CrPC Amendments

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If you’d like to know about Section 498A and how this blog came into existence, please continue reading. If you are already entangled in Section 498A and are here looking for help, jump to the 498A Survival Guide by scrolling down to it.

A decade ago, as a tradition bound Non Resident Indian living in the US, I settled for an Indian bride. She walked into my life in the US with motives at odds with mine…which led to conflicts and strife. An year later, unable to bear her presence in my life any more, I divorced her in the US and broke off all contacts with her.

Some years had passed since I last saw her and I was looking forward to a quieter and steadier future as she was no longer an unsettling part of my life. I assumed that as she got her American green card through me, she would move on with her life in the US and won’t harbor any ill-will towards me. That assumption was a fantasy.

Out of the blue, in 2006, my ex-wife flew back to India and accused me and my family of subjecting her to cruelty and domestic violence under India’s much abused domestic violence and dowry law, Section 498A. Without verifying any of her silly accusations, Indian policemen arrested my family on a Friday morning. Fridays are reserved by Indian cops to handle 498A cases. They arrest the accused on Friday mornings and then indulge in some foot-dragging till the evening in the police station. With the courts closed over the weekend, the accused — I like to call them victims — remain trapped in the paws of the cops. The cops spend all weekend intimidating the victims and by the time the sun rises on a Monday morning, these confounded and traumatized people are ready to pay a “settlement” to escape from the torturous clutches of the Indian criminal justice system. The tough ones and those who can’t pay remain entrapped in the Indian criminal justice system for years to come. Acquittals in 498A cases occur after the victims of this extortion racket endure long drawn trials lasting years. Convictions are the exceptions, unless there is overwhelming evidence. This was the established pattern of outcome in 498A cases since the introduction of this pernicious law.

After hearing about my family’s arrest, I chose to remain in the US.  My lawyer warned me that if I returned to India, I’d be jailed and worse, lose all chances of becoming an American citizen — I realized that the 498A placed my American citizenship at stake.

Back at the police station, with my family in the callous hands of corrupt cops, my ex-wife’s father demanded a $100,000 (USD) from them to close the case. This amount was the set rate extorted from non-resident Indians to settle 498A cases. When my family refused to “settle”,  they were produced in a local court and the corrupt judge jailed them in an attempt to force my return to India and “settle” the case. Obviously, the judge and the cops were promised a cut in the “settlement”.

Stranded in the US and unable to aid my jailed family in any way, I rapidly hit rock bottom and began to shed tears. It was at that instant that a light went on in my head. I realized that 498A was just an extortion racket. In reality it has nothing to do with justice, domestic violence, or the law and here’s why: Peddling 498A benefited Indian politicians as they could pander to the women’s vote bank. The cops made out like bandits  from the bribes gotten from accusers and the “settlements” extorted from the accused. And the legal fraternity, along with the lower judiciary, profited from the 498A Jail and Bail Industry (the lawyers protested the most when the CrPC amendments were introduced in 2009).

For the sake of the skeptics, I digress to show the valuation of the 498A Jail and Bail Industry. The numbers are numbing:

•  100,000 498A cases are filed each year, per the NCRB (many cases go unreported so the actual figure is higher)
•  $5,000 Dollars (Indian Rs 2 Lakhs) at the minimum, is paid to settle each case.
•  Total money spent in dollars =  $500,000,000 (100,000 cases * $5,000) USD

That’s half a BILLION in US Dollars that flows through the Indian criminal justice system each year just from 498A cases. And my estimate is very low as many cases go unreported, and the money used to “settle” each case can range from $2000 to over $200,000 — the  amounts extorted depending upon the affluence of the accused.

A week had passed since my family was jailed and taking stock of the situation in my apartment, I understood that I was trapped in an extortion racket of national proportions. I decided to fight but awaited the eventual release of my family as a first step. They were released on bail after enduring 11 days of captivity.

Once they were out, I turned to the Internet seeking help and information to learn more about this extortion racket. I came across SIFF web sites and got a lot of support and advice from their wonderful volunteers. But the information they posted online on the laws of arrest in India and 498A in general was incorrect — I knew it instinctively as all the sites parroted that the police had the unrestricted power to arrest once a 498A  complaint was registered.

I just couldn’t believe that a democracy whose national motto was “Satyameva Jayate” would frame its laws with the intent to oppress its citizens…my disbelief aroused my curiosity.

