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A new bill that could help some criminals

January 7, 2009

One is not sure whether this new bill is a measure to prevent overcrowding of prisons or to give the police more time to concentrate on serious offences, perhaps terrorism? If that sounds sarcastic, it was meant to be. I am still trying to understand what the country will gain by a law that will encourage criminals.

The new bill, which will become law if the President approves, will make it difficult for the police to arrest anyone who commits an offence for which the maximum sentence is seven years. But hold on, it’s not as if the police cannot arrest the suspect at all…it just means that a “notice” will have to be served to the offender, a notice which makes it imperative on the offender to “cooperate” with the investigation! If this isn’t funny enough, hear this: If the offender refuses to cooperate (and if he is still waiting around for the police to arrive) then he can be arrested! And what’s even more hilarious is the action that the police can take if the accused actually cooperates:

Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police are of the opinion that he ought to be arrested.

As far as I can figure out, this means that we will have a lot more criminals on the streets, and worse, the fear of prison will reduce for the many who commit such crimes. Some of these offences (punished with a prison term of 7 years or less) are very serious indeed, and non-bailable as well. Not just in India, but the world over. The only difference now will be that in India the police will serve them “notices” before starting the investigation.

Take forgers for instance. Section 465 says that committing forgery entails a 2 year jail term. Even those who are in “possession of forged or counterfeit or currency-notes or bank-notes” (Section 489) can be punished only with 7 years. These people now will not be arrested, but given a chance to run away if they wish. Now why did I ever imagine that counterfeiting was an anti-national activity?

Rioters and those engaging in causing communal tensions are the bane of this country and now they must be thanking our government for making their job easier. They can indulge in destroying public property, rioting, or vandalising the houses  and offices of those opposed to their idealogy…and then crawl back into their political woodwork. Because now they will be served “notices” instead of being rounded up in police vans. Pieces of paper their political masters will tear up and throw away.  A rioter can now destroy public property, threaten and intimidate people without prison staring at him in the face. For Section 506 says that “criminal intimidation” entails only a 2 year jail term, and Section 452 says that “house-trespass, having made preparation for causing hurt, assault” entails imprisonment for 7 years and fine. The latter is a serious, non-bailable offence but who cares.

Those goons who create communal tension will also breathe easier. Because Section 295 mentions that “destroying, damaging or defiling a place of worship or sacred object with intent to insult the religion of any class of persons” can be punished with 2 years only. Now, this too is a non-bailable offense, as also the crime of  “maliciously insulting the religion or the religious beliefs of any class.” (Section 295).

So lucky for the political parties….they now save the money used for bailing out their goons and build up their kitty ahead of elections.

Wait a minute, wasn’t it the politicians themselves who passed this Bill? Now I wonder if I am being paranoid or they actually had some vested interest in passing this Bill!

Now lets come to molestation (which could well be an attempt to rape), a common enough crime in India. The perpetrators of this crime no longer need fear that they will be thrown into jail. Because Section 354 says that those who commit “assault or use of criminal force to a woman with intent to outrage her modesty” can be jailed for a maximum period of 2 years. I wonder what happened to the grand plans of the National Commission for Women (NCW) of wanting to make harassment and molestation of women a non-bailable offence which could attract a punishment which could go up to 10 years (depending on the offence)? The way things are now, if this new Bill becomes an Act, the molesters’ mums  won’t ever find out what their darling sons have been up to!

And if we ever hoped that 24 hours in a police lock-up would reform drunk drivers, we can now give up that hope. In fact even those drunk drivers who accidentally knock down people, perhaps kill them, can now be served a “notice”. Free to do it another day because remember duplicate licences are easy to get!

Punishment for minor assaults is also less than seven years…as also attempts to seriously injure someone. Section 440 says “mischief committed after preparation made for causing death, or hurt, etc” can get the offender a jail term of just about 5 years. And Section 323 talks about “voluntarily causing hurt” which entails imprisonment for 1 year, and if a dangerous weapon is used, the jail term is up to 3 years. Notices is what they will all get!

Extortionists, who can be imprisoned for around 3 years, will have a field day with this law too.

