Wednesday, December 23, 2009

Home ministry puts Interests of Police and lawyers before people

DIG SPS Rathore(Above) Hon'ble P Chidambaram - Home Minister (Below)

Ruchika case :- Is Rathore the real culprit or is it the Home Ministry which allows the Indian Police and lawyers to have their way

Do we Indians really know or care what really happens during the law making process ? We simply assume that that government is bound to work for the welfare of the common man first. Unless one is stuck in a police case does one get the true taste of the Indian Criminal Justice system . How many Indians know about how the Indian home ministry( MHA) allows the police to misuse its power and weeks safeguards the interests of lawyers by suppressing and derailing amendment after amendments created to reform the police or the criminal justice system . The way the Home Ministry has derailed the CrPC amendments of 2008 is a case study and text book example on how the interests of common people were trampled by a ministry which wanted to protect the income of the lawyers and police fraternity and did not allow reform to go through. Read below to find out more.

The Ruchika case has shocked India . The case shows how police and lawyers can misuse their legal power and get away with harrassing a family for 19 years and then getting away with a sentence as little as 6 months . As always we Indians would fume for a few days and as the media loses interest in the case we would be back to where we started from . Not a single one of us will question the ministry that allows the Indian Police and lawyers to get away with such vicious behavior. Day in and out Millions of people have faced the milder version of misuse of power at the hands of the police.

The Ruchika case is just an extreme example of the misuse of power to arrest and subsequent torture by the Indian police and this is nothing new. Just to prevent the misuse of the power to arrest by the Indian police the CrPC amendments were created in 2008 by the government of India .The Criminal Procedure Amendment Bill, 2008 had the sole intention of ushering in a new era of criminal justice in the country and amendment of Section 41 of CrPC which redefines police powers of arrest was a step in the right direction to uphold basic human rights and constitutional rights of the citizens of India. The people of India wholeheartedly supported the proposed amendment for CrPC and felt that is a very good and rational move taken by the Govt. of India and approved by Her Excellency the President of India It is in the best interest of natural justice, towards protecting the common people of India from the disastrous powers of arrest with the police, which of late have been grossly misused by them. This Amendment after receiving the assent by the President has already been notified as Act 5 of 2009 in the Gazette of India.

Misuse of Power to Arrest
The third report of the National Police Commission, referring to the quality of arrest by the police in India had mentioned that "power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department." We all now know how the police arrested and tortured Ruchika's brother after he was arrested multiple times without any charge and the CrPC Amendments were created to prevent just this sort of brutality to happen again with Indian citizens. However the Police and lawyers do not like the power to arrest to go away and the Home Minister ( himself and his wife being high profile lawyers ) seems to agree with the lawyers and the police.

Section 41A – The bone of contention in CrPC amendments
One of the main features of the amendments in the CrPC is the amendment is the Amendment to Sec 41 which is nothing but the codification of the landmark judgment of the Supreme court titled “Joginder Kumar Vs. State of UP” regarding the which mandated the issuance of an by the police “Issue of Notice” to an accused before arrest which if not complied by the accused may lead to a subsequent arrest. This codification has been inserted in the recent amendments as Section 41A in Act 5 of 2009 . This judgment and the section 41A clearly basically states that an arrest is an exception and that an arrest should only be made in heinous crimes and that too only after an investigation and must be justified.

The reason for the lawyer’s protests against enforcement of Section 41A
After the CrPC Amendments, 2008 was assented on 7th January, 2009 and subsequently notified as Act 5 of 2009 in the Gazette of India, a small section of lawyers started protesting against this Act. The sole reason for the lawyer community to wake up from their slumber and suddenly become socially responsible was actually to safeguard the continuity of criminal syndication between Corrupt-Police-Officials, Broker-Advocates, and also Few-Members of the
Judiciary, those are benefited from the unwarranted arrests of the innocent people, through exploitation of money from them. The primary reason of the protests of the lawyer community is that the amendments are pro innocent citizen and Anti lawyer as false arrests are the primary source of bail revenue for lawyers in India. This fact was also highlighted by The Times of India vide their article dated 08.01.2009 titled “Lawyers strike to bail themselves out” .

Since the are one of the main beneficiaries of lawyers and the police personnel are the main beneficiaries of the unjustified arrests and abuse of the power to arrest. The lawyers realizing the fact the once an accused is issued a notice by the police he/she would simply turn up at the police station and hence there would no need to acquire bails and the income from getting bails in unjustified arrest ( which comprise 60% of cases ) which was so far being enjoyed by the lawyers would eventually dry up . So essentially enforcing section 41A would wipe out 60% of the unjustified arrest and 60% of the bail revenue of lawyers.

The MHA ignores the Parliament , President ,law commission ,and Chief Justice recommendations and prefers to listen to the lawyers
The most surprising aspect of the enforcing the amendments has been the behavior of the ministry of home affairs . The MHA was tasked with the job of enforcing the amendments after it was passed by both houses of the parliament and the President of Indian herself had given her assent to the Amendments .

