The Supreme Court in a recent judgment has upheld the controversial Section 498-A, related to violence against women. The mere possibility of abuse of a provision of law does not invalidate the law, the SC said
Given the widespread violence and cruelty inflicted upon women, Section 498-A, dealing with cruelty towards a woman by her husband or his relatives, was introduced in the Indian Penal Code (IPC) through an amendment in 1983. What led to the enactment of this provision was the realisation that cruelty against a woman by her husband or his relatives, culminating in murder or suicide, constituted only a small fraction of cases involving cruelty against women.
For the first time, the section made it punishable (three years' imprisonment and a fine) for a husband or his relatives to subject a woman to cruelty. The law explicitly recognised mental cruelty and mental health. Cruelty was defined as any conduct likely to cause grave injury or danger to life, limb, the mental or physical health of a woman, or to drive her to commit suicide. Harassment or coercion of a woman or her relatives to fulfil demands for money or property was included within the definition of 'cruelty'.
Since its enactment, this provision has been subject to systematic and sustained attack. It has been called unfair and responsible for the victimisation of husbands by their wives and her relatives. A sizeable section of society holds this view and articulates it through articles in newspapers and magazines. "To get a share of the property," "vengeance," "blackmail," "to teach a lesson," are some of the reasons cited for women wanting to implicate their husbands under this law.
The constitutionality of Section 498-A has also been challenged in court. Sushil Kumar Sharma, in a petition before the apex court, asked that the provision be struck down, or alternative guidelines be formulated so that the innocent are not victimised by unscrupulous persons making false accusations. According to Sharma, there was no "prosecution" in these cases, only "persecution". Several instances were cited to show that allegations of offences being committed under the provision were made with oblique motives and with a view to harassing the husband, in-laws and relatives. The petitioner sought strict action against the complainants if the allegations are proved to be unfounded, in order to discourage people from approaching the courts with "unclean hands and ulterior motives". It was submitted that people tried to take undue advantage of the sympathies exhibited by the courts in matters related to alleged dowry torture, and that the accusers were (often) more at fault than the accused. Reliance was also sought on a Delhi High Court decision where concern had been expressed at the increase in the number of false and frivolous allegations.
The Supreme Court, in its July 19, 2005 judgment, refused to strike down the section as unconstitutional and invalid. It observed that the provision had been brought in because the increase in the number of dowry deaths was a matter of serious concern. The sphere of operation of Section 304B of the IPC, dealing with death by burns, bodily injury or any other unnatural manner of a woman being subjected to cruelty or harassment for dowry within seven years of marriage, was held to be distinct from the area covered by Section 498-A. This section was brought in specifically to deal with cases not only of dowry deaths but also of cruelty towards married women by their husbands, in-laws and relatives. It therefore made cruelty per se punishable. The court also drew a distinction between Section 306 of the IPC dealing with 'abetment to suicide' and Section 498-A, holding that in the latter the woman was driven to suicide by the cruelty committed by her husband or/and his relatives, while the former dealt with an individual intending suicide abetted by another person.
Addressing the issue of abuse of the section, the court held that the mere possibility of abuse of a provision of law does not invalidate the law. In cases of abuse, it is the "action" and not the "section" that may be vulnerable. The court, while upholding the provision of law, may still set aside the action, order or decision and grant relief to the aggrieved person. The judgment quoted with approval a 1977 decision: "The wisdom of man has not yet been able conceive of government with sufficient power to answer all its legitimate needs and at the same time incapable of mischief." The court declared that if a statutory provision were otherwise intra-vires, constitutional and valid, the mere possibility of abuse of power in cases would not make it objectionable, ultra-vires or unconstitutional.
The failure of anti-dowry laws
In sharp contrast to the earlier case representing the view of a section of society that believes dowry-related laws are unfair to men and are being grossly misused, the apex court recently considered a petition pointing out the failure of anti-dowry laws and pleading for effective implementation. The case is appropriately titled 'In Re: Enforcement and Implementation of Dowry Prohibition Act, 1961'.
