Indira Jaising: ‘When a women uses law, she is accused, when and Indian women uses law, she is labelled with bad character’
Indira Jaising: ‘When a women uses law, she is accused, when and Indian women uses law, she is labelled with bad character’

 

The recent direction from the Supreme Court of India on stopping arrests or coercive action against accused husbands or their relatives charged for anti-dowry complaints under Section 498A of the Indian Penal Code without ascertaining the authenticity of the allegations streaks a shift in Indian jurisprudence on the issues related to women.. Indira Jaising, former additional solicitor general of India and senior SC advocate, spoke to Sugandha Indulkar on why she thinks the order, which specifies that all statesin each district  must set up family welfare committees for the verification of such complaints, will negatively affect anti-dowry cases:

 

How you define ‘use’ and ‘misuse’ of law with regard to the recent Supreme Court directives on anti-dowry provisions under Section 498A of IPC?

The word ‘misuse’ is itself misused by the courts. Whenever a woman uses the law, she is told she is misusing it; shockingly, when an Indian woman accesses the law, she is often labelled as a woman of bad character. It is a classic case of victim blaming. Good women are bound by ‘maryada’ and so they don’t go to the law. The court too looks at the woman who demands application of Section 498A as: here comes another one who is misusing the law.

In a patriarchal society, where women are often subjected to violence, Section 498A was a great respite. In the majority of Indian families, a newly-wed couple lives in a joint family, where the bahu is living with her in-laws. If such a woman is tortured, physically or mentally, within the first two years of marriage and is thrown out of her matrimonial house, she is left with no option but to resort to legal action against her persecutors – including her parents-in-law – who at times connive with their son.

Despite such ground realities, courts are saying women are misusing the law by adding parents to the FIR. This ruling dilutes the very purpose of the law.

But the judiciary has pointed out that a large number of cases where elderly parents are being prosecuted are not bona fide. Your comments?

The judiciary cannot go by numbers alone. It has to treat every individual case as per its merit. ‘Misuse of law’ is a sweeping generalisation, which then becomes a benchmark, quoted in support of the next judgment.  Rulings in such cases cannot be made based on previous rulings, or mere police statements or general public opinions. If the judges wanted to establish that women misuse the law, they should have called for data from experts. They should have analysed at least a thousand cases of violence against women and then come to a rational conclusion.

Do we need to have gender-neutral laws? Shouldn’t there be strong action taken against people who abuse laws?

Across the world, women are subjected to domestic violence. This is not unique to India. However, in India, dowry deaths take this violence leagues ahead of rest of the world, and therefore, particularly here we need strong laws.

I agree that strong action must be taken against anyone who abuses law.  I do not support elderly men and women being arrested and roped in for no reason by anyone. No law should be misused by anyone. An allegation by a woman is not enough to make an arrest. The police must investigate the matter and then register a complaint, under the sections they deem fit.

The court should direct its anger against the police and law enforcement agencies. Here the court has found a cure worse than the disease. Police powers have been given to welfare committees, who will decide whether an offence has occurred and whether a woman has faced violence. The purpose of powerful laws is defeated.

Isn’t it true that educated women with high aspirations are the ones who are misusing Section 498A of IPC?

Not at all. If a woman has an unhappy marriage, she will file for a divorce. Educated women are not manipulating law: they are walking out of the marriage.

Section 498A comes into the picture when a woman is subjected to violence. If we condemn terrorists or arsonists, how can we not be moved by the plight of a persecuted woman, who works hard for the sake of her family, and tries in vain to come to terms with the violence she is subjected to?

What has gone wrong? Why does SC have to issue new directives?

The criminal justice system in India has collapsed. I get complaints stating that when a complainant walks into a police station, he has to pay a bribe to get his complaint registered. There is a problem with police misusing their powers to make a quick buck. It is then that such myopic directives get issued. The court must direct its attention there.

 

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