Victim in the dock

The Supreme Court on July 27, in the matter
of Rajesh Sharma and Ors v State of UP and Anr, delivered a judgment,
which the women’s movement has rejected as biased against women. It is
not often that a judgment of the Court invites protest from a cross
section of society as this one has. There is an underlying assumption in
the judgment that women “misuse” the law, and for this reason, the law
itself must be emasculated.

In order to prevent the perceived
misuse of the criminal law of cruelty against women, welfare committees,
consisting of paralegals, volunteers, social workers, retired persons,
wives of working officers and other citizens, who are found suitable and
willing, have been put in place to scrutinise a complaint by a woman
before the police take cognisance of it. The police must ensure that
every complaint under Section 498A is referred to the welfare committee,
which within one month will prepare a report, give its opinion and send
it back to the police. Further, “till the report of the committee is
received there will be no arrest”.

Apart from giving a long rope
to the accused to abscond, this is virtual privatisation of the policing
function. That the members of the committee will be given remuneration
makes it a parallel justice dispensation system. Only after the report
of the welfare committee is submitted, can the police perform the
policing function.

To complete the special treatment given to the
accused in such cases, bail must be granted in one day, regardless of
whether the dowry is recovered or not. Section 498A is particularly
effective when invoked against an NRI husband who tries to evade the law
and abscond to foreign land, never to return. In all such cases, the
woman does apply for a red corner notice and the impounding of the
passport of the husband. This will no longer be possible, allowing the
NRI husband to abscond. As an act of grace, these directions will not
apply to cases involving “tangible physical injuries or death”.

What
one may ask is the point of an arrest after the woman is dead? The
purpose of all law is to sustain life, not support its destruction. What
we see in our courts is a touching concern for the dead and
condemnation for the living. After all, dead women tell no lies. But
when will we learn that the whole point of the law is to prevent women
from dying in the matrimonial home?

When law enforcement agencies
have no respect for the rule of law, why should anyone else have it?
After all, the rule of law does not collapse just one fine day
dramatically like a pack of cards, but is eroded slowly for lack of
respect, until one day, there is no rule of law, just the rule of the
mob. Cognisable offences have been turned into non-cognisable offences,
special rules for bail for husbands have been created, and the
provisions of the Passport Act are given a go-by. There is nothing to
prevent a violent husband from doing a Vijay Mallya trick to evade the
due process of law.

By far the most devastating impact of
appointing welfare committees drawn from the civil society is their
potential to become non-state vigilante groups. It has happened with the
gau rakshaks, who have received recognition by law to perform the
functions of cow protection. The judgment has relied upon the data of
the National Crime Record Bureau (NCRB) of 2005, 2012 and 2013. Relying
on the figures of the number of people arrested, convicted and
acquitted, it comes to the conclusion that since the conviction rate is
low, most of the cases registered under 498A are “false”. This data does
not give a clear picture as there can be a number of reasons for
acquittal, such as poor investigation by the investigating officer,
settlement through mediation, or intimidation of witnesses and the
complainant herself.

Before coming to the conclusion that women
misuse the law, the court ought to have called for expert evidence and
requisitioned the services of women’s studies centres which exist in all
universities. Instead, they relied on NCRB data. The NCRB data, which
is relied upon by the Court, indicates that in 2011, a total of 1,14,372
cases were registered under crimes against women in matrimonial homes.
The Court does not correlate the data from NFHS-3 which indicates that
in the same year there were at least 59 million women who experienced
some form of physical or sexual violence in the preceding 12 months.

As
per NFHS, a mere two per cent of these women may have sought police
support, while the rest have not accessed the law. Low conviction rates
exist across the board, in relation to all crimes. To isolate crimes
against women is to miss the point that the criminal justice system is
in need of serious repair. Evidence of reluctance on the part of women
to register police complaints emerges from the analysis of service
records of a public hospital-based crisis intervention centre, Dilaasa.
Of all the women registered at the centre between 2001 and 2010, a total
of 1,675 married women were considered for the purpose of this
analysis.

The findings are illuminating: Forty-seven per cent of
the women had sought police support against violence before coming to
Dilaasa. Of these, almost all had only registered a NC. Merely two per
cent had filed an FIR.

Fifty-three per cent of the women had
never gone to the police. Among women who did not seek police support,
one-third had experienced violence for three to five years; 64 per cent
of them reported violence during pregnancy; 32 per cent reported they
had attempted suicide in the past as a consequence of the ongoing abuse;
39 per cent experienced physical violence in the form of pulling of
hair and banging of head; while 29 per cent were abused by punching in
the chest, face and abdomen.

Sexual violence was also experienced
by 27 per cent women in the form of forced sexual intercourse.
Additionally, 26 per cent of them were abused with instruments which
include hitting with blunt and sharp objects, use of belt and inserting
objects into the vagina. Bias explains the manner in which enforcement
agencies enforce the law. When it comes to the invocation of Section
498A, the first suggestion is that “disgruntled wives” are misusing the
law to put “bed-ridden grandfathers and grandmothers” behind bars. To
quote the judgement, “most of complaints under 498A are filed in the
heat of the moment over ‘trivial issues’”. Hence short of an attempt to
commit suicide, or “tangible injury”, everything else is “trivial”,
calling for no intervention of the law.

Relying on the findings
of the NCRB, the Court concludes that several complaints are “false”. It
is one thing to say there is no evidence to prove the allegations
beyond reasonable doubt, but another to say that a complaint is false.
Uncritical acceptance of these statistics has led to an incomprehensible
judgment based on police data alone. The power of the police is limited
to finding evidence, insufficient evidence does not render the
complaint false.

Lastly, the Court appointed two lawyers with no
expertise on violence against women as amicus curiae. No effort was made
to get a contrary point of view before giving a judgment which
virtually rewrote the law and goes consciously contrary to criminal
jurisprudence. The sooner the judgment is overturned, the better for the
rule of law.

Source:
http://indianexpress.com