‘Judicial experimentalism’ versus the right to justice

Why in the News?

• On July 22, 2025, the Supreme Court, in Shivangi Bansal vs Sahib Bansal, upheld the Allahabad High Court’s guidelines in Mukesh Bansal vs State of U.P. (2022).
• These guidelines introduced a two-month “cooling period” and referral of Section 498A/BNS Section 85 complaints to a Family Welfare Committee (FWC) before any coercive action.
• Critics argue this limits a victim’s prompt access to justice.
  

Background

• Section 498A IPC (now Section 85, Bharatiya Nyaya Sanhita) was enacted to address cruelty against women in matrimonial homes.
• Concerns over misuse (false complaints, harassment of husbands/families) prompted courts and legislatures to create safeguards:
  • Lalita Kumari (2014): preliminary inquiry in matrimonial disputes.
  • CrPC 2008 amendment: “principle of necessity” for arrests.
  • Arnesh Kumar (2014): checklist + notice for appearance to curb arbitrary arrests.
  • Satender Kumar Antil (2022): bail if arrests violate Arnesh Kumar norms.
• NCRB data: While registered offences rose (1.13 lakh in 2015 → 1.40 lakh in 2022), arrests fell (1.87 lakh → 1.45 lakh), showing a balance between liberty and justice.

Features of the Current Ruling

• Cooling period (2 months): No coercive action after FIR/complaint until it ends.
• Referral to FWC: A quasi-judicial committee to examine complaints before investigation.
• Aim: prevent misuse and harassment of the accused.

Challenges / Criticism

The victim’s right to justice curtailed

• Delay in police action increases trauma and risk to victims.
• Justice delayed may amount to justice denied.

Outside the statutory framework

• FWCs lack a legislative basis; their jurisdiction and powers are unclear.
• Forwarding FIRs to FWCs undermines police autonomy.

Judicial overreach (“experimentalism”)

• Similar directions in Rajesh Sharma (2017) were rolled back in Social Action Forum for Manav Adhikar (2018) as “regressive” and beyond judicial competence.

Redundant safeguards

• Existing measures (CrPC amendment, Arnesh Kumar, Satender Kumar Antil) already protect against misuse and arbitrary arrests.

Implementation hurdles

• Absence of a statutory mechanism to create and regulate FWCs may lead to inconsistency.

Way Forward

• Revisit and harmonise the ruling with:
  • Legislative intent behind Section 498A/BNS Section 85.
  • Prior SC precedent (Social Action Forum, Arnesh Kumar).
• Ensure speedy access to justice while preserving safeguards against false cases.
• If FWCs are needed, introduce them via Parliamentary legislation with clear powers and timelines.
  
• Strengthen police training, mediation cells, and victim-support services instead of blanket cooling periods.

Conclusion

The Supreme Court’s endorsement of a cooling period and FWC reflects “judicial experimentalism” but risks compromising the victim’s right to prompt redress. With statutory and judicial checks against misuse already in place, reforms must respect the autonomy of criminal justice agencies and uphold timely justice for survivors of cruelty.