This New SC Judgement On Dowry harassment Cases Is Depressing

Posted: July 29, 2017

The stringent provisions of the anti-dowry law were arrived at after arduous effort by women and women’s activists. This new judgement may make justice out of reach for many victims of dowry harassment.

One July afternoon in my salad days in the development field, I remember sitting in the same room as a leading lawyer in Chennai. She has a tremendous number of instances of helping women in difficult situations to her credit. A junior lawyer walked in and began to argue about how women “ask for legal protection unreasonably” when they “already have enough protection under the law.”

The leading lawyer looked up at him. The junior asked her, “When a survivor comes up to you and tells her she has survived abuse, how do you believe her?” The leading lawyer looked up at him, and said, “I don’t start from a place of disbelief. And I suggest you do, too. Because facing sexual violence is not easy. Surviving it after facing it, is challenging. Speaking about it after surviving it is still more of a challenge because society is filled with unkind attitudes like yours. Reporting it, despite all that, takes courage.”

Eleven years hence, on a July afternoon, these words come to me while I read a piece about a new decision by the Supreme Court of India, suggesting that action on complaints vis-à-vis dowry harassment can only be taken after verifying the veracity of the allegations.

Unpacking the judgment

The judgment suggested that there appears to be a growing trend of abusing Section 498-A under the Indian Penal Code by women, by “roping in all relatives including parents, minor children, siblings, grand-parents in the criminal case.” The bench comprising Justices A K Goel and U U Lalit said that it “resulted in violation of human rights of innocent people and such practice must be checked.”

In order to see this through, the Supreme Court has directed the creation of a Family Welfare Committee (FWC) in each district, vested with the duty to “examine the authenticity of all dowry harassment complaints.” The court also ruled that all such complaints received by the police or the Magistrate should be referred to the committee and that no action would be taken against husband and in-laws till the committee submitted its report after interacting with the parties. The bench made it clear that its direction would not be applicable in cases of tangible injury and death. The said report should be given within a month from the date of the receipt of the complaint to the authority that received the complaint.

A criminal allegation typically involves the security sector system – the police and the judiciary – to deliver justice in a criminal case. But, the establishment of the FWC creates what is patently a civil society establishment – not even a quasi-judicial authority – comprising three member committees of para legal volunteers or social workers or retired persons or wives of working officers or other citizens who may be found suitable and willing.

The judgment also noted that applications for bail by the husband and in-laws should be decided expeditiously by a trial court, preferably on the same day of filing. The court said that impounding of passports or issuance of Red Corner Notices against people living outside should be avoided and the personal appearances of all family members should not be insisted upon by trial court in dowry harassment cases. The court also directed a designated police officer should be appointed to deal with the complaints filed under Section 498A.

And scene!

The decision is problematic on several counts. While there is every understanding that false cases do come up, and need to be attended to, it is disheartening to note that this decision simply throws the baby with the bathwater and makes a clean get away with it, no less.

Let’s start from the top. Consider the current climate of reporting sexual violence of any sort. In a social set up that is already addled with stigma around reporting, a highly personalised crime like dowry harassment comes with the added burden of ‘family-centric’ morality. The current legal system is also fraught with inconsistencies in that there is a stunningly high rate of revictimization that borders on criminalization of a survivor who decides to speak up.

Against this milieu, to speak up and address a case of dowry harassment is to take a leap of faith in the hope of flying in the face of all these challenges – and it’s not easy. When you have another barrier in place that purportedly aims to verify the credibility of these claims, it can be intensely difficult to bring forth crimes of this nature to light, and will wind up stifling reporting in entirety.

Arguably, there may be concerns in response to my first argument to the effect that there should be some basis to determine if a case is false or not. However, this is exactly what the existing judicial apparatus is meant for. Assessing evidence submitted is the basis to determine if a case exists or not, and for action to be taken thereon. It is already harrowing to note that most forms of dowry harassment have taken place with little to no trace of evidence being found – couple this extant scenario with the stifling norm of verification – that too, with a month’s time to spare – and wiping off traces of evidence can be made incredibly easy. The FWC is supposed to interact with both parties before making a conclusion. This is hardly foolproof and hardly insulated against falsehoods being used as a shield to hide evidence of violence.

This brings me to the third issue. In determining the composition of the FWC as being essentially three-member committees consisting of para legal volunteers or social workers or retired persons or wives of working officers or other citizens who may be found suitable and willing, there is a gross degree of nonchalance at play. Neither is there any apparent qualification required to study and evaluate evidence, nor is there any apparent space for mandating training to bring people up to speed. “Suitable and willing” is about as vague and ambiguous as it gets – and one wonders whether bots, sex-offenders themselves and those with vested interests will get filtered out into the catchment area of those that cannot be on board.

Handling a dowry harassment complaint and speaking to a survivor require utmost degrees of sensitization – and these are spaces which even seasoned sensitized veterans find difficult because of the dynamism in their very natures. What’s more, these committees are expected to finish filing their report in a month’s time. This leaves room for a catena of questions. If they ‘verify’ cases, isn’t the stifling of the very potentiality of reporting very real? Won’t the ones complained against be on their best behaviour during the time that they are being investigated? It’s already so easy to leave no evidence, and now, with this, won’t there be more ways to abuse and harass without a trace? Just because there are a few cases of false reports, is it fair to revictimize or criminalize a survivor? What if, when they ‘verify’ and ‘find nothing’ and therefore don’t take action, can the survivor take a life like that? Is it fair to impose that on a survivor?

Overall, it is disheartening to note that there is a sort of ‘outsourcing’ of what is patently a judicial duty. The tribunalization of justice was often questioned in the context of several legislative approaches to handle specific cases through the rubric of quasi-judicial authorities. In this case, a completely judicial duty in the face of violent crime, is being bartered away to an inexperienced / untrained / anyone-can-join civil society division. I’m torn between labelling this as an extension of the #NotAllMen rhetoric on the one hand, and as a blatant disregard of the personal agency of women.

Heck. I go with both.

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