Guest Post by ANUBHA SINGH and SURABHI SHUKLA
The recent Supreme Court judgment in the case of Arnesh Kumar v. State of Bihar & Anr. (Criminal Appeal No. 1277 of 2014) has once again brought to light the concern shared by the larger society about the ‘misuse’ of Section 498-A of the Indian Penal Code (hereinafter “IPC”) and the Dowry Prohibition Act, 1961. This concern has been raised many times in the past (and present) and the judiciary has gone to the length of labeling this ‘misuse’, especially that of Section 498-A, IPC, ‘legal terrorism’ (in Sushil Kumar Sharma v. Union of India JT 2005 (6) SC 266.)
However, what has changed this time is that through this judgment the Supreme Court has endorsed and legitimized the common stereotype that women exaggerate and fabricate stories of violence to seek vengeance against their husbands and matrimonial families.
I. A Case of Gross Overgeneralization of the Misuse of Section 498-A
The aforementioned judgment provides directives to the State and the police on the procedures to be followed before making an arrest in cases where the offense is punishable with imprisonment for a term which may extend to seven years. However, it is to be noted that these directives are issued in the present case, in the context of Section 498-A, IPC disputes. This section will look at several assumptions made in the judgment with respect to the nature and integrity of women.
The underlying assumption of the argument presented in the judgment is that women’s accounts are not credible. They are cast as liars and schemers, evident in the deliberate choice of language in the judgment:
“The fact that Section 498-A is a cognizable and non-bailable offense has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.” [emphasis added](Criminal Appeal No. 1277 of 2014).
The judgment begins by noting that “the institution of marriage is greatly revered in this country” and expresses its concerns over the “phenomenal increase in matrimonial disputes in recent years”. By expressing fear of sudden increase in the breakdown of families and by advocating the retrogressive ideas of preservation of the marital institution over women’s individual rights within the household, the court has taken the struggles of the women’s movement decades back in time.
Further, the Court states that:
“The simplest way to harass is to get the husband and his relatives arrested under this provision.In quite a number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.” [emphasis added] (Id.)
The court suggests that women put themselves out of their comfort zones, filing and prosecuting a case under Section 498-A simply to “harass” the husband and his relatives. Further, by stating that women do this “in quite a number of cases” the judgment makes a faulty overgeneralization. It reinforces the distrust that society displays towards women who exercise autonomy and take action against injustices they face in the household.
This pointed is elaborated in the next section.
II. Faulty Interpretations
This theory of women’s calculative and crafty misuse of Section 498-A and the Dowry Prohibition Act to harass their matrimonial families is backed by faulty interpretation and assumptions using the Crime in India 2012 Statistics report published by the National Crime Records Bureau (hereinafter “NCRB”), Ministry of Home Affairs ( http://ncrb.gov.in/CD-CII2012/cii-2012/Table%20Contents.htm. ) The Court claims :
“The rate of charge-sheeting in cases under S. 498-A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.” [emphasis added] (Criminal Appeal No. 1277 of 2014).
Here, it is important to note that the Court is making two suggestions:
i. As the percentage of conviction under S. 498-A was only 15% in 2012, the rest of the cases are merely attempts to ‘harass’ the husband and his relatives, implying that they are false.
ii. The percentage of convictions under S. 498-A in a given year is representative of a trend of convictions in 498-A.
Based on likelihood and estimation the Court here is making a case for the misuse of S. 498-A, suggesting that the remaining 85% of the cases are false/fabricated and are “likely to result in acquittal”. The fact that in 2012 only 15% of the cases were convicted cannot be taken as a fact of life and is not symptomatic of a trend of women’s untruthfulness.
An analysis of the NCRB data from 2000-2012 shows that every year there has been some variance in the percentage of cases convicted with the range of convictions fluctuating between 15% and 22%. More importantly, the percentage of conviction every year does not represent the number of true or false cases in that year. It is a number representing only the percentage of the cases disposed by the courts which resulted in a conviction- and nothing else. It is important to recognize that this percentage is a function of the investigative and the judicial process which includes but is not limited to the number of cases investigated by the police, the number of cases taken up by the court for hearing, the judges before whom these cases appear and finally, cases in which evidence has been concluded and a judgment has been rendered. However, bypassing the aforementioned considerations the Court has used the 15% of conviction in a way to suggest that the rest of the 85% of the cases are fabricated.
