The Supreme Court judgment directing the police not to “automatically” arrest the accused in dowry harassment cases has sparked strong reactions from women’s rights activists who believe this ‘dilution’ will only make majority of the women who are facing harassment more vulnerable.

The Supreme Court judgment directing the police not to 'automatically' arrest those accused in dowry harassment cases has sparked strong reactions from women’s rights activists who believe this ‘dilution’ will only make majority of the women who are facing harassment more vulnerable.

In its judgment (passed on Wednesday), the SC has directed the police to first “satisfy themselves about the necessity for arrest under the parameters provided under Section 41 of criminal procedure code” and not to mechanically make arrests when cases under the dowry harassment (Section 498A of the Indian Penal Code) are registered.

Coming down heavily against the ‘misuse’ of the law, the SC has observed, “The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.”

Expressing her disappointment at the Supreme Court’s observations, Ranjana Kumari, Director of Centre for Social Research and Member of National Mission for Empowerment of Women, said, “Misuse can be of any law. If you don’t have a good system to protect and implement the law, it is not the responsibility of the women who are facing the crime. Last year, up to 1.7 lakh cases of cruelty by husband and relatives were registered. And if you look at the dowry deaths, it is more than 8000. What does that mean? Dowry is definitely a major issue in this country. I wish the court had made some observations on dowry killing.”

While the Supreme Court in its judgement has relied on the low conviction rate (15 percent) of cases registered under Section 498A, lawyers, argue that it does not represent proof of the ‘misuse’ of the law but is rather a reflection of the punishing process of law which invariably results in parties opting to settle matters out of court.

“The dowry cases go on for years and years. The reason that there is only 15 percent conviction rate is because both parties get tired of the legal process. And sometimes the girls settle for less or nothing even simply because they want to get out of the legal process. In 90 per cent of the cases, they go for compromise,” says Kiran Singh, a Delhi High Court advocate, who is a counsellor at Delhi State Legal Services Authority and is associated with legal services NGO MARG.

The Supreme Court’s order requiring the police to get magisterial approval before making arrests in dowry harassment cases, says Singh, could lead to costly delays that could jeopardise a woman’s life and security in cases where she is a victim of abuse.

“If the police has to move an application before the magistrate before they can arrest a person who is physically assaulting his wife, is the woman going to get justice… The government should not dilute the law to the extent that it will affect a woman’s right to go ahead and file complaints and get speedy remedy from the courts,” says Singh.

Why single out 498A as a law that is being misused, ask activists.

“Any law can be misused. Why only women’s laws? The impression being created is as if women have become very evil in this society. And that women are only trying to harass their husbands and their in-laws… if the law is being misused take the law enforcement authorities to task. But to say that women are misusing the law by dragging old relatives to jail, I want to know which research proves this?” says Kumari.

Lawyers argue that “misuse by an urban minority” cannot be grounds for diluting a law that is in the interest of the majority.

“It is only certain urban sections of the society that are misusing the law. What about the vast majority of women in rural India who are protected by this law? All the IPC laws are misused. Why the hue and cry over only over 498A? The misuse argument cannot be used to dilute a law that benefits the majority of women of our country. There has always been a lot of hue and cry when it comes to laws that protect women,” says Singh.

The judgement, however, has come as a shot in the arm for men’s groups that have long been running a campaign against Section 498A.

“I think the judiciary has taken a good stand by calling a spade a spade. A lot of innocent people are being thrown in jail without investigation or trial. It is high time the judiciary takes such stands.This time the SC has taken a bigger step and given clear directions as to what needs to be in case of arrest and detention,” says Virag Dhulia, formerly with Save Indian Family Foundation and now part of a research and legal consultancy called Confidare. The Bangalore-based consultancy also runs community centre that provides “guidance and coaching to victimized and distressed men".

However, Dhulia, who is head, Gender Studies, at Confidare, says he remains apprehensive of how effectively the SC judgment will be implemented.

“We have seen similar judgments in the past - the 2002 Andhra Pradesh High Court order and observations by the Supreme Court in 2005 where it described the misuse of 498A as amounting to ‘legal terrorism’. But we have not seen the government taking a proactive stand and implementing the judgments in the right spirit,” said Dhulia.

The latest judgement, he adds, has come as “ray of hope to thousands of families who are trapped in false cases.”

“The SC has directed the government to forward a copy of the judgment to all state DGPs and state secretaries. I am not sure how seriously the judgement will be implemented and who is going to follow up on it. We have this clear cut demand from the NDA government that now that we have clear guidelines from the SC, it should be implemented in the right spirit,” said Dhulia.