Tag Archives: police

Protecting the Harassed and the Harasser

19 Jul

The Supreme Court recently passed a controversial judgment condemning ‘automatic’ arrests by police in dowry harassment cases against husbands and in-laws. The judgment has received a mixed response. While its supporters praise the Court’s strong statement against misuse of this law by women, others raise concerns over the rights and safety of victim women. While the Court rightly asks for the correct implementation of criminal procedures to avoid harassment by misuse of law, its lack of a simultaneous emphasis on the need for protection of women is problematic.

The judgment speaks of the duties of police officers while making arrests and applies to cases beyond the context of cruelty against women. Thus, one way to understand the ratio of the judgment is to look at it as a criminal procedure case divorced from its gender context. The Court merely reminds police officers of their duty under the Criminal Procedure Code (Cr.P.C.) to exercise discretion while arresting even in non-bailable and cognizable offences and to do away with the attitude “to arrest first and then proceed with the rest”. Instead of mechanically making arrests on receiving an allegation, the police should first arrive at a reasonable satisfaction as to the genuineness of the allegation based on some investigation. Under the Cr.P.C., for offences with punishment of seven or less years, like the provision on cruelty in dispute here, the police can arrest without a warrant only when it is satisfied that arrest is necessary for reasons such as preventing tampering with evidence, preventing threat to witnesses, and preventing commission of further offence. An absolute non-exercise of discretion, whether by mechanically arresting or not arresting, is problematic and may cause unnecessary harassment and humiliation to the arrested person. The judgment requires police officers to forward to the Magistrate not only their reasons for arrest, but also reasons for their decision not to arrest, in the latter case within two weeks from the date of institution of the case. Failure to follow these guidelines may render police officers liable for both departmental action and contempt of court proceedings.

While the operative part of the judgment is written largely in such criminal jurisprudence terms, presenting the judgment in this gender-neutral manner will rob it of its true context and hide its possible implications. Even while the direction is to police officers, the Court is more concerned about harassment by “disgruntled wives” than by the police. The Court emphasizes how women are misusing the criminal provision that was intended to protect them from cruelty by husbands or his relatives, and causing harassment through arrests not only of the husband, but also his old or distant relatives, whether male or female. The Court also notes that marriage is a revered institution in India and seems to lament the increase in matrimonial disputes in the country.

The exclusive focus on misuse instead of use of the provision makes the apparently harmless verdict reiterating the criminal procedural law a questionable and unbalanced one. While the misuse of anti-dowry provisions may be common, but even more widespread is the incidence of dowry-related violence. In its attempt to “maintain a balance between individual liberty and societal order”, the Court totally ignores the concerns of women who may actually be victims of harassment. Patriarchal norms normalizing domestic violence, lack of support for women who fight against such violence and the private domain within which the abuse takes place already make legal remedies difficult to access for many women. In this context, valid concerns were raised around the judgment’s implications for a woman deciding whether or not to use criminal law to her rescue and for the safety of a woman who decides to use criminal law but is not able to procure arrest of the accused persons.

There is a need to take on board concerns both regarding protection of women from domestic violence and regarding harassment caused by arrests of falsely accused persons. While the Supreme Court takes care of the latter, it ignores the former. As a matter of fact, the law already provides this protection in the form of the Domestic Violence Act (DVA). The definition of “domestic violence” under the Act covers physical, mental and economic abuse and includes violence related to dowry demands. It further places a duty on a police officer who receives a complaint of domestic violence to inform the aggrieved woman of her rights to receive protection under the DVA. Thus, even where the police may not arrest the accused persons immediately, they may still assist the complainant woman to use the DVA machinery and seek protection and other reliefs.

While the Court reiterates Cr.P.C. provisions to curtail harassment by misuse of dowry laws, it surprisingly misses out a mention of DVA that can simultaneously be used to provide protection to abused women. The police officers need to be reminded of their duty under both these laws. One can hope that this slip by the apex Court will not result in dilution of the actual exercise of their duty under the other law.

Size of the State

8 Mar

One of the points made repeatedly by those in different fields of policy-making is to invest enough to make the Indian state more capable of governing the country properly.  This debate also finds some co-relation in the continuous debate in the USA where Democrats make the case for a larger government which regulates greater areas of public life, and Republicans plead for a smaller government which in turn leaves larger areas of social and economic life up to individual discretion.

In India, since no one disputes the need for a welfare state, there is no great debate over having a smaller state or a larger state.  However, many scholars keep advocating that India’s government is in fact, way too small to meet the demands of a modern democratic government.

