The Supreme Court in Rajesh Sharma v. State of U.P. - Justice to the Accused, or Chilling Effect?

- Hrishika Jain*

The Supreme Court’s directives against the ‘misuse’ of Section 498-A in its recent judgment in Rajesh Sharma & Ors. v. State of U.P.,[1] while disturbingly removed from realities of domestic violence crimes, are only a culmination of a longer trend in judicial attitudes towards the provision. Through this article, I seek to use this judgment as a proxy to call into question the dubious legality of the outcomes of the biases of a judiciary[2] that increasingly looks like an Old Boys’ Club.[3]

The case arose out of an appeal challenging the order of summons issued by the Additional Sessions Judge to the relatives of the complainant’s husband. The Court, however, shifted the issue to general directions to prevent ‘misuse’ of S. 498-A, instead of laying down any norms for challenging summons in such cases.

However, even apart from this, the Court’s verdict suffers from multiple flaws (empirical, logical, and legal) in the contents of the guidelines. It directed setting up of 3-member District Family Welfare Committees, comprising wives of officials, retired persons, paralegal volunteers, social workers, etc. The Magistrate or the police is required to refer any complaint under S. 498-A to this Committee which, after adequate personal interaction with the parties involved, has to send a report stating the factual aspects, and its opinion, to the referring authority within a month. Till such receipt of this report, which the referring authority can deliberate on, no arrest should normally be effected. The guidelines allow any senior judicial officer to dispose of the criminal proceedings, in cases where a settlement is reached between parties. Lastly, none of these guidelines apply to cases of tangible physical injuries, or death.

The Court rationalized these directives by pointing out the widespread tendency to abuse the provision “on the strength of vague and exaggerated allegations, without there being any verifiable evidence of physical or mental harm,”[4], leading to an impossibility of reconciliation between the discording parties. It cited statistics from the Crime Records Bureau, revealing the number of S. 498-A cases declared ‘false’ due to mistake of fact or law, and the differences between rates of chargesheet filing, and convicton – all seemingly pointing towards a large-scale abuse of S. 498-A.[5] The Court, in mentioning decisions like that in Preeti Gupta v. State of Jharkhand,[6] implicitly seems to have adopted the rationale of that Court. In that case, while quashing proceedings on lack of evidence, the Court stressed on the need for reconciliation, as well as on the “common knowledge” that such cases are often results of false complaints. The judgment further cites the Delhi High Court decision in Chander Bhan v. State,[7] and the Supreme Court decision in Arnesh Kumar v. State of Bihar,[8] both of which laid down some guidelines to prevent a similarly assumed abuse of S. 498-A.

Problem Misidentification

The Court identifies two problems in need of remedy, in the context of the use of S. 498-A –“i) Uncalled for implication of husband and his relatives and their arrest;

ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable, and uncalled for hardship to parties on that account.”[9]

While ii) is addressed later in the paper, i) is strictly an issue of improper, and illegal exercise of the power of arrest by the police officers – signifying a possible failure of criminal procedure that is supposed to circumscribe substantive criminal law. A graver problem of ‘misuse’ through illegal, or improper arrests is also reported under S. 377, IPC.[10] However, it would be fallacious to address the general issue of abuse of arrest powers by the police through an attack on ‘misuse’ of S. 498-A by the victims of domestic violence. While the problem is one of procedure and general law enforcement, the Court’s solution is one that victimizes the perpetrator of the violence, in place of the victim, producing a chilling effect[11] on criminal proceedings against such violence. The rhetoric of ‘misuse’, created due to superficial analyses of conviction statistics creates a legal system a priori adverse to the victim at every step. It is this legal system that manifests in the present guidelines.

This general narrative of improper arrests, has also led to its conflation with ‘false FIRs’[12] or harassment of the husband’s kin by the victim (as opposed to harassment through arrest by the police). This has led to judgments like Chander Bhan v. State[13] being cited (with implicit approval, or at least no clear objection) in the present case. Among other things, Chander Bhan held that registration of FIRs must not be done in a routine manner in S. 498-A cases. This dangerous conflation has been most aptly called out by the Supreme Court itself in Lalita Kumari v. State of U.P.[14] The Court held that mere arbitrary arrest cannot be a ground for allowing the police to conduct preliminary enquiry before filing an FIR, as there exist separate safeguards against arrest after the FIR stage.

