Judicial Experimentation vs. Right to Justice

Context

The Supreme Court, in Shivangi Bansal vs. Sahib Bansal, upheld the guidelines given by the Allahabad High Court in Mukesh Bansal vs. State of Uttar Pradesh (2022) to prevent the misuse of Section 498A of the Indian Penal Code (now Section 85 of the Indian Penal Code).

What is Section 498A of the Indian Penal Code ?

• Section 498A of the Indian Penal Code criminalizes cruelty to a married woman by her husband or his relatives.
• Enacted in 1983, this section was enacted to protect women from domestic violence, mental and physical torture, and harassment, especially dowry demands.
• This offense carries a punishment of up to three years' imprisonment and a fine. It is a cognizable and non-bailable offense.

Allahabad High Court Guidelines on Section 498A

• In Mukesh Bansal v. State of Uttar Pradesh, the Allahabad High Court introduced a two-month 'cooling period' for any coercive action after the filing of a First Information Report (FIR) or complaint by a magistrate.
• During this 'cooling period', the case will be referred to a Family Welfare Committee (FWC).
  • However, the introduction of a 'cooling period' and referral of the case to the FWC undermines the victim's right to speedy access to justice.
• In recent years, the Supreme Court has increasingly adopted judicial experimentalism. However, concerns arise when such experiments delay or undermine citizens' fundamental right to justice.

What is Judicial Experimentation ?

• Adopting innovative and flexible approaches to address complex constitutional and social questions.
• Under this, the Court deviates from rigid precedents and adopts a trial-and-error approach.
• This is often seen in Constitutional Benches, Public Interest Litigations (PILs), and social justice matters.
  • Examples: Sealed Jurisprudence, Continuing Orders in Environmental Matters, Experimental Guidelines in Sexual Harassment (Vishaka Case), etc.

Provisions Related to Judicial Experimentation by the Court

Basis for Inquiry

• Section 498A was enacted with the aim of punishing various forms of cruelty against women in marital life.
• However, the Courts have expressed concern in many cases about the increasing tendency of women to misuse the law in relation to filing FIRs and subsequent arrests.
• Accordingly, courts have established procedural safeguards to protect the 'innocent' husband and his family.

The Process of Preliminary Inquiry

• In the Lalita Kumari case, the Supreme Court of India classified cases arising from marital disputes as 'preliminary investigations' before filing an FIR.
• Recent criminal law reforms have also included cases of cruelty by husbands as 'preliminary investigations' before filing an FIR.

Provisions Regarding Arrest

• In addition to these investigations to prevent the filing of FIRs based on false or frivolous complaints, courts have also addressed another area of ​​potential misuse under Section 498A: the arbitrary arrests of husbands and their family members.
• The power of arrest has been rationalized at two levels.
• First, by introducing a statutory amendment to the Code of Criminal Procedure in 2008.
  • The 2008 amendment applied the 'doctrine of necessity' to arrests.
  • Second, by judicial order in the Arnesh Kumar case (2014).
  • In the Arnesh Kumar case, the Supreme Court effectively curbed the unbridled use of arrest powers by the police in cases falling under Section 498A by imposing a checklist and a 'notice for appearance'.
  • In the Satendra Kumar Antil case (2022), the Court further strengthened these institutional checks by directing the release of an arrested person on bail for non-compliance with Arnesh Kumar's instructions.

Effects of Judicial Experimentation

• According to the National Crime Records Bureau (NCRB) report, Section 498A remained among the top five 'most arrestable' crimes until 2016.
  • It entered the top 10 after 2016, indicating that the steps taken at the legislative and institutional levels have had an impact.
  • Although crimes registered under this provision increased from 113,403 in 2015 to 140,019 in 2022, arrests declined from 187,067 to 145,095 during the same period.
  • This indicated a desire to protect the liberty of the accused without compromising the victim's right to access justice.

Related Issues

• Uncertainty in the law: Frequent deviations undermine the predictability of judicial outcomes.
• Procedural overreach: Ignoring established procedures can compromise natural justice.
• Delays in justice: Prolonged 'experiments' can delay final relief.
  • The plight of the victim is worsened by the lack of action after filing an FIR/complaint until the expiry of the 'silence period'.
• Lack of accountability: There is a lack of parliamentary or public oversight of judicial innovations.
  • The idea of ​​introducing a "silence period" and referring complaints to the Women's Welfare Committee is beyond the scope of the legal and institutional framework.

Right to Justice Approach

• Article 21 guarantees speedy and impartial justice.
• Judicial experiments should enhance access to justice rather than hinder it.
• When innovation compromises impartiality, it risks undermining constitutional morality.

Review of Judicial Experimentation

Arguments in favor

• Can fill legislative gaps.
• Promotes social reforms.
• Capable of adapting to new challenges.

Arguments against

• Judicial overreach
• Risk of arbitrariness and erosion of the separation of powers

Way Forward

• Judicial innovation should be guided by constitutional principles and due process.
• Clear sunset clauses or periodic reviews of experimental measures are preferable.
• Strengthening institutional dialogue with the legislature and executive is essential.

Conclusion

• The Supreme Court needs to reconsider its decision because the victims' concerns about the misuse of the law and the abuse of power by the police have been addressed through legislative and judicial measures.
• Forwarding complaints to Women and Child Development Committees is contrary to legislative intent and against the functional autonomy of criminal justice agencies. Furthermore, it hinders the victim's pursuit of justice.