Section 498A of the Indian Penal Code (IPC) – the most notorious and draconian law – has been controversy’s favorite child. Even before the society started speaking against it, the Govt. had already started doing so.
The Honorable Supreme Court of India through its landmark judgment Joginder Kumar vs. Union of India had instructed the Govt. of India to notify all the police stations to not to arrest people implicated under Section 498A without proper investigation and without the involvement of an officer of the level of DCP.
Unless the Indian police was in the practice of arresting innocents, there was no need for this judgment. This was a clear indication that section 498A was causing social unrest.
The Malimath Committee headed by Dr. Justice V S Malimath in its report of 2003 titled “Reforms in Criminal Justice System”, had made a recommendation for Section 498A to be made bailable and non-cognizable.
Unless the non-bailable and cognizable nature of Section 498A was causing problems, there was no need for the Committee to come up with this recommendation.
Although another landmark judgment by the Honorable Supreme Court of India, Sushil Kumar Sharma vs. Union of India, called 498A as “legal terrorism”, however by that time citizens had already started raising voice against this draconian section.
Unless the adverse social ramifications of Section 498A had not caused enough social rampages, there was no need to give it the obnoxious name of “legal terrorism”.
By 2005 and post it, India has witnessed a new form of social rebellion from dissident citizens who have been at the receiving end of the notorious and draconian section 498A – being wrongly jailed under it, being subjected to state sponsored terrorism and extortion, being humiliated, being treated worse than criminals without committing any crime, being driven to commit suicide as the last resort of escape – and what not.
This rebellion has taken multifarious forms ranging from Men Cell to Purusha Hakka Samiti to Akhil Bhartiya Patni Pidit Sangha to Pidito Purush to the Save Indian Family movement.
These fringe groups became famous for one thing – their stand against “misuse of Section 498A”.
However, the term “misuse” is a misnomer when it comes to Section 498A. For, it would have been more apt had it been the case that Section 498A was formed for a very noble objective and somehow it was being used for some other purpose. Interestingly, that’s not the case here.
Section 498A of the IPC is a completely bogus, useless and redundant piece of legislation and one of the most ill-conceived laws. It’s a product of a fascist Govt. trying to impose tyrannical rule wrapped under the sweet and cute names of “Women Protection” and “Women Empowerment”.
Technically Section 498A does not provide any relief that is not provided effectively by any other Section of the IPC as we shall see.
IPC contains laws and sections to deal with,
- Hurt (Section 323),
- Grievous hurt (Section 325),
- Culpable homicide not amounting to murder (Section 304),
- Murder (Section 302),
- Abetment to suicide (Section 306),
- Attempt to murder (Section 307),
- Blackmailing, threatening, extortion, criminal intimidation and so on and so forth.
Even mental cruelty in marriages is taken care of by divorce provisions and that too in a gender neutral manner. Over and above all this, Section 498A provides nothing more than a luxurious facility of “arrest on demand”, which is downright unconstitutional in a democracy.
And as we see, most of the noise around the ‘performance’ of Section 498A and its related amendment has been around “wrongful arrests of innocents” and means and procedures to curb it. Even the recent bout of activity around Section 498A wherein the Govt. of India via the Rajya Sabha Committee has sought views and feedback across the cross section of the society for amending Section 498A, the focus is on its non-bailable and cognizable nature – the factor that facilitates easy arrests of innocent and kick starts the extortion process thereafter.
Hence, we see that Section 498A provides a legal facility of “Arrest on Demand” and that’s exactly what it’s being used for. Hence, Section 498A is not misused at all.
Having said that, the next question that arises is, “Is this acceptable?” and the answer is NO.
When it comes to Section 498A I would like to make a statement that,
“Law is not used wrongly, rather wrong law is used.”
Till date, I am yet to see another Section of the IPC that has drawn even a fraction of flak drawn by Section 498A and that too from every nook and corner of the society.
Apart from the Honorable Supreme Court of India, various High Courts, eminent lawyers, the Honorable Home Ministry, Honorable ex-CJI of India Shri K G Balakrishnan, Her Excellency The Honorable President of India Smt. Pratibha Devisingh Patil, various social NGOs, noted Women’s Rights Activist Madhu Kishwar, all and sundry, have voiced their opinions against the notorious and draconian Section 498A calling the Government to at least amend it to prevent the colossal social damage it is causing.
Why would a so-called well-intentioned and a right law would ever draw such a flak?