Further, this mismatch of problem and solution can be easily resolved by turning to the existent arrest jurisprudence, and ensuring conformity in practice. In fact, post the 2008 Amendments, the accused under S. 498-A[15] can be arrested only on the fulfillment of certain specific conditions (suspicion of possible tampering with evidence, intimidation of witnesses, possibility of escape, etc.).[16] Further, the Supreme Court has also laid down additional safeguards by distinguishing between the power to arrest, and the justification to do the same – the latter requiring not only reasonable, and credible belief in the accused’s involvement, but also the need to arrest.[17]

The judgment essentially dilutes police’s powers under S. 41, Code of Criminal Procedure [hereinafter, ‘CrPC’] beyond existent, general judicial and legislative safeguards, through devolving these powers to a separate committee, for the single offence of S. 498-A. This classification unduly affects a single class of persons, that is victims of domestic violence, and has no reasonable nexus to the problem of procedural failures that is claimed to exist. Therefore, it is an arbitrary and unreasonable classification – and thus, in violation of the Constitution.[18]

Distinction Without a Difference

Furthermore, the judgment has violated Article 14 and its mandate of non-arbitrariness in State’s actions in another, less explicit manner through the last point in the directives issued by the Court. It clarifies that these extra procedures, beyond the ones already applicable to all offences, are not applicable in those S. 498-A cases involving tangible physical injuries, or death.[19] This draws an arbitrary classification between different, equally recognized, forms of cruelty. This is because the effect of judgment would be to differentially treat women who have suffered physical injuries (that too, only when these are tangible), and women who have been subjected to emotional, mental, or financial cruelty, or even threats of physical injury. If the object of the guidelines is to, indeed, discourage the institution of false proceedings under S. 498-A, it is not clear how a differentia on the basis of the nature of the injury has any nexus to the stated objective. If the differentia is on the basis of the perceived urgency of the complaint, the Court leaves unexplained why physical injuries that have now become intangible, or intangible physical harm like deprivation of food, or any other form of cruelty deserves any less gravity than tangible injuries. The test for an intelligible differentia between the two classes sought to be formed, clearly fails – and therefore, this classification is arbitrary and fails the test of Article 14. This is particularly retrogressive in light of other judgments of the same Court that have recognized the subjectivity of the level of sensitivity and toleration of an individual, before she is ‘driven to suicide’, as required by the Explanation I in S. 498-A.[20] It is, however, acknowledged that a judgment of the Supreme Court may not be reviewed on the touchstone of fundamental rights, as per Article 13 of the Constitution.[21]

Compounding Non-Compoundable Offences

The guidelines laid down in the judgment, and the precedents cited in it, all have a clear push towards reconciliation between the ‘parties’ involved, or at least towards dealing with matters of domestic violence through civil settlement procedures.

S. 498-A is a non-compoundable offence.[22] However, the Supreme Court in the case of Gian Singh v. State of Punjab[23] has held that criminal proceedings that relate to wrongs of a completely ‘private’, though non-compoundable, nature, such as matrimonial disputes, can be quashed under S. 482 of the CrPC, on grounds of a compromise between the parties. This distinction in the law itself meets with considerable criticism from feminist legal method, which links it with the critique that the law continues to be “male in the feminist sense”.[24] Thus, while patriarchy first confines women to the private/domestic, the legal system confines the law’s watch to the domain that is public, and thus male – aiding the law in dismissing questions of domestic violence, work-life conflict for an employed woman, maternity benefits, etc. Questioning this distinction is, thus, a fundamental element of “the woman question”[25] central to feminist methods – “to see the personal as political means to see the private as public.”[26]

However, even keeping aside this external critique of the Supreme court’s public/private distinction, these directives in the current judgment are vulnerable to internal critique, as they are inconsistent with the existent law. The judgment empowers the District and Sessions judges to dispose of the proceedings, in cases where the parties have arrived at a settlement. This is clearly beyond the pale of the current criminal procedure. This is because any discretion given to Courts to compound non-compoundable offences, forms a part of the inherent powers of the High Courts under S. 482. The Court by delegating this power to lower courts, has definitely gone beyond the circumscribing limits of CrPC.[27]

Distorted Perspectives

The distinction between general offences involving violence and marital violence, when drawn by the judiciary, has clearly not served the victim’s interests.[28] The artificial distinction that the judiciary draws works to normalize acts of violence within the family by encouraging reconciliation and civil proceedings due to the ‘private’ nature of the offence. This amounts to an informal nudge to compounding, that would be considered unjust, or even impermissible, for offences of violence of the same degree in the ‘public’ sphere.

