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