Victim in the dock (in the matter of Rajesh Sharma and Ors v State of UP)

Supreme Court order saying the law on cruelty against women is misused is based on erroneous conclusions drawn from NCRB figures that don’t reveal the whole truth. It needs to be revisited.

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.

Indira Jaising is former additional solicitor general and senior advocate, Supreme Court


This article first appeared in The Indian Express on August 02, 2017

The Leaflet