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Zealous Reformers, Deadly LawsPotential and Limitations of Legislation as an Instrument of

Social Reform

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Alarming Gap between Legal Prescriptions and the Social Practices in India

Many people interpret this as a sign of:

1) Continuing hold of traditional values and customs” and expect that as people get “modern education”, they will inevitably move in the direction of following “modern laws enacted for their benefit.

2) Hypocrisy and double standards. This bolsters the position of those who argue that the problem lies with the implementation machinery – a corrupt and inefficient police, and cumbersome and dysfunctional legal system.

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Legislation Cannot be used as a Magic Wand

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What is lacking in the laws we enact that people for whose benefit they are meant are unwilling to adopt them? Likely to get one or both of the following answers. There is:

- Something wrong in the way of carrying our message and have, therefore, failed to convince people of its worth.

- Something lacking in our understanding of the problems and its possible solutions. That is why no one is willing to heed our prescriptions for cure.

This would lead us to make effort to view the malady through the eyes of those supposedly afflicted by it.

Review of the basic features of social legislation as well as the hurdles in the honest implementation of that law.

A Practical Approach Would be to Find Out:

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Making Failed Laws Draconian

When a law fails, instead of undertaking a cool headed honest review, the tendency is to blame its failure on the laxity of implementation machinery and lack of stringent provisions for punishment.

Result: All the failed laws are bolstered with more and more draconian provisions usually leading to many new messy fallouts while the original problem remains unsolved. Some Salient Examples: Anti Dowry Legislation, Laws against Domestic Violence, Laws banning SDTs.

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Anti Dowry Law: Banning an Ill-Defined Crime

Definition of dowry: Dowry is defined as ‘any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before [or any other time after the marriage] in connection with the marriage of the said parties.

If we take this definition at face value this definition, gifts of jewelry, clothes and cash traditionally given by the groom’s family also fall under the purview of the anti-dowry law and therefore illegal.

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Two amendments enacted in 1984 and 1986 made dowry giving and receiving a cognizable offence. This means, a court can initiate proceedings upon its own knowledge or on the basis of a police report, even if the aggrieved person has lodged no such complaint.

Dowry’ is forbidden but ‘gifts’ are allowed. The anti-dowry law cannot be invoked against the giving of presents at the time of marriage to the bride without any demand having been made ‘provided that such presents are entered in a list maintained in accordance with the rules’ as defined under the Anti-Dowry Act. How do you decide what is a ‘voluntary gift’ and what is given under pressure of a demand?

Dowry a Cognizable Offence

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Presents to the groom allowed: Presents given to the groom are also exempted, provided no demand has been made and they are entered in a list and provided that ‘such presents are of a customary nature and the value thereof is not excessive’ in relation to the ‘financial status of the person by whom, or on whose behalf, such presents are given.’

How do you decide what is ‘excessive’ in relation to income by way of gifts when in India no more than 2-3 per cent people declare their incomes and those too are grossly under-reported?

How do you judge the paying status of a family if most of their wealth is in ‘black’ money and property holdings held in bogus names to escape taxes?

More Absurdities

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A person found guilty of taking or abetting the giving or taking of dowry invites imprisonment for a term not less than five years and with a fine which shall not be less than Rs 15,000 or the amount of the value of such dowry, whichever is more.

Legalizing the illegal: After declaring that giving or taking of dowry is illegal, the Act adds a curious rider that ‘where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person will transfer the dowry to the woman within three months after the date of marriage or within three months after the date of receipt. Failure to transfer a woman’s dowry invites imprisonment for not less than six months and a fine of Rs 10,000.

Stringent Punishment for Giving or Taking

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Section 406 prescribes imprisonment of up to three years for criminal breach of trust for not returning a woman’s dowry, if a woman demands it after her marriage breaks down.

If a person fails to comply with the court’s direction to transfer a woman’s dowry within the specified period, an amount equal to the value of the property may be recovered from him.

Women never punished for taking dowries. Treated as great heroines when they seek punishment for in laws and file cases to reclaim their dowries whose giving was illegal in the first place.

Right to Reclaim the Illegal Giving

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In 1983, Section 498A of the IPC defined a new cognizable offence, namely, ‘cruelty by husband or relatives of husband’. This means that once such a complaint is registered by the victim or any of her relatives, the police have no option but to take action. It prescribes imprisonment for up to three years, and also includes a fine.

The definition of cruelty is not just confined to causing grave injury, bodily harm, or danger to life, limb or physical health, but also includes harming mental health by harassment and

Takes particular cognizance of harassment for dowry demands, coercing the wife, or any person related to her, to meet any unlawful demand regarding any property or valuable security.

Dowry Demands Covered by Anti-Cruelty Law

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And yet the culture of dowry has strengthened.

It has spread among communities which did not have this tradition

It has spread to matrilineal communities, and to those among whom bride price was the norm.

Transformation from Stridhan, to dowry to groom price, shows this is not a hangover of old traditions but a very modern phenomenon.

Dowry giving related to increasing disinheritance from parental property by use of testaments or Wills to bestow property.

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Biggest Offenders: Those in Government whose job is to make and administer those laws such as Legislators, bureaucrats, police

officials, judges and the educated elite classes. Dowries highest among senior govt. officers. Sex ratio lowest in bureaucratic

enclaves of Delhi

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As per the law, even dowry giving is an offence, but there is hardly ever an instance of the bride’s family being prosecuted for giving dowry. The assumption is that only ‘takers’ are guilty while ‘givers’ are hapless creatures.

