Judicial Experimentalism versus the Right to Justice

Judicial Experimentalism versus the Right to Justice

Why in News?

The Supreme Court of India, in Shivangi Bansal vs Sahib Bansal (July 22, 2025), endorsed the guidelines issued by the Allahabad High Court in Mukesh Bansal vs State of U.P. (2022), relating to the misuse of Section 498A of the Indian Penal Code (now Section 85 of the Bharatiya Nyaya Sanhita). The decision has reignited debates around “judicial experimentalism” and its conflict with the fundamental right of victims—particularly women subjected to cruelty—to prompt access to justice.

Introduction

Section 498A of the Indian Penal Code was enacted to provide women protection against cruelty, harassment, and domestic violence within marriage. Over the years, however, the provision has been criticized for being misused in certain instances. Courts, in response, have attempted to introduce safeguards aimed at preventing harassment of “innocent” husbands and their families.

The Supreme Court’s recent endorsement of the Allahabad High Court guidelines introduces a two-month “cooling period” before coercive action can be taken after registration of a complaint or FIR. During this period, matters are referred to a Family Welfare Committee (FWC). While this aims to curb misuse of the law, it has raised significant concerns about the dilution of women’s right to immediate justice and the undermining of statutory frameworks.

This tension between preventing misuse and protecting the rights of victims lies at the heart of the debate around judicial experimentalism.

The Basis of the Checks

When Section 498A was enacted, its objective was to punish cruelty within marriages and provide women with swift legal recourse. However, the judiciary soon faced numerous complaints about misuse. Allegations arose that some women were filing false or exaggerated complaints to harass husbands and in-laws.

As a result, courts began introducing procedural safeguards. For instance:

• In Latika Kumari vs Government of U.P., the Court placed disputes arising out of matrimonial discord within the ambit of “preliminary inquiry” before registration of FIRs.

• The judiciary also emphasized avoiding “arrest at the threshold” to prevent undue harassment of innocent husbands and their families.

The recent judicial experiment of the Allahabad High Court builds on this approach by introducing the concept of a “cooling period” and referral to FWCs.

The Concept of the ‘Cooling Period’

The Allahabad High Court in Mukesh Bansal (2022) introduced a two-month delay before any coercive action could be taken in 498A complaints. The purpose was two-fold:

1. To prevent impulsive or vindictive arrests.

2. To encourage reconciliation and mediation through Family Welfare Committees.

The Supreme Court in Shivangi Bansal has endorsed this practice. The Court believes that premature arrests often escalate family disputes and destroy chances of settlement. By creating space for dialogue, the cooling period aims to protect familial structures and reduce unnecessary litigation.

However, critics argue that this undermines the fundamental right of women to timely access to justice. A woman subjected to violence or cruelty may face greater harm during this enforced waiting period.

Historical Context of Judicial Checks

The judiciary’s cautious approach to 498A is not new.

1. In Arnesh Kumar vs State of Bihar (2014), the Supreme Court curtailed automatic arrest powers in 498A cases by introducing a checklist for police officers before making arrests. The aim was to prevent arbitrary or unnecessary arrests.

2. In Satender Kumar Antil (2022), the Court extended safeguards by mandating judicial checks on pre-trial detentions, further strengthening the principle of liberty over immediate custodial action.

These precedents reflect the judiciary’s evolving efforts to balance individual liberty and protection against misuse, while ensuring justice for genuine victims.

The Problem of ‘Arrest Offence’

Despite these safeguards, data suggests Section 498A continues to be one of the most misused provisions. According to NCRB reports:

• 498A consistently figures among the top five IPC sections leading to arrests.

• Arrests in such cases rose significantly from 13,403 in 2015 to 15,067 in 2016.

This indicates that despite judicial interventions, women continue to use this section aggressively, whether legitimately or otherwise.

The judiciary’s concern has therefore been to prevent “arrest offences”—where the sheer act of arrest, even without conviction, can destroy reputations, careers, and family lives.

