“We are not liars”, Women to Supreme Court
Oppose dilution of Section 498A
August 19, 2017
“We oppose dilution of Section 498A”, “Violence is not a trivial issue” were slogans heard loud and clear at the Supreme Court of India on the morning of 31 July, 2017. A group of women’s organisations gathered to register their protest against the regressive judgment of Rajesh Sharma & Ors. v. State of UP and Anr. passed by Justice Adarsh Kumar Goel and Uday Lalit on 27th July, 2017, diluting the provisions given under section 498A of the Indian Penal Code. The judgment relied upon a baseless assumption that a large number of cases filed under this Section are false and frivolous.
What the judgment failed to consider is that women take the legal recourse only after exhausting all options. Through this judgment the Supreme Court has chosen to place the patriarchal notions of family honour over women’s rights. The judgment reinstates the misplaced notion that women approach the court frivolously. It recommends creating family welfare centres to deal with complaints under this Section, thereby trivialising the severity of the offence. Additionally, the direction of the Ministry of Women and Child Development to the National Commission of Women to provide a window to 'aggrieved men' against whom complaints have been made, shows the misrepresentation of victims.
The women’s organisations tried to seek an audience with the Hon'ble Chief Justice of the Supreme Court but were unsucessful. A copy of the memorandum has been submitted and the appointment is awaited. The next step in the ongoing campaign is to conduct a signature campaign all over the country demanding the strengthening of section 498A and withdrawal of the directive of the Ministry of Women and Child Development to National Commission of Women.
Following is the letter to the Chief Justice of India signed by women's rights organisations.
The Hon’ble Chief Justice of India,
Supreme Court of India,
Subject: Judgment dated 27.07.17 passed by the Hon’ble Supreme Court in Rajesh Sharma &Ors. v. State of UP &Anr., Crl. A. No. 1265/2017.
Dear Justice Khehar,
We, the undersigned National Womens Organisations and groups are writing this letter to lodge our protest over and ask for a review of the judgment concerning Section 498A of the Indian Penal Code in the matter of Ramesh Kumar v. State (Crl Appeal No. 1265 of 2017). We are deeply concerned and dismayed that the entire judgment proceeds on the basis that women are liars and file false cases under Section 498A IPC not only against their husbands, but also against the husband’s family members. This judgment is part of a backward trend that we have noticed in earlier judgments also. It completely overlooks the fact that women are daily recipients of harassment for dowry and of domestic violence, which are perpetrated by the husband and by his family, particularly in cases of dowry harassment.
Apart from other well-researched studies, the National Family Health Survey – 3 data has shown that around one out of every 3 women are victims of mental, physical and verbal domestic violence. The relevant chapter from the Survey is enclosed herein for your perusal. Our experience of dealing with cases through the years has alsoshown that domestic violence is perhaps the most pervasive kind of violence against women and deeply affects their health and wellbeing. NCRB data of 2015 itself shows that 1,13,403 cases of violence under Section 498A IPC were filed in that year, of which Charge sheets were filed in 89.4% of cases.
The Court notes that a “large” number of cases are being filed under Section 498A IPC. The Court then goes on to accept the contention that “most of such cases are filed in the heat of the moment over trivial issues.” To buttress this position, the Court has relied upon certain statistics from the NCRB. The first two statistics from 2005 and 2009 show that the Police has found a small percentage of the cases to be false on account of “mistake of law or on facts”. In 2005, the percentage was allegedly 8.78% and in 2009 it was 7.08%. These percentages in fact show that in an overwhelming majority of cases, a prima facie case of gross domestic violence has been found and charge sheets have been filed. It is pertinent to mention that there is no comparison made with false reporting of IPC offences in general.
The Court also quoted the abysmally low conviction rates of 14.4% in 2012 and 15.6% in 2013. In our experience, the low conviction rate is not at all indicative of whether cases are false. In many cases, investigation is not properly conducted, statements of material witnesses are omitted, and evidence is improperly collected. Furthermore, as much domestic violence occurs in the confines of home and family, convictions under Section 498A IPC are notoriously difficult to achieve. The basic premise on which the judgment was based was therefore wrong
In fact, it is a constant complaint of victims that the police are insensitive and gender biased, often minimizing the instants of assaults.Most Women victims find it extremely difficult to even lodge a complaint. Rampant corruption is yet another problem. Women’s organizations and groups have thus been demanding strengthening of the law. It is pertinent to note that the Court in this case was not assisted by any person or organization working on women’s issues or acquainted with the lived reality of women’s lives.
