Table of Contents
- 1 Dowry (Section 498-A, IPC)
- 2 Recent development
- 3 July 2017 ruling —
- 4 Anti-dowry laws:
- 5 Misuse of 498A:
- 6 In 2017 (Rajesh Sharma & Ors vs State of U.P. & Anr Case):
- 7 Criticism of the judgement:
- 8 Dilution of the law:
- 9 Relief to the accused:
- 10 Victims ignored | Male-biased:
- 11 Positive impact of the law should have been assessed:
- 12 Is the law being misused? – The story from data:
- 13 What judges saw:
- 14 What critics say the data actually shows:
- 15 Primacy must be to protect the victim:
- 16 Conclusion:
Dowry (Section 498-A, IPC)
SC does a re-think on dowry harassment ruling of July 2017
- Ruling — Family Welfare Committees establishment and diluting Section 498A of IPC
- This is the case of undue judicial activism
- Individual vs. Institution (Judge vs. Judiciary) — due to such cases even the legitimate judgements are being questioned.
- Need for feminism in Judiciary and thus more women in Judiciary — only one in four judges are women (25%).
- Judges should not be judgemental in their individual capacity.
- Section 498-A, IPC — SC reverses its own previous decision on the Dowry Law
- Earlier SC asked the state to set up a ‘Family Welfare Committee’ consisting of imminent citizens and personalities of the locality, who would verify the claim of a lady who has accused the husband (and family members) of dowry and related torture — under Section 498-A, IPC
- SC on receiving the reservations of various women welfare groups, NGOs and victims on this decision — asking SC to dig deep in the issue and told SC how this is hampering the justice mechanism given to the real victims of dowry, especially of the poor and marginal class victims. Such ‘committees’ are termed to be biased towards the boy’s family mostly and the police & authority are not even registering the case and making arrest.
- Taking these issue into cognisance, SC has now reversed its own verdict and removed the clause of setting up FWC and the provision that no arrest should be done by the police prior to the clearance of the complaint by the FWC.
- So now — husband and in-laws can be directly arrested without the verification of FWC by the police on receiving the complaint under Section 498-A, IPC
- #Corrective_Judiciary #Failed_Judicial_Activism
July 2017 ruling —
- SC for panels to examine dowry cases
- In order to shift the attention to genuine cases, SC has ordered setting up of ‘family welfare committees’ in all districts under the aegis of the National Legal Services Authority (NALSA).
- Family welfare committees
- The Committee will consist of three members- can be appointed from paralegal volunteers, social workers, retired persons, wives of working officers and other citizens.
- Every complaint received by the police and the Magistrate will be passed on to the local committee, which will enquire into the genuineness of the complaint and file a report with the police official or Magistrate concerned within a month.
- The committee can directly get in touch with the parties involved but the members will not be called as witnesses in case there is a trial.
- No suspect can be arrested, until the report from the committee is received.
- Trial judges should close Section 498A cases based on matrimonial disputes once parties reached a settlement.
- SC to rethink on this ruling (October 2017)
- CJI Deepak Misra on hearing the plea filed by an NGO ‘Nyayadhar’ — an organisation of women advocates in Maharashtra — sought the revival of Section 498A, which after the ruling has become ‘valueless’.
- Cases of misuse of the Family Welfare Committee and subsequent exploitation of the women are increasing day by day.
- National Legal Services Authority (NALSA)
- Statutory under — Legal Services Authorities Act, 1987.
- It provides free Legal Services to the weaker sections of the society and it also organise Lok Adalats for the amicable settlement of disputes. (Article 39A, 14, 22(1))
- The Chief Justice of India is patron-in-chief of NALSA.
- The State Legal Services Authority is headed by the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal Services Authority.
- The District Legal Services Authority is chaired by the District Judge of the respective district.
- The prime objective of NALSA is speedy disposal of cases and reducing the burden of judiciary.
- The Dowry Prohibition Act, 1961 sought to protect women from being killed/tortured in their marital homes by husbands and in-laws looking for dowry.
- Thereafter, efforts by women’s rights activists resulted in the insertion of Section 498A of the Indian Penal Code (IPC).
- Section 498A of the IPC deals with the matter of subjecting a married woman to cruelty.
- It made the offence of dowry harassment cognisable (meaning a police officer can arrest without a warrant) and non-bailable.
- It brought enormous relief to women, especially when taking complaints to the police or facing long-winded judicial proceedings.
Misuse of 498A:
- However, there was a growing trend among women involved in marital problems to misuse Section 498A of IPC.
- Using this provision, many women began to rope in even their husbands’ relatives — including parents, minor children, siblings and grandparents — in criminal cases.
- The court noted that most of such complaints are filed in the heat of the moment, over trivial issues, thus leading to harassment of the accused.
SC’s directions to prevent misuse:
- Following the misuse, the Supreme Court in 2014 mandated a nine-point checklist before any arrests could be made under Section 498A.
In 2017 (Rajesh Sharma & Ors vs State of U.P. & Anr Case):
- Again, voicing concern over abuse of this anti-dowry law, the Supreme Court in July, 2017 passed a slew of directions to deal with complaints under section 498A.
- The Court has directed that no arrest should “normally be effected” without verifying allegations.
- The Court observed that many of such complaints are not bonafide and needless arrest may ruin the chances of settlement.
- It ordered for the constitution of a family welfare committee in every district. Every complaint received by police or the magistrate under this provision shall be referred to and looked into by the committee.
- The police are expected to consider the recommendations of this committee before making any arrest.
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Criticism of the judgement:
Dilution of the law:
- Section 498A was enacted to ensure the safety of women in their matrimonial home.
- The latest Supreme Court judgment has highly diluted 498A.
Relief to the accused:
- The Supreme Court has provided relief to the accused, including doing away with the need to make a personal appearance in court.
- The judges, and a large section of society, paid attention only to the alleged, perceived “misuse” of 498A by unprincipled women.
Victims ignored | Male-biased:
- The victim remains ignored in the judgment, and thousands of genuinely distressed women will not be able to access justice.
- The district committees’ recommendations will be biased in our male-dominated society.
Positive impact of the law should have been assessed:
- The judges observed that women who ought to use Section 498A as a shield are actually using it as a weapon against their unfortunate in-laws.
- Before making such an assumption, section 498A’s impact should have been assessed to examine its effectiveness in preventing dowry deaths and cruelty to women in their matrimonial home.
Is the law being misused? – The story from data:
- In 2012, two lakh arrests were made under Section 498A, including 47,951 women (relatives of the husband).
- Conviction Rate — 14.4% (poor) | Chargesheet — 93.6%
What judges saw:
- Based on the low conviction rate, the judges concluded that the complaints were frivolous and “trivial”.
What critics say the data actually shows:
- The actual fact of the matter is that in 93.6% of the cases, the police actually found the complaints worthy of chargesheets being filed. In other words, the complaints passed police scrutiny.
- Further, the low conviction rate is more an indictment of the slow and tiring judicial process, which drains women of their resources and resolve. Many just opt for settlement out of sheer frustration.
- Critics also point to a low conviction rate for rape (27.1% in 2013) but there the court hasn’t liberalised the penal provisions.
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Primacy must be to protect the victim:
- 2012-2014 — 20 dowry deaths every single day on an average
- Thus, Section 498A is not only relevant but also vital for the protection of genuine victims.
- A penal provision should be reviewed (as the Court did in the latest judgement) only after fully protecting the perspective of the victim.
- Misuse of other laws and offences also happens, but the Court hasn’t always provided relief to the accused in all laws.
- Alleged, and sometimes even some genuine, cases of misuse of this anti-dowry 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.