Mentor’s Comment

The Supreme Court’s recent endorsement of the Allahabad High Court’s guidelines introducing a “cooling period” before action in matrimonial cruelty cases (formerly Section 498A IPC, now Section 85 BNS) has sparked a heated debate. While the move aims to check misuse of law, critics argue it undermines a victim’s right to prompt justice. This article analyses the issue through the lens of judicial experimentalism, statutory intent, and the balance between liberty and justice, an important discussion for UPSC aspirants studying the interface of law, rights, and institutional reforms.

Introduction

Section 498A IPC was enacted to protect women from cruelty in matrimonial settings. However, fears of its misuse led courts and lawmakers to build safeguards against arbitrary arrests and frivolous cases. The recent Supreme Court ruling in Shivangi Bansal vs Sahib Bansal (2025) has endorsed a two-month “cooling period” and referral to Family Welfare Committees (FWCs) before action is taken on complaints. While it echoes earlier judicial experiments, critics highlight that such directions compromise victims’ right to timely justice and extend judicial power beyond legislative intent.

Judicial Experimentalism Versus Right to Justice

Why is this ruling in the news?

The ruling is significant because, for the first time since the rollback of Rajesh Sharma guidelines in 2018, the Supreme Court has revived the idea of FWCs and delayed coercive action through a “cooling period.” This marks a sharp contrast with previous judicial positions that upheld victims’ right to prompt redressal. The problem is big: over 1.4 lakh cases registered under Section 498A in 2022 (NCRB) yet with declining arrests, showing safeguards were already in place. Introducing new hurdles raises questions on judicial overreach and justice delivery.

Why was Section 498A enacted?

1. Objective: Punish cruelty against women in matrimonial homes.
2. Protection intent: Safeguard women from physical, mental, and emotional abuse by husband and family.
3. Concerns of misuse: Courts acknowledged misuse through false FIRs and arrests, which led to checks and procedural safeguards.

What safeguards already existed against misuse?

1. Lalita Kumari (2013): Classified matrimonial disputes under ‘preliminary inquiry’ before FIR registration.
2. CrPC amendment (2008): Introduced the ‘principle of necessity’ in arrests.
3. Arnesh Kumar (2014): Checklist for police; mandatory notice for appearance before arrest.
4. Satender Kumar Antil (2022): Strengthened protection by ensuring bail if arrest directions were violated.
5. Impact: NCRB shows while cases increased (1,13,403 in 2015 → 1,40,019 in 2022), arrests fell (1,87,067 → 1,45,095).

How does the “cooling period” affect justice delivery?

1. Delay in action: Victims must wait two months before any coercive step is taken.
2. Denial of prompt redressal: Even after FIR, police cannot act, worsening victim’s plight.
3. Institutional overreach: FWCs lack statutory backing, leading to ambiguity about their jurisdiction and powers.
4. Historical lesson: Similar FWC directions in Rajesh Sharma (2017) were termed “regressive” and rolled back by Social Action Forum for Manav Adhikar (2018).

What does this mean for judicial experimentalism?

1. Judicial innovation vs legislative intent: Experimentation may be progressive but must not override statutory design.
2. Checks already in place: With safeguards from CrPC amendments, Arnesh Kumar and Satender Kumar Antil, additional hurdles appear unnecessary.
3. Risk of regressive rollback: Echoes earlier failed experiments that compromised women’s access to justice.

Conclusion

The Supreme Court’s endorsement of the Allahabad High Court’s “cooling period” in Section 498A cases reflects judicial anxiety over misuse of law but risks undermining victim protection, the very intent of the provision. With sufficient safeguards already in place, the ruling revives debates on judicial overreach and calls for revisiting its implications. Justice must balance the liberty of the accused with the victim’s right to immediate redressal, without diluting either.

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Mentor’s Comment

The issue of women’s representation in the higher judiciary has resurfaced sharply after the recent appointments to the Supreme Court overlooked senior women judges and lawyers. Despite being the guardian of constitutional morality and equality, the apex court itself reflects a glaring gender imbalance. This article explores the extent of underrepresentation, the opacity in the appointment process, and why diversity on the Bench is not merely symbolic but essential for justice delivery.

Introduction

The retirement of Justice Sudhanshu Dhulia in August 2025 created an opportunity to address the deep gender imbalance in India’s Supreme Court. However, with the appointments of Justices Vipul Pancholi and Alok Aradhe, the Court continues to have only one woman judge—Justice B.V. Nagarathna. This exposes both a structural problem in the judicial appointment system and the reluctance to institutionalise gender as a criterion for higher judiciary appointments.

The significance of gender imbalance in the Supreme Court

1. Striking underrepresentation: Only 11 women judges out of 287 since 1950 (3.8%).
2. Missed opportunity: Despite two vacancies in August 2025, no woman judge was appointed.
3. Historical first ignored: The 2021 Collegium decision appointing three women judges at once raised hope of change, but the momentum has not continued.
4. Symbolic contradiction: The Court upholds gender equality but does not reflect it internally.

The historical trajectory of women judges in the Supreme Court

1. First woman judge: Justice Fathima Beevi (1989).
2. Trail of appointments: Only 11 till date, with short tenures limiting their influence.
3. Tenure disparity: Women often appointed at a late stage in career, reducing chances of reaching the Collegium or CJI position.
4. Upcoming first woman CJI: Justice B.V. Nagarathna, but for only 36 days (Sept–Oct 2027).
5. Lack of caste and minority representation: Only Justice Fathima Beevi represented a minority faith; no SC/ST woman judge was ever appointed.

Gender disparity in direct elevation from the Bar

1. Male dominance: Nine men have been directly elevated from the Bar.
2. Single woman appointee: Justice Indu Malhotra (2018) was the only woman elevated directly.
3. Systemic discrimination: Despite women Senior Advocates being present, elevation remains blocked.
4. Global comparison: Worldwide, the Bar is a major route to the higher judiciary, India lags in enabling women lawyers.

The opacity of the judicial appointment process

1. Collegium secrecy: No clarity on criteria or names under consideration.
2. Inconsistent transparency: Collegium resolutions briefly made public in 2017 under CJI Dipak Misra, but not institutionalised.
3. Regional and caste factors considered: Yet gender is ignored as a formal category.
4. Violation of merit claims: Recent appointments skipped senior women High Court judges despite “seniority” being cited in the past as a hurdle.

The importance of women’s representation on the Bench

1. Unique perspectives: Women judges bring experiential diversity that shapes judicial outcomes.
2. Public trust: Greater representation builds confidence in judicial impartiality.
3. Truly representative court: The SC must reflect India’s social and gender diversity to strengthen legitimacy.
4. Judicial precedents: The Court itself has mandated 30% reservation for women in Bar Association elections, but has no such rule for its own appointments.

Conclusion

The Supreme Court’s gender imbalance undermines its constitutional commitment to equality and inclusivity. Unless women are institutionalised as a criterion for judicial appointments, alongside caste, religion, and region, the credibility of India’s top court will remain in question. Representation is not tokenism; it is a constitutional necessity to ensure justice is dispensed through the lens of diversity, fairness, and lived realities.

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