SC rethink on Sec 498A verdict does away with procedural propriety

A desire expressed by a three-judge bench of the Supreme Court to re-examine a verdict delivered by a smaller bench on the misuse of the dowry harassment law raises several questions over procedural propriety and the necessity for re-examination. Not only was there no case before the larger bench asking for a review of the original judgement, the preliminary order gives sufficient idea that the judgement is set to be modified without giving the other bench an opportunity to rethink.

The two-judge bench verdict, authored by Justice Adarsh Kumar Goel, made a progressive change in the implementation of the law on dowry harassment. The court found that despite certain safeguards against uncalled for arrest and insensitive investigation in family disputes as directed in Arnesh Kumar vs State Of Bihar & Anr on July 2, 2014, the problem persisted and at times ruined chances of resettlement between husband and wife.

The court went on to direct setting up of family welfare committees, involving civil society members, in each district to examine the complaints made under Section 498A of the IPC before making any arrest. Among others, the far more important direction was empowering the district courts to close criminal cases where a settlement has been reached between the parties. Hitherto, this power was being exercised only by the High Court.

Clubbing of all connected cases and doing away with mandatory presence of all family members before the trial court could not but be hailed by anybody abreast with the ground realities of the justice system. The directions were issued after examining the issue threadbare, with assistance from Additional Solicitor General A S Nadkarni and senior advocate V Giri as amicus curiae. Besides, it also considered the NCRB data recording low conviction rate. In 2013, out of 4,66,079 pending cases, only 7,258 resulted in a conviction, while 38,165 cases saw acquittals and 8,218 were withdrawn.

Within months, the larger bench presided over by Chief Justice Dipak Misra, however, minced no words in observing, “We are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma vs State of UP because we are disposed to think that it really curtails the rights of the women, who are harassed, under Section 498A".

“That apart, prima facie, we perceive that the guidelines may be in the legislative sphere,” it went on to add. In its judgement delivered on July 27, the two-judge bench was very much conscious of its role. “Function of this court is not to legislate but only to interpret the law. No doubt in doing so, laying down of norms is sometimes unavoidable. Just and fair procedure being part of the fundamental right to life, interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable,” it said.

The bench also relied upon the 243rd report by the Law Commission of August 2012, 140th Report of the Rajya Sabha Committee on Petition (September 2011) as well as several decisions of the apex court to pass its directions. It also noted the “laudable” object with which Section 498A was inserted in the statute in 1983 to punish husbands or relatives for cruelty to wife. It, however, recorded that most such complaints are filed in the heat of the moment over trivial issues. Many such complaints are not bona fide. At the time of filing the complaint, implications and consequences are not visualised. Unwarranted arrests in such cases have jeopardised the chances of reunion of sparring couples.

It also noted that in Preeti Gupta & Anr vs State Of Jharkhand & Anr on August 13, 2010, the apex court said it is high time that the legislature took into consideration the pragmatic realities and make suitable changes in the existing law. A serious relook at the entire provision is warranted. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases. The criminal trials lead to immense suffering for all concerned. Even ultimate acquittal in the trial may not be able to wipe out the deep scars of suffering the ignominy. Unfortunately, a large number of these complaints have flooded the courts.

On October 13, the CJI-led bench somewhat undid what the two-judge bench judgement tried to bring in. The judgement, which was described as a landmark for its effect on checking the unmindful rounding up of entire families in complaints filed under Section 498A, is now sought to be put on the backburner.

Interestingly, Maharashtra-based NGO 'Nyayadhar' (women lawyers’ association), through its PIL, just wanted direction for inclusion of more women members in the family welfare committee. Would it not have been more appropriate to refer the matter to the same two-judge bench to examine? If anybody was really aggrieved with the order, the avenue of review and curative petitions was still very much open.

Notably, the two-judge bench entrusted the National Legal Services Authority with monitoring the working of the new arrangement for six months and asked it to give a report by March 31, 2018, about the need for any other change in the directions. Though the matter was listed for consideration for April 2018 before the two-judge bench, it is now to be seen what the larger bench does, as it would take up the issue on November 29, with two senior advocates V Shekhar and Indu Malhotra having been appointed as amicus curiae to assist it.