Proposed anti-dowry law will make women more unsafe

Two developments, coming in quick succession, threaten to make life worse, and access to legal remedies more difficult for women facing violence and abuse because of dowry. First, the law ministry announced its plans to amend the law meant to curb dowry harassment and torture. Second, the Supreme Court on Friday dismissed the National Commission for Women's review petition against its judgement in the Arnesh Kumar case, delivered in July last year.

Relying upon the recommendations of the Law Commission's 243rd report and the Malimath Committee, the government proposes to make two significant changes to Section 498A of the Indian Penal Code, which at present makes dowry harassment and torture a non-bailable offence.

One is to make the offence a compoundable one, that is, the complainant and the accused can enter into a compromise and charges shall be dropped once the court stamps its approval. The other is to enhance the penalty for misusing the law - that is, filing false and malicious complaints, from Rs 1,000 to 15,000.

Error of judgement

In the Arnesh Kumar judgement, the court had stated: "The fact that Section 498A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than a shield by disgruntled wives".

This was based upon statistics - from 2011 to 2012, there was a 9.4 per cent increase in the number of cases registered under the section, six per cent of those arrested being women (in the words of the court - "mothers and sisters of the husbands were liberally included in their arrest net"), Section 498A accounting for 4.5 per cent of crimes - surpassing all offences other than theft and hurt.

Moreover, a pitiable conviction rate of 15 per cent as opposed to chargesheets being filed in 93 per cent of cases. Also, the fact that out of approximately 3,72,706 cases pending trial, acquittal was a distinct possibility in 3,17,000. Thereafter, Justice CK Prasad who wrote the judgment proceeded to curtail the police's powers to make arrests immediately upon receiving a complaint, without securing a warrant from a magistrate.

As per the new guidelines, no longer could an arrest be made without a warrant, and two weeks had to be granted to the alleged accused to reply to policemen's questions. Only after that, judging upon the reasonableness of the complaint and other related matters, could a person be taken into custody.

Need one point out that arrests in cases of dowry complaints are preventive and essential measures, given the statistics on dowry deaths and cases of domestic violence? And, is it the police's duty to act as a sort of judge before taking pre-emptive action?

By directing departmental action against those cops who violated the new rule, the court almost ensured that timely action, which could have prevented violence, and even a woman's murder, became a casualty. Besides the barely-concealed distrust of women, the court, in my opinion, committed another blunder. It relied upon the Law Commission's 177th report which recommended strict penalties to curb police high-handedness- but had not made any mention of, or even reference to, Section 498A.

Justice compromised?

But the apex court isn't alone in relying on flawed foundations. And, the law ministry's proposals aren't brand new - on August 22, 2003, the same amendments were debated and defeated in the Rajya Sabha. One of the principal reasons for that defeat was the misplaced priorities of the Malimath and Law Commission reports.

In para 14.10.06, it says that the provision (Section 498A) being non-bailable and non-compoundable makes it difficult for the couple to resume their marital ties and family lives once the storm has blown over. Also, since marital violence affects only the victims and not societal values, after the wife has gotten a divorce, criminal proceedings against the husband and in-laws must be discontinued. Then, in para 16.4.4: "a less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay."

The Law Commission didn't fare much better - it kept its focus riveted on the need to preserve the marriage and family cohesion, even if it came at the cost of women facing routine domestic violence and being murdered after all coercive methods to extort dowry have failed. It stated: "the point to be noted is that the value to be attached to the rights of women are no less than the value to be attached to the family as a unit and vice-versa. The challenge before the community is to ensure the promotion of both values."  

Three studies also prove why the proposed amendments and the court judgment are sure to jeopardise women's safety.

One is the Minneapolis Domestic Violence Experiment of 1984. Using victim interviews and official records of subsequent police contact, the researchers concluded that arrest served as a deterrent measure - it significantly reduced the prevalence of subsequent offending. The study also underscored the differences between mandatory and preferred (or presumptive) arrest policies. When there is a duty to arrest, there is very little scope of discretion. In a patriarchy-ridden society and law-enforcement system as prevails in India, the preponderance of evidence in favour of arrest holds immense significance. How many stories have we heard of cops admonishing a woman complainant to "adjust", or a judge admonishing her not to break up the family by pursuing a criminal complaint?

Two, a couple of surveys- one by the Tata Institute of Social Sciences (TISS), Mumbai and the other by Vimochana, women's rights NGO, in Bangalore. The TISS study showed that only 2.2 per cent of cases brought under Section 498A during 1990-96 resulted in conviction, and this couldn't be attributed to unscrupulous complainants. An apathetic police force and an insensitive, even misogynist judiciary were to blame.

Based on Karnataka State Crime Records data of 1998, the Vimochana study revealed that "compromises" - in which victims and their families are induced or threatened into letting the police drop proceedings against the accused, accounted for many cases passed off as acquittals.

The Supreme Court's judgment has already diluted the measures to effectively curb dowry torture and consequent domestic violence. The least the law ministry can do is not to give legislative sanctity to violence against women.