Growing greed explained as the cause of dowry increase. This would make sense only if our country had two distinct sets of families–those who only produced sons and those who produced only daughters. The ‘son-blessed’ families would thus be permanent gainers as dowry receivers while ‘daughter-cursed’ families would be permanent victims.

Absurd Law, Absurd Implementation

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Section 113B in the Indian Evidence Act, stipulates that in cases registered by the police as those of ‘dowry death’, the court shall presume that the accused is guilty unless he can prove otherwise.Bail provisions for ‘dowry crimes’: Under section 304B, in the case of a ‘dowry death’, where allegations of demand of dowry or non-return of dowry are made, the accused are frequently denied anticipatory, or even regular bail. It has also meant that in all cases of a married woman’s death, lawyers tend to advise the woman’s family that they must build a case of dowry demands even if the murder or suicide was due to other reasons.

Guilty Unless Proved Innocent

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Measures that Would Help Combat Culture of Dowry

Declare it illegal to disinherit daughters through Wills.

No harm in giving but change the form of giving. Give income generating forms as Streedhan which is inalienable, rather than load her with consumer goods which become valueless with time.

Enforce the law against extortion and violence strictly.

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Via an amendment to the Indian Penal Code (Section 304B) new crimes called‘dowry murder’ or ‘dowry death’ came into being.

304 B states that if the death of a woman is caused by burns or bodily injury, or occurs under abnormal circumstances, within seven years of her marriage and it is shown that just prior to death she was subject to cruelty by her husband or his relatives, in connection with demands for dowry, such a death would be called ‘dowry death’ and the husband or relative would be deemed to have caused her death.

Punishment for dowry death: imprisonment not be less than seven years but may extend to imprisonment for life.

Dowry Death/ Murder: Making Violence Exotic

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One of the major negative fallout of the obsessive zeal with which anti-dowry legislation is being promoted as the panacea for domestic violence is that women are encourage to register cases of marital discord under this law because there is a widespread feeling that this is the only way to get your complaint taken seriously.

What about women who are beaten because their husbands are habitual drunkards or are jealous of the women’s independence---shall we have special legislation for drunken beatings or jealousy beatings?

Fall outs of Over Use of Anti Dowry Law

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Domestic violence act defines considers physical, sexual emotional, verbal, psychological, and economic abuse or threats of violence and abuse as equally serious offences

Causing bodily harm or danger to life limb or health, assaults, criminal intimidation and criminal force are treated as par with insults, ridicule, humiliation and name-calling. For example as per this law calling your wife a moron is no less serious an offence as beating her up.

Laws Against Domestic Violence:

Over arching Definition

Any act, conducts/commission, omission that harms or injures or has the potential to harm or injure a woman.

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Provisions of Domestic Violence Act

The Court may conclude that an offence has been committed upon the sole testimony of the woman alleging abuse.

Live in Relationships put at Par with Marriage

Provision for Protection Orders, Residence Order, Restraint Orders, Eviction of husband and in laws from “Shared Household’, provision of time bound monetary relief, direct the husband to remove himself from the house.

Restrictions on husband against selling or mortgaging his assets or joint family assets even if the woman does not have legal right over those assets.

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Anti Sati Law

The Sati prevention Act of 1987 states that if a woman commits Sati, all those accused of abetting sati, directly or indirectly, shall be punishable with death, or imprisonment for life and shall also be liable to a fine.

A woman accused of attempting sati is also liable to a prison term of up to six months plus a fine.

Abetment includes being present at the place where sati is

committed as an active participant or to any ceremony

connected with it.

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Problems with Definition of what Constitutes Sati

As per literal definition, term sati derives from sat meaning pure and truthful.

Someone so who is so pure that flames rise out of her body

spontaneously.

None of the Mahasatis--Sita, Mandodri, Tara, Ahilya, Draupadi burnt on their husband’s pyre.

If a woman has been coerced, how can it be called Sati? It should be treated as murder.

If she jumps on to a her husband’s pyre without anyone forcing or pressuring her, then it should be treated as a case of suicide, not sati.

But the law does not distinguish between murder, ordinary suicide and tradition of sati, as in mythology, epics and traditional texts.

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It is only in the 19th century British discourse that forced immolation of widows among certain communities of Bengal came to be

regarded as Sati.

Ram Mohan Roy’s campaign was for the rescue of widows who were being dragged to the pyre because the Dayabagha system of inheritance gave widows independent inheritance rights in Bengal.

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Absurdities of Such a Draconian Law

1) Demands by civil rights groups that death sentence be abolished even terrorist related crimes but politically fashionable to demand death sentence for sati related crimes

2) Who would be willing to give witness if merely witnessing the crime is equal to abetting it?

3) Burden of proof shifted on to the accused.

4) Allows for large scale arbitrary arrests and extortion by the police.

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Why the demand that worship at ancient Sati temples be banned is dangerous

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If you object to Sati temples, others may say ban or Durga Kali temples or forms of worship they do not approve.

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Women’s Reservation Bill

An Example of Ladies Compartment Approach to Women’s Empowerment

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One third Seats be Reserved for Women

The Reserved Seats be decided upon by a Lottery

Seats be de-reserved after each term and next lot decided through another lottery.

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Laws can only be effective when directed at those who are seen as deviants from popularly respected social norms. If they target entire populations who view the efforts of reformers as unwanted intrusion in their internal affairs, you create a powerful wave of hostility which obstructs, rather than assist, efforts at social reform.

Laws make sense only when used like small doses of antibiotics to help the body kill disease germs. Making them the sole instrument of social reform is like giving a patient only medicines and no other diet.

Reform through terror or authoritarian measures may work temporarily but it usually produces a ferocious backlash.

Limits of Legislation