It has to be borne in mind that unless the very definition and nature of a law facilitates terrorism, extortion and an “easy arrest of innocents” it is impossible to use it as a tool of harassment and a weapon to unleash personal vendetta, to the tune that the Honorable Supreme Court of India is constrained to comment that, “It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound.”
Unless Section 498A allowed an atmosphere wherein the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth, it is not possible for Section 498A to unleash legal terrorism.
Moreover the ignominy does not end at a criminal case of Section 498A being lodged against the husband and his family. It begins from there and from thereon what follows is an obnoxious legal trail of cases under Section 125, the Domestic Violence Act, divorce case, the child custody case (if children are involved in the matrimony) and so on and so forth. And in every such case, the husband is denied basic human rights and his constitutional rights to a fair and free trial (as guaranteed by the Constitution of India – the mother of all laws) merely because of the presence of case under Section 498A.
Apart from that, even the police use this Section as a tool to threaten husbands to bow down before any and every demand by their wives else the husbands would be jailed under Section 498A. This is nothing but state sponsored terrorism. Almost in all cases, husbands are pressurized to dish out luxurious “settlement amounts” under the threat of being jailed. This is nothing but state sponsored extortion.
Hence, we see that be it the police or the judiciary – the two executioner arms of the legislative – both are empowered to trample upon the basic human rights and constitutional rights of husbands under the bureaucratic immunity of Section 498A and not only that, they are even allowed to unleash terrorism and extortion on husbands under this law.
In light of the above arguments Save Indian Family Foundation had declared Section 498A as unconstitutional as far as back in August 2009. Yet, the Indian Government is yet to make any substantial changes to Section 498A.
There, however, have been voices of dissent against dissent. Women’s organizations have, time and again tried to stop amendment of Section 498A – the same also been admitted by the Honorable Home Ministry of India in its directive issued to the State Home Ministries asking them to file 498A and arrest people as a last resort in a matrimonial dispute.
Women organizations are wary that any change in Section 498A would stop their industry of feminism which thrives on fudged statistics and forged victimhood of young women. They get funds only when they show numbers filed under the various anti-male laws they have designed.
And in order to thwart any such attempt they come up with misleading arguments. Some of them and their rebuttals are given here,
- 1. This is the only law available for protection of women: This argument is completely baseless because any other law in the IPC that is available to men is much as well available to women; however the converse is not true. IPC is well equipped with proper sections to take care of offenses like hurt (Section 323), grievous hurt (Section 325), culpable homicide not amounting to murder (Section 304), murder (Section 302), abetment to suicide (Section 306), attempt to murder (Section 307), blackmailing, threatening, extortion, criminal intimidation and so on and so forth. Mental cruelty is taken care of by divorce provisions. Over and above all this, Section 498A provides nothing more than a luxurious facility of “arrest on demand”, which is downright unconstitutional in a democracy.
- 2. Without this law, women will be weak in negotiations: While this argument may sound technically correct but is unacceptable legally and morally. Law is not meant to be a tool of negotiation and cannot be allowed to be unleashed by one section of citizens onto another as a terror weapon merely to facilitate “negotiations from a broken marriage.” Secondly, accepting this argument would tantamount to legalization of dowry as money is being sought in relation to a marriage via a legal channel. If this is the intention of the Government of India, it’s their choice, however this argument is unacceptable.
- Police is inefficient and does not file FIR: Such an argument is nothing but justification given for the existence of an unconstitutional law for the sake of some vested interests. And the remedy for that is not an unconstitutional law. The remedy for that is, the long overdue Police Reforms and not throwing innocent people behind bars.
- Women have been oppressed for centuries: This is again an eyewash argument. For centuries punishment given to criminal women has been projected as oppression and restrictions imposed for protection of women have been projected as discrimination. Both scenarios act as double jeopardy for men resulting in invisible discrimination against men. For example, having an anti-male law in itself is discrimination against men because by default it assumes all men to be criminals and the accused are left to prove their innocence all by themselves. This leads to violation of fundamental rights of male citizens and their family members. Section 498a is a glaring example of this anti-male bias.
However, as the ball has been set rolling, via the recommendations to amendment sought by the Rajya Sabha, men’s rights activists feel in India that the minimum amendments to be made in Section 498A is to make it “bailable and non-cognizable”.
Any other changes made to it (other than scrapping the section) would be viewed as mere eyewash by the Govt. of India to mitigate the voices against Section 498A.