Two recent court rulings on special laws protecting women are significant. The Supreme Court issued a set of guidelines for arresting a husband and his relatives for cruelty against his wife, came with the aim of preventing the misuse of India’s anti-dowry law. Another ruling by the Delhi High Court called for the prosecution of a rape complainant if the accused was acquitted due to false evidence being submitted.
QUESTION: Is there a pushback against women-centric anti-dowry and anti-rape laws? We ask experts.
Battered bodies, bruised minds and scarred souls cannot be the foundation of Indian families — Vrinda Grover, lawyer
There has been a struggle for the last 30-40 years in the women’s movement for an acknowledgement of violence against women as a crime.
This did not come on its own. It came at a time when women were being burned to death and killed for dowry. What we are seeing today is that women are exercising their rights and asserting themselves.
In the category of accused, we have men from within the family and those belonging to all classes and walks of life, including those from influential groups.
Now, we see a tremor because traditionally Indian society is not accustomed to treating women as equal partners. Violence within families and in homes is seen as “wear and tear” of family, or is seen as ways in which a daughter-in-law is “moulded” into a new family.
We are also working against institutional prejudice in every component of the legal system — in investigative agencies and prosecution agencies.
It is not that an acquittal is necessarily a false case. An acquittal actually means that the legal system has failed her. She might have failed in the complete absence of an enabling environment.
In 498A cases, there could be a settlement reached outside the court. To interpret that there is no violence based on low conviction rates is totally erroneous.
Speaking of recourse, we have to simply keep fighting this. For instance, in a plea against anti-rape laws, I am representing a coalition of 17 women’s rights groups. I am sure many vested interests want to keep intact the male privilege and entitlement.
Battered bodies, bruised minds and scarred souls cannot be the foundation of Indian families. If that’s the foundation, it is unconstitutional and must go.
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This is not a push-back but an urgently required course correction in easy-to-abuse draconian laws — Madhu Kishwar, Founder, Manushi
This is not a push-back against women-centric laws; rather an urgently required course correction in easy-to-abuse draconian laws enacted under the pretence of strengthening women’s rights.
I was the lone voice to critique these laws while they were being enacted. I knew they would create more problems than they solved. While providing legal aid at Manushi to victimized individuals and families, I published several articles to show how the laws are abused and misused, but provide very little help to genuine victims of rape or domestic abuse.
The laws against rape, dowry and domestic violence are clumsy and define the supposed “crime” loosely. They have given a go-by to the core value of democratic jurisprudence that a person is assumed innocent unless proven guilty and instead put the burden of proof on the accused.
A mere allegation or trumped-up charges by a woman is enough to send the accused, and families under the 498A anti-dowry law, to jail even before investigation and trial. Countless cases of misuse forced the Supreme Court to call for corrective action.
In the rape law, with the minimum sentence of 7 years, which I have challenged through a PIL, even corroborative evidence is not required. A mere allegation by a woman that XYZ fondled her private parts or forced a kiss is treated as rape and arrests, jails a man without bail.
in my considered view Mahmood Farooqui, the co-director of Peepli Live, has been in jail for years without getting bail because of a fraudulent charge alleging that he performed oral sex, which can’t be corroborated by medical or circumstantial evidence. Women have pressed false rape charges against their-live in partners or lovers to blackmail them into marriage; sex workers use it for extortion. Thousands of men have committed suicide after they and their families were arrested in false domestic violence cases.
The lunatic fringe of feminism, especially those from foreign-funded NGOs, gets away with pushing such draconian legislations.
In any case, these draconian & lawless laws have failed to curb crimes against women, especially brutal rapes. Therefore, a review & reframing is urgently needed.
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The focus has shifted from addressing violence to saving families — Sarasu Esther Thomas, Professor of Law, National Law School of India University
It is tough to say if there is a pushback against women-centric laws from just two cases. What is observable from the recent 498A judgement is that the courts have fallen back on a particular trope — that of the ‘lying woman‘, who lies and misuses the law to her own advantage. Courts are taking a very paternalistic view of the ‘foolish woman who needs to be protected for her own good,’ and not break the family unnecessarily. This is evident in the 498-A case and in the Kerala High court case annulling a woman’s conversion and marriage saying that a 24-year old woman was weak and vulnerable and could not marry without the consent of her parents.
The focus invariably shifts from the victim seeking justice to the court’s view on how they regard domestic violence. A victims’ character is commonly called into question during hearings.
Data from the NCRB reveals that the percentage of crimes registered under section 498A have been reducing, which runs counter to the court’s contention of misuse.
It would be erroneous to assume that a victim withdraws a case simply because she was lying. It could be the result of the mental trauma due to victim-blaming, societal ostracization and long litigations.