At this stage, I read a book written by Prof Som K Shah calledFaith Belied. It mentioned a judgment of the Indian Supreme Court which prohibited arbitrary arrests. Intrigued, I delved into Indian court web sites to learn about Indian laws. I quickly unearthed judgments on the laws governing arrests and the rights of the accused. Reading these judgments, I realized that the Indian criminal justice system was acting in contravention of Indian laws when dealing with 498A cases. It is easy to explain how this happened: Over the decades, a belief was propagated in India that the police had the outright authority to arrest anyone implicated in a criminal case and corrupt policemen did so with impunity. This belief remained unquestioned and was promoted by police officers and lawyers.

Unfortunately, these same beliefs were packaged and presented to the public as facts at web sites of organizations committed to fighting 498A. I created this site/blog to dispel these beliefs and raise awareness of the laws and judgments which protect the rights of Indians though posts at this site. Over a span of several months, I devoted hours each day to reading and compiling judgments and articles about Indian laws. That’s how I learned about the right to due process in India.

Due process lays down that the procedure for depriving a person of his life or liberty must be lawful, reasonable, fair, and just. Due process means that no police officer has the right or the authority to effect the arrest of an individual merely because the person has been accused in a criminal case. Every member of the judiciary is also duty bound to respect the right to due process and cannot automatically send individuals to jail on account of being produced in a court room by the police.

Above all, Article 21 of the Indian Constitution asserts the importance of due process. It says:  “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

You can read more about the right to due process here.

The Supreme Court of India enforced this right to due process and the right against arbitrary arrest in Joginder Kumar Vs State of UP in 1994.  This judgment explicitly states that:

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.“

This is the judgment Prof Som K Shah wrote about in his book; I owe him for the head start he gave me through his book.

Sadly, despite the existence of this order, the police and the lower courts colluded and jailed hundreds of thousands of innocent Indians accused under 498A for over a decade. I am amazed that this fact doesn’t seem to bother anyone in this country of a billion people.

Fortunately, the amendments made to the Indian criminal procedure code (CrPC) in 2009 finally incorporated the orders of this judgment into the criminal procedure code.

After accumulating a pile of information and reading hundreds of judgments, I condensed all that I learned into the 498A Survival Guide, and posted it here. I also worked hard to convince fellow activists of the importance of Joginder Kumar Vs State of UP to end arrests by the police in 498A cases. As beliefs in the powers of the police to arrest were ingrained, it took a while, but I succeeded through persistence. Afterwards, I made several revisions to the 498A Survival Guide to keep it updated. It remains the definitive guide to surviving a 498A case since the time I posted it. Many victims have sworn that if it hadn’t been for it, they wouldn’t have fought or won their cases.

Over time, I’ve done my best to keep this site and its contents updated, but due to a punishing work and travel schedule, I haven’t been very successful at doing so. Also, I know that grammatical errors litter my posts and writings. I hope to eliminate these errors in the future. With 500+ posts, that is a lot of editing to do…and I’m trying.

The good news is the effect the passage of the CrPC Amendments had on the Jail and Bail Industry.  Click here to see how lawyers organized protests against the CrPC amendments. The amendments took the sting out of the 498A experience, as they prohibit arrests for offenses carrying sentences of less than 7 years. I believe that the Jail and Bail Industry is now heading into a recession.

But the fight isn’t over yet. The venal Indian establishment is trying to revive the Jail and Bail Industry by extending the sentence in 498A cases to 7 years or more. If they succeed in doing so, the CrPC amendments will no longer apply to 498A cases and the whole saga of arrests, jail and bail will start all over again. 

The only way to end this tyranny is to fight using the RTI Act and having the courage, resilience, and the fortitude to resist the calls to pay bribes and make the case go away. Also, the judiciary falls under the RTI Act and know that the magistrates who summon you to face charges are not silent spectators. They must apply their heads to see if the accusations in the FIR (police complaint) constitute a crime.

I wrote the 498A Survival Guide to give those trapped in 498A cases hope and information to stand and fight. For thousands and maybe more, my work has been the only thing that stood between despair and hope. I believe that I may have succeeded in my efforts, but I can’t present any tangible evidence in the form of numbers or statistics.

Finally, for those who are wondering: I was never arrested. I  didn’t pay a penny to the cops or my ex-wife. And despite the odds, I stand holding my cherished trophy — my American passport.