Sexual Harassment : Changes to Sexual Harassment Law

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Context

  • The Centre recently announced its plan to set up a panel of judges to look into the legal and institutional framework to curb sexual harassment at workplaces following the #MeToo campaign on social media.

Changes suggested by Justice Verma Panel:

  • As early as 2013, the Justice J.S. Verma Committee, in its landmark report on gender laws, had recommended setting up of an employment tribunal instead of an internal complaints committee (ICC) in sweeping changes to the Sexual Harassment at the Workplace Bill.
  • The panel was formed in the aftermath of the December 16 Nirbhaya gangrape in 2012 and the ensuing nationwide protests, and submitted its report on January 23, 2013.
  • At that time of the submission of the report, the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Bill had already been passed by the Lok Sabha and was awaiting the Rajya Sabha’s nod. The Bill was passed unchanged by the Upper House a month later.
  • The Committee, chaired by Justice Verma and including Justice Leila Seth and senior lawyer Gopal Subramanium, termed the Sexual Harassment Bill unsatisfactory and said it did not reflect the spirit of the Vishakha guidelines — framed by the Supreme Court in 1997 to curb sexual harassment at the workplace.
  • The report noted that an internal complaints committee as laid down under the then proposed law would be counter-productive as dealing with such complaints in-house could discourage women from filing complaints. Instead, the committee proposed forming an employment tribunal to receive and adjudicate all complaints.
  • To ensure speedy disposal of complaints, the Justice Verma Commitee proposed that the tribunal should not function as a civil court but may choose its own procedure to deal with each complaint.
  • The Committee said any unwelcome behaviour should be seen from the subjective perception of the complainant, thus broadening the scope of the definition of sexual harassment.
  • The Verma panel said an employer could be held liable if he or she facilitated sexual harassment, permitted an environment where sexual misconduct becomes widespread and systemic, where the employer fails to disclose the company’s policy on sexual harassment and ways in which workers can file a complaint as well as fails to forward a complaint to the tribunal. The company would also be liable to pay compensation to the complainant
  • The panel also made several suggestions to encourage women to come forward and file complaints. For instance, it opposed penalising women for false complaints and called it an abusive provision intended to nullify the objective of the law.
  • The Verma panel also said that the time-limit of three months to file a complaint should be done away with and a complainant should not be transferred without her consent.

Sexual Harassment : #MeToo Movement

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What is Sexual Harassment?

The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 defines sexual harassment to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

  1.  Physical contact and advances
  2. A demand or request for sexual favours
  3. Making sexually coloured remarks
  4.  Showing pornography
  5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

What is sexual harassment at workplace?

Sexual harassment at the workplace is any unwelcome sexually defined behaviour which has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, abusive or offensive working environment.

An Indian Context:

  • India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
  • In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the workplace.
  • The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.

MeToo Movement:

  • Actor Tanushree Dutta’s had made allegations of harassment at the hands of actor Nana Patekar on a film set a decade ago.
  • Minister of State for External Affairs has been accused of sexual harassment by at least 10 women journalists.
  • In the immediate aftermath of this development, women have been speaking of their experiences and the trauma, mostly on Twitter and Facebook.
  • The testimonies that have so far been expressed have mostly concerned the film world and the mainstream media, and cover both the workplace and private spaces.
  • These testimonies range from stories of assault to propositioning, suggestiveness to stalking.

Origins of the MeToo Movement:

  • The MeToo hashtag gained currency a year ago in the U.S.
  • In the U.S., women came out one after another to first corroborate allegations of sexual assault against Hollywood mogul Harvey Weinstein.
  • There were many allegations levelled and each further account made it clear that there was a systemic pattern of abuse and silence.

Why this movement and why now?

  • Experts believe that there has been an utter failure of due process.
  • Unfortunately, victims have written formal complaints and have also tried to get their organisations to act, but they have mostly found themselves facing a system that prefers to be complicit with the perpetrators.
  • A couple of cases further illustrate this:
    1. In the case of the former TERI chairman, R.K. Pachauri, for instance, despite the victim filing a police complaint and compelling the organisation to initiate an inquiry, he not only continued in TERI for another year but was publicly supported by the board members.
    2. There is another case of rape that one can sight against the former Editor of Tehelka, Tarun Tejpal. In spite of being a “fast track” case, five years on, it has only seen a series of adjournments, with no sign of justice on the horizon.

