Tuesday, March 8, 2011

Indian laws swing like a Pendulum. Take the dowry act as an example

Today’s papers talk about Section 498A of the IPC which relates to protection of a woman against dowry demands made by her husband and in-laws. This Section was introduced in the IPC in 1983 with a noble intent. Of protecting the woman from the rapacious greed of a very MCP Indian society that refuses to abandon dowry. Unfortunately, it appears that the Section has been misused.....by the very women who were intended to be protected by it. The ones who used to harass are now being harassed! A law to protect one section of the society is now causing harm to another. While this may at times give us a certain degree of satisfaction, it’s actually a matter of great shame for the country. Why do we swing like a pendulum at all? Why can’t we be more mature in our law-making?

Section 498A was intended as a measure of protection for the woman. Not offence against the husband. Harassment of women in connection with dowry is a well known reality in India. Women are routinely harassed and taunted by the husband and his family and ever-rising demands are made for money and other favors from the wife’s parents. This is a historical shame for India and it surely needed to be corrected. But in typical Indian style, instead of correcting, we “over-corrected”. We swung like a Pendulum.

The courts have now found that women are exploiting this provision to harass their husbands and their in-laws. The section gives the woman the power to complain against her husband and his family. So far so good. What is not so good is that it makes it a non-bailable offence. Basically, the accused does not have a right to bail. It’s for the court to decide whether bail should be granted or not. Since our courts take years to hear such matters, the husband remains in custody for a long long time. What’s the need to make it non-bailable? Is it to protect the wife from being battered by the husband after she has filed the complaint? Surely there has to be a different way to protect the wife? Surely it’s possible that the husband is not guilty and the wife is actually the one who is misusing the act? Why can’t the husband be released on bail? He’s not going to run away!

I don’t believe that all husbands mistreat their wives in matters of dowry. In fact, its only a minority of husbands who do that. The aggressive form of dowry that leads to dowry related crimes is practiced in only a few parts of the country.....especially in the North. In the rest of the country, dowry does exist, but in a much more benign form. Usually, the boy’s parents are not that demanding (not that it is justified). Usually, the MCP behavior exists in only few parts of the country. I have lived in Gujarat and Maharashtra and I can say this clearly that men in these states (by and large) are not MCPs. They wouldn’t beat up their wives for anything.....including dowry. It’s the same in the South as well. In the East, it’s a fairly matriarchal society; I doubt if dowry is such a big issue there. It’s really only in the North that the aggressive MCP behavior manifests itself so fully. The point I am making is that not all husbands are evil. By making it a non-bailable offence, we are assuming that all husbands are evil and all of them need to be jailed even before they are proven guilty. We know how much time it takes for any judgment to be pronounced by our courts. We simply cannot jail every husband for years on the presumption of guilt. Every person is assumed innocent until proven guilty. This is the basics of any civil society. We pride ourselves on being a civil society. Yet we allow for such pendulum swings.

Likewise, take the sexual harassment problem. I am sure, this is a rampant problem in India as it is in many other countries in the world. However, in the US and Europe, the law does not differentiate between men and women when it comes to protecting against sexual harassment. In India however, the law assumes that only women are exploited in offices and need protection. In fact, the law makes this clear by its very name: “The Protection against Sexual Harassment of Women”. Today, in offices, men live in fear of being harassed. If a guy utters the “F” word in the presence of a woman colleague, it could be called sexual harassment. However, if the woman utters the same word, it’s OK! My point is not that women shouldn’t be protected.....my point is that we cannot over-correct basis our beliefs and experiences of the past. In correcting the past, we cannot screw up the future!

Its the same with the entire practice of Reservation of seats in colleges for the SCs and STs and OBCs. I am a firm believer in reservation for these sections......because in the past, we have denied them a chance purely on the basis of their caste. Hence a correction is required purely on the basis of their caste. But the reservation policy should have been designed better. It should have provided for lesser and lesser reservation with the passage of time. Instead, it’s become a political tool now. Today, the situation is so bad in India, that meritorious students are unable to get admissions. How can this be good for the country? Clearly this is a bad policy. Clearly, its another case of over-correction.

The real truth is that Indian society is in the throes of massive change. As people are becoming more aware of their rights, they are demanding a change from the past. This is a good sign. The momentum is towards correcting the ills of the past. In the process however, we tend to over-correct. I suspect we do this to rid ourselves of our guilt. We believe that over-correcting is a faster way of correcting the ills of the past. In fact, we believe that if we don’t over-correct, we are being soft. We really need to think about this. The pendulum does not swing to the extremes in liberal societies. We need to ask ourselves: Are we a liberal society at all? 

1 comment:

  1. Hi, would like to work together on this to ensure that we get equitable Laws.please let me know if you are keen to pursue this. Koushik_c1@yahoo.co.uk