Instrument of Negotiation

INDIA IS OBSESSED with making new laws for the very good reason that few things really work on the ground. Since that cannot be fixed and the illusion of justice must be preserved, the easy thing to do is to drown ourselves in legislation every time a problem rears its head. Once unleashed, they never make their way back into the box even if conditions might no longer warrant them. We see indications of this phenomenon regularly, and we saw it again this week as the Bombay High Court asked the Central government to consider giving permission to a Maharashtra Bill making Section 498A, a law that was deliberately draconian because of the wide prevalence of dowry deaths in the 1980s, compoundable.

Compoundable means that if both parties, the wife and the husband who harassed her for dowry, agree, then the case can be withdrawn. If it is not compoundable, then the state must proceed even if the wife says she just wants to live in peace with him. The idea of not bringing in the element of compromise to such a law is obvious. The husband can coerce the wife into withdrawal. Also, it is the state’s responsibility to punish a criminal even if the victim has forgiven. The narrative changes somewhat in 498A because soon after the law got going on its objective of curbing dowry deaths, the divorce lawyers stepped in. Under the terms of the section, a police complaint by the wife was enough to immediately put not just the husband but any of his family members in jail, and then they would have to wait for the lethargic fullness of the Indian judicial system to get out. This would be true even if they were innocent. Guilt was presumed, in contrast to what Indian jurisprudence maintains. Whenever a divorce got nasty and lawyers got into the fray, the last resort advice to the wife was to file a case under 498A so that the terrified husband would hurriedly agree to the terms to get out of jail.

This exploitation has been recognised for decades now and it has led to the law being diluted in practice. The high court’s present comment is one more hammer to that nail. As the court observed, according to an Indian Express report: “The importance of making the Section 498A compoundable with the permission of the Court, can hardly be overlooked/understated…Everyday, we have a minimum of 10 petitions/applications seeking quashing of Section 498A by consent, since 498A is non-compoundable.”

But making it compoundable might serve to entrench 498A further as a divorce mechanism because now the compromise would be much easier. Laws that are inherently flawed are usually difficult to dress up into something better. You could, for example, have a deterrent for false cases but that would only swing the pendulum in the other direction—genuine victims could find themselves harassed. It could be revoked entirely but that is politically impossible. As with all things, India just waits for the passing of time to solve problems it has no ability to fix.

anti-dowry lawHigh CourtjudiciaryMaharashtraSection 498A