Experts believe that the failure of due process is the success of #MeToo. After decades of witnessing the impunity of the perpetrators, #MeToo is fuelled by an impunity of sorts of the ‘victims’.

Concluding Remarks:

  • It is important to identify the exact transgression in the various cases that are being expressed, and to ensure that action is taken with due process.
  • Further, it is important to note that no one can be deemed guilty only because he had been named and any punishment must be proportionate to the misdemeanour.
  • It is also important to consider that many people, especially men, have raised concerns regarding false accusations. This remains valid.
  • In conclusion, we should note that there has been a systemic disregard for making workplaces and common spaces free of harassment.
  • All of society needs to internalise a new normal that protects a woman’s autonomy and her freedom from discrimination at the workplace.

Group of Ministers on MeToo:

  • The Centre established a Group of Ministers to recommend measures to effectively implement the law against sexual harassment at the workplace and to strengthen the legal and institutional framework in response to the #MeToo campaign.

Recent Court Judgement for Women

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  • Sabrimala Temple Entry Case : SC declares restriction on women in Sabrimala temple unconstitutional.
  • Haji Ali Dargah Case : Women were not allowed inside Dargah. SC observed that ‘exclusion’ is practised by both Hindus and Muslims and the problem needs to be addressed. Dargah Trust conceded before the court that it had resolved to allow women to enter the sanctum sanctorum of the dargah at par with men.
  • Triple Talaq Case : SC declared triple talaq unconstitutional and anti-Quran. Constitution Bench held that Islam cannot be anti-Quran and Triple talaq is against the basic tenets of the Holy Quran, and consequently, it violates Shariat.
  • Goolrokh Gupta Case : SC has intervened with the Parsi elders to allow Goolrokh Gupta, a Parsi woman, who married outside her faith, to pray at the Tower of Silence for her departed father.
  • Female Genital Mutilation Case : SC has also referred to a Constitution Bench the question whether the practice of female circumcision or khafz, prevalent in the Dawoodi Bohra sect, amounts to female genital mutilation and is a violation of women’s right to life and dignit

National Database on Sexual Offenders (NDSO)

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  • NDSO is an initiative under National Mission for Safety of Women aimed at curbing crimes against women and children.
  • It will mainly include data of sexual offenders in the country convicted under charges of rape, gang rape, POCSO and eve teasing 2005 onwards.
  • It will contain  key details of convicted sexual offenders such as their names, residential address, photographs, fingerprints, DNA samples, Aadhaar numbers and Personal Account Numbers (PANs).
  • It will be maintained by National Crime Records Bureau (NCRB) for regular monitoring and tracking by State Police.
  • The database will not compromise any individual’s privacy.
  • At present database contains 4.4 lakh entries.
  • State Police will regularly update the database from 2005 onwards.
  • As of now, it does not have records of juvenile offenders, but they are likely to be included in at later stage.
  • NDSO will maintain database of cases classified as posing low danger for a period of 15 years.
  • The database of cases, which are classified as moderate danger, will be stored for 25 years.
  • The data for cases involving repeat and habitual offenders, criminals, convicted gang rapists and custodial rapes will be stored permanently.

 

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Triple Talaq Ordinance

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Ordinance:

  • The Union Cabinet has cleared ordinance to make practice of instant triple talaq penal offence.
  • Compelling reason cited by Government for promulgation of this ordinance was that practice of triple talaq continues unabated even after annulled by Supreme Court due to absence of legal framework.

 

Provisions:

  • The ordinance makes instant triple talaq illegal and void.
  • It prescribes punishment with jail term for three years to husbands practicing triple talaq.
  • It also includes certain safeguards such as the addition of a provision of bail for the accused before trial, to do away with fears of misuse of the law.
  • The offence of triple talaq will only be cognizable when victim wife or her relatives by blood or marriage file FIR.
  • It is compoundable offence, meaning that there can be compromise but only on insistence of wife and magistrate will have to determine terms and conditions.
  • The offender can be granted bail by magistrate but only after hearing victim wife as it is private dispute between husband and wife and wife must be heard when bail is granted. 
  • Additionally, victim wife will get custody of minor children.
  • They will be entitled to receive maintenance from husband for herself and children, as decided by magistrate.

