Perpetual Criminal Law “Reform” and Violence Against Women: The Indian Codification Experiment Stumbles to the Starting Line
Abhinav Sekhri*
On July 1, 2024, which is barely a month away, the Indian criminal process is going to undergo a radical faux transformation. Three criminal codes crafted by the colonial regime which have held the field for more than 150 years (in some form or another) are set to be repealed by three news laws passed by India’s democratically elected government in December 2023.
MCLR+ has explored the Indian codification experiment at various stages and from several perspectives already.[1] This brief piece complements the existing material by reporting upon a rather peculiar development which took place this past month. While dealing with a case, the Indian Supreme Court turned its lens towards the transformative new criminal codes to examine a provision, expressed its discontent with the transformation it saw, and asked the government to do something about it.
To express dissatisfaction with the nature of legislation is not new for the Indian Supreme Court. So why bother talking about it? For, in my opinion, it wonderfully encapsulates the idea of ‘reform’ that has accompanied these new criminal codes of India.
Necessary Background to the Issue
Cruelty towards women, especially in marital relationships, is a subject which has attracted much legislative attention in independent India. Within the existing Indian Penal Code of 1860, this issue saw the addition of two new crimes. Section 498-A was inserted in 1983 and criminalized treating a wife with ‘cruelty’ where the act of cruelty was expansively defined.[2] Section 304-B was inserted in 1986, punishing a particular variant of husbands / their families abetting the suicide of a woman, where it could be established that the death was a result of dowry demands.[3] Both these crimes were made cognizable and non-bailable under the Criminal Procedure Code of 1973, i.e., granting police a power to arrest without warrant, and rendering bail not a matter of right but a matter of judicial discretion.
By the mid 2000s, a narrative had emerged which cast Section 498-A not as a useful tool to help protect married women against cruelty, but as a potent tool for misuse in the hands of women. By 2005, the Supreme Court was observing that “many instances” of misuse were coming to light and that the legislature may need to curb false complaints, and it became common for husbands and their families to challenge prosecutions at initial stages, often successfully.[4] By 2009, the nodal ministry (Ministry of Home Affairs), had issued circulars advising police to not hastily arrest persons in such cases.[5]
But no changes were made to the criminal law itself — the offense remained as is on the Penal Code, and its procedural posture also continued to give police the power of arrest without bail. The 2009 circular gave a glimpse as to why the law did not change. This narrative of misuse, it showed, was just that: a narrative which emerged out of focusing on specific cases, within specific socio-economic contexts which were not representative of the entire country. Almost every law in the country was prone to misuse, so what made the alleged misuse of this one so exceptional (see here)?[6] Many political groups had actively campaigned against any change and argued that these tendencies were yet another reflection of the problematic biases at play when it came to the position of women in Indian society. They had a point, which is why Parliament did not act upon the narrative (for more narrative-busting material, see here).[7]
The Supreme Court’s Intervention
Nevertheless, finding that the existing guidelines were not doing the trick, by 2014 the Supreme Court had intervened again citing statistics of high arrest rates. This time it passed sweeping directions which severely curtailed the discretion of police officers to arrest persons on the basis of allegations of cruelty towards their wives (besides many other offenses as well).[8]
It was a prosecution primarily for offenses under Section 498-A which the Indian Supreme Court was concerned with in Achin Gupta v. State of Haryana & Anr. [Crl. Appeal No. 2379 of 2024, decided on May 3, 2024].[9] The victim had alleged cruelty on part of her husband and his family members which had led to the institution of criminal proceedings against the husband — the police having found no material to prosecute the others. The husband challenged the institution of legal proceedings unsuccessfully before the state High Court, and then moved the Supreme Court asking for the case against him to be terminated.
In the opinion of the Bench of the Supreme Court which heard the petition, Achin Gupta’s case fit the description of dubious complaints which the Court had become all too familiar with over the past two decades and more. Usually, the Court adopts a reticent position and does not summarily close cases where allegations prima facie seem consistent. Here, however, the Court felt that reticence was out of place because the complainants, in most cases, had taken legal help to draft allegations.[10] If the allegations were not backed by material, or did not appear good enough to the court, it was permissible to summarily terminate the proceedings.
This departure from tradition was necessary because, as the Court explained, sticking to technical approaches would be “disastrous for the very institution of marriage”. Not every “quibble” was cruelty, as the “foundation of a sound marriage is tolerance”, and allowing the criminal law to enter this domain to easily would mean using the law “for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends” which could not be countenanced.
Before parting with the case, the Court turned to the new criminal code “to ascertain whether the legislature has seriously looked into the suggestions of this court” to reconsider the clause. Despite this perceived clamor surrounding the offense under Section 498-A and its enforcement, much of it from within the institution itself, the Court found that the supposed radical re-imagining of criminal laws driving the introduction of new criminal codes promised nothing but cosmetic changes to the domestic violence offense. The offense was simply renumbered: instead of under Section 498-A in the Indian Penal Code, it now appeared under Sections 85 and 86 of the Bharatiya Nyaya Sanhita 2023. It remained cognizable and non-bailable under the Bharatiya Nagarik Suraksha Sanhita 2023, just as it had been under the Criminal Procedure Code.
Which led the Court to make the following observation, almost as a plea: “We request the legislature to look into the issue as highlighted above taking into consideration the pragmatic realities and consider making necessary changes … before both the new provisions come into force” (emphasis mine). No statistics, no citations, just the strength of its own powerful past opinions reinforcing a narrative about ‘pragmatic realities’ prompting a last-ditch call for further amendment.
