When high-profile lawyer Janhavi Gadkar rammed her Audi into a taxi in Mumbai, allegedly
causing the death
of two people, her blood alcohol level was six times the legal limit.
But police did not arrest her on the spot. Instead, they detained her and arrested her after producing her in a court the next day.
This was one of a growing number of instances involving drunk women, who may pose a danger to themselves and others, wherein policemen were confused about the law governing the arrest of women.
Retired Supreme Court judge Deepak Verma said the police in Mumbai followed procedures as best as they could.
“They did not arrest her but only detained her. After she was produced in a court, she was arrested. As long as a woman officer was present, this is the correct way,” he said.
The law is clear, even if people are not clear on it. Women can be arrested at night, provided the circumstances are exceptional, by a woman police officer with prior permission from a judicial magistrate.
The confusion is understandable as the law does not make it clear whether a woman must also be arrested by a female officer during the day. It is also unclear what procedure the police will follow when there are no women officers on duty as was the case with Gadkar.
Some feel women should not be allowed to take advantage of the exceptions in law carved out for their security.
Senior advocate Rebecca John said: “A woman is entitled to the protection that the law gives her…which came about due to innumerous cases where the fairer sex had been compromised by those entrusted with it but not abuse it as a privilege.”
John said protection is not the same as privilege and those committing serious crimes must be treated equally, regardless of gender.
Under the Motor Vehicles Act, a person convicted of drunken driving can be given a jail term of up to six months. Causing death while driving inebriated can attract a charge of culpable homicide that can entail imprisonment of up to 10 years.
Gadkar’s case may well be an echo of the 2010 case of Nooriya Haveliwala, a US national who was given a five-year jail term after being convicted of mowing down two men in a drink driving incident, and more recently, the case of Aarti Shetty who was booked for drink drinking in 2012.
Haveliwala was sentenced to five years in jail in 2012 but the Bombay high court granted her bail four months later.
In Shetty’s case, one person was killed and three others were injured. She was booked under Section 304 (a) of the Indian Penal Code (causing death by negligence) that carries a maximum jail term of two years. With the case pending in court, she is currently free on bail.
Experts believe Gadkar’s case should not centre round the accused’s gender.
“She is entitled to the protection given by the law to women but is not entitled to any special privileges simply by the fact of her gender,” John said.
In Delhi , getting away with drink driving may be easier if you're a woman. The traffic police prosecuted a total of 5,523 people for the offence through special drives this year, but only a dozen offenders were women.
The fact that the traffic police department has only four women inspectors out in the field may have something to do with this.
Special commissioner of police (traffic) Muktesh Chander said gender is not a criterion for prosecution but the presence of women officers is preferred when women are stopped for checks - especially late at night and for breathalyser tests - to avoid any legal hassles.
Hindustan Times spoke to several traffic policemen deployed for the special drives and they said tests were generally conducted very late at night and police often let women go even if they were seemingly drunk.
Traffic experts pointed to the larger problem.
"Especially in cities like Delhi, many women drink and drive just like men do but the repercussions for them are not as severe because of various social issues. A woman is somehow never suspected of mischief. Even at late-night pickets, if you have a woman sitting with you in a car, you are rarely stopped," said Suraj Sinha, a traffic expert working with road accident victims.