The practice of the police of arresting without warrants trails a long and tortured history: the power had been used most notoriously in dealing with extremists in independent India, and before that, in colonial times. In each instance, the State had appeared in its most arbitrary and frightening form as it had utilized its law-enforcers to arrest, detain and torture, and thus to intrude lethally into the lives of individuals without bothering to give reasons for its actions. The Supreme Court was perhaps referring to this history when it asked the police to shun their “colonial mindset” in making mechanical arrests using Section 498A, which is intended to protect women from harassment by husbands and other members of the marital family. With psychological insight, the court talked of the “humiliation” and the long-lasting “scars” that the curtailment of freedom through arrests brings about in the lives of the accused. It cited figures in favour of its position: the rate of charge-sheeting in cases under Section 498A is 93.6 per cent, while the conviction rate is only 15 per cent — which is a comment not only on the ham-handedness of the police but also on the women who had registered the cases of torture in the first place. So, the court reasoned, Section 498A sometimes ends up getting used as a “weapon rather than a shield by disgruntled wives”.
Harassed husbands, who have long been crying over the alleged tilt of the law in favour of women, will have reasons to rejoice now. Indeed, the Supreme Court ruling does look like an admirable attempt to make the process of justice more gender neutral in its tacit acknowledgment that women can be as wicked as men when it comes to twisting the law to their advantage. However, there may be fleeting worries, especially when the court says that the “institution of marriage is greatly revered in this country”, while pointing out how women have often misused the law to get husbands and their relatives arrested. Is the mention of the supposed sanctity of marriage “in this country” a reminder of the ancient patriarchal premise that good Indian wives should not lodge complaints against their husbands? Besides, the task the court sets for the police officer before the arrest — that is, to ask himself, why arrest? is it really required? and so on — may turn out to be rather convenient for the police, considering their usual tendency not to act at all.