Those attempting to rob will also get away because Section 393 says that “attempt to commit robbery” gets the accused a jail term of 7 years. This is supposedly a non-bailable offence!

The least this Bill could have done is exclude non-bailable offences from the purview of this Bill.

Jails will be less crowded
One thing this Bill will surely do is reduce the number of undertrials in prison. This may not be the government’s reason to make such a law, but what else is one to think? Prisons in India are crammed with convicts and undertrials. Although the all-India occupancy (NCRB figures) rates show that the overcrowding is easing up (2006 over 2005), even in 2006 our prisons were overcrowded by 41.1%, and the improvement over 2005 was less than 5%. This improvement seems to lose its meaning if we compare it to earlier figures though. Overcrowding in 2002 was 40.2% and in 2003 it was 39.80%.

It is our slow justice system which is putting such a large number of undertrials in our jails. Here are some percentages which I have no reason to believe have changed drastically in 2008:

undertrials

Speeding up the judicial system is not something that seems to be happening in the near future, but yes new prisons are being built as an attempt to reduce overcrowding.

In the meantime, there will be this new law… and to look at it from the brighter side, it will benefit innocent people who are arrested.

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24 Comments leave one →
  1. January 7, 2009 9:15 am

    wow! most countries are becoming stricter and what we do? help the criminals…now won’t boy who was bullied,like to drive a knife into the bully? Juvenile crimes would jump,as they would have more role models to inspire them…
    As you said maybe they are trying to legalize bribery soon,say next step,pay the cop so much and walk away…

  2. January 7, 2009 9:52 am

    Are you serious!!!8O GOSH!

  3. January 7, 2009 10:37 am

    Uh….. *leaves flabbergasted*

  4. January 7, 2009 10:54 am

    OMG!

    How can you think this is a good idea! How can parliament even pass such a pathetic practice.

    If they are going to say that after this, the terms will be revised, I am not going to believe anything will happen in the next 5 years, at the least, and by then the damage would be more than achieved!

  5. January 7, 2009 10:58 am

    @ Nita : In my opinion the fairness of the judicial system rests on the presumption that ‘everyone is innocent till proven guilty.” The burden of proof always lies on the state. You have to PROVE that someone is guilty before you can take away their freedom. India is one of the few countries with scores upon scores of ‘undertrials’. If your trial lasts forever and you are proven not guilty it amounts to punishing the innocent. It is a failure of the judiciary that has led to the government making such laws. I think unless you can speed up trials and have a fair system to try accused individuals we need such a law.

    There of course needs to be a differentiation between what is considered a heinous crime and a non heinous crime. That is a matter of debate. I would also like to point out that prosecution and law enforcement in this country sometimes use very coercive means to build cases against the accused in their custody. In other non subtle words I mean torture. There is also no lack of people using various means to exploit law enforcement to get people arrested on trumped up charges. Whether the motivations are personal or political or just vendetta. In this kind of a scenario the rights of accused which in this country have been so far taken with a pinch of salt should not be ignored. If we want to totally do away with them we can just abolish trials and get on with street justice. I am sure there would be many here that would actually root for that kind of a thing.

    So in the conclusion of my remark all I would like to say is that we should have this law but we should be very careful about what should be exempted from arrest and what should not be.

  6. vasudev permalink
    January 7, 2009 1:00 pm

    might actually reduce crime provided we catch the criminals first and sterilise them…like we did the stray dogs.

  7. January 7, 2009 1:15 pm

    Nita:

    Various oddball practices to reduce prison overcrowding are in place in the UK too. e.g. Prisoners can be released into the community, with or without supervision orders, or made to do community service wearing fluorescent jackets which give ordinary people a chance to abuse them and so on.

    All in all, I feel these are cynical exercises on the part of governments who fail to address root causes of crime, despite their battle cries at election time (e.g. New Labour’s was ‘tough on crime, tough on the causes of crime’ but they achieved sweet FA).

    In London, now we have crime maps. See: maps.met.police.uk It is hardly a confidence inspiring thing! I also feel it is tantamount to telling citizens ‘look we have kept you informed; now if you get mugged or knifed, it is your own fault’ (of course, I exaggerate but what is a common man to make of this ‘data’?). And now of course, the police is warning that all manner of criminality will go up in the recession.