However, in its biased (and arguably, male) perspective of reality, the judiciary has ignored differences that do actually exist between the private, and public spheres of violence. Any violence in the former sphere is generally difficult to prove because of lack of ‘uninterested witnesses’, apart from the victim,[29] as most witnesses are family members to either the victim or the accused. Another factor that differentiates this ‘private’ domain from the ‘public’ is, in fact, a function of this very continuous societal pressure on the victim to reconcile with the abusive husband - now institutionalized by the Supreme Court in this judgment. This constant pressure and stigma, perpetrated even by the legal system, often may lead to lack of cooperation from the victim in the prosecution, leading to both acquittals, and allegations of ‘false cases’. This material difference between the ‘private’ and the ‘public’ spheres of violence, i.e, a push to reconciliation in the private sphere is, in fact, a product of the same distinction. Recognizing the private domain of the marital home a sacred space as opposed to the ‘public’ domain, the law pushes for reconciliation, eventually achieving the same. Once achieved, the law turns around, fails to recognize these material differences of the private domain from the public domain, and then labels the low rate of conviction that results from these material differences as evidence of ‘misuse’. This perception of ‘misuse’ then would naturally lead to court decisions which are more hesitant in considering the ‘beyond reasonable doubt’ standard to be met, in a class of cases which are reputed to be ‘false’, thus leading to acquittals. The vicious, self-perpetuating nature of this cycle is evident.

The claims above tend to raise greater reasonable doubt on the generalizations drawn by the Court, on a more careful perusal of the National Crimes Record Bureau reports cited by the Court. The 93.6% charge-sheet rate noted by the judgment[30] goes to show that prima facie evidence did exist in most cases, and that the low rate of conviction could be explained through ineffective investigation, and out-of-court settlements.[31] Under a further analysis of National Crime Records Bureau Data by Swayam, it was revealed that cases under S. 498-A declared false on account of mistake of fact or law, were a mere 10-11% of total number of 498A complaints. This figure is much lower than the same figure for other crimes like cheating or abduction.[32]

Thus, the creation of an artificial public/private divide in compounding such cases, while refusing to recognize the same distinction in terms of evidence availability between these two spheres is a clear case of a distortion in the judicial attitudes towards domestic violence.

Conclusion

In an apparent attempt to protect the rights of the accused, the Supreme Court has repeatedly led to a constructed and generalized victimization of the accused, at the expense of the complainant-victim of violence. Its distorted view of reality has led it to conflate failures of law enforcement, arrest procedures, and the failure’s of the criminal justice system to recognize the material differences between the public and private domain of violence, with ‘misuse’ of a substantive provision. This has made the judgment not only a classic case of a problem-misidentification, but also a symbol of the need to check judicial overreach and the self-representation of the judiciary as an epitome of neutrality and justice.

*Hrishika Jain is a 3rd year student at the National Law School of India University, Bangalore.

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[1] Rajesh Sharma & Ors. v. State of U.P., Criminal Appeal No. 1265 of 2017 (Supreme Court of India) [‘Rajesh Sharma’]

[2] See generally M.B. Neitz, Socio-economic Bias in the Judiciary, 61(1) Cleveland State Law Review 137 (2013).

[3] P. Sridevan, Judiciary, An Old Boys’ Club, The Hindu, March 30, 2016, http://www.thehindu.com/todays-paper/tp-opinion/judiciary-an-old-boys-club/article8410858.ece (Last visited on August 10, 2017).

[4] Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 7 (Supreme Court of India).

[5] Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 15 (Supreme Court of India). “…6,141 cases were declared false on account of mistake of fact or law…rate of charge-sheet filing for the year 2012…was at an exponential rate of 93.6%, while the conviction rate was at a staggering low at 14.4%.”

[6] Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 (Supreme Court of India).

[7] Chander Bhan v. State, (2008) 151 DLT 691 (High Court of Delhi).