 

Criticism:

  • This decision has come under a lot of criticism as being a sign of undue impatience.
  • Several sections believe that this is a matter that required deliberation, especially after keeping in mind that serious objections were raised to some of the provisions of the Bill passed by the Lok Sabha.  
  • Currently, it is not clear as to what may have prompted the government to take recourse to the extraordinary power of promulgating an ordinance.
  • There is no documentary evidence to show that the incidence of instant triple talaq had reached alarming levels.
  • Thus the hasty nature in which a presidential ordinance was promulgated needs to be examined.
  • Further, as per Article 123 of the Indian Constitution, the President of India is required to ensure the existence of circumstances “which render it necessary for him to take immediate action”.
  • Thus, it is believed that the Centre, must make public the evidence presented to the President. This can be done so in the interest of a fair debate.
  • Article 123 empowers the President to promulgate an ordinance only when urgent situations arise during the recess of Parliament. However, in the case of triple talaq, no such emergency came to light.

Abortions : Medical Termination of Pregnancy (MTP) Act

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Context

  • Abortion has been legalised in India under the Medical Termination of Pregnancy (MTP) Act since 1971.
  • According to the Act, abortion can be provided at the discretion of a medical provider under certain conditions.
  • Act had two goals — to control the population resulting from unintended pregnancies and to reduce the increasing maternal mortality and morbidity due to illegal, unsafe abortions.

 

Need of amendments now:

  • It was just a year ago when a 10-year-old girl got pregnant after being raped by her uncles.
  • Both the Punjab and Haryana High Court and Supreme Court, advised by a doctors’ panel, refusing her permission to terminate it.
  • Hence timely justice to our women and young girl was denied.

 

Current scenario

  • Act has limitations that pose barriers to women and girls seeking legal abortions.
  • Though abortion was legalised almost 50 years ago, a woman’s right to decide for herself, did not and still does not fall within the intent or ambit of the MTP Act.
  • Currently, the Act allows abortion up to 20 weeks.
  • However, when it comes to foetal abnormalities and pregnancies resulting from rape, this limit is proving to be a hurdle for both the woman and the provider.
  • Women seeking an abortion after the legal gestation limit ,often have no option but to appeal to the courts and run from pillar to post for permission to terminate the pregnancy.

 

Amendments suggested by Ministry:

  • In 2014, the Ministry of Health and Family Welfare recognised these barriers and proposed certain amendments to the Act.
  • Thus an increasing in the gestation limit from 20 to 24 weeks for rape survivors and other vulnerable women and removing the gestation limit in case of foetal abnormalities was brought in.
  • In 2017, these amendments were returned to the ministry with the mandate to strengthen the implementation of the MTP Act as it stands.

 

Result of denial of abortions:

  • Many women, when denied legal abortions, turn to unqualified providers or adopt unsafe methods of termination.
  • Estimates based on the Sample Registration System (SRS) 2001-03, indicate that unsafe abortions account for 8 percent of maternal deaths in India.
  • Adopting and implementing the amendments will take us a few steps closer towards ensuring that all girls and women have access to safe abortion services.
  • According to a study published in The Lancet recently, 15.6 million abortions took place in India in 2015 out of which about 11.5 million took place outside health facilities.

 

Conclusion

  • Abortion is at the centre of global conversations on reproductive health and rights.
  • India had once led this in the forefront by legalising abortions.
  • Hence its the time to regain the position and make it personalised according to the needs of the hour.

 ias4sure.com - Abortions Medical Termination of Pregnancy (MTP) Act

Source:

https://indianexpress.com/article/opinion/columns/india-abortion-laws-mtp-act-supreme-court-pocso-5308892/

Female Genital Mutilation (FGM) an offence : SC

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Context

The Supreme Court has said no one can violate the integrity and the bodily privacy of a woman in the name of religion after the Centre condemned the practice of female genital mutilation performed by some communities on children as a religious practice.

 

Background

  • It is a ritual performed on every girl child within the Dawoodi Bohra religious community.
  • The FGM is performed “illegally upon girls (between five years and before she attains puberty)” and
  • The practice of ‘khatna’ or ‘FGM’ or ‘Khafd’ also amounts to causing inequality between the sexes and constitutes discrimination against women.
  • Since it is carried out on minors, it amounts to serious violation of the rights of children as even minors have a right of security of person, right to privacy, bodily integrity and the freedom from cruel, inhumane or degrading treatment.
  • This is happening without any medical reason and does not have any reference in the Quran.
  • It violates the rights of the child and human rights.

