By Human Rights
17 November, 2003
Committee on the Reforms of the Criminal Justice System headed by a
former Chief Justice of the Karnataka and Kerala High Courts and former
member of the National Human Rights Commission of India (NHRC), Justice
V.S. Malimath, submitted its report to the Government of India, Ministry
of Home Affairs in March 2003.
While media attention
has focused on the Committee's recommendations on mainstreaming of the
Prevention of Terrorism Act (POTA), doing away with the right to silence
and on making conviction of the accused easier, the Committee's proposals
concerning offences against women and their implications have not received
An Amnesty International
report, expressed concern about the Committee's recommendations relating
to the treatment of women in criminal law. The nature of the recommendations,
it was felt, indicated that women's groups in India were not adequately
consulted in the matter. They also reflect insensitivity to current
national and international debates on the protection of the human rights
of women through law.
To be fair, certain
recommendations by the Committee are commendable. For example, the panel
suggests that the definition of 'wife' under section 125 of the Code
of Criminal Procedure (CrPC) be amended to include a woman who was living
with a man as his wife during the subsistence of the first marriage.
This would prevent the husband from absolving himself of responsibility
to maintain the second wife on the ground that since the first marriage
was not dissolved, the second marriage would not be valid. Another proposal
is to bring forcible non-penile penetration within the ambit of the
offence of rape. The Committee's opposition to capital punishment for
rapists is also welcome, as is the recommendation on increasing gender
sensitivity among judges.
However, the Committee
itself hits a new low on the gender-sensitivity scale when it recommends
that the offence of cruelty under section 498A of the Indian Penal Code
(IPC) be made compoundable and bailable. This provision is intended
to protect the woman from willful conduct by her husband and/or by his
family that may drive her to commit suicide or cause grave injury or
damage to her life, limb or mental or physical health.
The Committee states
that it is "bothered" by the offence being non-bailable and
non-compoundable, since it results in the immediate arrest of the husband
and/or other perpetrators, makes "innocent" persons "undergo
stigmatization and hardship", and makes "reconciliation and
returning to [the] marital home almost impossible". "For the
Indian woman," the Committee observes piously, "marriage is
a sacred bond and she tries her best not to break it."
Why the Committee
places a premium on "return" and "reconciliation"
and on the "hardship" suffered by the accused in cases of
domestic violence is unclear, especially since in a previous paragraph,
it admits that women are likely to commit suicide "when their suffering
crosses the limit of tolerance." The intention behind the amendment
is presumably to enable a woman who filed a police complaint against
her husband and/or his family for cruelty and harassment to return to
the marital home. Realistically, however, the amendment is more likely
to create a situation in which the husband and/or his family could pressure
the woman to drop charges and then subject her to further harassment.
reasoning ignores the torture and cruelty that a large number of women
undergo at the hands of their husbands and his relatives. The Committee
goes so far as to suggest that if the husband loses his job or is suspended
due to the arrest, the woman will find it more difficult to claim maintenance.
Too many assumptions
are made here, most of them based on the traditional, patriarchal notion
that the Indian woman would rather suffer harassment at home - and forgive
it - than opt out of the marriage.
Ignoring the years
of work and attempts by the women's movement in India to bring the issue
of domestic violence into the public sphere, the Committee notes: "Even
when there is a divorce, or reconciliation, the criminal case continues
as the offence is non-compoundable". Clearly, the Committee believes
that once a woman who has been a victim of such cruelty is awarded a
divorce, there is no need for the criminal case to continue. This amounts
to suggesting that matrimonial cruelty and violence is a family matter
and does not involve the interests of the society - thereby not requiring
the intervention of the state machinery.
