Everyone who has been in pursuit of justice – either for themselves or for the general public good – look out for our Courts. The Supreme Court, in particular, is closely watched for delivering justice and has been our shield. But it is also true that quite often citizens watch helplessly as courts could not be persuaded to do what clearly seemed within their power, what seemed to be manifestly mandated by law.
The record of police in violating the liberty of an individual aided with the laws including, but not limited to, the anti-dowry act namely 498a is dismal. A husband could be arrested along with his immediate family as well as near and dear ones including children and even infants on a verbal complaint by a woman a.k.a. wife without any proper investigation, if any. As institutions had neglected their duties, courts had to step in. This has yielded several salutary judgments like the following.
- As early as 1994, Justice M Venkatachalliah noted the rampant arrests by the police and gave a landmark judgment defining the powers of police to arrest a person, stating “Denying a person of his liberty is a serious matter”.
- In 1997, Supreme Court laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person.
- In 2005, the honorable Supreme Court termed the misuse as legal terrorism – “But by misuse of the provision a new LEGAL TERRORISM can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon”.
- In 2010, the Supreme Court of India again in a scathing judgment, ordered the government to revisit the anti-dowry law — Section 498A of Indian Penal Code — saying it has been misused by women to lodge false or exaggerated complaints against husbands and their relatives accusing them of cruel behavior. This prompted the DGP’s of states to issue circulars to all jurisdiction police officers asking them to follow the CrPC 41 guidelines.
- In 2014, the Supreme Court expanded the ambit of section 41 to all cognizable offences punishable with imprisonment for a term which may be less than or equal to seven years. It went one step further and declared that failure to comply with the directions would invite departmental action for the police officers and the Judicial Magistrate concerned, by the appropriate High Court.
Do these Judgments pass the Reality Check?
However, in spite of these landmark judgments, the ground realities have not changed a bit for the better. The NCRB arrest statistics of 2014 show no signs of arrests reducing. While the courts often give sweeping directions – ones that get bold headlines, ones that raise hope among citizens – they do not as often follow these up to see whether the Executive has carried them out. If the officials concerned had not suffered in the least for not obeying the landmark judgment the Supreme Court itself delivered 21 years earlier, why would they follow the directives now? These directives have thus far remained on paper.
The law against misusing courts to drag persons into vexatious litigation is just as clear. Though the courts recognize the misuse of criminal laws for personal vengeance, one fails to understand why such complainants are let off free routinely, particularly when the naughty complainant is a woman. Not prosecuting complainants for giving false complaints, even when perjury is filed, would give a free hand for more vexatious litigations in future.
What does this indicate?
If people are to knock the doors of the Supreme Court just to get bail, that too for marital disputes, it also reflects the quality of judges present in the lower and high courts. Recently, senior advocate Dushyant Dave arguing in favor of the National Judicial Appointments Commission (NJAC) lamented and below are his words.
“My Lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court. You will get first-hand account of the rotting justice delivery system. The kind of lawyers who are being appointed as judges is a disgrace,”
So, the courts are supposed to be our protectors. But, when it comes to issues of gender, they keep looking the other way. If the rulings are far behind realities, they only compound cynicism – about courts, about laws, about the Rule of Law.
Are these pro-male (in fact, pro-constitutional) judgments just an eyewash designed to be cited as examples when someone argues against ineptness of judiciary in gendered issues? One can search on bail scam to know how this industry works. Are these judgments there only to serve as a ray of hope to aggrieved men to keep believing in the system, so that the ‘Gender war’ industry keeps running out of the money from aggrieved men? Only time will tell!
- Joginder Kumar vs State Of U.P on 25 April, 1994
- D.K.Basu vs. State of West Bengal (1997) AIR 1997 SC 610
- Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005
- Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014
- Courts and their judgments by Arun Shourie
Picture Credit: Dinesh Bareja/Flickr