The recent amendment in Criminal Law has attracted public attention due to the strike by lawyers across the country opposing it. The strike, in spite of its opposition, served to draw attention to legislation on an important issue like criminal law; an issue so neglected that a very small number of parliamentarians debated it. Across the political spectrum there has hardly been any public response to the issue of amendments in Criminal Law. The only vocal opinions have been from the Police Officers and lawyers who oppose the amendment or rather more specifically the provisions regarding arrest. The text of the amendments not easily available; wider sections of the society have found it difficult to be in a position to form an opinion. The striking lawyers say that the amendment will result in more opportunity to the police for corruption in as much it gives them discretion to arrest or not to arrest. They argue that it will result in a situation where a lumpen who assaults a woman cannot be arrested by the police and the women would be left insecure. Some senior Police officials say that the amendment regarding curbs on arrest will tie their hands in dealing with crime effectively. The Police officials have gone a step further and also forewarned their respective State Governments to see that the amendment does not become a law in the State. The debate, thus, is mainly around the question of powers of the police.

One of the supporting arguments of the protesting bar is regarding the provision that in a rape trial even if the lawyer for the accused is not present the Court can continue to record evidence against the accused. The stated objective is that the absence of the lawyer of the accused should not be allowed to indulge in delaying tactics, to buy time, pressurise or influence the witnesses, or cause the victim to be harassed and lose hope for justice due to delay. The argument against is that such a provision will not allow proper representation to the accused and goes against the cardinal principal of fair trial. In the maze of protests and opinions of Police officers, what seems to have been lost is that there are some other provisions in the amendment which also merit attention. For the first time, the term ‘victim’ is mentioned in the amendment, and also his or her parents or dependants. Even earlier there was a provision for compensation to the victim of crime by the perpetrator. But when the perpetrator could not be found it became meaningless. Now the provisions say that, even if the perpetrator cannot be found or the compensation is not adequate, either the court itself or the District Legal Aid Services Authority will determine the amount of adequate compensation to the victim. It further provides that that the State and the Central Governments shall both contribute to and together create a fund for payment of compensation to the victims of crime. There are several other provisions to the amendment whereby summary trial of a larger number of cases has been made possible, audio video recording of evidence is encouraged, in case of arrest of women, safeguards are prescribed, police control room in every district is sought to be established, punishment recommended in cases of retraction of witnesses from a case against the accused etc.

The fact that the change in provisions relating to arrest have evoked a lot of interest suggests that various sections of society are considering how it affects their interests or rights in various ways. There is an opinion that the concern of lawyers emanates from the apprehension that less arrests shall mean lesser number of cases. There is a view that the amendment may actually give rise to more litigation in terms of challenge to arrests made by the police claiming that the arrest is contrary to the mandate of the amendment. Whether number of cases for lawyers would increase or not, involves some guesswork. Only implementation of the provision can show what really happens. The apprehension that the amendment gives more discretionary powers to the police carries weight. The new provision relating to arrest lays down the circumstances in which a police officer may arrest despite the offence being punishable by less than seven years sentence. The circumstances warranting arrest are “(a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence or for the reason that detention of such person in custody is in the interest of his safety; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police the officer; or (e) that unless such person is arrested, his presence in the court whenever required cannot be ensured;”.

As a matter of practice one can find out that the circumstances warranting arrest enumerated above were part of our law even before the present amendment. The difference was that in all cognizable cases i.e. cases in which arrest could be made by the police without a warrant, the police as a matter of course always made arrests. The accused was produced before the courts and the police claimed remand for interrogation. The courts routinely granted remand in most of the cases. Even when bail applications were moved in majority of cases, the applications were rejected. The recent judgements of High Courts and Supreme Courts have de facto reversed the proposition that ‘bail is the rule and jail is exception’ to ‘jail is the rule and bail is the exception’. If the enumeration of circumstances in the present amendment could reduce the number of arrests, it should have happened earlier too, with courts granting bail liberally. That did not happen. Therefore there is a big question mark whether the police too would not end up acting in the same manner in which judiciary acts: namely as a matter of routine relying on one or the other circumstance to justify arrest. There is a view that the lower judiciary didn’t want to come under scanner for being liberal with granting bail. But such a concern is not applicable in case of the police where corruption seems to be an integral part of policing. The possibility is real that even when the police is not arresting, the officer concerned will continue to demand money from the accused taking advantage of the fact that the accused does not know that he should not be arrested at all. Or in a case where an influential or rich person is involved, it will be easier for the Police to not arrest them, taking advantage of the amendment. The way out can be that the government does not rest content with the amendment, but issues further specific instructions to the police ranks, laying down specific guidelines and maintaining a vigil over implementation. If is yet to be seen if this happens. The lower judiciary particularly can be expected to change its attitude because of the thrust of law being stated clearly than ever, that arrest should be exception. Balancing the situation and probabilities, it seems that the amendment overall may reduce the number of people in jail. The police may reduce arrests, but may continue to extort money from the common man, taking advantage of his ignorance of the amendment. Courts can be expected to take a cue from the amendment and be liberal in granting bail to the arrested. Thus as far as common man is concerned, he may be spared unnecessary arrest and jail, but may not necessarily be spared harassment and extortion. He has a better chance of not being arrested after paying a bribe, compared to the earlier situation where he might be taken into remand by the police for interrogation, and his family would cough up money for the favour of not subjecting him to torture.

The amendment does not bring about speedy justice except for offences involving offences less than three years which can now be tried summarily. The time limit for completing investigation of an offence still remains three months. Long pending police reforms calling for separation of the maintenance of law and order and criminal investigation still seem to be a far cry. There is hardly anything which shows any urgency toward uprooting corruption from the police system. Whatever changes in the law may occur, enforcement will after all depend on the police we have. There is nothing to indicate that the police will have to focus on crime prevention and better scientific investigation of crimes. Witnesses turning hostile are not the only reason for criminals getting acquitted. Therefore coercing the witnesses by recording statements before a magistrate in all cases involving a sentence of more than seven years and then trying them for perjury if they retract can hardly be a solution.

It would be wrong, however, to conclude that only the police and judiciary could play a role in shaping the results of the provision relating to arrest in the amendment. Communities and organizations would indeed get a space to assert that the person should not be arrested. Lawyers can challenge improper arrests and bring clarity to the meaning of the circumstances entailing arrest. The scope for resisting and challenging unwarranted arrests is certainly greater. Thanks to the amendment inspired perhaps mainly by the concern to save some money for the government by reducing the prison population, the people can cull out a new space to expose the working of law enforcement. This has the potential to embolden the people against machinery of repression.