The practice of dowry was sought to be tackled by the conferment of improved property rights on women by the Hindu Succession Act, 1956. In addition it was felt necessary to have a law that made dowry punishable, in order to eradicate the practice. The Dowry Prohibition Act thus came to be enacted in 1961. The act made the giving and taking of dowry, as well as the demanding of dowry, an offence. However, the legislation failed to act as a check; indeed, the practice of dowry assumed ever-increasing proportions.
The matter came to be referred to a joint committee of parliament which, in 1984, resulted in certain amendments to the definition of dowry, reduced the period for return of property to the woman, and made punishments more stringent. The recommendation to take the giving of dowry out of the acts made punishable was not implemented by the government. Criminology being a little-practised science in the country, the simplistic logic of enhancing punishment to check offences prevailed yet again and the 1986 amendment to the anti-dowry act saw a further increase in the quantum of punishment for the offence. Provision for the appointment of dowry prohibition officers was also made.
The petition before the court asked for the appointment of dowry prohibition officers, directions for their functions and the establishment of advisory boards comprising social workers, as visualised under Section 8-A of the anti-dowry law. In addition, directions to central and state governments to frame rules to carry out the purposes of the act were sought.
The judgment by Justice Balasubramanyan observes that dowry may have been conceived as a nest-egg or security for the wife in her matrimonial home in earlier times, but it had now degenerated into a subject for barter, acceptance of the woman as wife depending on what her parents would pay as dowry, varying with the qualification and status of the bridegroom's family. It quotes with approval a 1946 judgment that "the high standards of the scriptural marriage which was a sacrament came to be contaminated by sordid considerations of immediate monetary gains at the sacrifice of the abiding purposes of the marriage union," and notes that the position with regard to dowry has not improved since then.
The court observed that tardy implementation of the anti-dowry law was reflected in the filing of the petition in 1997. It observed that given the fact that rules had still not been framed although the case had been pending for seven years, meant that assurances by the central and state governments with regard to effective implementation of the law could not be taken at face value.
The judgment directed the Union government and the states to effectively implement the Dowry Prohibition Act, particularly provisions dealing with the demanding and taking and giving of dowry. As part of the implementation, governments were ordered to activate the dowry prohibition officers. The Union government was directed to frame rules to make the anti-dowry law effective, and the state and Union governments directed to consider framing rules compelling males seeking government employment to furnish information on whether they had taken dowry, and if so, whether it was handed over to the wife. Similar information was to be got from those already in employment. Directions to step up anti-dowry literacy among people, through lok adalats, radio broadcasts, television and newspapers, were also given. Governments were directed to come up with the means to create an honest, efficient and committed machinery to properly implement the Dowry Prohibition Act.
However, prospects for the implementation even of concrete steps like declaring the dowry details of government employees and prospective candidates for government jobs appear bleak. Pious declarations apart, dowry enjoys acceptance among the very officials and elected representatives responsible for its abolition. If anything, the practice of dowry has flourished over the years, smoothly enmeshed with consumerism. Its tentacles have spread even to communities that previously did not indulge in the practice.
Putting the giving of dowry on a par with the taking of dowry, and making it an offence punishable with a minimum of five years' imprisonment, acts as an obstacle to cases under legislation. It victimises the victim. As a first step, the giving of dowry should immediately be taken out of the ambit of the offence. Enhanced punishments through amendments in 1984 and 1986 have not served the purpose of checking dowry. It is not the severity of punishment but its certainty that deters people from committing an offence. The Hindu Succession (Amendment) Bill, recently passed by the Rajya Sabha, that proposes to remove discrimination against women and give daughters equal parental property rights to those of sons, is a step in the right direction. However, it may well result in daughters 'voluntarily' giving up their property rights in favour of their brothers. Perhaps we need to consider provisions to check this.
The relationship between social norms and the law is a complex one. The law can play an important but necessarily limited role in changing social norms. In the words of Jawaharlal Nehru: "Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too. But legislation is necessary and essential so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape."
(Rakesh Shukla is a Supreme Court lawyer.)
InfoChange News & Features, August 2005