Section 498a of the Indian Penal Code must be made bailable, non-cognisable and compoundable

The last few months in India have been heartening for the supporters of democracy, as people have shown active participation for social issues, with opposition to the draconian Section 66A of Information Technology Act, 2000 and protests after the Delhi assault case. These protests were different from those earlier because now, the general polity, which had previously refrained from delving into legal matters, was explicitly discussing the intricacies of laws governing us.

The general discourse during these protests has been about the draconian and unconstitutional nature of Section 66A and about the possibility of misuse if stricter laws for punishing rape are made. While the nation roots for better laws to check out on crime against women, one should not imbalance the laws neglecting the possibility of a strict law being misused. There were fleeting references in both incidents mentioned – particularly in case of creating draconian rape laws – to one existing law infamous for being draconian and the most abused law in India – Section 498a of the Indian Penal Code, also known as the “anti-dowry harassment” law.

Section 498a is described as a law against,

Husband or relative of husband of a woman subjecting her to cruelty– Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

Further it explains ‘cruelty’, already a vague term, to consider even casual actions by the husband’s family as harassment for dowry. The woman’s complaint is considered enough to make arrests. Thus petty marital discords also land up as dowry harassment cases, as threat of an arrest gives more bargaining power to a woman facing dissolution of marriage. This law was inserted in the Indian Penal Code through the Criminal Law (Amendment) Bill, 1983. It was passed in the 1980s, amidst heightened emotions, very similar to the present atmosphere demanding for strict laws against rape. At present this is one of the strictest domestic violence laws in India and it has made news more for its misuse than anything else.

Section 498a is:

(i) Non-bailable: A police officer cannot grant bail to an accused and it allows only a First Class Magistrate to grant bail.

(ii) Cognisable: A police officer can investigate without the order of a magistrate and make an arrest without warrant.

(iii) Non-compoundable: The complaint cannot be compounded by withdrawing the case, instead it has to be quashed by the High Court

There has been condemnation for the nature of this law from lawmakers through the Law Commission reports, report of Commission of Petitions and many other official reports. There has been sustained opposition to this law, from men’s rights groups, some women’s rights groups, children’s rights groups, senior citizens groups and even human rights groups. The SC has termed rampant misuse of this law as “legal terrorism” and has made such extreme observations repeatedly in several of its judgments. The question then is, why has this law- which antagonises many and has an abysmal rate of conviction – not been scrapped yet? The answer is, because it serves the interests of the “bail industry” and some specific women’s organisations, which are in favour of it, irrespective of its irrationality.

Generally, in a situation of a marital discord, the woman approaches a lawyer, who can use Section 498a as an extortion tool against the husband if he (the husband) does not accept the demands of a specific settlement. This is misused by the woman, based on her impulsive vengeance in situations which are not genuine – one where there is no harassment or demand for dowry by the husband or his family. Consider the case of Badan Devi in Orissa who at the age of 92 years and frail enough to barely stand had to face arrest under dowry harassment law or the case of 2-month old Zoya from Mumbai who had the ignominy of applying for an anticipatory bail after being accused of dowry harassment even before learning to crawl. Such arrests are not rare cases.

This makes Sec 498a an unconstitutional law, which presumes someone to be guilty until proven innocent, thereby reversing the criminal jurisprudence guaranteed by the constitution. In 2010 alone, a total of 1,80,413 people were arrested in 94,041 cases of Sec 498a, according to the data released by the Ministry of Home Affairs. Many women and children are also arrested, with known instances where the police personnel have gangraped the women arrested for dowry harassment and men have committed suicide because of the humiliation meted out to them. The suicide rate among married men has increased significantly post 1983, with more than 170 married men committing suicide each day in India in 2011. (NCRB data assumes and projects men commit suicide due to economic reasons and women due to family problems. Cause of suicide should not be generalised with the huge number of suicide cases we see in India.) Anticipatory and regular bails are a small part of the bigger scheme, in which husbands and their relatives are exploited by different sections of the system.

There have been demands to make this law bailable, non-cognisable and compoundable. If it were made bailable, it would be a huge step forward in reducing its misuse. A few states like Andhra Pradesh have also moved to make this law compoundable. But it has only seen a drastic increase in the number of cases being filed, as women can now withdraw a case at a time of their choice. Criminal trials usually run on an average of 7-8 years in the lower courts and this period saps out the energy from men to fight and prove themselves as innocents, thereby giving in to unreasonable demands.

Sec 498a is also accompanied by other non-bailable sections like Sec 406, where the recoveries of “non-existent articles of dowry” are forced upon husband and his family. Despite draconian laws on dowry, the issue still prevails and this clearly portrays that we have been trying to solve the wrong problem. A real solution should be pivoted around the deeper understanding of the practice of dowry. While demanding or accepting dowry is a crime under Dowry Prohibition Act, giving dowry is also a crime. Yet, no woman or her relatives have ever been arrested for it. Dowry givers are usually dowry takers, so if we as a society are serious about tackling this issue as a crime, then we should begin with strict implementation of the law in totality. An example of this can be seen in the case of Nisha Sharma, who was interviewed by Oprah Winfrey in January 2004 and was described as the “Iron Lady”, for getting her would-be groom arrested on the eve of her wedding for demands of dowry. At present, she herself is absconding after being accused by her sister-in-law for dowry harassment. Gyaneshwar Sharma, her brother has been arrested while her parents and she herself have been evading arrest from the past week.

Surprisingly, we see a lot of opposition to Sec 66A of IT Act, while Sec 498a is completely ignored, making victims of 498a and activists fighting it feel like invisible citizens. Probably, it is the widespread misandry in the society which makes one overlook the plight of men. While there is outrage over the crimes against women, crimes against men are not adequately addressed. The opposition to section 66A also received attention only after two women were arrested, while two male employees of Air India who spent 12 days in custody months before, were relegated to a sub-text in the ambit of the public discourse on this subject.

Until we see all crimes as crimes, irrespective of the gender of a victim, we will be fooling ourselves to think we are making our nation safer for anyone.

Photo: Krishna Santhanam