Deconstructing IPC 304b (Dowry Death) – The Insolence Inherent in Legislating Logic
There is a provision in law which is called "dowry death". This provision is described in and as IPC Section 304b. The text of this section is as follows–
1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ).
2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]"
This provision was enacted at the same time as the insertion of a new section numbered 113b to the Indian Evidence Act. This section states the following–
“When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry, the court shall presume that such person had caused the dowry death.”
The first thing which any literate person notices in these enactments is the phrase "soon before". This shows in very clear terms the degree of shoddiness with which laws in India are drafted. "A little before" or "just before" or "some time before" or "shortly before" or "before" did not occur to the person who wrote this law (leave alone "upto six months before" or "upto a year before"). He/she insisted on using the expression "soon before".
Things can happen soon after something, but how something can happen soon before something is a mystery to this writer, as I am sure it is to all English speaking people who do not own a time machine.
This also reveals a fact which is obvious to those who see lawmaking in India with a critical eye. Parliament is just a rubber stamp for the leader of the ruling party. Whatever the leader decides is implemented. The members do not really bother to read the text of the bills which are brought in for passing by the national legislature.
This is not surprising. Laws are made in English. Members of Parliament are ten times more comfortable with their own languages than with English. Sixty-six years after independence the number of people who have a good grasp of the language which is used to govern our country is microscopically small in proportion to the total number of literate people in the country –and negligible in proportion to the total population of our country.
But is this enough justification? Were there no men or women in Parliament who knew the English language well enough to remove an incorrect phrase from the wording of the law when the law was being examined? Have there been no influential persons in the 27 years since the enactment of this section of the Indian Penal Code who have read this section and wondered how the greatest democracy in the world can tolerate incomprehensible language in its criminal law? This is dangerous. For the word of the law is the law, unless it runs into mavericks like Katju and Sinha who famously said about another law that it is unhappily worded, and reiterated the well settled jurisprudential convention that absurd interpretations of law cannot be countenanced. I refer to the Batra versus Batra verdict in a case involving a significant provision of the PWDVA 2005.
(Section 113b was in fact blunted by a bench of Arijit Pasayat and Asok Kumar Ganguly in 2009. But the phenomenon which afflicts the legislature –and is being discussed in this article– is persistent.)
And this begs another, more important question. If the tall men and women who enacted this law did not notice a linguistic error in the law, can we not be absolutely certain that they did not bother to delve into the reasoning behind the law and the possible damage that it could cause in the future (and indeed would)?
The other interesting and objectionable phrase here is "Whoever commits dowry death". How can somebody commit death? I know you can kill someone, and commit murder (or culpable homicide, to stretch the rubric) thereby, but really, committing death? This uncomfortable language springs from the insolent dictated assumption that "the husband or relative shall be deemed to have caused her death". Whichever way you try to wrap your head around this statement, the meaning that can be extracted here is always that of a homicide accusation.
The honest but stupid accuser here would say that the husband is guilty of murder. The cunning accuser will say that the husband is "responsible for the wife's death", because he knows that although you can (as things stand today) legislate illogical 'logic' into the Indian Penal Code or the Indian Evidence Act, you simply cannot equate harassment with murder (or even culpable murder) in so many words, without risking accusations of monumental stupidity. The accuser/schemer who is incredibly sneaky will use the expression that the husband is "guilty of causing dowry death". This is because he knows that you cannot use the word murder for such an offence (for the reason mentioned above), AND you cannot justify life imprisonment just for culpable homicide. So he has invented a new category of offence in the class of offences which deal with unintentional or intentional violation of the right to life, in terms of a life being extinguished. This category of offence is not just an implausible or counter-intuitive category. It is purely intellectual claptrap dignified to the level of a national law.
Also relevant is the question, how can you tell someone what he shall or shall not assume? How can you legislate compulsory assumptions? Are our judges not thinking men and women? Do they not have consciences which will erupt if they see a man getting away with the systematic violation of a woman's right to life? On the other hand, why do you want them to remain powerless to do justice in the face of a law advocating presumption of guilt? The philosophical basis of law in a functioning democracy is justice for all and justice for everyone. It is not justice for certain classes of people, and revenge from certain classes of people for the past actions of other members of their class.
The reasons for the enactment of this law and other unjust laws are not difficult to deduce. Let us go back to the early 80s in India. The aggressively pushed growth of the television medium was being propelled by the desire to achieve most effectively the sole aim of publicising the daily routine of one person. Media barons were as concerned about the public as they are today. They were directing the editorial actions of their businesses as ruthlessly as they do today. Diversionary campaigns were being launched on the front pages of the (broader then than now) broadsheets. The salaries of newspaper employees were as fantastic as they are today. Peanuts were being paid to generate armies of you know who. Political gossip was being touted as hard news. The process that led to this helped the simians to curry favour, too.
To increase circulation was the sole imperative and motive, for this would help tremendously in bringing in the big bucks at the right times, before sending them out west by north-west. (Massive diversionary campaigns are organised by major newspapers today also; the Nirbhaya campaign was blown up to 'iconic proportions' to quote a recently retired CJI. The aim –as far as this writer can make out– was to increase viewership of certain newspaper websites in western countries in order to get more advertising revenue. The result did help the country indirectly, but there are more genuine ways of achieving such objectives.) The newspapers of record were busy telling the government to stop paying out pensions in the interest of reducing 'wasteful' revenue expenditure. This was being done to get talent –which might go to the public sector in the normal course– to agree to their terms in a more pliant fashion. It might be hazarded that capital expenditure was effective at some level close to 10 paise to the rupee, since that was the figure –pronounced at a later date– by the late PM who knew the workings better than anyone by virtue of his position.
Many senior editors were congratulating themselves in time-honoured fashion for their sensible Faustian bargains. Irani and Chitra Subramaniam were yet to swing into action –their cause for action was to arise around this time. Zombie mobs were yet to start making their appearance at the walls if I remember correctly, but the royal classes were keenly aware that placebos had to be given to this class regularly.
I don't really have to explain further, do I?
Written by Manish Udar
Published by Manish Udar
Page created on 22nd August 2013
Last updated on 23rd March 2014