In the Indian Penal Code, or indeed, perhaps in the history of criminal jurisprudence, there is no crime during the trial of which the victim is asked by the law to negotiate with the perpetrator, except with regard to crimes against women, including rape.
The most striking example of women being forced to negotiate with perpetrators is under the Dowry Prohibition (DP) Act, where women who complain of being harassed for dowry by their husbands or in-laws and file a complaint to this effect are required to negotiate with the perpetrators ‘to set things right’. The only possible comparison which will highlight sufficiently the gross injustice of this so-called process of justice is to imagine a scenario where a murderer is allowed to negotiate with the family of the victim, and compound the act of murder. If such a procedure is unthinkable in an enlightened society, it is incomprehensible why an atrocity against a woman, a crime under Section 498A of the DP Act, should be treated differently and allowed to be negotiated. A crime, after all, is a crime. Treating some crimes more leniently than others because they pertain to women is against the most basic tenets of justice.
In July, the Supreme Court delivered a landmark judgment, which, in my view, can only be termed disastrous for the rights and safety of women. The Supreme Court in the case of Arnesh Kumar vs the State of Bihar directed the police “not to mechanically make arrests when cases under the dowry harassment Act (Section 498A of the Indian Penal Code) are registered”. The court said that the police should first satisfy themselves about the necessity for arrest under the parameters provided under Section 41 of the Criminal Procedure Code. Coming down heavily against the misuse of the law, the SC observed, “The fact that Section 498 A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst provisions that are used as weapons rather than shields by disgruntled wives.” Extremely strong words indeed, and unfortunately a clear pointer to an already lacklustre implementation of laws made to protect women from atrocities.
It is unclear why the Supreme Court has singled out Section 498A as a provision of law being misused. Any law can be and is misused. Thus the ire of the court against a law meant to protect women cannot be understood. There is no research to support the argument of the misuse of Section 498A. The court relied on the low conviction rate of 15% of cases registered under Section 498A to arrive at its rather drastic conclusion. However, activists have long argued that the low conviction rate does not represent proof of the misuse of the law, but to the contrary proves the dreary and cruel process of the law, which places such a heavy burden — emotional, financial and social— upon the woman, that her family and she opt to settle out of court, or simply fall by the wayside, defeated by the process and corruption. The logic of the low conviction rate is tellingly not applied to other cases. In some states, the conviction rate for murder cases is as low as 19%, and by this logic, should the murder accused not then be arrested?
Activists believe that the real basis of the misuse argument is based upon a deeply entrenched patriarchal notion that in a family, as a wife, a woman has to be completely subservient to her husband and in-laws, and if those notions are challenged in any way, if a woman asserts her independence or individuality, they fail to respect the institution of marriage. This is why men actually believe that they are being falsely accused of violence against women.
The judgment, which will severely impact the functioning of Section 498A, did not take into account the fact that according to official records, a woman dies every hour due to dowry-related problems and between 2007 and 2011 there has been a steady increase in dowry deaths. In 2012, as many as 8,233 dowry deaths were reported nationwide. In fact, according to the National Crime Record’s Bureau data, from 2001 to 2012, there were 91,202 dowry deaths. Of these only 5,081 cases were found to be false after investigation. Over 84,013 cases were charged and sent to trial.
Section 498A was amended by Parliament after a long struggle by activists to get justice for women. It is undoubtedly true that in the long run, the only final solution to dowry-related problems is equal property rights for women. In our patriarchal society, although laws have changed, mindsets have not. Therefore, women continue to suffer terrible abuse and physical cruelty in the name of dowry. A substantial part of the problem is the difficulty these victims face in getting justice, particularly the problem of getting the local police to register FIRs, since the mindset of the police is anti-woman. When Section 498A was enacted, activists felt that a major milestone had been achieved, because the law then made it mandatory for the police to register FIRs and arrest the perpetrator. The safeguards against wrongful arrest already exist in Section 41 of the CrPC, and it is nobody’s case that false complaints should be encouraged, or that procedures should not be followed while arresting a wrongdoer. However, the extremely strong terminology used in the Supreme Court’s judgment and the stern admonitions to the police to refrain from arrest until the concurrence of a magistrate is obtained will send very conflicting signals to the law-enforcers. In effect, the judgment of the Supreme Court in Arnesh Kumar vs The State of Bihar has considerably diluted the force and implementation of Section 498A of the Indian Penal Code, which was a hard-won victory for the protection of women.
Lawmakers, stakeholders and every woman interested in protecting her rights should urge the government to file a review petition in the Supreme Court, pleading for the review and reversal of this judgment.
Jayanthi Natarajan is a former Union minister and a political activist
The views expressed by the author are personal