Judicial Experimentalism and the Right to Justice in India

• The Supreme Court of India has endorsed the Allahabad High Court’s guidelines to prevent misuse of Section 498A of the Indian Penal Code (now Section 85 of the Bharatiya Nyaya Sanhita).

• The High Court introduced a two-month ‘cooling period’ for any coercive action after the registration of a first information report (FIR) or complaint to the magistrate.

• The ‘cooling period’ and the referral of the matter to a Family Welfare Committee (FWC) undermine a victim’s right to prompt access to justice and affects the functional autonomy of the criminal justice agencies.

• The enactment of Section 498A was intended to punish various forms of cruelty against women in a matrimonial setting.

• Courts have established procedural safeguards to protect the ‘innocent’ husband and his family, including putting cases arising from matrimonial disputes in the category of ‘preliminary inquiry’ before the registration of the FIR.

• The power of arrest was rationalised at two levels: a statutory change to the Code of Criminal Procedure in 2008 and a judicial dictum in Arnesh Kumar (2014).

• The National Crime Record Bureau (NCRB) report suggests that Section 498A has remained among the top five ‘highest arrest’ offences till 2016.

• The proposal to introduce a quasi-judicial committee and a restriction on arrests during a designated cooling period might prove to be an ambitious step due to the absence of a statutory authority to implement these directives and the undefined scope of their jurisdictional applicability.

• The idea of introducing a ‘cooling period’ and referring the complaint to the FWC falls outside the ambit of the statutory and institutional framework.

• The Supreme Court must revisit its ruling as the apprehension surrounding the misuse of the law by the victim and the abuse of power by the police has been addressed through legislative and judicial measures.

Right to justice India is important topic for Civil service exam (WBCS).

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