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| Edited By: Sanjeeb Panigrahi |Source: DNA |Updated: Sep 21, 2018, 07:10 AM IST
The Supreme Court’s recent passing of a landmark judgment after a number of Public Interest Litigations filed by Social Action Forum for ManavAdhikar&Anr. vs. Union of India has many ramifications. The judgment substantially modifies an earlier judgment passed by a two-judge bench in Rajesh Sharma vs. the State of UP, where voicing concern over the “abuse” of Section 498A, the Court had then passed a number of directives, one of which included no automatic arrest in cases under Section 498A of the IPC. Though the apex court order had then been welcomed by anti-Section 498A campaigners, women’s organisations had said the court could not discount the epidemic of social evil of dowry-related violence.
Threats to women’s safety emanating from their spousal relationships continue to profoundly affect their socio-economic security, health, civic engagement and overall well-being. Anti-dowry laws have been enacted to curb the menace of women suffering from atrocities and domestic violence – physical, sexual, verbal, emotional and mental – at the hands of their husband or in-laws.
There have been radical changes in the landscape of criminal jurisprudence in terms of providing more teeth to the existing women-centric laws (DV Act, 498A, 406 IPC), but unfortunately, at times, the cure has been worse than the disease. The laws have failed to make a dent in the rising level of crime against women especially with regard to dowry-related assaults.
On the other hand, false accusations have loomed large though research, academic studies, journalistic counts and cases registered in the courts fail to suggest any concrete figures on its misuse. It is equally difficult to suggest that every part of the narrative is wrong; hence the real intent and purport of the legal instruments have been defeated. The exponential increase in the number of false and frivolous cases of dowry harassment has led the Law Commission to recommend that the strict law dealing with dowry offences be made compoundable – a move that will allow an accused to escape a jail term by paying a fine.
In many of its previous judgments, the apex court has reiterated that it would revisit the provisions of the dowry law with the observation that exaggerated versions of the incidents are often reflected in a large number of complaints. As per the National Crime Records Bureau (NCRB) report titled ‘Crime in India’, the number of cases filed under Section 498A of IPC has been on the rise by about 10 per cent every year between 2007 and 2013. Similarly, there has been a quantum jump in the cases pending trial from 2.67 lakh (2007) to 4.66 lakh (2013) which accounts for almost a 75 per cent rise in seven years. But, surprisingly, the conviction rate cases under Section 498A, has sharply dropped from 21 per cent (2007) to 16 per cent (2013), while the average conviction rate in other IPC crimes remained more or less at 40 per cent each year.
With a view to addressing the social evil of dowry-related violence, stringent provisions like Section 498A of IPC and Domestic Violence Act have been introduced. But it is also imperative that the innocent should be protected from oppression and injustice at the hands of law enforcement agencies. The apex court in Arnesh Kumar vs the State of Bihar in 2014 has deprecated the practice of immediate arrest and jailing of the accused, especially in the case of a false and motivated complainant. In this context, the guiding words of the legendary Justice Cardozo should prevail, “on the one side is the social need that crime shall be repressed, on the other, the social need that law shall not be flouted by the insolence of office”.
In its recent judgment, the Supreme Court has done away with the requirement of a Family Welfare Committee to examine the veracity of complaints under Section 498A of IPC. It observes that mere possibility of abuse of a provision of a law does not per se invalidate a progressive legislation. The constitution of the Family Welfare Committee has been held to be not within the ambit of the Criminal Procedure Code and the Court has no power to frame law.
The judgment instead has restored the right of the police officers to decide the cases under Section 498A based on the facts and circumstances of each case. This requires the police officers dealing with the case to be sensitive and guided by the spirits of the cases like Joginder Kumar (1994), DK Basu (1997), Lalita Kumari (2014) and Arnesh Kumar (2014). The apex court has also underlined the need for rigorous training of investigating officers who are entrusted with the investigation of crime under Section 498A. As a result, through the judgment, the Court seems to have reposed more faith in our police system and has held that misuse of arrest could be prevented by invoking anticipatory bail provision. Thus, the judgment has left a soothing chord; if a bail application is filed with at least one clear day’s notice to the public prosecutor/complainant, it should be decided as far as possible on the same day.
Unfortunately, the methods adopted by the apex court in modifying Rajesh Sharma showcases the fractured face of the Court. The same Court has modified the judgment of another bench without even referring to a larger bench which is the established norm. Instead, it pierced the judgment through writ jurisdiction. Similar procedural indiscipline has also been observed in case of the judgment related to procedural safeguards of SC/ST Act. While one can question procedural norms, the fact that the apex court undid the verdict rendered by two Hon’ble judges in July 2017, which according to feminists “institutionalises the prejudices and rehabilitates the myths which the women’s movement in India has battled over decades,” is to be welcomed.
The Court has attempted to strike a judicious balance between gender justice and the rights to life and dignity and it remains to be seen if it has succeeded.
The author is a Supreme Court advocate. Views are personal.
