The Hindu Editorial Analysis
17 September 2025
Judicial Experimentalism versus the Right to Justice
(Source – The Hindu, International Edition – Page No. – 8)
Topic : GS Paper II – Polity & Governance | GS Paper II – Judiciary | GS Paper IV – Ethics
Context
The Supreme Court in Shivangi Bansal vs Sahib Bansal (July 22, 2025) upheld guidelines issued by the Allahabad High Court in Mukesh Bansal vs State of U.P. (2022) introducing a two-month ‘cooling period’ before action under Section 498A IPC (now Section 85 of the Bharatiya Nyaya Sanhita). During this period, complaints are referred to a Family Welfare Committee (FWC).
The move was intended to prevent misuse of anti-dowry harassment laws. However, the editorial argues that such judicial experimentalism undermines a victim’s access to prompt justice and compromises the functional autonomy of criminal justice agencies.
Key Issues and Arguments
1. The Basis of Checks
- Section 498A was enacted to protect women from cruelty in marriage.
- Misuse concerns prompted courts to introduce safeguards, such as preliminary inquiry before FIR registration (Lalita Kumari case).
- The Allahabad HC expanded these checks by mandating a ‘cooling period’, delaying arrests and FIR follow-up.
2. Victim’s Right to Justice
- The cooling period undermines the victim’s right to immediate redressal.
- Delays aggravate the victim’s plight and deny timely justice.
- Referring cases to FWCs lies outside statutory authority, raising issues of judicial overreach.
3. Earlier Judicial Precedents
- Arnesh Kumar (2014): Introduced “principle of necessity” for arrests.
- Satender Kumar Antil (2022): Strengthened bail protections.
- Rajesh Sharma (2017): SC directed similar FWC mechanism, but it was later overturned in Social Action Forum for Manav Adhikar (2018) as regressive and beyond judicial competence.
4. NCRB Data on Misuse and Arrests
- Section 498A has been among the top five ‘highest arrest’ offences.
- Arrests reduced from 1.87 lakh (2015) to 1.45 lakh (2022), showing safeguards have worked.
- Judicial insistence on further restrictions risks tipping the balance against victims.
Policy Gaps Identified
| Area | Gaps |
|---|---|
| Statutory Authority | No law empowers FWCs to intervene in criminal procedure. |
| Access to Justice | Victim’s immediate complaint redressal is diluted. |
| Judicial Consistency | Conflicting precedents (Arnesh Kumar vs Rajesh Sharma) cause confusion. |
| Institutional Autonomy | FWCs handling quasi-judicial functions weakens police/judiciary mandates. |
Suggestions for the Way Forward
- Revisit Judicial Ruling: Supreme Court must clarify that victim’s right to immediate FIR action cannot be diluted.
- Strengthen Statutory Safeguards: Any delay mechanism (like FWCs) should only come through Parliamentary law, not judicial innovation.
- Balanced Approach: Safeguard the accused through mandatory arrest guidelines and checklists, not blanket cooling-off periods.
- Gender-Just Framework: Policies should protect genuine victims while addressing concerns of false cases through faster preliminary scrutiny, not delays.
- Awareness & Training: Police, magistrates, and welfare officers should be sensitized to balance between preventing misuse and ensuring justice.
Conclusion
The Supreme Court’s endorsement of the Allahabad HC’s cooling period risks repeating past mistakes of judicial overreach. While addressing misuse of Section 498A is important, denying timely justice to victims compromises constitutional guarantees of equality and dignity.
A reform-oriented approach must preserve the victim’s right to prompt justice while instituting structured safeguards against misuse. Judicial experimentalism cannot override statutory processes, and Parliament must take the lead in designing durable reforms.