A Discordant Note on the Supreme Court's Dowry Order

[This is an AHRC article.]
The Indian Supreme Court’s decision to disallow blind arrest of the accused in dowry cases seems baffling at first sight. After all, the same court has often turned down bail applications, usually granted in such cases by Sessions Courts and High Courts. InSamunder Singh v. Rajasthan (1987), the Rajasthan High Court granted anticipatory bail to the father-in-law of a girl who died soon after her marriage; the girl’s family had made an accusation of dowry murder. In that case, the Supreme Court had not only cancelled the anticipatory bail granted to the father-in-law of the deceased girl by the Rajasthan High Court. The Supreme Court had stated that the bail is evidence to the widely held belief that “dowry deaths are even now treated with some casualness at all levels”.
In this context, the Supreme Court’s order, prohibiting immediate arrest, and ensuring that the accused get arrested only after a 9-point checklist, seems to be a departure from its past stance. Interestingly, the order ensures that the accused will be detained only after the Magistrate is satisfied with the investigation officer’s justification of detention. The Magistrate, in turn, will put on record reasons for the same, and failing to do so will invite departmental action and amount to contempt of court for the investigating officer.  The Court had further added that the order stands not only for dowry cases but also for all cases where the offence is punishable with imprisonment for less than seven years or up to seven years with or without fine.
The judgment is not a standalone order of a bench breaking the norm. It falls in line with another recent order of Justices Vikramjit Sen and S.K. Singh that prohibits auto arrest on allegations of rape that follow live in relationships gone sour. The Bombay High Court and many other lower courts have regularly expressed similar concerns.
The judgment has, expectedly, unnerved feminists and certain sections of civil society. Some have even blamed the order as a reflection of the misogyny and patriarchy that defines Indian society. However, despite their legitimate concerns, the judgment is neither representative of a patriarchal or misogynist mindset. Yes, women are treated as lesser citizens in India. Yes, the statistics from the National Crime Records Bureau expose the endemic nature of violence against women in India.  The problem of dowry is widespread. And, the anti dowry act is not the only one that gets misused. Many other acts, aimed at protecting the marginalized, get misused too.
This is exactly where the Supreme Court judgment turns out to be a rather progressive one, which takes one problem of India’s criminal justice system head on. Consider the statistics quoted by the bench itself. A total of 1,97,762 persons were arrested in 2012 for the offence under Section 498-A of the India Penal Code and nearly a quarter of those arrested were women. These women, ranging from elderly and often sick grandmothers to young daughters, all belong to the family of dowry accused. What if a single one of them is innocent? Presumption of innocence, not guilt, is a basic tenet of the rule of law. But here there appears to be a mad rush to send people to jail. What will happen to these women when the courts release them? Will society be less patriarchal to them? But then, this judgment is not only about women.
Presumption of innocence, not guilt is what all systems using common law must practice. Barring those caught red-handed or to stop someone from committing a crime, bail not jail should be the norm. The bench, in this case, has merely reaffirmed the principle. It has asserted that arrest curtails freedom, brings humiliation and scars people forever, and no arrest should be made only because the offence is non-bailable and cognisable. Who can disagree with this?
The judgment has also brought the role of Magistracy to the fore. The idea of Magistracy was born to curtail the unlimited power of arrest vested in law enforcement agencies. It was borne to protect the citizens from unlawful confinement and to defend them against unjustified arrest. Can anyone question the fact that both the Indian lower judiciary and the Indian police are corrupt and that they often use cognizable offences as a bargaining tool for bribes? What else explains that over 90% charge sheets in dowry cases result in 15% conviction?
The power to arrest even the female members of the family of the accused, thusly becomes problematic, as it gives the police unlimited power of harassment. Even from a different perspective, in a country where more than 90% of marriages are ‘arranged’, the bride and bridegroom’s families are often of the same socioeconomic status. In the case of a failing marriage, patriarchal idea of avenging the ‘honour’ of the bride becomes reason enough for pressing dowry charges and to teach the family a lesson.
Indian jails are already overcrowded. Under-trials sometimes serve more years than offence for which they get booked. This judgment might help the situation a bit. And, after all it does not bar arrest. It just brings in magisterial scrutiny to the police’s decision to arrest a person. And, it does this in a time-bound manner. The police will have to explain their decision about arresting or not within 14 days. What is wrong with that?
Civil society has always fought against the arrest of countless innocent youth under charges of terrorism. They have been seen being exonerated after years, sometimes even decades, of confinement, which can be called nothing but illegal. This judgment will help, not harm, fighting such cases too.
Harsh and draconian laws are not going to resolve problems. They will merely embolden an already corrupt and inefficient police into harassing more innocents. They will be misused by the lower judiciary, which is acknowledged as corrupt by the Supreme Court.
Britain, where India’s legal system emanates from, does not have auto arrest provisions even for rape charges. Does it mean that it sees more violence against women? Have the women there broken free of the shackles of patriarchy? In both cases, no is the answer. Britain sees less crime against women because it has a more honest and efficient criminal justice system.
That is what India also needs, not harsher laws. Legitimate public anger over the 16 December gang rape and murder of a young girl has not resulted in reducing violence against women. The anger, however, was used by the system to add the draconian death sentence to rape cases. This positive judgment should be welcome, and not derided. A time bound investigation, under magisterial scrutiny, to decide the detention of those charged with offences carrying a sentence less than 7 years, is a step forward in the reforms that India’s criminal justice system needs.
Arrest is the last resort in all civilized countries. Criminal investigations do not begin with arrest in rule of law countries and they should not do so India as well. The judgment is progressive in that it has set the process aright.
That said, the real test would be in the enforcement of the ruling; it demands immediate reform in police capability of carrying out forensic and criminal investigations. The judgment may also curtail torture as a rampant tool of investigation, in times where the police arrests the accused and then tortures him/her into confession and providing evidence. In other words, the judgment restores the right to silence and not being forced into serving as a witness against oneself.
It may not look politically correct at the moment, but the judgment will be remembered as a step forward in reforming India’s criminal justice system.


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