Judicial experimentalism versus the right to justice
Context
The editorial by Neeraj Tiwari critiques the Supreme Court’s July 2025 ruling in Shivangi Bansal vs Sahib Bansal, where it upheld the Allahabad High Court’s 2022 guidelines mandating a two-month “cooling period” and referral of Section 498A/BNS 85 complaints to Family Welfare Committees (FWCs) before any coercive action.
Purpose of Section 498A / BNS 85
- Originally enacted to protect women from cruelty and domestic violence in marriage.
- Courts, however, flagged misuse of this section through false FIRs and arbitrary arrests.
Judicial Safeguards Already in Place
The judiciary and legislature had already introduced checks:
- Lalita Kumari (2013): Required preliminary inquiry before FIR in matrimonial cases.
- 2008 CrPC Amendment: Introduced “principle of necessity” for arrests.
- Arnesh Kumar (2014): Issued guidelines to curb arbitrary arrests.
- Satender Kumar Antil (2022): Bail to be granted if Arnesh Kumar safeguards not followed.
Impact (NCRB Data)
- Cases under 498A increased (1.13 lakh in 2015 → 1.40 lakh in 2022).
- Arrests declined (1.87 lakh → 1.45 lakh), showing safeguards worked without denying justice.
Problem with the ‘Cooling Period’ & FWCs
- No statutory authority exists to run FWCs.
- Victims are denied timely access to justice since police cannot act until 2 months lapse.
- Undermines autonomy of criminal justice agencies (police, magistrates).
- Creates procedural hurdles beyond legislative intent.
Parallel with Rajesh Sharma (2017) Case
- Supreme Court earlier directed similar FWC system with a one-month wait.
- Widely criticised as regressive and struck down in Social Action Forum for Manav Adhikar (2018).
- Present ruling is seen as a repetition of failed judicial experiment.
Conclusion:
- Misuse of 498A is already checked through legal and judicial safeguards.
- Cooling period and FWCs amount to judicial experimentalism outside legislative intent.
- Supreme Court must revisit the ruling to protect victims’ right to prompt justice and uphold functional autonomy of criminal justice institutions
