Posts Tagged 'Right to due process'

The 498A Survival Portal

 

We shall do our part to build a world of peace where the weak are safe and the strong are just.                    –John F Kennedy

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The CrPC amendments curtail the power of police to arrest.

Click the link below to know more.

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.

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If you are visiting this site for the first time, please don’t be overwhelmed by the amount of information contained here. This information is empowering. It will inform you about Indian laws, your rights, and you’ll learn about the venality of the Indian criminal justice system.

Start with the The 498A Survival Guide and the rest will fall into place.

  1. The 498A Survival Guide: This 50+ page handout will help you defend yourself in your cases. It also has information detailing judgments which protect basic rights in India. (Updated Apr/2008)
  2. Joginder Kumar Vs State Of UP – 1994: This Supreme Court judgment resulted from a writ of Habeas Corpus and it defines the powers of the police to arrest. You will be surprised to know how limited the powers of the Indian police to arrest truly are. If you are unable to get anticipatory bail, this judgment can protect you from an illegal arrest by the police. The recent CrPC amendment to Section 41, is the formal incorporation of this judgment into the Indian penal code.

  3. Understand The Right To Due Process:  This is the principle that the government must respect all of the legal rights that are owed to a citizen in accordance with the law, and holds the government subservient to the law of the land.
  4. Srinivasulu Vs State Of AP-2007:  The Supreme Court of India has stated that:  “Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC”. After the FIR is filed, read the FIR and question the cops on the basis for the applicability of 498A to your case, as given in this judgment. Most FIRs are a concoction of lies with no coherence or reason in them.

  5. SC Explains Anticipatory Bail – 2009 – This judgment explains the rules governing the granting of anticipatory bail. Everything you need to know is present in this judgment,

  6. The Final Report Of Film Actor Prashanth’s 498A Case (pdf is at the end of the post) – This article is the Final Report of film actor Prashanth. Read it to understand what a final report is.

  7. Justice Regupathy: Mechanical Judicial Remand Is ILLEGAL

  8. Justice Kailash Gambhir (Delhi HC) Guidelines On Prosecution Of 498A Cases

  9. Delhi Police Circular Forbidding Arrests In 498A Cases Without DCP’s Permission

  10. Hyderabad Police Circular Forbidding Arrests in 498A Cases Without DCP’s Permission

  11. Judgments of Justice Dhingra: Justice Shiv Narain Dhingra of the Delhi High Court has empowered victims of 498A cases with his judgments. Read these  to inform and motivate  yourselves to fight this racket.

  12. Chennai HC Justice Regupathy’s Orders On 498A Arrests

  13. SC Explains Conditions For The Quash Of An FIR – 2009

  14. 498A Counter Cases To Fight Back With – Compiled By Rudy

  15. The Important Sections Of The Dowry Prohibition Act
  16. AP Police’s Procedures for 498A Investigations
  17. The 498A FAQ (link to another blog)

498A Survival Guide In Regional Languages :

The Indian police force plays a huge role in this extortion racket. Read the judgments and articles about the Indian police to inform, educate and empower yourselves.

For immediate help and advice, contact:

The Supreme Court of India is the ultimate arbiter of the law on account of the The Doctrine Of Binding Precedent. Article 142 of the Constitution declares that any order of the Supreme Court is enforceable throughout the territory of India and article 144 mandates that all civil (police) and judicial authorities shall act in aid of the Supreme Court.

Repository Of Information:

OR

Compendium Of Judgments:

For Non Resident Indians (NRIs):

Documents on the Indian Police:

CBI Manuals:The CBI is the premier investigative agency of our country and I have a lot of respect for the capabilities of these guys. I just wish they would be a little more diligent before filing red corner notices against NRIs accused in dowry cases. In a sense they are insulting their own intelligence.
These manuals are a great source for detailing the process of investigation of cognizable offenses and also the laws of arrest. These are in the public domain (Internet) and I stumbled across them by accident; a gift from the gods. I believe that these manuals can serve as a good reference to file RTIs against corrupt police officers. Read these documents and you will get a clear idea of what the police are actually supposed to do upon the registration of cognizable offenses.

RTI is a powerful tool to combat the abuse of 498A. The police are required to answer within 48Hrs when an RTI is filed about a person who is arrested. Read about the basics of filing an RTI here:

Misc documents/links/News:

Archive:

Finally, regardless of what the 498A wives do to you, if you are innocent, you will prevail.

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curtail the power of police to make arrests, thereby preventing any abuse of power.
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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

Copyright Notice:

The content of this blog is copyrighted. You are required to obtain prior permission before locally hosting or reproducing online or in print, any or part of the content. You are welcome to directly link to the content from your site. Page copy protected against web site content infringement by Copyscape MyFreeCopyright.com Registered & Protected Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License.

Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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