Judicial Experimentalism and Its Limits

While the intention behind safeguards is noble, critics label them “judicial experimentalism.” This term refers to judicial attempts to create mechanisms outside statutory frameworks—such as FWCs and cooling periods—without legislative sanction.

For instance:

• In Rajesh Sharma vs State of U.P. (2017), the Supreme Court had already introduced FWCs and a one-month delay for action. However, this was overturned in Social Action Forum for Manav Adhikar (2018), where the Court reinstated the victim’s right to immediate complaint and emphasized that FWCs had no statutory basis.

By reviving similar mechanisms in Shivangi Bansal, the Court appears to repeat earlier experiments despite past rejection.

Concerns with the Cooling Period

The two-month cooling period has been criticized for several reasons:

1. Denial of Timely Justice: A victim of cruelty is forced to wait, often while remaining in the abusive household, which can increase her suffering.

2. Dilution of Statutory Rights: Section 498A was created precisely to provide immediate protection. Judicially imposed delays undermine legislative intent.

3. Weakening Police Powers: Police officials, already bound by the Arnesh Kumar checklist, now face further restrictions, limiting their authority to act quickly.

4. Question of Legality: Referring matters to FWCs, which are extra-legal bodies, raises doubts about constitutional validity.

Victim’s Right to Justice

The most crucial criticism is that the cooling period effectively denies a victim her constitutional right to access justice. By delaying coercive measures, the courts prioritize the possibility of reconciliation over the victim’s safety and dignity.

Legal experts argue that the presumption of innocence for the accused cannot override the right to security and justice for the victim. While false complaints are a problem, mechanisms to address misuse must not weaken protection for genuine victims.

Revisiting the Ruling

The present scenario calls for a careful reassessment:

• Legislative intervention may be required to strike a balance between preventing misuse and safeguarding victims.

• Judicial overreach must be curtailed to ensure courts do not create parallel procedures outside statutory frameworks.

• Strengthening existing safeguards, such as strict police accountability for false arrests, may be a better approach than cooling periods.

The larger principle is clear: courts must avoid experimenting in ways that compromise fundamental rights.

Conclusion

The Supreme Court’s endorsement of the Allahabad High Court guidelines in Shivangi Bansal marks yet another instance of judicial experimentalism in Section 498A cases. While the intention is to prevent misuse and protect family harmony, the mechanism of cooling periods and referral to FWCs risks undermining the victim’s right to justice.

History has shown that such experiments often backfire, leading to confusion and inconsistency. The solution lies not in judicially created procedures but in comprehensive legislative reform, stronger implementation of safeguards, and better training for police and judicial officers.

Justice must never be delayed to such an extent that it denies protection to those who need it most.

Q&A Section

Q1. What is Section 498A (now Section 85 BNS) and why is it controversial?
Section 498A of the IPC, now Section 85 of the Bharatiya Nyaya Sanhita, criminalizes cruelty against women by husbands or in-laws. It is controversial due to alleged misuse, with complaints often being filed to harass husbands and their families, leading to unnecessary arrests.

Q2. What did the Allahabad High Court’s guidelines in Mukesh Bansal propose?
The High Court introduced a two-month “cooling period” before coercive action could be taken in 498A complaints, during which cases would be referred to a Family Welfare Committee.

Q3. Why is the Supreme Court’s endorsement of the cooling period being criticized?
Critics argue it undermines the victim’s right to timely justice, dilutes statutory protections, and revives discredited mechanisms like FWCs, which lack legislative sanction.

Q4. How has the judiciary earlier dealt with misuse of 498A?
The Supreme Court in Arnesh Kumar (2014) introduced a checklist to prevent arbitrary arrests, while in Satender Kumar Antil (2022), it reinforced safeguards on pre-trial detentions. However, in Social Action Forum for Manav Adhikar (2018), it struck down similar experimental mechanisms like FWCs.

Q5. What is the suggested way forward?
Experts recommend legislative reforms to balance misuse prevention with victim protection, stronger safeguards against false arrests, and judicial restraint from creating extra-legal mechanisms. The focus must remain on timely justice for victims.