 

SC view

  • Such practices on children would be an offence under the Protection of Children from Sexual Offences Act.
  • Just because something is “essential”, does not mean it is above constitutional morality.
  • If we do not go by the Constitution, then morality is left to the mob. The people on the streets will say what is moral and what is immoral.

 

Govt View

  • The practice violated various fundamental rights of the girl child and moreover, such kind of genital mutilation has serious repercussions on their health.

 

Current Status in India

  • There is no law in India banning FGM or Khatna.

 

International Practice

  • Countries like the United Kingdom, Australia and around 27 African countries have banned this practice.
  • It violates the Universal Declaration of Human Rights.
  • It is a crime in the United States of America under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

 

 ias4sure.com - Female Genital Mutilation (FGM) an offence SC
 
 

Gender Parity in Armed Forces

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Facts:

  • Countries that allow women in Close combat: Australia, Canada, France, Germany, North Korea etc.
  • Countries in which women allowed in combat, not necessarily close combat: USA, UK, Pakistan, South Korea etc.

ias4sure.com - Gender Parity in Armed Forces

 

Background:

  • Prime Minister Narendra Modi during his addresses to the nation on occasion of 72nd Independence Day from Red Fort announced that permanent commission will be granted to serving women officers of armed forces.
  • Until now, women could qualify only for short service commission with a tenure of 14 years; this made them ineligible for pension and often unable to find other work virtually midway through their working lives.
  • Indian Navy & Airforce had already granted permanent commission to women following a Delhi high court order of 2010

Significance of PM announcement:

  • The announcement comes after Government had told Supreme Court (in May 2018) that it was considering granting PC to SSC women Army officers.
  • Granting PC to women officers will change their career paths, besides provide full-length career opportunity for women aspirants in the future.
  • PC to women officers will also give them same option as male officers and they can theoretically achieve higher ranks like Colonels, Brigadiers, Major Generals and Lieutenant Generals in Indian Army.
  • Note: Granting PC to women officers will not change the status quo in their induction in combat branches of Indian Army like Infantry, Armoured Corps, Mechanised Infantry, Army Aviation Corps and Artillery b as women are so far not inducted in direct combat roles. Most of senior operational commanders in Army are from these combat arms branches, so women officers are less likely to get higher seniority posts.

Current status in Navy and Air Force:

  • Unlike Indian Army, IAF and Indian Navy have opened up select combat roles for women.
  • IAF has allowed entry of women as officers in both flying and ground duties. In IAF, women SSC officers are now commissioned even as fighter pilots, as helicopter and transport pilots.
  • They are also commissioned by IAF in legal, education and intelligence branches. In Navy, women officers are inducted through SSC in Logistics, Law, Air Traffic Control (ATC), Observers, Pilots (Maritime Reconnaissance Stream), Naval Armament Inspectorate Cadre (NAIC), Naval Architecture and Education Branch.

 Key arguments for not inducting women in front line were:

  • Fear of women being taken PoW
  • Physically demanding nature of these jobs
  • Lower muscle mass, relatively less strength
  • Concerns like maternity, ability to withstand G-force, fear of molestation esp PoW.

Women Army officers are still denied permanent commission at par with men. Analyse the reasons behind it. How far patriarchal and macho mindset is responsible for such discrimination? (200 Words)

The recent affidavit filed by the Indian Army in the Supreme court expresses discouragement to appointing women officers in permanent commission. This is a retrogressive move and reiterates the patriarchal mindset in the Indian society.

‘War has no runners-up, hence the need for an efficient war machine that will ensure victory,’ it said. This move not only denies equality to women but also makes them ―lesser citizens of India as they are not being a the same rights as men. The reasons cited by the Indian Army include:

  1. The bulk of the army’s junior commissioned officers (JCOs) and other ranks, who hail from rural India, are not yet ready to accept a woman as their leader in combat situations.
  2. Beyond the SSC, in permanent commission tenure women could be exposed to hostile environments, also the unique nature of responsibility and organisational requirement.
  3. The attendant hazard and trauma, possibility of being made a prisoner of war

These reasons appear farce and reflect a patriarchal mindset because :

  1. Rank v/s gender: commands are attached to the ―rank or position of a system, may it be judiciary, administration, legislature or military. And not to the gender of the individual. If this would have been so, India would never have had a successful women prime minister or president.
     
