‘Judicial experimentalism’ versus the right to justice

The Supreme Court of India, in Shivangi Bansal vs Sahib Bansal (July 22, 2025), endorsed the guidelines by the Allahabad High Court, in Mukesh Bansal vs State of U.P. (2022), to prevent the misuse of Section 498A of the Indian Penal Code (now Section 85 of the Bharatiya Nyaya Sanhita). The High Court had introduced a two-month ‘cooling period’ for any coercive action after the registration of a first information report (FIR) or complaint to the magistrate. During the ‘cooling period’, the matter will be referred to a Family Welfare Committee (FWC). However, both the introduction of the ‘cooling period’ and the referral of the matter to the FWC undermine a victim’s right to prompt access to justice and affects the functional autonomy of the criminal justice agencies.

The basis of the checks

The enactment of Section 498A was with the objective of punishing various forms of cruelty against women in a matrimonial setting. Be that as it may, the courts, in a series of cases, have lamented the increasing tendency by women to misuse the law when it concerns FIR registrations and subsequent arrests. Courts have accordingly established procedural safeguards to protect the ‘innocent’ husband and his family. The Supreme Court of India, in Lalita Kumari, has put cases arising out of matrimonial disputes in the category of ‘preliminary inquiry’ before the registration of the FIR. The recent criminal law reforms also place cases of cruelty by husband in the domain of ‘preliminary enquiry’ before registration of the FIR.

In addition to these checks to prevent the registration of an FIR in false or frivolous complaints, the courts have also addressed another area for potential abuse in case of Section 498A — rampant arrests of husbands and their family members. The power of arrest was rationalised at two levels. First, by bringing a statutory change to the Code of Criminal Procedure in 2008, and the second, by judicial dictum in Arnesh Kumar (2014). The 2008 amendment introduced the ‘principle of necessity’ in the matter of arrest. In Arnesh Kumar, the Supreme Court effectively plugged the unbridled exercise of arrest powers by the police in cases that saw the use of Section 498A cases, by introducing a checklist and enforcing ‘notice for appearance’.

In Satender Kumar Antil (2022), the Court further strengthened these institutional checks by directing the release of a person on bail if arrested in non-compliance of the directions in Arnesh Kumar.

As an ‘arrest offence’

The National Crime Record Bureau (NCRB) report, ‘Crimes in India’, suggests that Section 498A has remained among top five ‘highest arrest’ offences till 2016. Thereafter, it was within the top 10, which suggests that the steps taken at statutory and institutional levels have had an impact. Although the registered offences under this provision rose from 1,13,403 in 2015 to 1,40,019 in 2022, arrests declined from 1,87,067 to 1,45,095, as in NCRB data during the same period. This was suggestive of safeguarding the liberty of the accused without making compromises with a victim’s right to her access to justice.

The proposal to introduce a quasi-judicial committee, alongside a restriction on arrests during a designated cooling period, might prove to be an ambitious step on paper. It may be attributable to the absence of a statutory authority to implement these directives as well as the undefined scope of their jurisdictional applicability. The recent ruling undermines a victim’s pursuit of justice by denying her the opportunity to have her complaint addressed in a timely manner.

Despite filing an FIR/complaint, no action can be taken until the “cooling period” concludes, thereby exacerbating the victim’s plight even after lodging the complaint. The idea of introducing a ‘cooling period’ and referring the complaint to the FWC falls outside the ambit of the statutory and institutional framework.

This reminds us of another instance of judicial experimentalism. In 2017, the Supreme Court, in Rajesh Sharma, gave similar directions for constituting FWCs and the forwarding of complaints to such FWCs. The one-month period provided to FWCs, in Rajesh Sharma, is akin to the ‘cooling period’ devised by the Allahabad High Court. We should not forget that the directions in Rajesh Sharma were not welcomed by the society at large. These were termed ‘regressive’ and beyond ‘judicial competence’. This resulted in the rollback of the directions by the Supreme Court within a year.

A three-judge Bench, in Social Action Forum for Manav Adhikar (2018), overturned the directions in Rajesh Sharma and restored the victim’s right to prompt access to justice and the supremacy of the criminal justice functionaries in the reporting of crimes and the dispensation of justice.

Revisit the ruling

It becomes crucial for the Supreme Court to revisit its ruling as the apprehension surrounding the misuse of the law by the victim and the abuse of power by the police has been addressed through legislative and judicial measures. The act of forwarding complaints to FWCs is beyond legislative intent, against the functional autonomy of the criminal justice agencies and, most importantly, dents the victim’s pursuit of justice.

Neeraj Tiwari is Associate Professor National Law University Delhi. Priyanshi Singh is Academic Fellow, K.L. Arora Chair on Criminal Law, National Law University Delhi