Polity, Governance, Judiciary, Legal Studies, Fundamental Rights, and Current Affairs.

Why this is in the news and why it matters

A recent Supreme Court order in Shivangi Bansal v. Sahib Bansal (July 2025) endorsed an Allahabad High Court guideline that, after a first information report or a complaint to a magistrate in cruelty-by-husband cases (earlier Section 498A of the Indian Penal Code; now mirrored in the new criminal law, Bhartiya Nyay Samhita), no coercive action should be taken for two months. 

• During this “cooling period” the matter would go to a Family Welfare Committee. The stated aim is to reduce alleged misuse and unnecessary arrests.
• Critics argue that this slows a victim’s access to justice, shifts criminal law decisions to an extra-statutory body, and undermines the normal chain of police–magistrate responsibility. Supporters say it is a humane filter that prevents false cases from ruining families. 
• This clash takes us to a larger theme: when courts design novel remedies and procedures (committees, continuing monitoring, special timelines), are they protecting rights or stepping into the shoes of the executive and legislature?

At the heart of the debate is a larger question: When courts design new procedures and committees, are they protecting rights or replacing the job of the executive and the legislature? This is what people are calling judicial experimentalism.

Key Terms 

• Right to justice means timely access, fair hearing, reasoned orders, and an effective remedy. Speed alone is not justice; fairness and due process matter equally.
• Judicial experimentalism means courts go beyond striking down or upholding a law and create new solutions: committees, continuing monitoring, gap-filling rules, or special timelines. This usually appears when there is a governance gap, a rights emergency, or a new technology where the written law is silent.

This style has helped in several rights areas. But when it becomes heavy or unclear, it can blur accountability and delay relief.

How we reached here: the legal path in cruelty-by-husband cases

1. The problem courts saw
   Many petitions complained of quick, automatic arrests of the husband and relatives, and pressure tactics. Courts wanted to protect liberty without closing the door on genuine victims.
   
2. The guardrails already created
   
   • The criminal procedure was changed to make “necessity of arrest” a guiding rule. Police must record reasons for arrest and for not arresting.
     
   • In Arnesh Kumar (2014), the Supreme Court issued a checklist and notice for appearance to stop routine arrests in cruelty cases.
     
   • In Satender Kumar Antil (2022), the Court discouraged unnecessary arrests and detention, and encouraged notice and bail where custody is not necessary.
     
   • In Lalita Kumari (2013), the Court allowed a short preliminary inquiry in limited categories such as matrimonial disputes before recording a First Information Report, while keeping the general rule of prompt registration for cognizable offences.Together, these steps already reduced automatic arrests without blocking registration of cases or investigation.
     
3. What the numbers suggest
   Data from the National Crime Records Bureau(NCRB) show that registered cases under the cruelty provision rose between 2015 and 2022, while arrests fell in the same period. This points to an effect where liberty is better protected even as access to the system remains open.
   
4. An earlier experiment the Court withdrew
   In Rajesh Sharma (2017), the Court had asked for Family Welfare Committees and a one-month pause. This was criticised as regressive and beyond judicial competence. In Social Action Forum for Manav Adhikar (2018), a larger bench set aside those directions, restored the victim’s prompt access, and reaffirmed the police–magistrate chain.

The new two-month cooling period with referral to a committee looks close to a model the Court had already reconsidered.

Experimentalism: Pros and Cons and Balance Test

How can it help?

• Stops immediate harm: Interim safeguards for life, safety, shelter and medical help.
• Fills policy gaps: Temporary guidelines till a proper law or rule is made.
• Forces coordination: Puts officials and experts on one table when normal coordination fails.
• Makes rights real: Clear instructions and operating procedures that field officers can actually follow.

Where can it hurt the right to justice?

• Separation of powers: Courts may end up designing or running policy, which weakens democratic accountability.
• Extra gates to justice: A blanket cooling period and a non-statutory committee can delay urgent help, like protection orders or evidence preservation.
• Who is answerable? Ad-hoc committees shift power away from the legal chain of police → prosecutor → magistrate → court and make it unclear who is responsible for failure.
  
• Uneven impact: Complex court-monitored processes may favour better-resourced litigants, while ordinary complainants and undertrials wait.
  
• Predictability suffers: Frequent departures from settled procedure make outcomes less certain for both liberty and public order.
  

Bottom line: The right to justice suffers both when there is arbitrary arrest and when a victim is kept waiting by court-created filters.

