” What are you thinking?How are you feeling?What have we done to each other?What will we do?”– Nick Dunne, Gone Girl (Movie,2014)
For some time as I was watching it, even I was misled to believe that the Husband was the killer! It is a must watch not only for the suspense and thrill it offers, but also for its implicit irony – How someone tries to gain advantage of Her own Wrong. In cold blood. Without an iota of remorse.
The fact that this is not the first report of the Law Commission reviewing this draconian section, is in itself a glaring acceptance of its rampant misuse – within the trinity of the Legislature, the Executive and the Judiciary. Historically, sweeping changes to this section have been continually suggested (such as those in the Malimath Committee report on reforms in Criminal Justice System), and continuously neglected. A breeze through report of the Law Commission can apprise even the ignorant that the misuse of this Law has been highlighted many a times by the Judiciary. No surprises that the Law Commission’s Report refers to instances where the Judiciary has been quite vocal to term this section as a “Legal Terrorism”.
But, the other glaring fact that comes to fore through this report, is that though everyone realizes it, no one has the courage to acknowledge it and to do something about it. Rather, all arguments offered in the report seem to converge to a single goal (or rather predetermined goal?) – That it must be made Compoundable.
It is pertinent at this point to refer to the July’2014 Judgment of the honourable Supreme Court of India in “Arnesh vs State of Bihar”: “The fact that Section 498a is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.”
Hey! did you miss something? There is no mention of the word compoundable in the Supreme Court’s Judgement! Do you think that the learned Jury, one which not only explicitly criticizes the gross violation of human rights perpetrated by this section, but also supports it with relevant crime records data, would’ve forgotten to mention the word “compoundable” had it thought it to be relevant?
The atrocity that this section is inflicting is majorly due to its cognizable and non-bailable nature. It is due to the fact that a mere wild allegation of an unscrupulous woman can make an innocent man and his entire family either run after courts trying to secure an expensive bail or make them land behind bars for an unspecified period.
How making this offense compoundable – i.e. Theoretically allowing a settlement between the warring parties by the consent of the court at any point of time and Practically allowing the girls side to constantly endanger her in-laws with a threat of arrest till they accede to her unethical demands of hefty financial settlement – will reduce this atrocity, is beyond my comprehension.
Logical fallacy in the report
Section 8 of the report refers to Compounding of the offence. I quote from section 8.1 of the report:
“There is preponderance of opinion in favour of making the offence under S,498 – A compoundable with the permission of the court. Even those (individuals, officials and organizations) who say that it should remain a non – bailable offence, have suggested that the offence should be made compoundable, subject to the permission of court.”
Since both groups (the one that advocates bailability , together with, the one that wants it to remain non-bailable) want it Compoundable, let’s make it Compoundable! Every one is happy!
Why doesn’t the Law Commission question itself as to why the same group that wishes to retain its non-bailable nature, advocate that the Law be made Compoundable? After all this group would largely be composed of the same people who obviously do not accept that the law is being widely misused, otherwise they would also have favored making it bailable.
I think the bigger reason why this group is advocating that 498a be made compoundable is largely because it very well realizes that making it compoundable is effectively equivalent to sharpening the edge of an already lethal knife.
It feels like the State conniving with the Gone Girl you see. First marry the Innocent. Then cook up a sob story, make some wild allegations in front of the police and shed some crocodile tears. Make him and his entire family run through the trauma of Crime Against Women (CAW) cells, mediation and then eventual Jail (if they aren’t able to secure a bail). And if he happens to survive all this and fight back, then ask him for millions as settlement money. And if he still fights back, let him – till the evidence stage of the case (About 3-5 years from the start of the case). And just when our fighter is about to prove that the case was all false – Take it back, Compound it with the consent of the court! In Cold blood. Without an iota of remorse!
Blatant oversight of its own statistics
Annexure III A of the report analyses the answers received (regarding bail-ability) from various individuals and organizations. These include Ministries, Secretariats, Government Organizations, NGOs etc.
A total 474 replies. Out of 474, 42 said No Comments. Leaving us with 432 replies.
Of the remaining 432, 306 (a whopping 71%) were in favour of either making it bailable (200) or partially bailable (30) or repealing it all together (76). Leaving the people who advocated non-bailability to a minority figure of 126 (29%). Still the Law Commission is not convinced of its rampant misuse and much needed bailability!
Here is an excerpt from section 11.1 of the report, for the logic used to question the bailabilty of this section:
” However, there is no reliable data to reveal the extent of abuse or misuse. The data/information reveals that urban and educated women are mostly coming forward to file the complaints under this section. The data also reveals that in most of the cases, apart from the husband, two of his relations (especially in-laws) are being prosecuted. At the same time, the Commission feels that misuse arising from exaggerated versions and over implication should not by itself be a ground to dilute the provision by making it bailable. Depriving the police of the power to arrest without warrant in order to have proper investigation would defeat the objective of the provision and may be counter-productive. The element of deterrence will be irretrievably lost, once it is made bailable. It is to be noted that the misuse did not flow from the section itself but the roots of misuse were grounded on the insensitive police responses and irresponsible legal advice. The victim/complainant deprived of her cool and objective thinking, quite often, unwittingly signs a complaint containing such exaggerated or partially false allegations. By the time she realizes the implications thereof, it would be too late.”
Lets look at the characteristics of our Gone Girl put forth by the Law Commission:
She is urban and educated – but she easily looses her cool and objective thinking.
She makes exaggerated sob stories – but she does not realize its implications.
