laws. Thereafter, passionate advocacy by women's rights activists resulted in the insertion of Section 498A of the Indian Penal Code, making the offence of dowry harassment cognisable and non-bailable, thereby bringing enormous relief to women who face virtually insurmountable obstacles in the public space, especially when taking complaints to the police or facing long-winded judicial proceedings.

In a sense, Section 498A sought to level the playing field and further ensure the safety of women. However, as with all laws relating to women, the patriarchal, self-fulfilling argument that Section 498A had created a bunch of monstrous, disgruntled women determined to destroy family values and drag innocent husbands and in-laws to jail for their own nefarious purposes began to dominate the discourse.

Gradual dilution

Following this, the first attempt to dilute Section 498A came from a 2014 judgment of the Supreme Court which mandated a 9-point checklist before any arrests could be made under Section 498A. Then followed the latest Supreme Court judgment, which has almost irretrievably diluted 498A and rendered it nearly unreachable to victims. This judgment mandates a family welfare committee in every district to scrutinise dowry harassment cases. Members of this committee can be social workers or "anyone interested in the subject" and may also be paid an honorarium. The police are expected to consider the recommendations of this committee before making any arrest. It is not difficult to predict how such committees will operate in our male-dominated districts. The Supreme Court has also done away with the need for the accused to make a personal appearance in court in addition to other forms of relief.

Sadly, the victim remains ignored in the judgment. As a result of these constraints, thousands of genuinely distressed women will not be able to access justice. Women victims, it would appear, become victims only if they die. While still alive, getting justice is a Sisyphean impossibility.

Subject of debate

The 2014 and 2017 judgments of the Supreme Court diluting Section 498A are a compelling illustration of the fact that in the discourse relating to women's issues, any movement which is even remotely progressive and seeks to empower women immediately becomes the subject of fierce controversy. Seven decades after Independence, Parliament remains unable to pass the constitutional amendment mandating 33% reservation for women in Parliament. No other legislation in the history of India, possibly the world, has been so fiercely resisted or pending for so long. Similarly, the impact of Section 498A, which was admittedly enacted to ensure the safety of women in their matrimonial home, should have been assessed to examine its effectiveness in preventing dowry deaths and cruelty to women in their matrimonial home. Perversely, but predictably, the attention of the Judges, and indeed of a large section of society, is directed solely towards the alleged, perceived "misuse" of the section by "unscrupulous" women. Ironically, the concern is leavened by a crumb of concern about women, in this case the women who are "wrongly" arrested under Section 498A - the mothers and sisters-in-law. The Judges observe that women who ought to use Section 498A as a shield are actually using it as a weapon against their unfortunate in-laws, going so far as to say "this court earlier noticed the fact that most of such complaints are filed in the heat of the moment, over trivial issues", thus leading to "harassment of the accused". This is a breathtaking assumption, and not based upon any substantial research whatsoever, nor do the Judges quote such research.

The story from data

In fact, the statistics cited by the Judges lead to a contrary conclusion. They note the earlier observation of Justice CK Prasad that in 2012 two lakh arrests were made under Section 498A, including 47,951 women. Although charge-sheets were filed in 93.6% of the cases, the conviction rate was only 14.4%. Based on this, the Judges conclude that the complaints were frivolous and "trivial". The actual fact of the matter is that in 93.6% of the cases, the police - notoriously unsympathetic to women - found the complaints worthy of charge-sheets being filed. In other words, the complaints passed police scrutiny. Further, the low conviction rate of 14.4% is more an indictment of the agonising judicial process, which is time-consuming and drains women of their resources and resolve. Many just opt for settlement out of sheer frustration.

In 2013, the conviction rate for rape was only 27.1%. Will the court now liberalise the penal provisions against rape? Money transactions are essentially only civil transactions. Yet, dishonour of a cheque is an offence under Section 138 of the Negotiable Instruments Act. The widespread misuse of this section by usurious moneylenders and financial institutions has never been publicly debated. The judiciary and civil society do not appear to ever discuss misuse or "abuse" of other laws and offences, although abuse of any law is possible, and does in fact happen. It is only when any law relating to the empowerment of women is enacted, that hysterical debate ensues about misuse of such a law and the sufferings of the accused.

In a just society, a penal provision should be reviewed only after fully protecting the perspective of the victim. A total of 24,771 dowry deaths have occurred in India from 2012 to 2014, averaging more than 20 dowry deaths every single day. Thus, Section 498A is not only relevant but also vital for the protection of genuine victims. Alleged, perceived, and sometimes even some genuine cases of misuse of this law should not endanger the huge number of women who are in genuine distress. It is time to remember that the object of the law and democracy require that our suffering women be protected and not that safeguards for accused be constantly created.

Jayanthi Natarajan is a former Union Minister and a political activist. The views expressed are personal

(Courtesy: The Hindu)


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