Government-Court Nexus will Embolden Patriarchs

Archana Prasad

ON July 27, 2017 the Supreme Court of India passed orders that dilute the spirit and the content of the anti-dowry laws. The provision of 498A (protecting women from cruelty by husbands and relatives) was enacted in 1983 after a long struggle by the democratic women’s movement. This victory ensured that the affected women could approach the police and courts without any fear and harassment from their in-laws family and also use the law to protect themselves. The law also provided an instrument to the women’s movement to organise women and initiate struggles to challenge the unequal power relationship within the family. Therefore the women’s organisations have been resisting concerted efforts to dilute the provisions of 498A in the last one decade. However this effort to use the law for an agenda of social transformation (starting from the family itself), has received a setback with the current court order. Such an order represents an emboldened patriarchal structure which has got a boost through the public pressure built up by the forces of Hindutva.

AN IDEOLOGICAL ATTACK

It is well known that the power hierarchy within the patriarchal family puts the woman in a disadvantageous bargaining position within the household. It is also well acknowledged that if an ordinary woman decides to abandon or revolt against the bourgeois family structure, she is subjected to considerable social stigma and harassment. This puts undue pressure on the woman to stay within an oppressive marital relationship. The enactment of 498A gave the women the courage to use the law to challenge the oppression by her in-laws especially in matters relating to dowry. This factor is completely ignored by the court order which accepts the rather faulty premise used by the additional solicitor general representing the government of Uttar Pradesh wherein he accepts that “there is a growing tendency to abuse the said provision to rope in all relatives...without any verifiable evidence of physical or mental harm or injury”. The order further states that “allegations against all relatives cannot be taken at face value” and that such a use of 498A impedes any “possibility of reconciliation and reunion of a couple”.

Thus, the spirit of the order provides support and will facilitate the unjustified discourse and public perception that women pursuing their complaints and the organisations supporting and organising these women are ‘home-breakers’. In this sense the logic of this order follows the recommendation of the Malimath Committee which stated that even “if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable”. It is no coincidence that this committee was set up by the NDA-1 government and that the Rajya Sabha petitions committee supporting this conclusion was also headed by an elderly leader of the BJP. Following this the current court order comes close on the heels of statements made by prominent leaders of the ruling party, which state that the anti-dowry law should be made more stringent. In fact, contravening all constitutional laws, the minister for women and child development has ordered the National Commission for Women to open a helpline for ‘aggrieved men’.

This shows that the current government is not interested in any process of social transformation which challenges the domination of tradition panchayats, joint family structures, and other traditional patriarchal institutions who usually force the woman to compromise once she makes the complaint, thus weakening her fight for justice. This court order not only follows and supports this intent, but also goes one step further by asking all state governments direct the district legal services authorities to set up family welfare committees with para-legal workers/social volunteers and other persons like retired officers, wives of officers who “may be found suitable and willing”. This committee is to give its preliminary report within one month of the complaint and report to the police or the magistrate where the complaint has been filed. It is only after such a report that the first arrests can be made. The court further holds that bail applications of people arrested should be decided within the same day and also exempts family members from personal appearance. Such guidelines, not only reduce the pressure on those who exploit and oppress women in her in-laws family, but also substantially weaken the basic rights of women to access legal help in order to put an end to their oppression. Further they make the question of ‘dowry’ a mere ‘family issue’ rather than a problem which is rooted in conservative morality and social institutions, which have been opposed by women’s organisations since their very inception.

EXPOSING THE FALSE BASIS

The gist of the order follows the oft repeated logic of oppressing family members that there is a growing number of false cases that are just a result of harassment. In fact the order itself accepts the manipulated figures of the additional solicitor general whose response is the basis of its conclusion. On the basis of these figures from 2005, 2009 and 2013 there is a growing number of cases. This fact is concluded from the rise in absolute numbers, but virtually no scientific analysis of the numbers. The court basis its own order on the manipulated interpretation provided by the government which has obfuscated facts in order to imply that most women are lying when they report a case under 498A. A more scientific explanation of the National Crime Records Bureau Statistics shows the following trends:

Year

False Cases/ or Mistaken by Fact of Law as Percentage of Total Number of Cases Investigated

False Cases/ or Mistaken by Fact of Law as Percentage of Total Number of Cases Chargesheeted

Conviction Rate

Percentage of Cases Compounded or Withdrawn

2005

8.18

10.83

10.60

2.3

2009

7.08

9.86

10.20

2.2

2012

6.95

9.86

14.40

1.9

2013

6.69

9.69

15.90

1.8

2015

6.58

8.20

14.20

1.9

It is clear from the table above that from 2005 the cases classed as ‘false cases or cases mistaken by the fact of law’ have declined by 2.53 per cent in the last decade, if seen as a percentage of all chargesheeted cases. They have also remained below 8.2 per cent of the total cases filed under Section 498A IPC. Further the rate of conviction is much higher than the percentage of cases termed ‘false’ by the records and therefore the low conviction rate cannot be attributed to false cases. Rather experience of women’s organisations shows that low conviction rates can be attributed to the slow and faulty investigations and procedures of the police are prone to suspecting the victims version in the first instance. Further the pace of trials is also to be questioned; in 2015 alone there were more than 4.4 cases pending in the courts under Section 498A, ie, 84 per cent of all cases under trial were pending cases. This could also be contributing to the low conviction rates apart from lack of proper investigations by the police. The government through its additional solicitor general made none of these pleas, rather as is evident from the court order, it argued that this evidence shows that Article 498A is being “increasingly misused”; a claim that has repeatedly proved to be false.

The discussion above shows that the intent of the judiciary in pronouncing this retrograde order has been led and driven by the government of the day. As the order repeatedly states that the learned counsel (additional solicitor general representing government of Uttar Pradesh) has admitted to the misuse of the provision and has pleaded that immediate arrest should not take place. This shows that the government has once again misled and used the courts to push back the gains of the women’s movement. The patriarchal nexus of the governments and courts thus needs to be exposed through broad-based democratic movements.

 

 

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