AMITABH SRIVASTAVA | 14 AUGUST, 2017
NEW DELHI: In what appears to be a distinctive trend, the judiciary of the country seems to be delivering one after another judgment that is against the interests of women and children.
First came the startling decision of the Supreme Court that Section 498 A of the IPC that has been providing relief to women harassed by greedy dowry-seekers needed to be amended because it had been misused and sent the relatives of the husband to jail without verifying the complaints.
So now the onus is on the harassed wife to prove that she is not lying and that her case will be upheld by the courts till the highest level. In view of this the SC judgment has suggested that family welfare committees will verify the complaint before the tormentors are arrested.
This is shocking because a total of 24,771 dowry deaths have occurred in India from 2012 to 2014, which means more than 20 dowry deaths daily. This is when Section 498A is in force as a strong deterrent.
The argument for dilution of the already toothless 498 A is that the conviction rate in these cases have been very low. But instead of blaming the long process of judicial judgments and the pressure of the families on the bride both from her in laws and her own parents from the typical Indian sanskari training that 'Mera Pati Mera Devta Hai' the Hon'ble courts have taken this as a ground to dilute Section 498 A and deprive women of a protection they had gained after a long struggle.
In a recent commentary on this retrograde step Jayanthi Natarajan , a former minister and a prominent lawyer argued that if low rate of conviction was a ground for diluting this law the next step would be to abolish the rape law as well because conviction in these cases is never more than 25 per cent. The law, instead of protecting the victims is now meant to protect the accused who are posing as victims.
Don't the learned courts know that in India, dowry is the reason for most crimes against women beginning with female infanticide? The moment a girl child is born even in the most educated and modern families the parents start investing in saving instruments to provide her a substantial dowry by the time she is of marriageable age.
One of the reasons for this is that as of now 85 per cent marriages in India are arranged marriages. This also leads foreign agencies like Freedom Fund to club India as the country with the highest rate of modern slavery because according to them arranged marriages are a form of modern slavery. But that is another issue for debate altogether.The point is that for some aberrations one cannot completely abolish a law that was meant to protect women.
Probably more shocking is another recent judgment of the Supreme Court where the SC has ruled that marital rapes in cases where the wife is between 16 to 18 cannot be considered a criminal offence.
In the case filed by an NGO Independent Thought the Centre told the Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta that it stood by Exception 2 of Section 375 of the IPC.
Independent thought had challenged this Section which provides immunity to a husband if his wife between 16 to 18 complains of marital rape. It wanted all minors to be protected from rape irrespective of their marital status. This Act is a clear violation of the Protection of Children against Sexual Offences (POCSO) where the age of a child is defined as 18.This is also violative of other laws because the marriageable age of a girl is 18.
However the Centre urged the Supreme Court not to make marital rapes of girls between 16 and18 cognizable to protect the conjugal life of the couple. The Court also refused to go into the issue of marital rape saying that Parliament had already had a long discussion on it.
The logic of the Centre is that there are 23 million child brides in India and by making marital rapes of brides under 18 cognizable offence if will ruin their happy married life. But is the wife complains of rape is that a happy marriage? Thats bizarre.
Is that not like shirking responsibility? Instead of implementing the Child Marriage Prevention Act it is not not only legitimatising but also promoting it by condoning marital rapes.
The writ petition that was filed by Independent Thought in 2013 pointed out that Section 375 was clearly violative of Articles 14, 15 and 21 of the Constitution of India, and that consent for any sexual relationship should be increased to eighteen, irrespective of marital status of the girl child.
In 2013, the Criminal Law (Amendment) Act, 2013, created on the basis of the Justice Verma committee report had also recommended increasing the age of consent for sexual intercourse by girls from 16 to 18 years. Exception 2, however, still contains the age of consent for a married girl as 15 years. These contradictions in law are taking the country back to the Stone Age in the name of traditions.
The Union Minister of Women and Child Development, Maneka Gandhi, has taken the stand that marital rape “cannot be applied to the Indian context". Another Member of Parliament from Gujarat, Haribhai Parthibhai Chaudhary, said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament."
What is even more disturbing is that the apex court seems to have ignored the fact that it is also violating international conventions such as the United Nations Convention on the Rights of the Child (UNCRC).
But this government, which is clearly acting on the basis of mob mentality has been justifying its decisions by assuming that it has popular support.
This trend became first visible when the Modi cabinet brought down the age of juveniles from 18 to 16 even though a Parliamentary Standing Committee had unanimously recommended against it saying that the existing laws were sufficient to deal with some minor aberrations.
A PIB release issued to announce this drastic amendment to the Juvenile Justice Act had clearly stated that this decision was being taken because there was a popular perception that people wanted this to be done.
If laws are made according to popular perception, even assuming that this was true, it sets a vet dangerous precedent. This law was changed two years back and what is happening today is only an extension of that perverse thinking.