Judicial Experimentalism vs Right to Justice
Explore Section 85 BNS, key rulings from Lalita Kumari to Shivangi Bansal (2025), and how judicial experimentalism delays justice for matrimonial cruelty victims.
The relationship between judicial innovations and the constitutional right to justice in India has always been complex. Courts frequently face the challenge of balancing competing interests—protecting women against systemic matrimonial violence while preventing misuse of criminal law provisions. The debate has re-emerged in the aftermath of the Supreme Court’s Shivangi Bansal vs Sahib Bansal (2025) ruling, which endorsed the Allahabad High Court’s 2022 guidelines in Mukesh Bansal vs State of U.P. These guidelines introduced a two-month “cooling period” and referral of matrimonial cruelty complaints to Family Welfare Committees (FWCs) before any coercive legal action could be initiated.
This development has reignited concerns over judicial experimentalism and its consequences for women’s access to justice under Section 85 of the Bharatiya Nyaya Sanhita (BNS).
Section 85 of the Bharatiya Nyaya Sanhita (BNS): The Anti-Cruelty Provision
Formerly known as Section 498A of the Indian Penal Code (IPC), Section 85 of BNS criminalises cruelty by the husband or his relatives towards a married woman.
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Definition of cruelty:
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Physical or mental harm to the woman.
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Harassment over unlawful demands for dowry.
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Conduct likely to drive a woman to suicide.
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This section is cognisable and non-bailable, reflecting the seriousness of the offence and the state’s intent to safeguard women from entrenched patterns of domestic violence and harassment. While the law was designed to provide prompt and effective remedies, judicial interventions have often oscillated between strengthening and diluting its enforcement.
Judicial Rulings and Guidelines: The Evolution
Over the years, several rulings have attempted to refine procedures under Section 498A IPC / Section 85 BNS:
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Lalita Kumari vs Govt. of U.P. (2014)
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The Supreme Court held that a preliminary inquiry is permissible in matrimonial disputes before registering an FIR.
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This was justified on the grounds that 498A complaints may sometimes be false, and automatic FIRs could unfairly stigmatise the accused.
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Arnesh Kumar vs State of Bihar (2014)
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Recognising misuse of automatic arrests under 498A, the Court restricted police powers.
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It required police to apply a checklist before arrest and mandated issuance of a “notice of appearance” instead of immediate custody.
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This ruling became the cornerstone of safeguards against arbitrary arrests.
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Satender Kumar Antil (2022)
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Strengthened the Arnesh Kumar guidelines.
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Directed that bail must be granted if arrests were made in violation of those safeguards.
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This judgment highlighted the judiciary’s shift towards protecting the liberty of the accused.
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Rajesh Sharma vs State of U.P. (2017)
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Perhaps the most controversial intervention.
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The Court directed constitution of Family Welfare Committees (FWCs) to screen complaints before police or courts could act.
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Coercive action was to be suspended until FWC reports were submitted.
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Widely criticised as regressive, as it created a non-statutory body with quasi-judicial powers that had no basis in law.
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Social Action Forum for Manav Adhikar vs Union of India (2018)
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The 2017 FWC guidelines were struck down.
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The Court emphasised that criminal law cannot be outsourced to extra-legal committees.
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Reasserted that police and judiciary alone have constitutional authority to handle such complaints.
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Restored the victim’s right to prompt legal recourse.
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Shivangi Bansal vs Sahib Bansal (2025)
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Revived a version of the Rajesh Sharma framework.
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Approved the Allahabad High Court’s 2022 guidelines mandating a two-month “cooling period” before coercive action in cruelty complaints.
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During this period, complaints must be referred to an FWC for reconciliation efforts.
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Effectively reintroduced mechanisms already struck down in 2018, raising questions of judicial consistency.
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How Judicial Experimentalism Affects Victims
The 2025 ruling has direct consequences for women’s access to justice:
1. Delays Action
The two-month pause stalls investigation, arrests, and immediate legal protection. Victims who approach the law in desperation are left vulnerable to continued abuse.
2. Erodes Autonomy of Criminal Justice Agencies
Referring complaints to FWCs, which are non-statutory and lack legal authority, undermines the independence of police and magistrates. It effectively places quasi-judicial power in the hands of committees with no constitutional mandate.
3. Denies Prompt Access to Justice
Women filing complaints are deprived of immediate remedies. This contradicts the principle that justice must be “speedy, accessible, and effective”, especially in cases involving violence and harassment.
4. Repeats Judicial Overreach
The 2018 judgment had already recognised that FWCs were beyond judicial competence. Reviving them in 2025 reflects judicial inconsistency, eroding trust in the stability of legal protections.
5. Perpetuates Risk
Delays in action embolden perpetrators. Victims may face intensified violence during the waiting period. Fear of inaction can also dissuade women from seeking remedies altogether.
Broader Implications: Judicial Innovation versus Constitutional Rights
The recurring experimentation around Section 498A / Section 85 highlights a tension in India’s legal system:
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Balancing misuse and protection: Courts often cite misuse of dowry-harassment laws as a reason for procedural safeguards. However, data consistently shows that women continue to face widespread domestic violence, making strong enforcement critical.
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Judicial overreach: The creation of extra-legal committees like FWCs blurs the line between judicial activism and legislative overstep.
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Right to Justice: Article 21 of the Constitution guarantees not only the right to life but also the right to fair and prompt justice. Any system that delays or dilutes this right undermines constitutional guarantees.
Conclusion
The Shivangi Bansal ruling of 2025 reopens a chapter that had been firmly closed in 2018. By reviving the Family Welfare Committee model and imposing a cooling-off period, the judiciary risks weakening hard-earned protections for women against matrimonial cruelty.
While preventing misuse of criminal law is important, such safeguards should be statutory, evidence-based, and victim-centric rather than judicial experiments that compromise women’s safety. The balance between innovation and rights must always tilt in favour of protecting constitutional guarantees.
Ultimately, Hyderabad’s motto that “Justice delayed is justice denied” remains true—the right to justice cannot be compromised by experimentalism.
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The Source’s Authority and Ownership of the Article is Claimed By THE STUDY IAS BY MANIKANT SINGH