[8] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (Supreme Court of India).

[9] Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 15 (Supreme Court of India).

[10] Alok Gupta, S. 377 and the Dignity of Indian Homosexuals, Socio-economic Bias in the Judiciary, 41(46) Economic and Political Weekly 4815, 4819 (2006); D. Mondal, ‘Misuse’ of S. 377 Sees Arrest of 100 People in Delhi, The Sunday Guardian Live, March 18, 2017, http://www.sundayguardianlive.com/news/8772-misuse-section-377-sees-arrest-100-people-delhi (Last visited on August 10, 2017).

[11] The term has been used to mean a disincentivization of the exercise of a legal right through imposition of other legal regulations.

[12] Infra note 4. The quote from the judgment clearly conflates ‘uncalled for arrests’ with the ‘uncalled for implication’ of the relatives in the case, leading to a suggestion that procedurally flawed arrests are somehow indicative of false complaints.

[13] Chander Bhan v. State, (2008) 151 DLT 691 (Delhi High Court).

[14] Lalita Kumari v. State of Uttar Pradesh, (2014) 2 SCC 1 (Supreme Court of India). While the Court did, thereafter, allow preliminary enquiries for matrimonial disputes, it was only limited to establishing whether a cognizable offence can be made out, and for not the veracity of the accusations.

[15] S. 498-A prescribes punishment less than 7 years, thus falling under S. 41(1)(b) of the Code.

[16] Section 41, Code of Criminal Procedure, 1973.

[17] Joginder Kumar v. State of UP, 1994 AIR SC 1349 (Supreme Court of India).

[18] R.K. Dalmia v. Shri Justice S.R. Tendolkar, 1958 AIR SC 538 (Supreme Court of India). In a writ petition regarding the validity of the Commissions of Enquiry Act, 1952 under Article 14 of the Indian Constitution, the Court laid down two conditions for any classification to pass the test of Article 14. First, it must be founded on an intelligible differentia between the classes; second, the differentia must have a rational nexus to the object of the statute in question.

[19] Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 19 (Supreme Court of India).

[20] Mohd. Hashan v. State of Andhra Pradesh, (2002) 7 SCC (Supreme Court of India).

[21] See Rupa Ashok Hurra v. Ashok Hurra, Writ Petition (Civil) 509 of 1997 (Supreme Court of India).

[22] S. 320, Criminal Procedure Code, 1973.

[23] Gian Singh v. State of Punjab, Special Leave Petition (Crl.) No. 8989 of 2010.

[24]C.A. MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence, 8(4) The University of Chicago Press Journals 635, 644 (1983).

[25] K. Bartlett, Feminist Legal Methods, 103(4) Harvard Law Review 829, 837 (1990).

[26] MacKinnon, supra note 24, at 656.

[27] Mithabhai Pashabhai Patel & Ors. v. State of Gujarat, Criminal Appeal No. 941 of 2009, ¶21 (Supreme Court of India).

[28] This is evident from most case-laws that have been cited by the Supreme Court in Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 8 (Supreme Court of India).

[29] State of Haryana v. Ram Singh, AIR 2002 SC 620 (Supreme Court of India). The Court held that while the evidence may not be discredited simply because the witness is interested/partisan, the Court must be rather strict in its scrutiny of such evidence; Arvind v. State of Bihar, Civil Appeal No. 1244 of 2011 (Supreme Court of India). In that case, the mother of the deceased-victim sought to testify that she had been told by her daughter that her in-laws had thrown kerosene and a matchstick on her, her testimony was discredited and the accused acquitted due to the mother’s evidence being “interested”.

[30] Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 7 (Supreme Court of India).

[31] 243rd Report of the Law Commission of India, Section 498A, IPC, ¶ 3.3 (2012); http://feministlawarchives.pldindia.org/wp-content/uploads/498A-Report-for-NCW-final.pdf (Last visited on February 23, 2016); National Crime Records Bureau Report, Crime in India 2014: Compendium (2014). The other offences reported by NCRB to have very low conviction rates were ‘procuration of minors for prostitution’ (for which it was the lowest), and crimes against scheduled castes. This clearly reflects some failure of the legal process.

[32]http://feministlawarchives.pldindia.org/wp-content/uploads/498A-Report-for-NCW-final.pdf (Last visited on February 23, 2016).