Data on the disposal of cases relating to cruelty by husband or his relatives(Section 498-A IPC) for 2012 shows that of the total of 46054 cases, 39138 were acquitted or discharged, while just 6916 were convicted. That is, there has been an acquittal or discharge of 85% of the total 46054 cases disposed by the courts in the year 2012. At this point it becomes necessary to understand and unpack the composition of this category of 85% which represents the percentage of acquittals and discharge in the number of cases disposed by the courts in 2012 .
As the number of cases in which the accused was acquitted or discharged has been clubbed together there is no way of ascertaining the actual number of cases falling under these two distinct categories. At this point, it becomes necessary to establish that this data does not directly or indirectly represent the number of cases found to be false by the court. Here, it becomes important to unpack the legal implications of the concepts of acquittal and discharge.
The category of Discharge suggests that in certain cases, the magistrate, upon appreciation of the police report and other documents, has not found any prima facie basis to proceed with a trial to ascertain if, in fact, there has been cruelty against the woman (S. 239, The Criminal Procedure Code, 1973). This is a legal category and by no means suggests that the woman in question has in fact, not experienced violence. Women understand and experience violence differently and although they may have experienced violence, their experiences may not in all cases have the sanction of legal protection.
The second category – Acquittal– is another legal category suggesting the number of cases in which the court has not found the accused guilty. That is to say, it reflects the number of cases in which the woman has not been able to convince the judge beyond reasonable doubt that the alleged violence was committed against her ( S. 248, The Criminal Procedure Code, 1973). ‘Beyond reasonable doubt’ is an extremely high threshold to cross in any criminal case. This threshold becomes harder to cross given the intimate nature of the violence, the closeness of relations involved, the fact that much of this violence happens behind closed doors and finally, the subjectivity of the judges – predisposed to the preservation of marriage. Once more it becomes stark that the category “acquittal” does not suggest that the woman is lying – it only suggests that the woman has not been able to meet the legal threshold for protection. It is not a comment on her experience of violence – it is a comment on her experience of court.
Additionally, acquittal is also given for a variety of reasons such as delay in filing FIR , absence to seize material objects during investigation , irregularity of procedures , etc. The data does not state the reasons for acquittals in the cases disposed by court in 2012. Hence, no conclusion can be drawn regarding the truthfulness of women from this category.
In fact, the only place in the NCRB data where one might find an estimate, albeit diluted, of the number of fake cases filed under S. 498-A is in the data regarding the disposal of IPC cases by the police. In this data for 2012, of the total of 103848 cases, the number of cases in which the charge was found false or there was a mistake of law or there was a mistake of fact or something else characterized by the inexplicable etc., are 10235 in number (in 87633 cases, chargesheets were submitted and in 5980 cases, final reports were submitted). Hence from this table as well, no clear conclusion can be drawn of the total number of cases where the charge was found to be false.
Therefore, unless the NCRB data is segregated into specific heads, detailing the reasons for acquittal and discharge, mere acquittal or discharge percentage in a particular year are not indicative of anything, least of all, the number of false cases filed by women. Even in the only place within the NCRB data where one can look at to get an estimation of the number of false cases filed under S. 498-A, the category of false cases is clubbed together with several other categories – indicating nothing.
The Court has done disservice to the rights of women by presenting an incomplete account of the NCRB data from which it is impossible to infer how many cases under S. 498-A are actually fake.
Even then, the NCRB data cannot be looked at in isolation, divorced from the larger societal context. Women face several obstacles while deciding to take any step that may threaten the marriage given its “revered” status. The Constitution has the provision of substantive equality built into Article 15 for the benefit of disadvantaged groups including women. S. 498- A is meant to be a reflection of that Constitutional commitment to the principle of substantive equality. However, the Court has not adhered to this Constitutional principle while analyzing and commenting upon the usage of this section, with the aid of a dataset which is completely insensitive to the realities of women. Hence, what the Court has reflected through its analysis is not the ground reality in which the lives of women are mired but society’s patriarchal mindset, supported by unresponsive and inappropriate data. It has, by calling into question the credibility and integrity of women and by passing police directives in that context, reduced a woman’s access to justice – her fundamental right as a citizen.
