by Abhijeet Singh Rawaley

Background

In Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr., a division bench of the Supreme Court of India, comprising Justices A. K. Goel and U. U. Lalit, was asked “whether any directions… [were] called for to prevent the misuse of Section 498A, IPC.” The provision is intended to come to the rescue and aid of women who have been treated with ‘cruelty’ by their in-laws. ‘Cruelty’ is defined as any conduct which either forces a woman to commit suicide or to cause grave injury to herself or harassment with a motive to extract dowry of any property or valuable security. The cognizable, non-bailable and non-compoundable offence carries a maximum punishment of imprisonment for 3 years.

A Union Home Ministry circular has noted that S. 498A is not being used as a “shield” of defense, but as a “weapon” for attacking their husbands and his relatives by “disgruntled” wives. In this case, Justice A. K. Goel, writing for the Court, lamented the “omnibus allegations” that emerge under the garb of S. 498A against all relatives of the husband, which according to him ought not be taken at their “face value.” A.S. Nadkarni, ASG, who was assisting the court as an amicus curiae, noted (in para 7):

“…that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple.” (Emphasis supplied).

Three judgments of the Supreme Court were cited to bring home the point of judicial recognition of misuse of S. 498A (Sushil Kumar Sharma v. Union of India, Preeti Gupta v. State of Jharkhand, Ramgopal v. State of Madhya Pradesh). This was not the first time that directions or guidelines were passed to prevent the misuse of S. 498A. Other than the Supreme Court, the Delhi High Court has also issued directions in this respect. In 2014, the Supreme Court, in Arnesh Kumar v. State of Bihar, observed the casual manner in which the husband and his family members had been arrayed in the case, and directed that the police should not automatically arrest the husband or his relatives on the lodging of a complaint under S. 498A. Further, Magistrates should not authorize further detention in a callous or mechanical manner. Failure to adhere to these directions could provoke departmental action against both the actors.

I argue that the 2014 directions issued in Arnesh Kumar should be given some time to prove their efficacy and the judgment in Rajesh Sharma is a superficial, hasty and an overblown response to a problem that has been addressed already. The latest ruling creates a ‘new’ S. 498A altogether by introducing a formerly envisaged procedural impediment to accessing the substantive penal law remedy.

Issuance of Directions and Structural Re-design

The directions issued by the Courts can be classified into two types. One set of prima facie directions endeavor to recast the institutional design and structural constitution for investigating complaints alleging offence under S. 498A. Among other things, the Court has proposed to set up at least one Family Welfare Committee (“FWCs”) in every district under the supervisory control of the District Legal Services Authority (“DSLAs”). Preferably, the FWCs ought to be composed of three members out of able and willing “para legal volunteers/social workers/retired persons/wives of working officers/other citizens,” and if selected, they may be imparted additional training and paid an honorarium. All complaints under S. 498A received either by police or by magistrates must be referred to an FWC which will further confer and interact with the parties and after forming an opinion as to the facts revert to either police or the magistrate (depending on who referred the complaint to them). This has to be carried out within 30 days from the date of receipt of the complaint. As an unbinding principle, no arrests should to be effected before the receipt of this report from the concerned FWC.

The other set of directions relate to improvisation and sensitization of the existing mechanism. The Court asked for the designation of specific police officers to deal with investigations relating to commission of offences under S. 498A. Such officers may also be trained for this purpose. It was also advised that the complaints dealing with only a matrimonial discord may be compromised. Bail should be the norm, the application for which ought to be decided in one day. The district judge may also have the power to order consolidation of multiple proceedings provided that all of them relate to one matrimonial relationship. Personal appearances of family members may be dispensed with and video-conference may be adopted in appropriate cases. Lastly, the Court clarified that these directions shall not apply where the facts entail “tangible physical injuries or death.”

I attempt to primarily problematize the first set of directions as they plummet the “normative” independence of law and legal proceedings. I am in favour of only “cognitive” influences from the social world acting on the law. A normative overbearing of law with social constructions is bound to work against the interests of socially vulnerable groups such as women.