    We spend £200M (est.) in London on cameras etc and yet fewer than 3/4 of crimes are solved. The Home Minister uses her private security if she wants to go to her corner shop, newspapers report it, we laugh at her for a while since (preventing not encouraging) crime is her responsibility, but the underlying message is quite upsetting.

    As they say, a liberal is a conservative who has not been mugged yet. And on this issue, I would say that liberal views of criminals’ human rights (in the UK, this is a major issue) make a mockery of the ordinary person’s right to be safe.

    There is of course the broken window hypothesis and not dealing with low level crime only encourages bigger crime.

    In this respect, I have noticed American cops to be quite authoritative and firm when dealing with things such as traffic violations etc. But of course, crime at ‘higher’ levels such as war crimes, institutional capture etc go unpunished.

    It seems this is a universal issue. And as long as the ‘rulers’ have security guards, they will not take crime and punishment seriously.

    PS: Sorry, such a long comment.

    • January 7, 2009 4:38 pm

      Vishesh, in a way I think the police will get less bribes, now the goons won’t have to bribe to keep out of jail!

      Sakhi and Mish, Gosh is the word!!

      Aathira, apparently this bill was passed in a hurry and I still haven’t figured out the hidden agenda!

      Odzer, I do agree that you are innocent until proven guilty but here the thing is a little different. When there is prima facie
      evidence, the person needs to be held so he doesn’t run away. But yeah I know what you mean. It’s sad the way undertrials are treated….but you know I am just guessing that this is the reason. The government hasn’t said that they are doing this in the interest of justice. And as there was no debate in parliament about this bill, no one knows the logic behind this bill!!

      Vasudev, if they do not allow arrest, sterilisation will be out of the question! :)

      Shefaly, thanks for the interesting peek into London’s crime and your rather philosophical rendering! As you said it’s a universal issue, and letting criminals out on the streets for some “good” reason of the state (in this case I wish our country would at least tell us what the actual reasons are!) can make an ordinary citizen’s life very uncomfortable. However if convicted felons are let off early and then the police keep a watch on them it’s better than not convicting people at all!

  8. wishtobeanon permalink
    January 7, 2009 7:00 pm

    Here in the US, people get arrested for making jokes about ‘shoe bombs’ – http://www.kmbc.com/news/18425088/detail.html and now in India, you have the other extreme!
    I have nothing to say except that it is a scary scenario. I hope the president does not approve it

    So far the President has not shown signs of being anything but a puppet. – Nita.

  9. Chirag permalink
    January 7, 2009 7:14 pm

    Well Nita, I thought laws were made to protect the criminals ;) , now I can be sure. OMG!!! is this the Kulyug thing we read when we were small.

    Perhaps you should have added, criminal politicians! :) – Nita

  10. January 7, 2009 7:21 pm

    I didn’t know about any such bill! Thanks for the post. Finally our law makers have gone bonkers. The absurdity of expecting criminals to actually wait for notice to be served to them!!

    Yeah, absurd isn’t it! A wonderful way to reduce the number of criminal cases! More of a holiday for our judges, who take plenty of holiday anyway! – Nita.

  11. January 7, 2009 7:36 pm

    I can’t believe this! I can’t begin to imagine what are lawmakers might have been thinking when they even drafted this bill! Guess this must be one bill to help all the criminals amongst our ‘lawmakers’!

    That’s the only logic one can think of! Even kidnappers and extornists often have links with politicians. – Nita

  12. January 7, 2009 10:38 pm

    “As they say, a liberal is a conservative who has not been mugged yet.”

    Shefaly, that reminded me of the rejoinder to the above: A conservative is a liberal who hasn’t been arrested yet. :D

  13. Naveen permalink
    January 8, 2009 2:28 am

    Its so stupid- Giving discretion to the police to finally avoid illegal and unjust arrests is a contradiction in itself.

