The Telegraph
Thursday, December 14, 2017

Rethink on 498A shield

First published on 30-Nov-2017

New Delhi: The Supreme Court has said it may overrule an order curtailing the power of police in making arrests under Section 498A that seeks to protect women from cruelty by their husbands and in-laws.

A three-judge bench headed by the Chief Justice of India found fault on Wednesday with the verdict of a two-judge bench in July. The earlier order had said arrests could be carried out only with the consent of a three-member family welfare committee to be set up in every district.

The July verdict had triggered conflicting reactions. Many felt that misuse of the section by some families warranted such a safeguard but others insisted that the fear of instant arrest was an effective deterrent to dowry-related torture.

The larger bench headed by Chief Justice Dipak Misra pointed out that courts were meant to interpret the law, not legislate on the subject.

"We will either accept or overrule the judgment," Justice Misra said. The matter will be taken up again in the second week of January.

The Chief Justice added that "it's not for the court to say how an investigation should be done. Tomorrow one will come up and say make guidelines for section 354 IPC (molestation)."

"How will investigation happen or not, should courts interfere? Who are we? Section 498A is a penal provision in a statute. How can the court curb the rights under the statute by laying down a guideline?" asked the bench, the other members of which were Justices A.M. Khanwilkar and D.Y. Chandrachud.

"It is a different matter that the investigating officers should be circumspect in arresting children and extended family members staying elsewhere." The court is dealing with a PIL filed by an NGO, Nyayadhar, that sought at least two female members on each family welfare panel.

Justice Misra said there were "enough safeguards against arbitrary arrests" and sought the views of two senior advocates, V. Shekhar and Indu Malhotra, who have been appointed amicus curiae.

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