ANALYSING DOWRY DEATH IN THE NEW BSA PROVISION
Category: Criminal Law
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ABSTRACTÂ
This article examines the relevant laws and implications of Section 118 of the Bharatiya Sakshya Adhiniyam (BSA) dealing with dowry deaths. There has been so much work done by the governments to stop dowry violence, yet it is still prevalent, indicating a failure of the society itself. Section 118 places on the accused the presumption of guilt by the court in certain cases, thus permitting the burden to be shifted upon the defense. This article therefore investigates slight nuances about this premise with reference to the pertinent legislation such as Section 117 and its interpretations by the courts. The article also analyzes implementation issues and proposes reforms to improve the efficiency of legal systems that address dowry-related crimes.
Keywords: dowry, judiciary, death, challenge, rightsÂ
INTRODUCTION
After India's adoption of the Dowry Prohibition Act in 1961, which outlawed the practice of dowry, its application has proven extremely challenging. Deaths associated with dowry deaths is often the result of prolonged harassment and validates the institutional failure to protect women. According to the National Crime Records Bureau, nearly 9,000 dowry deaths have been reported since 2012.
The unrelenting existence of dowry deaths shows how unfit-the existing social attitudes or legal structure to assuage this chronic problem. Marriages are higher on the socially accepted scale of ritual practice, which often get laced with the cancer of dowry operations that have rather transformed marriages into agreements of transactional nature rather than partnerships. The Bharatiya Sakshya Adhiniyam (BSA) attempts to tackle this via Section 118, which creates a presumption of guilt in cases of dowry deaths. The presumption is an important piece of legal provision whereby a person who has been accused of the actual killing cannot be exonerated unless they disproved their guilt. This article attempts to analyze the scope of this provision and its implications whilst making suggestions to fine-tune its operation and to give it teeth to favour justice.
Elements of Section 118
Section 118 of the BSA provides that a court may presume the guilt of a person in case:
The woman, dying under unnatural circumstances, died within seven years after marriage.
The deceased was subjected to cruelty or harassment at the hands of or by her in-laws and husband related to demands for dowries.
The abuse should have been perpetrated "soon before her death."Â
This presumption of guilt raises the burden of proof to the accused, surpassing the norm of presumed innocence. According to Section 118, a reverse burden of proof places the duty of demonstrating innocence on the accused, which is unusual in criminal law except for a dramatic instance.
In State of Himachal Pradesh v Nikku (AIR 1996 SC 67), the case ended in acquittal on account of the inability to prove the charges and hence the onus rests with the prosecution to make a prima facie case. Similarly, the court substantially following these rulings positions the assumption such that a presumption will be made only when the prosecution succeeds to provide any reliable evidence that dowry demands were made alongside acting cruelly.
Presumption as to Dowry DeathÂ
The term "shall presume," in Section 118 represents a presumption which would be a presumption in favor of the prosecution. Judicial construction settled its net scope in that it required such closeness and direct links of the harassment giving rise to the death. The proximity test determines whether the cruelty was enough “close to” the death, from a standpoint of time and causality—or in other words, the test ensures there is a casual connection between the action of the accused and the circumstances that ultimately resulted in the woman's death.
So as, for example, in Rameshwar Dass v. State of Punjab, the presumption is established based upon the proximate link between dowry demands and subsequent abuse. In contrast, in Keshab Chandra Pande v. State, the accused were let off the hook because of the unavailability of direct evidence and an appreciable time-lapse. These are examples that made clear the need for prudent judicial action in the application of Section 118.
The expression "soon before her death" is a relative one, subject to court interpretation. The courts consider the "proximity test" to see if the harassment was recent enough that it had a genuine and direct contribution towards the woman's death. For instance, a continuous pattern of maltreatment leading to the woman's death makes the case under Section 118 stronger for the prosecution.
Differences Between Sections 117 and 118
Section 117 deals with the presumption of abetment in suicide bids, and Section 118 deals strictly with dowry deaths. Important distinctions are:
Section 117 is a presumption of fact that leaves room for the exercise of judicial discretion. Section 118 states a presumption of law without any discretion.
Section 117 deals with abetment, whereas Section 118 discusses dowry harassment, which led to the death.
Section 117 has a wording that suggests one "may presume," thus opening the space for rebuttal with evidence. Section 118, on the other hand, uses the phrase "shall presume," thereby imposing a more onerous burden of proof.
These differences stress on the specific intent of Section 118 that, wholly, the dowry system-related violence needs to be dealt with. It reveals by obligatory presumption in Section 118 that dowry deaths constitute a serious threat and hence call for immediate reparations.
CHALLENGES AND SUGGESTIONSÂ
One major limitation of Section 118 is its arbitrary seven-year period. This period excludes those cases where abuse occurs later in marriage, whereby coercive patterns of long-term harassment resulting in dowry deaths are overlooked. The statute would do well to amend the seven-year limit to allow for evidence-based exceptions where abuse continues past that time.
An additional challenge lies in the insufficient statutory timelines defined for victims to submit information regarding dowry harassment and dowry death. The fear of retaliation, the stigma imposed on the victims by the public, and limited resources often prevent timely reporting. Extension of statutory deadlines and ensuring the availability of free legal services will help these victims to seek justice without apprehension.
The prosecution of dowry death cases faces hurdles, especially in establishing direct causation between dowry demands and the death of the victim. These difficulties are compounded by poor forensic ability and delayed investigations. Strengthening the forensic infrastructure and providing sensitivity and efficiency training for the police in handling such cases becomes the foremost task of addressing this issue.Â
Misuse of the provisions, like Section 498A of the IPC, also affects the willingness of the law to prevent dowry-related violence. Reports of unwarranted arrests and harassment of the accused raised a spirit of distrust against such provisions. A set of precautionary measures are always useful to avert misuse, as suggested in Arnesh Kumar v State of Bihar, which balances the protection of victims with fairness to the accused.
Finally, another issue is that of cultural sensitivities concerning dowry customs. Voluntary gifts are often confused with coercive demands for dowries by traditional customs. Distinctive guidelines, therefore, need to be established in identifying cultural traditions from coercion, while still being sensitive to people's customary practices.
JUDICIAL GUIDELINES AND SAFEGUARDS
In the Arnesh Kumar judgment, the Supreme Court pointed towards police due diligence in making custodial arrests in cases under dowry-related statutes. For preventing arbitrary arrests, the Court suggested that there should be mandatory prior approval from the magistrate and that rules concerning arrest should be stringently followed. These principles attempt to equate the need for the protection of victims and the rights of the accused in the interest of fair play.Â
CONCLUSIONÂ
Dowry deaths are still a cruel manifestation of gender-based violence in India and hold solemn testimony to the deep flaws of a still-existing order. While Section 118 of the BSA provides an urgent tool for dealing with such crimes, it is still plagued by multiple problems in case of implementation. The interpretation of courts has sought a balance between leaving a presumption against guilt and the rights of the accused, yet it remains widely criticized for the many loop-holes left unattended.
To eradicate dowry-related violence, greater steps need to be taken by various means. Legal reform should provide meaningful amendment to the arbitrary seven-year limit, support forensic investigations, and provide sound judicial safeguards against misuse. Similar to that of legal change, societal changes are very necessary to counter dowry violence, through communitarian campaigns educating the masses about such effects and further empowering the women through education and financially independent schemes and initiatives.
The battle against dowry deaths ought not to be merely a legal battle but rather embark upon deep societal roots. The combination of reforming laws, improving law enforcement mechanisms, and fast-tracking cultural transition has a great prospect to emancipate women and redeem India from the persistent nuisance once and for all.