Social Facts or Perceptions Turning into Judicial Recognitions

At several points, the judgment laments the misuse of S. 498A and employs a language alien to routine adjudication. It is trite that judges speak through their judgments, and thus, we must be cognizant of what the do with what they say. The following observations by the bench are so casual that they can easily be passed off as any layman’s comment:

“This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.” (Emphasis supplied)

The patriarchy resounds itself through judicial dictum to the point where the Court, through these directions, seems to overrule and override genuine instances and complaints of cruelty under S. 498A by alluding to “violation of human rights of innocent” men. In this regard, the Court seems to have lost sense of its role as a mediator and balancer of interests in aid of justice. By placing an additional step in the whole process of prosecuting under S. 498A, the Court has, in some measure, incremented the burdensome process of invoking a criminal law remedy.

The way in which the matter has been dealt with inter alia seems to have institutionalised a perceptive presumption against women in a sense that complaints will be frivolous, trivial or vexatious unless the FWC comes to the rescue of a woman and opines otherwise. The Court also appears to have lost sight of the traumatized woman who files a genuine complaint and is left to fall apart and face not the legal and judicial officers, but the FWC which attempts to mirror social forces that may be evil or benign, but not purely legal.

Making the Law Normatively Open

A prominent contribution to sociological jurisprudence is by Niklas Luhmann according to whom while the system of law must remain ‘normatively closed,’ it ought to be open only ‘cognitively.’ It is argued that law must learn from other disciplines and knowledge systems to the extent of their worth. However, it must develop its own norms and rules and thus be in the state of “transversality” as a mode of knowledge transfers as explained further by Gunther Teubner.

The structural redesign proposed by the Supreme Court blemishes the already weak law enforcement with an additional procedural grade which the women will have to traverse in order to put the wheels of justice into motion. The Court’s call to “civil society” enjoins legal processes with social influences. Excessive social influence(s) and civil society involvement may trump the very purpose of having judiciary as an independent arbiter on complex legal questions manifesting human predicaments such as cruelty to women. The FWCs will come with their own baggage of biases, dispositions, and predilections, and it might so happen that they may mirror as constitutionally constituted modern-day “khap panchayats.”

Placing an additional layer in an already insurmountable challenge to step the ladder up to Courts comes as a disappointment to most women. To some extent, the directions laid down in 2014 could have been seen as making the law “cognitively open” since they did not tamper with the judicial rubric. FWCs may open floodgates for delay and could possibly stifle the administration of justice. They may also influence the process qualitatively if their opinions venture into evidentiary processes of the court. Despite a clear direction that the police or magistrate will consider the FWC report on its own merit, the evidentiary status of this report is unclear.

The judgment relies on statistics and figures of the National Crime Records Bureau from 2012 when the directions in Arnesh Kumar had not even witnessed the light of the day. The other evidence adduced (243rd Law Commission Report and the 140th Report of the Rajya Sabha Committee on Petition) possess this deficiency as well. In these circumstances, it can be said that the Court seems to have acted in haste and has mindlessly crafted something very superficial that has the potential to undo and alter the efficacy of investigations by the police and independent adjudication by courts. Such overblown activist tendencies must be avoided especially in a scenario already covered by both legislation, and previous judicial directions. 

The Way Forward

The better part about this judgment is that the Court is not setting the directives in stone and is flexible in its approach vis-à-vis the setting up of FWCs. Setting the deadline at March 31, 2018, the NALSA has been asked to report on the functioning of the proposed system, and suggest changes if necessary, pursuant to which the matter shall be listed before the Court again. Thus, the in-built review mechanism to be carried out by the Court and NALSA kindles the hope that while the old structural design will revive, more solemn efforts shall go into making courts cognitively open through adequate sensitization and training of personnel while maintaining the “self-normativity” of juridical processes. We can hope that the ‘cruelty’ done to women by the ‘new’ procedurally burdened S. 498A shall be undone.

[Abhijeet Singh Rawaley is a third-year B.A. LL.B. (Hons.) candidate and a Bar Council of India Trust Scholar (2017-18) at NALSAR, Hyderabad]