We have maintained for years that India is an Electocracy and NOT a democracy. Not based on the simple definition of a democracy being “of the people, by the people & for the people“. All India allows is for the 1,250,000,000 Indians to elect 545 members of the lower house of Parliament to rule them. The stark reality is that after winning the election, these 545 members show very little interest in the problems of the people who elected them. Sadly, these 545 people are actually more responsive to the Indian people than the rest of India’s establishment. By that we mean, the Indian Administrative Services, the Indian Police & the Indian Judiciary.
This tiny majority, often chosen on a highly narrow, elite & even hereditary basis, runs rough shod over basic human rights of Indian citizens. Their basic posture is that Indian people are inherently backward, mostly stupid & they need to be dragged into the modern world by the India’s elite establishment. So they enact laws to “cure” social ills often with good intentions but with horrific results. Their response to these results is usually “it can’t be helped”.
One such law is the notorious Section 498A of the Indian Penal Code. It was established with the “laudable” intent of protecting wives from cruelty inflicted by their husbands & the husband’s relatives. As in all such “laudable” laws, the implementation has been criminally abusive to husbands & their family members. At the mere complaint of a wife, the husband, the husband’s parents, brothers, sisters, even minor children, are summarily ARRESTED without any investigation of the complaint & tossed into jail where they can rot until a Judge gets free enough to hear their side. Read the comments made by the Indian Supreme Court in their decision this week:
- “… there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury.”
As any one with the slightest iota of common sense can see, the potential for misuse is enormous and the reality of misuse has been even worse. Since the intent of the law was to encourage victims to file cases, the law has NO provision for punishment for false accusations or for wrongly accused husbands & their relatives to get damages from the accuser.
The scale of this problem has been huge. And under this law intended to protect women, female relatives of the husband are deemed as rotten as well. Look at the statistics quoted by the Indian Supreme Court this week:
- for the year 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. …approximately a quarter if those arrested were women, 47951 of the total were perhaps mother or sisters of the husband. … the rate of charge-sheet filing for … 2012 … was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. … as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.
Everybody knows this and has known this for years, actually for over 2 decades. Justices of Indian Courts have made public their concerns about such misuse but the esteemed members of Indian Parliament have shown no interest in fixing the law.
Finally the Indian middle class is waking up and making its voice heard. The Indian Supreme Court, the most politically aware body in India, recognized this and acted this week. In a landmark judgement, the Indian Supreme Court established directives to handle such Section 498A cases, the most important of which are the following:
- In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities … Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee …
- Till report of the committee is received, no arrest should normally be effected …
- In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine...
- Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing…
- Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area…
These directives might seem elementary to those who live in modern civilized countries but these signal a new dawn for long suffering Indian husbands & their relatives. These directives go a long way in removing coercion or coercive pressures that forced husbands to accept whatever accusing wives demanded just to free their aged parents or other relatives from jail. Now a committee will have to analyze the veracity of the complaint of a wife & submit a report.
But this judgement & its directives are ONLY a first step. Lacking are any provisions for financial damages on a wife and/or her family judged guilty of making a false complaint. There is no provision or even acceptance of physical violence by wives against their husbands and/or their elderly parents. The concept of domestic violence in Indian marriages is restricted to husbands & their families against wives & their families.
The Supreme Court has not addressed other aspects of gender abuse of men such as false accusations of molestation or rape. A few weeks ago, we had highlighted the case of a 2-year old boy against whom the Police filed a case of molestation of a 35-year old woman. Thanks to pressure from some activists, the Central Minister got involved and ordered the police to withdraw that ludicrous case.
We read a story recently about a woman who got angry at her boyfriend because he didn’t pick up his phone when she called. The woman called the police & made a rape/molestation complaint against her boyfriend. The man folded his hands and begged forgiveness from his girl friend. She relented & withdrew the complaint and the police left without arresting the man. The woman clearly & by her own admission had made a false complaint of rape but the police either could not or did not want to take any action against the woman. Such is the reality of rape/molestation complaints in India.
But is there a glimmer of light at the end of this tunnel too? The Delhi High Court noted in a case that some women describe previous consensual acts of sex as rape after a breakup of the relationship. And in another case, the “Delhi High Court has ordered for initiation of criminal proceedings against a woman for levelling false charge of gangrape against two Delhi-based doctors“.
As we said this is but a glimmer. What is needed is another judgement from the Indian Supreme Court that lays out directives for handling non-emergency cases of rape/molestation allegations.
But these will still be band-aids for the real problem – the total lack of gender equality in India’s medieval & antiquated laws. Like the Holy Grail, Gender Equality in India is only to be pursued without any realistic hope of getting there.