A common question that often looms over laws that protect women is whether or not they are misused by the women they seek to protect. In the recent Rajesh Sharma and Ors v State of UP and Anr, a question had emerged from an appeal made to the Supreme Court, as to whether “any directions are called for to prevent the misuse of Section 498A”.
The section is defined under the Indian Penal Code (IPC) as the “husband or relative of husband of a woman subjecting her to cruelty.”
What Is the Essence of Section 498A?
The definition expands:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
In essence, Section 498A is an anti-cruelty law for women, which also takes into consideration dowry-related harassment, but is not restricted to it.
Following the SC’s verdict on the misuse of Section 498A on 27 July, several women's rights groups have written to the Chief Justice of India (CJI) seeking a review of the ruling.
The SC stated that no arrests can be made under Section 498A without verifying allegations.
The petition, signed by 16 women's rights groups states that the SC ruling “completely overlooks” the fact that women are subjected to regular harassment for dowry and domestic violence, as per a PTI report.
A bench, comprising justices AK Goel and UU Lalit, declared that among other highly questionable statements, that most of these cases (under 498A) are registered in the “heat of the moment” over minor issues.
Indira Jaising's Take on the SC's New Ruling on 498A
Among those criticising the SC’s ruling is Indira Jaising, former additional solicitor general and senior SC advocate.
Jaising lashed out at the SC in an article in the Indian Express, siding with those demanding that the verdict be subverted. Here are some of the points Jaising raises while pointing out the fallacies in the SC verdict:
In the case cited above, the Supreme Court ruled that a “welfare committee” would be constituted comprising paralegals, volunteers, social workers, and others, to examine complaints by women under Section 498A. Only after the committee has prepared a report (within a month’s time) and submitted it to the police, can the case be considered.
No arrest can be made before the submission of said report.
This gives enough time to the alleged perpetrator to abscond. In dowry-related cases, the accused can be granted bail in a day, notwithstanding whether the dowry has been reclaimed.
The Fallacies in the SC Verdict
However, the apex court notes that its rulings will not apply to cases involving “tangible physical injuries or death”. This implies that harassment, not amounting to physical injury or death can be allowed to slip.
As Jaising succinctly says in her piece, “What we see in our courts is a touching concern for the dead and condemnation for the living.”
Jaising also notes that the worst possible result of forming welfare committees from among members of civil society is their power to become “non-state vigilante groups” much like the notorious gau rakshaks.
Drawing upon data from the National Crime Record Bureau (NCRB) (2005, 2012, 2013) which records a low conviction rate, the SC drew the conclusion that most cases filed under 498A are “false”.
This conclusion is not only hasty, it is also myopic. What the SC fails to see, as Jaising notes, is that there could be a multitude of reasons for a low conviction rate, such as an inadequate probe or a botched up one.
Jaising thus sums up, “Insufficient evidence does not render the complaint false.”
In her final argument, Jaising claims that the two lawyers appointed by the apex court in this case, had “no expertise on violence against women as amicus curiae.”
Seeing these arguments, one can logically conclude that the Supreme Court in its verdict, has indeed taken away from the entire purpose of Section 498A.
(With inputs from PTI, Indian Express)
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