III. Police Directives
In the light of the aforementioned context, the court issues certain directives to the police with reference to arrests to be made in cases of offences in which the term of imprisonment may extend up to seven years. The Court expressly mentions that these directives apply to cases under S. 498- A and the Dowry Prohibition Act, 1961. Before delving into the directives, it is important to note that these directives are largely a restatement of the existing procedural law (S. 41, Cr. P. C.).
However, never before has S. 41, Cr. P. C. been applied and improvised in a manner that has rendered S. 498-A ineffective. Hence, it becomes necessary to understand these directives as they will now revolutionize the way in which women in violent situations access justice.
The directives as mentioned in the judgment are as follows:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down [above] flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b) (ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks [The two-week time period is not a part of S. 41, Cr. P.C. and has been inserted by the Court] from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks [The two-week time period is not a part of S. 41, Cr. P.C. and has been inserted by the Court] from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
[This provision of departmental action and contempt of court for failure to comply with the directives has been inserted by the court. ]
The court has given these directives to end police harassment and to protect the rights of the accused. However, it is only when the directives are analyzed together that we find that it has debilitating implications on the rights of the complainants. These directives have dramatically curtailed police powers of arrest in cognizable cases such as S. 498- A by making it extremely difficult, if not illegal, for the police to effect arrests after the lapse of two weeks from the institution of the case. In the next section, an attempt has been made to understand the practical implications that these directives will have in 498-A cases.
IV. Impractical Directives
As per directive 3, no time limit has been fixed for submitting the duly filled check list in cases where arrests have to be made. However, as per directive 5, a decision of not arresting has to be made along with the duly recorded reasons within two weeks. Failing this, disciplinary action and contempt of court proceedings can be initiated against the police as per directive 7.
Cases in which a Decision of Not Arresting has been made:
Reading directions 3 and 5 together gives rise to an anomalous situation. Suppose that the investigating officer decides, within the first two weeks, that no arrest will be necessary in a particular case. Is this decision under directive 5, of not making an arrest also a declaration that no arrests will be required in the future- even if conditions under the checklist for arrest now present themselves? If the police officer subsequently deems it necessary to effect an arrest, can such an arrest be made without a warrant- as is the case with S. 498-A generally? Will the police officer now be required to obtain magisterial permission to arrest? And if, in fact, a magisterial permission is required to arrest in such cases then is the purpose behind making S. 498-A a cognizable offence, served? Or will all arrests after the two-week period be deemed altogether illegal, if a report has been made, within the first two weeks by the police, stating that no arrests are required?
Cases in which the Investigation is Ongoing and a Decision Regarding Arrest has not been made:
What happens in the situation in which the two-week period is drawing to a close and the investigating officer is undecided about whether to arrest or not? Will she/he ask for a time extension from the Superintendent of Police to make this decision? Or, will she/he – as the two week period approaches, in order to evade any personal liability, file a report that a decision not to arrest has been made?
Cases in which the Police has made Arrests:
Suppose that the police has made the arrest after fulfilling all the clauses of the checklist. In all likelihood, a decision of arrest will be challenged by the accused in a bail petition. Suppose that the magistrate, upon perusing the reason recorded by the police in effectuating the arrest, finds, that an arrest was not necessary and grants bail, will the police officer be liable for departmental action and contempt of court?
This legal confusion aside, what is more important is the implications that these directives bear on women who have sought remedy under S. 498-A.
1.The cumulative effect of the directives will be that the woman has to wait at least two weeks before she can know whether the accused will be arrested or not. S. 498-A has been enacted for the protection of women from cruelty, however, police powers to be effective in these cases have been greatly diluted. Given the threat of departmental inquiry against them, police officers will not arrest the accused immediately and neither will they be able to provide the quick relief to women that they earlier could under S. 498-A. This will leave the woman open to more instances of abuse in the interim two-week period.