The Committee also
notes that there is a "general complaint" that section 498A
is subject to gross misuse, and uses this as justification to amend
the provision. It is pertinent to note that the Committee provides no
data to indicate how frequently the section is being misused. This suggests
that the Committee was acting on conjecture rather than research or
independent study. While it is true that many of the cases under this
provision are withdrawn, it is not because the women were misusing it
in the first place, but more likely because they were coerced into withdrawing
Offences under section
498A must remain non-bailable - it is necessary to convey to perpetrators
of domestic violence that the woman will not take the violence lying
down. If the offence is declared bailable, the accused will be entitled
to be free on bail, and the victim is likely to avoid filing a complaint
for fear of harassment by the accused. It will make women vulnerable
to more violence and to threats with regard to the criminal process.
Further, the link
between section 498A and 304B (which deals with dowry deaths) has to
be understood in the light of the origin and development of the law
against cruelty/domestic violence. The objective of the law is to give
women a legal tool to deal with cruelty while they are alive, not for
"reconciliation". Making section 498A compoundable may also
expose women to more serious domestic crimes such as dowry deaths. Section
498A must therefore also remain non-compoundable to demonstrate the
seriousness of the threat to the woman's right to life.
The Committee, in
its sorry attempt at portraying a gender-sensitive image, should have
been more concerned with protecting women from being subjected to violence
within their homes rather than protecting men from a vague notion of
misuse of the law. It has, in its wisdom, also ignored the debates and
deliberations concerning the Domestic Violence Bill (Bill No. 133 of
The Committee has
completely overlooked several constraints that already discourage women
from seeking recourse under section 498A. As a study by the International
Centre for Research on Women points out, a complainant cannot realistically
gain easy access to her matrimonial home once she files a case. Thus,
women without access to financial and other resources find it difficult
to exercise this option. The husband's family also often demands the
withdrawal of the case as a precondition for an easy divorce. Conviction
rates under this law are therefore already very low. The study cites
an analysis of court decisions in Yavatmal district in the state of
Maharashtra carried out by the Women's Studies Unit of the Tata Institute
of Social Sciences which showed that only 2.2 per cent of cases brought
under section 498A during 1990-96 resulted in conviction.
It must be recognised
that the law on domestic violence, as it now stands, does have a strong
deterrent value. It is extremely important that the issue of domestic
violence be brought into the public domain from the private sphere by
stressing its criminal content, instead of projecting it as exclusively
an internal family matter. Keeping it 'in the family' not only makes
legal intervention more difficult; it also prevents women from seeking
It is a matter of
grave concern that a draft Criminal Law (Amendment) Bill, 2003 (Bill
No. LX of 2003) seeking to implement the Committee's recommendation
has already been introduced in Parliament. Also of concern is a bill
(Bill No. 8/2000) introduced in the State of Andhra Pradesh (AP) that
seeks to amend section 498A on similar lines. The Andhra Pradesh bill
specifies that the offence must be made compoundable. Such amendments,
if passed, would only make women more vulnerable: all that has been
achieved in the area of protection of women from domestic violence law
would be lost.
The former UN Special
Rapporteur on Violence Against Women, Ms. Radhika Coomaraswamy, stated
in her 1996 report to the 53rd session of the Commission on Human Rights
that national legislation on domestic violence must clearly state that
violence against women in the family and violence against women within
interpersonal relationships constitutes domestic violence. The language
of the law must be clear and unambiguous in protecting women victims
from gender-specific violence within the family and intimate relationships.
Domestic violence, Ms. Coomaraswamy stated, must be distinguished from
intra-family violence and legislated for accordingly.
The Committee has
not taken such expert observations into account. Its recommendations
also undermine India's treaty obligations under the UN Convention on
the Elimination of All Kinds of Discrimination Against Women (CEDAW).
The Government of India being party to CEDAW is under an obligation
to respond with genuine and meaningful legal strategies to combat domestic
Protection of the
dignity of women is a fundamental duty under Article 51A(e) of the Constitution
of India and this should have been given meaning beyond the letter of
the Constitution. The Committee has failed miserably in this regard.
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