SECTION 498A AND THE RIGHT TO LIFE AND LIBERTY

Section 498A was introduced in 1983 to protect women from cruelty and harassment by her in-laws. Nevertheless it has undeniably morphed into an extortion racket which is only growing by the day. 3,90,397 persons (of which 87,830(22.5%) were women themselves!!!) were arrested under Section 498A in 2004, 2005 & 2006 as per the data published by the National Crime Research Bureau(NCRB). So over 1,20,000 women have been jailed nationally under this women-protection law since 2004 (conservatively projecting the figures for year 2007, for which NCRB data is not yet available). This figure of arrests without investigation read with the figure of only 2% conviction * (research report by Center for Social Research-CSR* ) in case IPC section 498a, brings out the gross human rights violation meted out by IPC 498a.

What the average citizen does not know, is that the Indian Constitution prohibits the arbitrary arrest of any citizen under article 21, the Right To Life And Liberty.

When the police arrests under this law, they claim that Section 498A is a cognizable offence and that they have the power to arrest and hence are acting in accordance with the law. That is incorrect. When a crime such as rape or dowry harassment, is categorized as a cognizable offence, it implies that the police are required to register the case, investigate and arrest only if necessary. By arresting the accused named in a 498A FIR, without investigation, the moment the FIR is filed, the police are acting illegally and in contravention to the orders of the Supreme Court Of India, issued in the landmark Judgment of Joginder Kumar Vs State of UP, 1994.

On 7/Jan/1994, a young man of 28 years from UP, with an LLB degree, Joginder Kumar, was detained by the Ghaziabad police for a period of 5 days. His frantic relatives, fearing his custodial murder, filed a writ of Habeas Corpus with the Supreme Court. The SSP appeared before the honorable court and submitted that Joginder Kumar was released. Not satisfied with the explanation to the question of why a person was detained without cause, the Supreme Court issued this landmark judgment.
The former Chief Justice Of India, M.N. Venkatachalliah (Joginder Kumar Vs. State Of U.P, 25/04/1994) stated 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.
There are significant other requirements that need to be fulfilled for an arrest. These are:
1. The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
2. The accused is likely to abscond and evade the processes of law.
3. The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.
4. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.

In 2002, the former Commissioner Of Police, Hyderabad, MV Krishna Rao, issued a memo prohibiting the arrest of any man, woman or child, without the written permission of the DCP in order to prevent the abuse of this law as well as to ensure compliance with the orders of the Supreme Court.
Of all the people arrested and jailed under IPC 498A and DV act, how many men, women and children do you think, fulfilled the criteria necessary for them to be arrested as per the orders of the Supreme Court?. SIF pleads to the 4th estate to investigate this blatant abuse of the law and help in securing justice for the innocent.

Enclosed is the memo of the Hyderabad Police Commissioner and the excerpts from the NCRB publications, titled Crime In India. These publications can be obtained from here:
http://ncrb.nic.in/crime2004/home.htm | http://ncrb.nic.in/crime2005/home.htm | http://ncrb.nic.in/cii2006/home.htm
* Research report by Center for Social Research (CSR): http://www.csrindia.org/projects/research_Section%20498A.html