Judicial Experimentalism in India : Lessons from Section 498A
Context
In Shivangi Bansal vs Sahib Bansal (2025), the Supreme Court upheld the Allahabad High Court’s directions introducing a two-month “cooling period” and referral to Family Welfare Committees (FWCs) in cases under Section 498A IPC (now Section 85 BNS).
While intended to check misuse of anti-dowry provisions and promote reconciliation, this move has sparked debate on judicial experimentalism, as it could delay justice for victims and bypass established procedures under BNS and CrPC.
What is Judicial Experimentalism?
- Refers to courts going beyond traditional interpretation of law, experimenting with new remedies, procedures, or institutional mechanisms.
- Key Features:
- Innovative Remedies – creation of new frameworks like cooling periods and FWCs.
- Policy-Influencing Role – judiciary stepping into domains usually reserved for legislature or executive.
- Trial-and-Error Approach – directions may later be modified or struck down.
Examples:
- Vishaka Guidelines (1997): Preventing sexual harassment at workplace until law was enacted.
- Prakash Singh Case (2006): Police reform directives due to legislative inaction.
- Rajesh Sharma Case (2017): FWCs introduced in 498A cases (later rolled back in Social Action Forum, 2018).
About Section 498A and Safeguards
- Purpose (1983): Protect women from cruelty and dowry harassment in matrimonial homes.
- Concerns: Increasing false/exaggerated complaints, leading to arbitrary arrests.
Judicial Safeguards introduced:
- Lalita Kumari vs Govt. of U.P. (2013): Allowed preliminary inquiry before FIR.
- CrPC 2008 Amendment: Introduced necessity principle for arrest.
- Arnesh Kumar vs State of Bihar (2014): Checklist and notice of appearance to curb misuse.
- Satender Kumar Antil (2022): Strengthened bail safeguards in wrongful arrest cases.
The Cooling Period Debate
- Allahabad High Court (2022): Ordered referral of complaints to FWCs and barred coercive action for 2 months.
- Supreme Court (2025): Endorsed the directions, giving judicial backing to the cooling period.
Concerns Raised:
- Delay in Justice: Victims forced to wait despite ongoing harassment.
- Jurisdictional Overreach: FWCs have no statutory basis in BNS/CrPC.
- Contradiction with Precedent: Rajesh Sharma (2017) directions struck down in Social Action Forum (2018).
- Erosion of Statutory Roles: Curtails police/magistrate discretion in investigation and arrest.
- Psychological Impact: Waiting period may discourage victims and worsen trauma.
Implications
Positive Aspects:
- Prevents Misuse: Protects husbands/in-laws from false cases and arbitrary arrests.
- Reconciliation Opportunity: Provides time for amicable settlement.
Negative Aspects:
- Denial of Timely Justice: Victims lose access to urgent relief like restraining orders.
- Judicial Overreach: Judiciary framing procedures not sanctioned by Parliament.
- Victim Demoralization: Delays can lead to mental distress and underreporting.
Balancing Innovation with Victim’s Rights
- Statutory Backing: ADR and reconciliation must be legislated, not imposed judicially.
- Police Sensitization: Implement Arnesh Kumar safeguards strictly.
- Fast-Track Courts: Dedicated matrimonial courts for speedy hearings.
- Victim-Centric Relief: Ensure immediate shelter, protection orders, medical aid.
Way Forward
- Reconsideration by SC: Must revisit ruling in light of Social Action Forum (2018).
- Legislative Clarity: Parliament should lay down balanced safeguards.
- Voluntary Mediation: Promote mediation as optional, not mandatory.
- Data-Driven Policy: NCRB data shows declining arrests – existing safeguards are already effective.
Conclusion
The judiciary must strike a balance between innovation and restraint. While misuse of Section 498A is a valid concern, speedy justice under Article 21 cannot be compromised. Judicial experimentalism should supplement legislative action, not create parallel procedures. The way forward lies in legislative clarity, police reform, and victim-centric mechanisms rather than mandatory judicial experiments.
Source : The Hindu
