A case of the court straying into the legislative sphere

News: Recently, the Allahabad High Court took cognisance of the misuse of Section 498A of the Indian Penal Code (IPC), pertaining to dowry practice in India.

What did the HC say?

The High Court expressed its concern over the growing tendency of misuse of the dowry provisions against the husband and his family members. It has issued following directions

(1) A family welfare committee should be constituted in each district under the District Legal Services Authority (DLSA).

(2) The first information report should be handed over to a committee immediately after its registration.

(3) There should be a “cooling period’ of two months and no arrest should be made by the police during that period.

The Judgement took guidance from of the judgment of the Supreme Court of India in Social Action Forum for Manav Adhikar vs Union of India (2018)

How is the judgment different from the SC’s judgment?

There are minor differences in the composition of the family welfare committees such as inclusion of a young mediator or an advocate or a senior law student, as

In the SC judgment, directions did not apply to the offences involving tangible physical injuries. However, the HC’s directions shall apply to the cases where the offence would attract an imprisonment of less than 10 years. The police shall only do peripheral investigations such as collecting the injury report and recording the statements of witnesses.

In Rajesh Sharma (supra) case, the cooling period was one month, where in this case it is two months.

What are the arguments against the issuance of directions by the Allahabad HC?

There are questions on the High Court’s jurisdiction to issue such directions because of various reasons

(1) The CrPC clearly laid down the scheme of investigation. Such directions should be issued when such a scheme of investigation is absent. For example, In Vishaka vs State of Rajasthan (1997), the SC issued directions to enforce FRs because there was absence of law in certain cases of sexual harassment at the workplace.

(2) In the case of Social Action Forum for Manav Adhikar (supra), the Court held that a third agency (i.e., the family welfare committee) had nothing to do with the CrPC and stalling arrest till a report is submitted by the committee.

The misuse of Section 498A IPC by itself cannot be a ground to dilute the provisions and issue directions. Further, the directions do not flow from any provision of the Code.

As per the constitutional scheme, the issuance of such directions potentially falls in the sphere of legislature.

Moreover, these directions might also curtail the rights of a genuine victim of dowry harassment.

Argument in favour

The HC directions were inspired with noble intentions to curb the tendency of misuse of dowry provisions in the heat of matrimonial discord.

What are the solutions to check false cases of dowry and avoidable incarcerations?

Immediate Solution

At present, the law of the land needs to be enforced strictly by both the police and the courts, without any dilution.

Others

The Supreme Court’s directions issued in Arnesh Kumar vs State of Bihar (2014) must be strictly enforced by the Police machinery. It must ensure that there is sufficient reason and credible material against the accused person before going forward for the arrest.

The investigating officers must be imparted training to learn the principles stated by the Court relating to arrest.

The legislature can amend the Section 498A IPC to make the offence bailable and compoundable.

The Mediation Bill, 2021 can institutionalize mediation mechanism. It may also help in settling the matrimonial dispute through the civil route.

Source: The post is based on an article “A case of the court straying into the legislative sphere” published in the “The Hindu” on 21^st June 2022.