This writer, not just because he is a practising advocate, has maintained that the last barrier between our society, that offers genuine freedom as befitting a modern State, and anarchy, is the judiciary. No matter how often the judges are bad-mouthed, lectured to, even intimidated and some convicted, the courts are the last bulwark against mob rule and tyranny. How long before that dam is breached depends on the will of the people and the extent to which they will refuse to be fooled and trampled upon.
There is no doubt that ours is a country where the vestiges of patriarchy are rooted deep and firm. Men must rule; women must do as they are told. That has been the order of the day, for centuries. Someone even declared that sati was an acceptable practice. Why? “Because if the tree falls, the shadow must disappear with it.” Wah!
If one attacks a cow, he is lynched. If a woman is killed, especially if she is the wife, a million excuses are mouthed. That is what led, 25 years ago, to the promulgation of Section 498A, which deals with the husband or relative of the husband. And, as if to prove that the fairer sex is as adept as the other half, misuse crept in. A splendid piece of legislation was sought to be corrupted, often very successfully.
Section 498A of The Indian Penal Code (IPC) starts thus: “Husband or relative of husband of a woman subjecting her to cruelty.” The definition of a “complaining or accused relative” is wide and linkage is by blood, but not restricted to any definite degree of separation. The absence, however, of such a relative leaves no void. Designated persons can also file a complaint. So far so good; but the real misuse lies not in complaining, but in the powers given to the arresting authorities. Non-bailable, non-compoundable, is the terror weapon. In effect, a simple complaint of ‘cruelty’ means immediate lock-up, awaiting trial.
The bedrock of civilised society’s judicial system lies in the Latin maxim, ‘Audi Alteram partem’. It means, “… hear the other side”. Section 498A literally swept aside a fundamental right. True, the accused had to be produced before a first class magistrate where he, or she-relative, could plead for bail. But smart women would ensure that the complaint was made on a Friday, guaranteeing a weekend behind the bars for the accused. That leaves enough time to reach a ‘settlement’, usually with the aid of a police-recommended interlocutor, who paints a grim picture for the accused if a settlement is not reached.
You be the judge. A case is brought to you, as it happened recently, in a Delhi court. A woman complained of cruelty by her husband; usually the plea is that he or his family members had asked for dowry. The man is arrested and produced before you. The punishment can be up to three years in jail. The man asks for bail, denying the charges, saying he has been framed. Would you grant his plea?
The higher courts have come up with some guidelines. Until now bail, immediate, seemed improbable. As cases kept on increasing, and usually with the charge of ‘cruelty’ being without any visible physical evidence, the courts had misgivings. In 2012, statistics were compiled which showed some home truths. A quarter of the arrested were women relatives of the husband. Charge-sheets were filed in almost all cases (93.6%), but convictions were abysmally low, at under 15%. Something was obviously wrong. At that rate, the report went on to say, 372,306 pending cases will have 317,000 acquittals.
Where does this lead us? The courts have demanded more reasonable methods before arrest. One, a civilian committee in the neighbourhood. Two, greater care in filing charge-sheets and, finally, as has now started, severely disciplining the bogus, vindictive complainants.