SC Endorses Arrest Suspension

GS II - Polity

In its judgment, Shivangi Bansal vs Sahib Bansal, that was delivered in late July, the Supreme Court of India has effectively endorsed the suspension of the arrest or coercive action under the anti-cruelty law in Section 498-A of the erstwhile Indian Penal Code (IPC).

  • Section 498-A IPC (now Section 85, Bharatiya Nyaya Sanhita) — penalises cruelty by husband or his relatives, punishable with up to 3 years’ imprisonment and fine.

Purpose of 498-A:

  • Introduced in 1983 to address domestic cruelty, especially dowry harassment and violence driving women to suicide or injury.
  • Broadened scope in the wake of rising dowry deaths and other forms of domestic violence.
  • Designed to work harmoniously with other laws like Dowry Prohibition Act, 1961.

Allahabad High Court directed in 2023:

  • No arrest or coercive action for a “cool-off” period of two months from complaint.
  • Creation of Family Welfare Committees at district level to review cases before police action.
  • The Supreme Court endorsed these directions, effectively suspending arrests in all 498-A cases for the initial two months.

What is the Cool-Off Period?

“Cool-off period” refers to a mandatory waiting time of two months after a woman files a complaint under Section 498-A (cruelty by husband or relatives) during which:

  • Police cannot arrest the accused.
  • No coercive action (like summoning, search, or detention) can be taken.
  • The case must first go to a Family Welfare Committee for review before any investigation proceeds.

Purpose (as per court):

  • To encourage reconciliation and avoid misuse of the law.

Criticism:

  • It delays urgent protection for victims.
  • Gives accused temporary blanket immunity.
  • Increases risk to complainant’s safety.
  • Seen as judicial interference in a legislated criminal provision

Criticism of the Judgment

  • Fails to consider social realities of widespread gender inequality and domestic violence.
  • Impact:
    • Even with overwhelming evidence, police cannot arrest for 2 months.
    • Chilling effect on complainants and higher risk to victim safety.
    • Legitimises delay in investigation of “problems inside marriage.”
  • Binding nature of SC judgment affects all such cases nationwide.
SC Endorses Arrest Suspension

Misuse Argument and Data

  • Popular claim: Law is misused; SC has echoed this in past judgments:
    • Preeti Gupta vs State of Jharkhand (2010) — many cases not bona fide.
    • Sushil Kumar Sharma vs UOI (2005) — misuse can lead to “legal terrorism.”
    • Arnesh Kumar vs State of Bihar (2014) — issued strict guidelines to police before arrest in 498-A cases.
  • No empirical evidence before the court proving large-scale misuse — only individual allegations.
  • Low conviction rate (~18% NCRB 2022) is not proof of misuse — due to:
    • Investigation gaps.
    • Social/familial pressure to settle.
    • High burden of proof in criminal law.
    • Difficulty of proving violence in intimate spaces.

Survey and Statistical Findings

  • According to National Crime Records Bureau (NCRB) 2022 1,34,506 cases registered under 498-A.
  • From the National Family Health Survey (NFHS)-5, under-reporting of violence against women is widespread.
  • Humsafar report is saying that rising cases may indicate growing awareness, not misuse.
  • Misuse potential exists in any law — truth of allegations can only be tested via investigation

Constitutional and Legal Provisions involved:

  • Article 14 – Equality before law and equal protection of laws: This guarantees that every individual, regardless of gender, is entitled to equality in law and its enforcement. In the context of Section 498-A, it ensures that women facing cruelty can seek equal legal protection without arbitrary restrictions.
  • Article 15(3) – Special provisions for women and children permitted: While Article 15 prohibits discrimination, clause (3) empowers the State to make special laws for women and children. Section 498-A is a manifestation of this, aimed at providing targeted protection against domestic cruelty and gender-based violence.
  • Article 21 – Right to life and personal liberty includes protection from violence: Article 21 ensures the right to live with dignity, which extends to freedom from domestic violence and harassment. Curtailing prompt police action in cruelty cases risks violating this right by exposing victims to further harm.
  • Legislative competence – Parliament’s exclusive power to make criminal laws under Union List: Under the Constitution’s Seventh Schedule, criminal law is a Union List subject, meaning only Parliament can legislate on it. Judicial suspension of a penal provision like 498-A indirectly intrudes into this legislative domain, raising separation-of-powers concerns.
  • Principle reiterated in Sushil Kumar Sharma (2005) – Misuse is not a ground to strike down a law: The Supreme Court held that the potential misuse of a provision cannot be a valid ground to invalidate it. Proper investigation, not blanket suspension, is the constitutional method to address false cases under criminal law.

Concerns on Judicial Overreach

  • Courts lack institutional competence to judge legislative wisdom in socio-cultural issues without full data.
  • Selective suspension of a criminal provision affects uniformity and consistency of criminal law.

Way Forward

  • Balance Victim Protection with Safeguards Against Misuse
    • The law should ensure immediate safety for genuine victims through swift police action while allowing safeguards against false cases through quick preliminary scrutiny, not blanket arrest bans.
  • Strengthen Investigation Capacity
    • Provide specialised training to police officers for handling domestic violence cases with sensitivity, ensuring evidence is gathered effectively to withstand trial.
    • Use technology like body cameras and secure digital records to reduce bias.
  • Time-Bound Preliminary Assessment
    • Instead of a fixed two-month “cool-off” period, mandate a rapid 7–10 day fact-check by an independent unit before arrest decisions, balancing urgency with verification.
  • Empower Family Welfare Committees as Advisory
    • These committees should have an advisory role without halting police action in serious cases where there is prima facie evidence of violence or threats to life.
  • Collect Empirical Data on Misuse
    • Commission a nationwide study by NCRB or a neutral academic institution to analyse conviction rates, withdrawal patterns, and case outcomes before framing judicial or legislative changes.
  • Promote Awareness and Legal Literacy
    • Conduct community outreach, especially in rural and semi-urban areas, to inform women about their rights and available legal protections, thereby reducing under-reporting.
  • Judicial Restraint in Legislative Policy Areas
    • Courts should avoid creating blanket exemptions in penal laws without comprehensive socio-legal impact assessments and consultation with stakeholders, respecting Parliament’s legislative domain.
  • Strengthen Victim Support Mechanisms
    • Expand access to safe shelters, counselling, and financial aid for women filing complaints, ensuring they can sustain themselves during the legal process without pressure to reconcile.

Prelims Questions:

1. The Supreme Court’s endorsement of a two-month “cool-off” period before arrest in Section 498-A cases raises concerns primarily because:
  1. It violates the separation of powers between legislature and judiciary.
  2. It increases the conviction rate artificially.
  3. It allows Parliament to bypass the judiciary.
  4. It limits the role of family welfare committees.
2. In which of the following cases did the Supreme Court issue strict guidelines to prevent automatic arrests in Section 498-A cases?
  1. Preeti Gupta vs State of Jharkhand (2010)
  2. Sushil Kumar Sharma vs Union of India (2005)
  3. Arnesh Kumar vs State of Bihar (2014)
  4. Lalita Kumari vs Govt. of U.P. (2014)