For example, this is what one prominent scholar had to say while closing his article on the recent budget:

The one neglected area the government ought to focus on is state capacity itself. The biggest challenge for the Indian state is not reducing its size; it is increasing it appropriately. On any qualitative or quantitative measure of state capacity, whether it is the number of judges or the number of government functionaries, the Indian state is relatively small. Its lack of capacity has huge economic and political impact. It reduces its capacity to discharge sovereign functions like law and order and in vast areas it has very little capacity. Contrary to common perception, the single biggest crisis facing the state is not corruption, it is lack of capacity. This is true at virtually all levels of government. It does not often even have the full statistical base in some of the most vital areas of our well being, from health to urban economies, to be able to make intelligent interventions.

This point of view is interesting to an urban audience which is very strongly grounded in a ‘human rights’ point-of-view, and believes that most expansions of state-power are aimed at regulating individual freedoms and autonomy since they give the government more power to regulate individuals.  This is especially true when there is discussion of say, increasing the number of policemen in the country.  On that specific issue, there is an article by a noted economist in today’s paper:

The UN recommends a police/ population ratio of 1:450. This is a figure that floats around and can be traced back to a 2002 UN report on public sector management. Cross-country data on size of police forces seem dodgy. But on one such cross-country list, the size of the Indian police force is given as 1,129,200 in April 2009, which means instead of a ratio of 1:450, we have a ratio of 1:1040. The only other country which performs worse is Iran.”

While it is true that more policemen roughly translates into more uniformed officers to harass individuals who cannot seek effective redressal, the lack of enough policemen in itself gives the existing policemen greater clout because finding one is so rare.  Again, some reports, including the government’s own Comptroller and Auditor General has made periodic appraisals about the status of police stations in the country.  The picture that comes out is dismal.  Too large a number do not have telephone connections, vehicles, new weapons, and so on.  This also raises two issues:

One, that some amount of cases where citizens have been turned away by policemen may have been due to lack of capacity to address their problems.

Two, that this lack of infrastructure will remain a perpetual excuse to not address complaints effectively.

Therefore, an increase of the capacity of the state might in some cases, actually result in the betterment of systems deigned to promote individual liberties by ensuring greater and easier access to some of the services every individual needs to enjoy his liberties.

Idiot Box: Not just idiocy

29 Dec

In this post I wish to cover two recent stories brought forward by the media: (1) the Ruchika molestation and suicide case, (2) the N.D. Tiwari expose.

Ruchika was a teenager when she was allegedly molested by a police officer who’s also (or has been) the DGP of the state.  Among other forms of harassment, she was also thrown out of her school on some flimsy pretext.  Her relatives and friends were repeatedly harassed.  All these factors culminated in the girl’s suicide.  Media coverage of the issue has horrendously side-stepped the issue of how an entire structure of individuals colluded to make life impossible for the girl, and hell for her parents.  Journalists have covered friends who ‘carry on the cause’ of Ruchira’s death, who have ‘fought on for years’ in the hope of justice, and who stand vindicated now by a finding in their favour.

Some simple questions: (1) Since the recent media coverage has been fuelled by the CBI’s charges filed in the Ambala sessions court, what were journalists doing in the 16 years the CBI took to frame charges? (2) What investigative journalism is required to interview the parents, friends and relatives of a victim, and where is the other side of the story? (3) Why is no one asking the really tough questions about how a police officer could not just get away with molesting a teenaged girl, but also harassment (which includes the alleged arrest of the victim’s brother, and interrogations which the officer personally supervised)?

In the second recent story, let us recount what happened: The Governor of a state was caught on camera indulging in sexual activities with three women.  Nobody has alleged, neither has it been proved that the women were prostitutes, or were being forced in any way.  Therefore, if we forget the high public office person occupied (he has since resigned), what we have is a situation where a group of persons were willingly indulging in sexual activities.  It may or may not be ethical, but it is definitely not illegal.  If someone makes a video of such a scene without the participant’s consent, and publishes it, the logical recourse would be to sue the journalist for breach of privacy.

Again, let me assert: ethical or not, the acts caught on tape were certainly not illegal (unless there are allegations of forcing consent, or prostitution).  If a woman were caught in a compromising position on tape, and the tape was circulated without her consent, what would the normal recourse be?  Common sense and precedent indicates there would be charges of violation of privacy, indecent representation of women, and also spreading obscene images in the public sphere.  Why then is the governor being censured for his sexual preferences? Even if it were assumed that Mr. Tiwari has brought disrepute to a high public office, has the journalist conducting the sting operation not violated usually respected norms of privacy?  Will it be possible tomorrow for a journalist to make a video of you cohabiting with a person other than your legitimate spouse, give it to your boss in office and demand your ouster from the organisation you work in?  Is threatening to do so anything short of blackmail?

Moreover, this issue has also unfairly tried to link one’s private life with conduct in public life.  Yes, a person who mistreats his wife in private ought to be brought to justice.  But if a person has unconventional sexual preferences, should that be seen as an indicator of his ability to act decently in public life?

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