  2. Ability v/s gender : As long as an individual is qualified for a position, the gender is arbitrary.
     
  3. Unique requirements: During the 14-year short service commission tenure they now enjoy, women officers in various corps are assigned duties similar to those of men officers without distinction, to all possible field units with men officers. So the unique requirements in permanent commission smacks of gender discrimination.
     
  4. Technology and gender: In modern high technology battlefield, technical expertise and decision making skills are increasingly more valuable than simple brute strength.
     
  5. Other countries like Canada, Israel, New Zealand etc. have placed women on par with men in the military
     
  6. The ruling of the Delhi high court 2010, in favour of appointing women.

In the light of the fact that the Indian army is facing an acute shortage of officers, do you think more women should be recruited to the forces? Examine the challenges and prospects of such a move. (200 Words)

The Indian armed forces have been facing an acute shortage of officers. Due to attractive jobs with better salaries in private sector young and mid-level career officers are moving to private sector, and the situation has worsened since 1990s. Economic reforms have widened the pay, lifestyle and social prestige gap between the armed forces and the private sector. Lack of officers mean that existing officers are overburdened. This has huge strategic implications when the army is involved in fighting insurgency in large parts of the country as well as training for its primary mission of defending the country from external forces. While women were allowed to join the armed forces in 1992, they could only join as Short Service Commission (SSC) officers able to serve for a maximum of 14 years and that too only in non-combat arms like Army education corps, Engineers, Signals etc. While recently women have been granted permanent commissions, the ban on service in combat units continues.

Prospects:

  1. The women already serving non-combat position were found to be serving their duty with integrity as compared to men.
  2. Women In India reflected the struggling ethos and has been part of Indian freedom struggle in form of Rani Laxmi Bai of Jhansi ,Rani Gadinlieu of Assam. So they hold prospects in future as well.
  3. Further It would be significant boost to women empowerment and has spillover effect to general level of literacy, Health ,Employment of women in defence sector as well as other sector.
  4. Increased number of women in the armed forces will reduce the incidents of sexual abuses and human right violation at the hands of army men while maintaining national security. More women in army will help in bringing more gender sensitivity among the armed forces

Challenges:

  1. India is largely a patriarchal society with a traditional mindset. Thus, the men might not be very comfortable being commanded by women in the field.
  2. It is a biological fact that on average women are weaker than men. In combat units, which are necessarily intensely physical, any perceived weakness would lead to loss of respect of the subordinates. Which would make the task of women officers that much harder.
  3. The risk of getting captured as Prisoners of War (PoW’s) is highest for combat units. A women PoW could be a psychological blow.
  4. Due to biological differences, women need long mid-career breaks as maternity leave. Not only does this disrupt training, but also puts restrictions on the type of physical work that they can do before and after the leave. This would be a major challenge for combat roles.

The task before defence establishment is huge and is critical. Women regiments can be started on pilot basis and the results can be used to address the issues leading to regular induction of women in army, navy as well as air force. Like in other spheres, here also the bias against will disappear, sooner or later.

APPLICATION: Women essay, women empowerment, Role of judiciary in ensuring social justice.

Women : Facts and Issues

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Facts:

  • UN report  ” Cyber violence against women and girls” – 73% women reported facing violence online.
  • Stalkers and abusers online take advantage of anonymity and are encouraged by viral nature of the online medium which provides instant fame.
  • Gender Development Index: 132ndrank
  • Gender Equality Index: 127th rank
  • Suffers from one of the lowest sex ratios (940 in 2011) in South Asia
  • Gender ratio on the electoral rolls: 800 (almost)
  • Women representation increased from 4.4% in first Lok Sabha election in 1952 to 11.9% in the 16th Lok Sabha in 2014. Global average is 22.9%.

The obstacles to political empowerment are mainly in three areas :

  1. Registration as voter,
  2. Actual participation in voting,
  3. Contesting as candidate

General elections of 2014 :

  • Women’s turnout shot up from 55.82 to 65.63 per cent — a jump of nearly 20 per cent
  • 16 states- Outnumbered their male counterparts
  • Gender gap- Used to be higher than 10 per cent, came down to an all-time low of 1.46 per cent

Participation of women as candidates :

India is way behind more backward countries of South Asia; even conservative Muslim countries like Afghanistan, Pakistan and Bangladesh have higher female representation

Breakthrough: The enactment of the 73rd and 74th amendments to the Constitution in 1992

2009: The Union cabinet approved an increase in reservation for women from 33 to 50 per cent in Panchayati raj institutions

Bill for women’s reservation in legislatures: Been pending in Parliament

Government Initiatives:

  • NARI Portal: The NARI portal will provide information to women on issues affecting their lives.
  • e-Samvad Portal: The MWCD also launched the portal to provide platform for NGOs and Civil Societies to interact with the ministry.

