Defending the new arrest law: Responding to critiques by lawyers and feminists

The Code of Criminal Procedure (Amendment) Act 2008 has come under much criticism. Having received presidential assent, it only needs notification by the government to be enforced. At the heart of the controversy is the new section 41, coupled with section 41A which redefine and liberalise the law on arrest.

This has infuriated the lawyers enough to go on a series of strikes demanding that the law should not be notified.

There are two strands of criticisms: criminal law will lose it power of deterrence, and, more specifically, that section 498A IPC cases dealing with cruelty against a woman by her husband and in-laws will lose teeth.

In this article, I detail the changes brought in by the amendment and also respond to the first criticism as being misplaced.

The government’s main motive in bringing this amendment appears to be to free up space in our prisons and reduce the burden on our criminal courts. In fact, the latter is the main worry of some lawyers – the new amendments might drastically reduce the number of bail cases. While prison populations should reduce, I explain in my article that courts will continue to be clogged up since the amended law opens new (and, in my opinion, welcome) avenues of challenging arrests and impending arrests. Therefore, the lawyers’ self-serving worry is also misplaced.

The critique from a section of the women’s movement regarding section 498A was not responded to in the article. Here is an attempt to do so:

In an illuminating essay titled “Protecting Women against Violence?: Review of a Decade of Legislation, 1980-1989”, in State and Politics in India (Partha Chatterjee, ed.), Oxford University Press, New Delhi, 1997, Flavia Agnes had questioned the wisdom of Indian feminism’s demand for successive law reforms that had only ended up further empowering the state. Feminism’s important intellectual contribution was dismantling the private-public divide – something most contemporary civil liberties movements have come to accept and accomodate. However, there is much good in traditional ideas like the presumption of innocence, scepticism of the state and limited and justified exercise of police powers, which are often sacrificed not just by the women’s movement, but also other social justice movements (SC/ST Prevention of Atrocities Act, 1989 being one example). On the other hand, the Protection of Women from Domestic Violence Act, 2005 is one example of a legislation that can respond to social justice concerns effectively without necessarily curtailing civil liberties. I believe there is a lot more to be said about Indian social justice movements’ uneasy, if not sometimes antithetical, relationship with the civil liberties movement; as well as on their choice of the state as their site of struggle.

The broader debate aside, surely section 498A cannot be the only feminist concern. The state routinely uses its police powers to arrest, harrass, intimidate, abuse, torture and blackmail the most vulnerable sections of our society – sex workers, bar dancers, hijras, street children, beggars and other minorities. A good section, if not the majority, of this ‘lumpen’ prolitariat is constituted by women. The new provision will not stop their exploitation – but it surely will be one more weapon to fight such exploitation. If, and when, the spirit of the new provision is institutionalised within the police force, it will be really difficult to arrest these ‘petty criminals’. Is this not something that should at least be considered as part of the equation?

Links to the legislative history of the provision (Hat tip to Venkatesan):
1. 154th Report, Law Commission of India
2. 128th Report, Rajya Sabha Standing Committee on Home Affairs

Written by
Tarunabh Khaitan
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  • tarunabh,
    I think you have not yet answered Jug’s other concern about the amendment – that it makes illogical distinction between offences punishable with 7 years imprisonment and those with more than 7 years. I am unable to understand the rationale.

  • dear venkatesan, if one proceeds on the assumption that parliament quantifies punishment proportionate to the gravity of the offence, then the sentence is a very good (in fact the best) indicator of its gravity. the new law essentially prioritises police resources to the most grave crimes – a sensible idea. two possible objections:
    1. that sentences don’t in fact reflect gravity of crime. that is a reason to revise the sentences of those crimes, rather than question the idea that sentences are a proxy for gravity, which on the whole, is true.
    2. why ‘seven’ years – well, this is arbitrary. it could have been 6, or 5, or 7.5. but, in any case, it couldnt but be arbitrary, just like the age of majority and countless other legal limits imposed arbitrarily. timothy endicott’s work on vagueness and the rule of law is quite relevant to this worry.

  • OK. Bail lawyers are objecting to the amendments because they believe in the efficacy of police arrests? I thought they did not. At any rate, how do they reconcile those beliefs with their everyday submissions to the Courts?

    Yes, our criminal justice system is approaching a point where it may have to be formally declared as ‘beyond redemption’ and mindful of this possibility, the new set of amendments empower the criminal justice system to more efficiently manage the ‘cognizance of arrests’.

    The Indian Express article by the author is well reasoned and the solace offered to bail lawyers anxious to retain their workload makes for interesting reading.

    In the end, the authority of the Government to bring about these amendments is unimpeachable as is the argument that ‘locking up people behind bars without an efficient mechanism to condemn them within a reasonable time’ is not a legitimate function of a Government. Such a function is characteristic of a despot and we gave ourselves a Republican and a democratic form of Government without any recourse to revert back during troubled times. These are troubled times and we have no option but to revisit our fond assumptions.

    Feminists and the bail lawyers are doing little more than repeating assumptions which, as a social construct that eventually exposes itself, have no more life left in them.

    And my parting thoughts to the old provisions – ‘Rest in Peace – You will be remembered for a few days and life will go on without you’.

    And, any tentative date for the notification?

  • Tarunabh, The last line in your blog is probably the most important question one should ask when wondering what the pitfalls of this legislation will be! We are assuming that a police officer responding to an investigation on a complaint for a petty crime will have the right name and address for the criminal to send a “notice of appearance” and that the accused would actually appear! Hopefully we are not ushering an era of rampant lawlessness with this amendment! On another note, I felt like Jug Suraiya’s article was paparazzi-like, ignoring totally the fact that there are contitutional violations occuring daily by the actions of our first responders, by the overcrowding of undertrials in jails where they stay for more time as undertrials than they would have if they were convicted and making light of the attempts by this amendment to create accountability on the part of our police force.
    As with any new legislation, there is ample scope of criticism and mine would be purely that the women’s movement did loose some teeth by having the possibility of incarceration removed from the offence under 498A. Hopefully the positive strides made by the Protection of Women from Domestic Violence Act at finding a social-legal balance to problems of violence against women, will help in countering the harm that will be done by 498A complaints not leading to immediate arrests. The silver lining- at least there will be a bench warrant issued at the “notice to appear” hearing if the accused does not show up! My two bits!