A simple balance test: innovation with guardrails

Before creating a new process, ask three questions:

1. Is there a real, immediate risk to rights? If yes, give targeted, short-term relief.
2. Is this the least intrusive workable option? Prefer standards and oversight to micromanagement. Ask authorities to submit time-bound action plans rather than the court writing the plan itself. Avoid creating new adjudicating bodies without a law.
3. Is there a clear exit? Add sunset clauses, review dates, and measurable outcomes so that the court steps back once institutions act.

This keeps the court responsive without turning it into a parallel administration.

What should change on the ground

A fair system needs strong protection of liberty and quick, safe access to the law. Each part of the system has a clear job.

Courts

• Approve arrest only when it is truly necessary; prefer a written notice to appear.
• Give bail through clear, reasoned orders in simple language.
• If a new practice is tried, set a short time limit, ask for regular progress reports, and return control to the government once proper rules exist.
• Do not create extra committees that stand between a victim and the police station or the magistrate.
  

Police and Prosecution

• Follow the rule of “arrest only when necessary,” and record written reasons.
• Use victim-centred steps: safe place to record the statement, medical help, safe shelter.
• Rely on forensics and digital evidence; do not seek custody when custody is not needed.
  

Magistrates and Trial Courts

• Check arrest, custody request, and bail using first-principles reasoning.
• Where law allows a preliminary inquiry, keep it short and focused.
• Protect the right to a lawyer, the right to cross-examination, and issue reasoned decisions.
  

Parliament and State Legislatures

• If screening or counselling is useful, create it by law with clear powers, timelines, and accountability, and do not let it block prompt police action when safety is at risk.
• Provide money and staff so that rules work in real life.
  

Citizens and Civil Society

• Share legal literacy on rights and duties in family and marital disputes.
• Strengthen helplines, shelters, and counselling that support both safety and fairness.
• Track and publish outcomes so reforms are guided by evidence.
  

The “cooling period” idea and a better path

What goes wrong with a fixed cooling period:
A blanket two-month pause with compulsory referral to a Family Welfare Committee delays access to police and courts, blurs who is responsible, and can discourage reporting.

A better path:

• Keep the existing safeguards for liberty: arrest only when necessary, written notice to appear, structured and reasoned bail, and short preliminary inquiry only where law already permits it.
• Do not close the door on prompt registration of a case and prompt investigation.
• Offer counselling or mediation as voluntary options that do not block the criminal process.
• If screening must be formal, create it through a statute, and do not let it replace the normal chain of police and magistrate.
  

One-frame way forward: two pillars

• Pillar One: Liberty — no routine arrests; written reasons for any arrest; fair, reasoned bail.
• Pillar Two: Access — no routine delays through extra filters; victims can reach the police and the magistrate without a new gate.

When both pillars stand together, justice becomes fast enough to matter and fair enough to trust.

“Judicial experimentalism can be a bridge when institutions under-deliver, but it becomes a barrier when it creates extra gates to justice. The correct test is least intrusion, clear timeline, measurable impact, and a planned exit.”

Exam hook 

Key takeaways 

• The new “cooling period plus Family Welfare Committee” is close to a model the Court withdrew earlier; it risks delaying access and blurring responsibility.
• India already has strong liberty safeguards that have reduced routine arrests without reducing registration of cases.
• The right approach is innovation with guardrails: trigger of real harm, least-intrusive tool, time-bound use, public reporting, and a clean exit.
• Courts should nudge and oversee, not replace the police–magistrate–legislature chain.

Mains question 

“Judicial experimentalism can protect rights but may also delay justice. Critically examine the recent ‘cooling period with Family Welfare Committees’ in cruelty-by-husband cases. Suggest a least-intrusive, time-bound design that protects both liberty and victim access.”

Hints to use in your answer:

• Start with the right to justice: timely access + fair process.
• Trace the legal background: necessity of arrest; Arnesh Kumar; Satender Kumar Antil; Lalita Kumari; Rajesh Sharma (rolled back); Social Action Forum.
• Show data logic: cases up, arrests down → liberty checks working.
  
• Offer design rules: trigger of harm, minimal tool, sunset clause, review, exit; keep the police–magistrate chain intact; counselling as optional, not a gate.
  

One-line wrap

Let courts innovate when rights are at risk—but with guardrails that protect liberty, keep doors open for victims, and hand control back to the lawful chain quickly.