The MHA then in a clear act of safeguarding the interests of these nondescript lawyer associations sent the amendments again to the Law Commission for review. The Law commission after reviewing the amendments responded back replying that the Act 5 of 2009 should be implemented immediately as the Act had come into force from previous Law Commission Reports and Supreme Court Guidelines on “issue of notice”, after routing it through Parliamentary Standing Committee of Home Affairs, and detailed discussion in both the houses of Parliament.

RTIs were filed with the Law Commission and MHA regarding the status of Act 5 of 2009. And it revealed some real strange and disturbing facts about the behavior of the MHA and shows clear sympathy of the MHA with the lawyer fraternity

1) Only some small and nondescript lawyer’s associations ( Like :- The law Association Davangere) and women groups are protesting against the notified Act 5 of 2009 for fear of loosing clients in Bail matters in non required arrests due to the “Issue of Notice”. The Law Ministry in one RTI reply’s on enforcement notification has clearly replied that it was its duty, to notify the new Act in the Gazette after getting assented by the President, which it has already done and it is now upto the Ministry of Home Affairs to issue the enforcement notification. The common man and other various NGOs on the other hand, rather want the “Issue of Notice” in Section 41A in Act 5 of 2009 to be enforced immediately, as it is the common man that suffer due to the delay in enforcement of Act 5 of 2009. Please find the RTI reply here to see the reality.

2) Some lawyers are trying to camouflage their unscrupulous agenda of safeguarding bail revenue as possible increase of crime after enforcement of the Act. Ministry of Home Affairs has on the other hand has repeatedly clarified, that even after enforcement notification, (as revealed through RTI) police can still arrest an accused, if it feels so and this enforcement notification does
not take away the power of arrest from the police. However some lawyers, it seems, are actually concerned with Section 41A dealing with “Issue of Notice” to the accused, as after issuance of notice, the accused would comply with the notice and simply not get arrested, which would therefore, curtail down these lawyer’s income through Bail Cases in non required arrests as reported in Times of India.

3) RTI also revealed that this is the ONLY Act in the Indian History, which been referred to Law Commission for review, after getting notified in the gazette, but before actually being enforced even for a single day. And in this process it also humiliated both the houses of the Parliament where the “Issue of Notice” was passed and our President who assented on paving ways to show that some lawyers are capable of holding our entire democracy into ransom so that they do not loose clients in bail matters in non required arrests. Not only that, the Law Commission has suggested the word “shall” instead of “may” be replaced, so that it would “ensure that in case where arrest is not made and further if the case requires investigation of the person, there should be at least be an obligation on the Police Officer to issue a notice which of course has to be for recorded reasons so that there is no abuse. The obligation to record reasons, will also ensure that innocent people are by issuance of notice at the whim and caprice of Police Officer”.

4) This Act had come into force after pursuant to the recommendations of Law Commission, views of the Parliamentary Standing Committee of the Ministry of Home Affairs, and also the views of the Home Ministry. In fact CrPC Amendments 2006 was drafted after consultations with the State Government and a group of officers comprising Central and State Government Initiatives. It is extremely surprising that such an important Act has not being enforced till date just because of some lawyers are protesting against it for unjustified reasons .

The MHA’s actions in not enforcing an act which has been assented by both houses of the parliament, assented by the President, endorsed by the law commission for immediate implementation and which when looked from any angle will benefit the people of India are very serious and unscrupulous in nature and clearly show a bias towards the lawyer fraternity and a hence makes a mockery of the democratic law making process.


  1. Lawyer community in India is unethical and corrupt. There are cases where lawyers have betrayed their clients and joined hands with the adversaries in litigation to blackmail their own clients. Instead of being the defenders of constitutional rights of the citizens, they became the mafia that participates in violation of those rights and exploitation of innocent citizens. They are aptly described as "goons in the black". Their behaviour in the TamilNadu courts earlier illustrates this point eloquently. Shame on them!!

  2. The politician, police and criminal form a nexus of the most corrupt people in India.
    The second Tier consist of Lawyers, doctors and government servants.
    The lawyers are the cement which bind all these corrupt people.
    The few good lawyers get promoted to become judges. They are the exceptions and we are proud of our judiciary.
    However, in this too some corrupt lawyers pass through the sieve and we have people like Dinakaran becoming judges, who have to be impeached to remove them.
    It is but natural that these corrupt lawyers will see that their income is not reduced.

  3. V well said dear author,

    Some lawyers are responsible for this serious state of matrimonial litigations in India and all the harassment that the husband and his family has to go through.

    Conniving with opponents is also not a NEWS .. I am sure all those who have been through litigations have faced the same. I haven't seen any other types of professionals who can CHEAT their clients, harass them, yet take loads of money from them ...But the poor litigants have no choice but to keep paying them and suffer harassments !