    I liked the Business Standard analysis on this “Two possibilities will arise therefore, once the new law is in place. One, the police will try and book the accused under more serious charges so as to get around the seven-year rule. So, a kidnapper could get booked under kidnapping along with some other crime, may be of attempting to torture the person; an eve-teaser might get booked for rape; and so on. Within this, the police will be quick to tell judges that the person is not cooperating and so an arrest is needed. Two, people who commit such crimes will get emboldened, since they know that nothing more than a lengthy court process (which itself may not be perfect) is probably in store for them…”.

    http://www.business-standard.com/india/news/new-criminal-procedure/23/16/345476/

    Thanks Naveen for the link. It is interesting to know that the reason the politicians have for this new law is to prevent innocents from being thrown into jail and to prevent the highhandedness of the police. This is what I was trying to understand and now that Business Standard says this, it seems a noble objective, but a stupid way to implement it. I would never have imagined that this law would actually be in the interests of justice. What is required is to improve the system, not make laws which the system will circumvent. All in alll I think it’s a scary scenario. – Nita.

  14. January 8, 2009 3:46 am

    Amit

    The probability of getting mugged/ knifed is so high in some parts of London that one may be safer in custody. :-)

  15. January 8, 2009 7:51 am

    well this makes it easier for the criminal’s sponsored by the political parties to walk free.

    That was exactly my thought!! – Nita.

  16. January 8, 2009 11:52 am

    God! I never knew such information! I agree with you. We need improvements in the broken system, and not another broken law! Things are getting worse every time! Nothing is done in the favor of people, especially the sincere tax payers.

    Passing laws in a hurry is shameful. As it is our parliament hardly works and this reminded me of a post I once wrote on how little parliament works! – Nita.

  17. January 8, 2009 8:05 pm

    Hmm..Heard of this few days ago..I agree that this law will help manyn criminals,but it will be of some use to common incconet people who get harassed by police simply for no reason of theirs..If i am your enemy,i can file a flase case against you,bribe the police and take you inside lockup and get you smashed like potato..Or maybe can keep you inside for years,without trial..

    In our nation,either way,whether we have strict law or not,criminals are going to escape anyway if they have money and contact,even a petty politician in the pocket..We have infinite number of laws..Has crime rates decreased? Well,it would be just a wild assumption that this law alone will encourage more and more people to do crime..Either way,they are going to do it..I have no much faith in our law and order system..So,this law isn’t of much worry,atleast it may help the above said innocent people :)

    That is true Nimmy, this will help innocent people but actually it may not because the police if they want to harrass someone, they will. However I think our law and order system is not as bad as it seems as of late many high ranking people have also been caught. Luckily we are an open democracy and coverups come to light. But true, rich people tend to bribe their way through but at times if the press plays the watchdog, they can be caught too. – Nita.

  18. January 9, 2009 12:23 am

    I didn’t know about the bill! Thanks for the post :)

    Now the judges can party for longer. Go, law makers! Go!

    A standing ovation to all our amazing law makers.

    —————————————————————–

    B/w great blog. Shall visit as often as possible :)

    Also, wish you – A Very Happy New Year :)

    Thanks Kido and happy new year to you too! And as you said, now our judges can bunk court more often! – Nita.

  19. January 10, 2009 11:21 pm

    What I am unable to understand is that what was the basic idea behind the law? Why was it needed?

    Now that was something I was wondering too and someone said it was to stop innocent people being arrested! What way to go!! – Nita.

  20. Vinod permalink
    January 11, 2009 4:31 am

    I’m curious to know whether India does have a system to collect opinions from the public on Bills before they get submitted into the parliament.

    No such system. – Nita.

  21. Vinod permalink
    January 11, 2009 4:35 am

    Nita, in general it is never easy for the legislative process to reach the right balance between the rights of the accused and those of the victim. Any step in the criminal justice system in such a direction invariably generates a split in opinion among the public.

    Vinod, thanks. My observation is that the law abiding public generally wants to see any accused behind bars. Their attitude is often harsh and this is because they fear for their own safety and I do not blame the common man for feeling so as I have felt this myself on many occasions. Intellectuals, human rights activists and others usually tend to tilt to the other side! – Nita.

  22. hari permalink
    January 21, 2009 4:04 pm

    hi Nita,
    nice post,
    i think, this makes it easier for the criminal’s sponsored by the political parties to walk free,
    and
    I never knew such information about the sections, I agree with you.

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