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Dowry Cases: Section 498-A of IPC

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What is Section 498A of IPC?

It is related to dowry related cases. It says –  Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Facts:

  • Cruelty by husband or his relatives, covered under Section 498A of Indian Penal Code (IPC), makes up the largest chunk of all crimes against women
  • The charge, often levelled by a wife against her in-laws in cases of dowry harassment, accounts for over 30 per cent of all crimes against women.
  • Cases under Section 498A was found to have the lowest conviction rate — merely 12.1 per cent — among all cases of crimes against women

Timeline:

  • Section 498A has been a matter of debate over the last few years
  • Government in 2015 even attempted to make the offence compoundable. This would have allowed complainants to enter into a compromise with the accused and agree to have the charges dropped
  • Making the dowry law compoundable was also among the recommendations made by the Law Commission and the Justice Malimath Committee
  • Various courts, including the Supreme Court, have over the years called Section 498A as being prone to abuse
  • In 2014, the SC said that it had a “dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives”

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What is the issue around 498A?

The Supreme Court said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.

Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code”.

The bench quoted “Crime in India 2012 Statistics” published by National Crime Records Bureau to say that nearly 2 lakh people were arrested in India in 2012 under Section 498-A, which was 9.4% more than in 2011.

Indian Courts had been using IPC 498-A to safeguard the women from facing the cruelty faced by them at their matrimonial home. Most of the cases are related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled, the married woman is tortured, threatened, abused- both physically and verbally and harassed.

Several cases show that the married woman takes advantage of the section. Many women rights‘ groups justify the abuse of this section as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth. The abuse of this section is rapidly increasing and the women often well- educated know that this section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.

Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due. When women accuse their husbands under Sec 498A IPC by making the offence non-bailable and cognizable, if the man is innocent he does not get a chance quickly to get justice. 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.

Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.

What is the decision of SC in this regard?

  • Police cannot arrest the accused without conducting a preliminary inquiry under dowry harassment cases.
  • With this, apex court put an end to immediate arrest of the husband and his family members in the dowry harassment cases filed under Section 498A of Indian Penal Code (IPC).
  • Now cases under Section 498A of IPC will be referred to Family Welfare Committees (FWC). FWC must be constituted at every district and no arrest will be effected till the committee’s report is received. Such report may be then considered by the investigating officer or the magistrate on its own merit.
  • FWC must comprise 3 members who may be social workers, retired persons, para-legal volunteers, wives of working officers and other citizens who are found suitable and willing. However, these committee members will not be considered as witnesses.
  • There must be adequate material to show that the arrest is necessary to prevent the accused from committing any further offence.
  • Moreover, designated police officer should be appointed to deal with such complaints.
  • These directions will not apply to the offences involving tangible physical injuries or death.
  • There will be also no routine impounding of passports or issuance of Red Corner Notice for the accused NRI.
  • The personal appearance of all family members and particularly outstation members will be also not be required.

Appeal in SC: Two months after the Supreme Court stopped immediate arrests of accused in dowry harassment cases, the court did a re-think, saying its order dilutes the right of a woman to seek justice against the evil of dowry.

SC revised its 2017 Judgement:

  • SC withdrew the court’s direction from July 2017.
  • The judges accepted that family welfare committee would create an extrajudicial entity not envisaged in the Code of Criminal Procedure.
  • They also decided to remove another guideline that gave a district judge the power to dispose of proceedings if the parties in a case reach a settlement. Such a power in a non-compoundable provision such as Section 498A exclusively belongs to the High Court, the top court held
  • It restored to the police their power to immediately register an FIR and act on a dowry harassment complaint filed by a married woman.
  • It further says a designated police officer should be there to probe dowry complaints. It ordered the Director General of Police of every State to provide such officers rigorous training.

Related Question:

  • The fact that Section 498-A 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. Critically analyse in the light of recent Supreme Court judgement. (200 Words)