A Permanent Site of Reform
The Supreme Court’s intervention requestingthe legislature to amend the yet-to-be enforced new criminal codes offers a telling snapshot of the reform agenda accompanying these laws, or at least of whatever glimpses of this agenda the public eye has been permitted. Get together a small section of society (five upper class men) in one of the world’s most diverse countries, ask them to come up with a laundry list of problems in the law on a truncated timeline without any public discussion or dialogue, and finally push through legislation where changes are, mostly, either facsimile or draconian without ever revealing the reports behind the reform.[11]
By eschewing scope for discussion at the time when it would normally occur, i.e., in drafting and debating the law, the Indian government might have hoped to foreclose any opportunity for critique or comment. If so, even in the six months since the passage of the new laws it is becoming increasingly clear that this attempt has fallen flat. A vocal and widespread protest occurred soon after the passage of the new laws by transporter unions protesting stiffer punishments for the offense of causing death by negligence.[12] This forced the government to not enforce that specific clause.[13] Now, the Supreme Court has stepped in with its request for changing yet more parts of the laws.
The Supreme Court’s requests for changes in the new criminal codes, or for that matter requests by other stakeholders, are unlikely to stop at the cruelty offense. In the short term at least, many more such calls to reform the reforms are likely to arise. One would imagine that the power of courts to force through their desired reforms is limited where the law itself is not unconstitutional. Such a conservative analysis, however, is not in sync with the Indian Supreme Court’s willingness to issue sweeping quasi-legislative orders which fundamentally alter the fabric of laws if not their text.[14]
Welcome to the future of Indian criminal law as a site of perpetual reform, where everything may remain up for grabs for some time to come.
* Abhinav Sekhri is a legal writer and lawyer practicing in New Delhi, India. He specializes in criminal law, evidence, and procedure. For supplementary materials (including bills and drafts) and related MCLR+ events & materials, see here.
[1] MCLR+ Resources: India – Criminal Code Reform [https://crimlrev.net/mclr-resources-india-criminal-code-reform/].
[2] Section 498-A, Indian Penal Code, 1860. The provision states that “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” The explanation to the provision specifies that for this clause “cruelty means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman, or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
[3] Section 304-B, Indian Penal Code, 1860.
[4] Sushil Kumar Sharma v. Union of India & Ors. [WP (Civil) No. 141 of 2005, decided on 19.07.2005] (Supreme Court of India, Two Justices’ Bench).
[5] Ministry of Home Affairs, Government of India, “Misuse of Section 498A of IPC” (20.10.2009).
[6] Shalini Nair, ‘498A, Battered’, The Indian Express (June 26, 2018) [https://indianexpress.com/article/india/498a-battered-supreme-court-misuse-of-dowry-law-women-harassment-cruelty-sneha-sharma-allahabad-hc-4794220/].
[7] Feminist Law Archives (by Partners for Law in Development) [https://feministlawarchives.pldindia.org/category/domestic-violence/section-498a/].
[8] Arnesh Kumar v. State of Bihar & Anr. [Criminal Appeal No. 1277 of 2014, decided on 02.07.2014] (Supreme Court of India, Two Justices’ Bench).
[9] Achin Gupta v. State of Haryana & Anr. [Crl. Appeal No. 2379 of 2024, decided on 03.05.2024] (Supreme Court of India, Two Justices’ Bench).
[10] Id. at 28-29 (“once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same”).
[11] See, e.g., Nandita Rao, ‘Committee which Proposes to Reform Criminal Law from Non-Patriarchal Perspective Excludes Women, Minorities’ Indian Express (July 13, 2020) [https://indianexpress.com/article/opinion/columns/national-law-university-delhi-committee-for-reforms-in-criminal-law-6502591/]; Abhinav Sekhri, ‘The Criminal Law Reform Committee’ India Forum (November 4, 2020) [https://www.theindiaforum.in/article/criminal-law-reform-committee]; Saurav Das, ‘How Consultative Was the Framing of the Three Criminal Law Bills, Really?’, The Wire (August 24, 2023) [https://thewire.in/government/how-consultative-was-the-framing-of-the-three-criminal-law-bills-really].
[12] G.S. Bajpai, ‘Debating India’s New Hit-and-Run Law — Explained’ The Hindu (January 8, 2024) [https://www.thehindu.com/news/national/debating-indias-new-hit-and-run-law-explained/article67720776.ece].
[13] Bharatiya Nyaya Sanhita, 2023 Set to Enforce Key Provisions on July 1, 2024 [https://bharatiyanyayasanhita.online/implementation/] (accessed 25.05.2014) (“New Delhi, February 23, 2024: In a significant development, the Ministry of Home Affairs has issued a notification (S.O. 850(E)) announcing Bharatiya Nyaya Sanhita, 2023 (BNS) implementation, excluding section 106(2), as [sic] July 1, 2024.” (emphasis added)).
[14] See, e.g., Tarunabh Khaitan, ‘The Indian Supreme Court’s Identity Crisis: A Constitutional Court or a Court of Appeals?’ [https://ora.ox.ac.uk/objects/uuid:456f58cc-b68e-4234-83ac-7847bcf747a6/files/rzw12z595w].
Suggested Citation: Abhinav Sekhri, “Perpetual Criminal Law ‘Reform’ and Violence Against Women: The Indian Codification Experiment Stumbles to the Starting Line,” MCLR+ (crimlrev.net) (May 26, 2024) (https://crimlrev.net/2024/05/26/perpetual-criminal-law-reform-and-violence-against-women-the-indian-codification-experiment-stumbles-to-the-starting-line-abhinav-sekhri/) [➡︎ pdf]