The family welfare committee set up by the court to assess the case before an arrest shows how the judiciary has outsourced women-centric issues to a group of random individuals such as ‘retired persons and wives of working officers’ who are not qualified to make a decision on such a crucial matter. It is unconstitutional and violates the right of equality. This will discourage women from even complaining about domestic violence.
The focus has shifted from addressing violence to saving families. Families break because of violence, not because a remedy is sought to address the violence.
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Recent court rulings perpetuate a narrative that women are liars and revenge-seekers — Ranjana Kumari, Director, Centre for Social Research, author of ‘Brides are not for burning’
This judgement by the apex court has shocked those of us who have been struggling for over three decades as part of the women’s movement. Three years ago, the Supreme Court ruled that the police couldn’t arrest the accused in dowry cases automatically and must provide reasons for their decision, which would then be judicially examined.
The contention today that section 498A must be revisited to prevent its misuse seems to be another means to silence women.
In the period from 1961 to 1984, not a single case of dowry-related death was registered despite the fact that hundreds of women were dying of burning through ‘stove bursts’; a clever way of concealing violence. As a result, section 498A was amended and the law finally got some teeth when it made dowry killing a non-bailable, non-compoundable and cognizable offence.
In the last three years alone, over 24,771 women were killed in dowry-related cases. NCRB data shows cases of sexual harassment, kidnapping and abduction, including rape, have gone up from 2.28 lakh to 3.09 lakh and rape is recognised as the fourth most common crime against women in India.
It is ironic that the perpetrators of such crimes have started a systematic campaign declaring dowry cases as false. The court has taken a view that will embolden dowry harassers and murderers.
Women are discouraged from registering a complaint in dowry or rape cases because society does not believe them and the subsequent stigma. It is unlikely that a woman will go through with registering a complaint if it were merely a lie.
The recent judgements by the courts to prevent the misuse of the anti-dowry and rape laws are perpetuating a narrative where women are seen as liars and seeking revenge.
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The SC guidelines on 498-A is a small bandage on a big wound — Amit Lakhani, President, Men Welfare Trust, Part of Save Indian Family Movement
Looking at the gravity of misuse of the section 498-A of the IPC where basic fundamental rights the right to life and liberty of citizens is being curtailed, the present judgement regarding 498-A guidelines by the Supreme Court is a small bandage on a big wound.
It is ironical that feminists are unhappy about pre-conviction arrest of men being taken up by Supreme Court.
In 2003, the Justice Malimath committee had raised the issue of the misuse of 498-A and recommendations on amendments were made. Later, Justice Gambhir in 2008 had given arrest guidelines looking at the way the power of arrest was being misused to settle personal scores and force the husband and his family to pay huge out-of-court settlements. The Law commission in its 237 and 241st report also recommended amendments in 498-A.
In places like Bihar, Jharkhand, MP and rural areas, where the level of awareness of rights of an accused is so low that innocents languished in jails and committed suicides. Section 498-A continued to live up to the phrase “Legal Terrorism” used by the SC in past judgements.
About 186,000 people were arrested in 2015 (as per NCRB data), the rate at which chargesheets rate is close to 95% and the conviction rate is as low as 14%. In the process the self-respect, dignity, careers of the accused was lost.
The amendments in the rape law were made in a haste amid public outrage. There has been a rise in malafide, concocted, made-up complaints of rape and gang rape. Without any investigation, on the basis of mere testimony, men were put behind bars and denied bail for months. There was no medical evidence required, sex (even if consensual) after the promise of marriage was filed as rape, and the definition of rape was not focussed on penetration any more.
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You are trying to push the law back into being the ineffectual thing that it once was — Urvashi Butalia, Director, Zubaan Books
In the women’s movement, we used to think “even though change is slow, difficult, it is not going to roll back”.
But now it has become very evident that there is a roll back and it is dangerous. The most worrying one of this is the roll back on 498A in which courts admit these petitions which say that women file false cases and then set up this extra-legal body to which women now must take a case. These bodies will filter complaints sorting false from true cases. We all know what such bodies are like.
There is so much prejudice against women speaking against domestic violence because those threaten the very foundations of marriage. This was the only criminal remedy that women had. People say they can use the Domestic Violence Act, but these are civil remedies. Misuse is there in every law. Why pick on women?
And now, the ministry of Women and Child Development has instructed the National Commission for Women to open these digital windows where men can file online complaints. The Supreme Court recognising the concept of Love Jihad and giving it legitimacy is also a rollback.
Somebody like lawyer Vrinda Grover is being hauled up for defamation by a man who stands accused of sexual violence for doing her job to defend the victim. What is really worrying is that the legal establishment has not stood up for her.
By saying a law has gone too far, you are trying to push the law back into being the ineffectual thing that it was. After so much battle, you have an expanded definition of rape.
A law that’s trying to provide justice to victims, but also setting right a historical wrong, has to take certain serious steps. In fact, the 2014 rape law doesn’t go far enough because it doesn’t take into account marital rape.