The Hon’ble Court has directed the Police only to act in cases in which “tangible physical injuries” and “death” takes place. Mental torture and abuse and infliction of physical violence, which may not be evident,has not been considered by the judgment though S. 498A IPC expressly covers both mental and physical violence. The judgment therefore dilutes the provisions of law relating to cruelty under Section 498A IPC.This is an error that the Court must correct.
Apart from this, the Supreme Court has given a series of directions, ostensibly to stop the misuse. It has directed the District Legal Services Authority to constitute Family Welfare Committees in every district of the country comprising of three civil society members to look into and report on all complaints of Section 498A, barring those where tangible physical violence or death has taken place. This committee has to first give a report on the case and only then can the police and court act.
It is humbly submitted that, pursuant to the judgment of this Court in LalitaKumari, a Preliminary Enquiry is always conducted by the Police prior to the registration of an FIR in a case under 498A IPC. Furthermore, the mandate of the Crime Against Women Cell is to first intervene by way of mediation, and a period of 90 days is already provided for in this regard. The Family Welfare Committees are not competent to undertake investigation and report on cognizable criminal offences. The direction of the Court, therefore, is both manifestly unjust and unfeasible in accordance with settled principles of criminal law, investigation, and the role of the Police and of Courts.
We submit that the setting up of these committees to enquire into all cases filed under Section 498A IPC will cause grave injustice to victims of domestic violence and increase the barriers to accessing justice exponentially. These committees are extra-judicial bodies of questionable competence and cannot take over the functioning of the Police. Allowing their functioning is akin to allowing decisions to be taken by Kangaroo courts, Khap Panchayat, or other forms of vigilante justice. The proposed Family Welfare Committees are not even required to have particular qualifications. They are not required to be sensitized to women’s issues or to the widespread issues of dowry and domestic violence suffered by large sections of society.
We submit that these committees will form a wall between victims and the justice system and will interfere and impede the course of justice rather than assist it. They are yet another hurdle that victims have to cross before they can even knock at the doors of justice. Your honour, even today, our experience tells us that for every case that is filed, there are scores that go unreported and most victims of even violent crimes do not go to the hospital or police in time. The proposed Family Welfare Committees will discourage the reporting of true cases and minimize the injustice suffered on account of domestic violence by women.
Section 498A IPC was one of a series of laws which recognized the oppression women face in their own homes in our country. It recognised the serious and pervasive nature of gross domestic violence and seeks to stop this by punishing those who commit this crime. The Section was inserted in the IPC after a sustained struggle by women’s organizations to do justice to women. It is important to mention that women don’t file cases under Section 498A IPC in the heat of the moment as stated in the judgment. Women typically file these cases after suffering harassment and violence for a long time, often years. Well researched studies, including one from TISS and one from the NCW,show this. We therefore appeal to you to review the judgment passed in the Rajesh Sharma case.
All India Democratic Women’s Association Mariam Dhawale, ReejaJayaprasad All India Women’s Conference Shubra Mendiratta CBCI Council for Women SrTalisha SD Centre for Struggling Women Maya John Guild of Service Mohini Giri, ReshmaArif Jagori Chaitali Janwadi Mahila Samiti Asha Sharma, Maimoona Mollah Joint Women’s Programme Jyotsna Chatterji, HusnaSubhani, Padmini Kumar Lawyers’ Collective MasoomaRanalvi Legal Advisor, AIDWA Advocate Kirti Singh Leprosy Mission Phoebe, Santosh, Anjum Shalom Nari Shakti Manch Elizabeth National Federation of Indian Women DeeptiBharti Pragatisheel Mahila Sangathan PoonamKaushik Swastika Mahila Samiti KusumSehgal YWCA
Published first in The Invisible Lawyer.
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