2. Making the police liable for departmental inquiry and contempt of court, the court has disincentivized the police from being sensitive and effective in S. 498-A cases. It is important to note that action against police for dereliction of their duty has always been a part of the law however now, with the Supreme Court stating it, the seriousness of the consequences is enhanced. Now, the police officer may not arrest in the absence of compelling evidence produced by the complainant. The court has, in effect, shifted the burden of investigation to the complainant woman, to produce strong evidence of cruelty against her. What will constitute this strong evidence? Will only FIRs and medical reports of extreme physical violence be able to meet this threshold? What about women who do not have/are not given access to the police station or the hospital? How will women prove the many subtle forms of violence that they face within their own homes, by the own matrimonial families, to which no one is witness?
3. The directives have been set in a context of mistrust of women. This in effect will become an impediment in women accessing the justice system which is already considered to be a difficult terrain. The court has severely undermined the credibility of women which will add to the suspicion with which the cases of S.-498A are perceived by the police.
V. From Respect to Rights
This judgment has been made to curb the wrongs committed by the police in recognition of the fact that the police uses its powers of arrest to harass persons. This judgment has recognized the rights of the accused. The court states, “Arrest brings humiliation, curtails freedom and cast scars forever.” It is in this context that the court issued the directives. This judgment is thus based on the concept of respecting the dignity of the accused. However, these neutral-sounding directives are not neutral and have grave implications on the rights of women vis-à-vis their place in the society.
This entire judgment is based on the fundamental assumption by the Court that the law is being misused. This assertion still does not render the law unconstitutional. Assuming, but not accepting this to be the case, efforts have to be made to reduce this abuse, without putting the subject for whose benefit the law was formulated, at a disadvantage. This judgment does exactly that- by putting women at a disadvantage. By constantly attacking the credibility of women and by passing directives which in effect disincentivize quick and effective relief by the police, the court has missed the entire point of S.-498A.
Indian courts consider it their ‘duty’ to protect the institution of marriage.
Marriage is a ‘revered institution’ from which it is unacceptable to exit unless there are extreme situations involved and one is a victim of it. It is reflected in the directives of the judgment, that unless there is strong evidence of extreme violence produced the legal system will not come into action. By engineering this, the court treats marriage as a valued institution that must be protected.
Missing from this discourse is any consideration of the rights of the individuals involved in it. The legal discourse is preoccupied with finding faults between the people involved in a marriage whereas there is no discussion about the quality of the relationship in the marriage. The measure of a relationship cannot lie in finding faults in the parties involved in it. The fact that parties to a marriage have reached the courts speaks volumes of therelationship. However, the legal system does not recognize the concept of the relationship in a marriage. The thoughts of the parties about the marriage do not form a part of the legal considerations on which such life changing decisions are based. In short, the marriage is sought to be saved without asking the parties involved if they would like to save it.
Marriage is an association of two adults (well, with the exception of child marriage!) who enter a consensual contractual relationship. Just as two people on mutual consent enter in a contractual relationship they also have an implied right to move out of it upon payment of compensation for breach. It means that if a party does not want to perform their part of the contract they can leave. Moreover, contracts of a personal nature cannot be enforced, especially by the court, as it goes against an individual’s right to personal liberty. If human beings are free then they have a right to enter and leave associations. Why is this right not available in a marriage?
Taking cue from the directives, respect and dignity should indeed be extended to both parties involved in a marriage. Just as the court recognizes the dignity of the accused especially those registered under S.-498A, the need of the hour is also to recognize the dignity of the woman. In fact, the need of the hour is to translate this respect and dignity of both the parties involved in a marriage to the right of both the parties to choose whether they would like to continue. The need of the hour hence, is to recognize an individual’s right to divorce without the need to establish fault of, or obtain consent from, the other party.
[Anubha Singh, Jagori, New Delhi; Surabhi Shukla, Assistant Professor of Law, Jindal Global Law School. The authors would like to thank friends and family for encouragement and support to their work]