So basically, the respected Jury of the honorable Supreme Court (remember Arnesh vs State of Bihar) got it all wrong on July 2014!. There are no disgruntled wives using 498a as a weapon rather than a shield. There just a few innocent women, who are urbane, educated, of marriageable age and maturity – who by mistake in absolute innocence are sending their husbands & in-laws behind bars! And the entire duration of 3 months to 1 year , where their in-laws are harassed in CAW Cells and mediation centers , before filing a formal FIR under this section, is not enough to open their eyes to the reality!
So Innocent Them! So Unfortunate Us!
After all, there is no reliable data to reveal the extent of misuse! The fact that judiciary itself terms this section time and again as “Legal Terrorism” is no data it seems!
As far as loosing the element of deterrence is concerned. A strict Law is rarely a deterrence to crime. We have so many Laws but still we have so many crimes. Crime originates out of a certain psychology & social set-up. The fact that there is capital punishment for murder does not deter a potential murderer. It only ensures that he is prosecuted appropriately once the crime has been committed.What actually reduces murders is socio-economic development. When there is education and employment crime automatically comes down. Similarly, if we stop treating marriages as a display of our social stature, the dowry dispute would come to an end. But is THAT happening? In the 32 years of its existence, has Section 498a been able to reduce the BIG FAT INDIAN WEDDING? It has NOT, It NEVER WILL.
Moreover, Preventive Deterrence in a two party dispute can only be mutual. We can say that Nuclear Technology serves as a deterrent for avoiding war between India and Pakistan because – both have it. Imagine a situation where only either of India OR Pakistan has the nuclear bomb. In such a situation War would have been imminent.In case of a mutual discord, the state with the nuclear technology would actually have a lot of merit in instigating the war! And the state without nuclear technology would have lost the war even before it started .
If the State wishes to intervene in a matrimonial dispute , it should empower both parties so that none is able to gain undue advantage over the other. Empowering one at the expense of the other is like deciding the outcome of the case even before the start of the trial.
But, in a way 498a is a deterrent.
It is a deterrent for any husband from taking back a wife who has either filed a false 498a complain or shows any signs of a potential 498a (false) wife. Thoroughout India, support groups are advising men to be cautious of taking back a potential 498a(false) wife. And intelligent men are following the advice. After all, in a scenario where the Law is hell bent at saving a woman at the cost of an innocent man and an entire family, only a fool will entertain any possibilities of a mass legal suicide (mass because entire family of the husband is implicated).
Advisories as preventive measure for undue arrests
Section 14 of the report tries to discourage the misuse of the law by giving some advisories to the Police. I quote Section 14.1 – “Certain Dos and Don’ts to the police personnel by the Head of the police dept. in order to inculcate the sense of responsibility and sensitivity is the need of the hour. “
On the face of it, it is a positive move. (There is so less being done to safeguard the interest of Men that even a small step feels like a breadth of fresh air).
But, advisories have always been there. An advisory to the police to arrest only when actually needed, is like teaching morality to a school kid.
We all know that we must not lie. We all know that we must not cheat. We all know that we must respect elders.
But we lie, we cheat and we abuse our elders. Some times out of ignorance , some times out of greed and sometimes out of compulsion. After-all morality leaves what we eventually do to our discretion!
By leaving arresting or not arresting an accused to the eventual discretion of the police will not solve the problem, it may compound the problem (Aha! this is my Eureka moment – Compound also means to increase or intensify. So now I know why the law makers want to make this section Compoundable!)
Increasing the fine for False cases
I quote section 17.1 of the report: “Another legislative change which the Commission recommends to discourage false and frivolous complaints leading to the arrest and prosecution of the suspect/accused is to amend Section 358 of Cr.PC so as to raise the compensation from rupees one thousand to rupees fifteen thousand.”
From 1000 INR to 15,000 INR.
Lets do some quick Maths. We will take only modest estimates of all costs (actual may be much higher):
Cost of Anticipatory bail for Husband + husband’s parents + Brother/Sister = 4x 50,000 = 2,00,000 INR
Cost of hiring a High court lawyer for Anticipatory Bail = 50,000 INR
Job loss (at least for +6 months) in case bail is rejected = 6×50,000 = 3,00,00 INR (If an NRI looses his job due to impounding of passport this figure will be at least 20,00,000 INR)
Cost of travelling to place of jurisdiction for fighting the case = 4x5x10,000 = 2,00,000 INR @ 4 hearings/year for 5 years (Again for an NRI , this would be about 4x5x50,000 = 10,00,000)
Cost associated with humiliation and loss of social prestige for an innocent family = Un-imaginable
Grand Total = 7,50,000 INR (15,00,000~25,00,000 INR for an NRI)+ Some Un-imaginable figure.
So even by modest estimates, an Average Man may end up shelling out more than 7,50,000 INR (15,00,000 INR in case of an NRI) on the false 498a case, while the woman will end up shelling out only 15,000 INR – that too IF , the case is PROVEN FALSE.
And guess what, by making this law compoundable , chances of proving that the case was a false case is next to impossible.
As I remember, the Gone Girl (in the movie) was a Harvard Grad. All A’s for Grades. Pretty Good at Maths!
So, at the end of it we have a Law – Oh! please excuse me, I am understating it by calling it merely a Law. Let me digress to re-frame my statement.
So, at the end of it we have a Heinous Offence Against The State, which is So serious that it must be kept Non-bailable (at the expense of jailing innocent men & their families on petty matrimonial issues) yet a-bit-not-so-serious that it may be allowed to be compounded by the consent of the courts.
(I don’t think there is any other offence (especially against the state) in the IPC which is non-bailable but compoundable, please correct me if I am wrong.)
Such a mockery of Law Making, All in the name Women Empowerment!
Our Gone Girl has uncorked the chamnpagne! I can see her smile ! Can you?
Image Credit : Rakesh Rocky/Flickr