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EDITORIAL ANALYSIS:  A case of the court straying into the legislative sphere

 Source: The Hindu

  • Prelims: Current events of national importance(Basic structure doctrine, Supreme Court, High Court,Article 142 etc)
  • Mains GS Paper II: Significance of separation of power, role in judiciary in checks and balances, law making power of Parliament.



  • The Allahabad HighCourt, while allowing two criminal revisions pertaining to a dowry case, took cognisance of the misuse of Section 498A of the Indian Penal Code(IPC)
  • It proposed certain safeguards and directed the State authorities of Uttar Pradesh to take the necessary steps for their implementation in a given time period.
  • The High Court expressed its concern over the growing tendency of dowry victims to rope in the husband and all his family members using general and sweeping allegations.
  • The directions, inter alia, include constitution of a family welfare committee in each district under the District Legal Services Authority (DLSA), handing over the first information report to such committee immediately after its registration, and no arrest to be made by the police during this“cooling period’ of two months.






  • It is a social evil in society that has caused unimaginable tortures and crimes towards women and polluted the Indian marital system.
  • Dowry is payment made in cash or kind to a bride’s in-laws at the time of her marriage.
  • The Dowry Prohibition Act 1961 was brought to not only to eradicate the dowry system, but also to uplift the status of the girl child by bringing in many schemes.
  • However, owing to the social nature of this problem, the legislation has failed to produce the desired results in our society.


Impact of Dowry System:

  • Gender Discrimnation: Due to the dowry system, many a times it has been seen that women are seen as a liability and are often subjected to subjugation and are given second hand treatment may it be in education or other amenities.
  • Affecting Career of Women: The larger context for the practice of dowry is the poor presence of women in the workforce, and their consequent lack of financial independence.
  • The Poorer sections of society who send their daughters out to work and earn some money, to help them save up for her dowry.
    The regular middle and upper class backgrounds do send their daughters to school, but don’t emphasize career options.
  • Many Women End Up Being Unmarried: An uncountable number of girls in the country, despite being educated and professionally competent, remain endlessly unmarried because their parents cannot fulfill the demand for pre-marriage dowry.
  • Objectification of Women: Contemporary dowry is more like an investment by the bride’s family for plugging into powerful connections and money making opportunities. This renders women as merely articles of commerce.
  • Crime Against Women: In some cases, the dowry system leads to crime against women, ranging from emotional abuse and injury to even deaths.


Laws in India against Dowry:

  • The Dowry Prohibition Act, 1961.
  1. Under this Act, dowry is illegal in India.
  2. The Act also makes any act to take or give dowry punishable in India.
  3. The negotiations for the dowry for a lesser deal from the groom’s side when the bride’s side is unable to fulfill the actual demand/real deal’ and the act of making the bride’s family fulfill demands as compensation for marrying their daughter after the wedding are all punishable under the law.
  4. The punishment for violating the anti-dowry law is imprisonment for up to 5 years and a fine of Rs. 15,000 or the value of dowry given, whichever is more.
  • The Indian Penal Code (IPC) sections.
  1. Section 304B deals with dowry death in India.
    1. It states that if a woman dies within seven years of marriage by any burns or bodily injury or it was revealed that before her marriage she was exposed to cruelty or harassment by her husband or any other relative of the husband in connection to demand dowry then the death of the woman will be considered as dowry death.
  2. Section 498A deals with cruelt It states that if a husband or any relative of him causes mental or physical harm to a woman then they will be held punishable under this section.


Supreme Court Judgments on Dowry:

  • Social Action Forum for Manav Adhikar vs Union of India(2018):theSupreme Court overturned the judgment of its two judge Bench and held constitution of committees and an embargo on arrest by the police for one month till the submission of report by the family welfare committee, impermissible under the scheme of the Code of Criminal Procedure(CrPC)
  • Rajesh Sharma vs The State Of U.P., 2017: It also dealt with the growing misuse of dowry provisions.
  • Vishaka vs State of Rajasthan (1997): The Supreme Court issued directions to enforce fundamental rights in the absence of law in certain cases of sexual harassment at the workplace.


Role of Committee:

  • The primary role of such committees remains the same, i.e., settling the matrimonial dispute between the two parties.
  • If a woman’s bone is fractured or permanent privation is caused to any eye or ear or a joint by her husband during the course of a matrimonial fight, the police shall not effect arrest, as the maximum imprisonment prescribed in such cases of grievous hurt is seven years.


Possible solutions:

  • The police must strictly enforce the Supreme Court’s directions issued in Arnesh Kumar vs State of Bihar(2014) and ensure that there is sufficient reason and credible material against the accused person to necessitate arrest.
  • The investigating officers must be imparted rigorous training with regard to the principles stated by the Court relating to arrest. At the same time, wrongdoers need to be punished departmentally.
  • The legislature may deliberate upon and make Section 498A IPC bailable.
  • Similarly,though the High Court (using its inherent powers under Section482 CrPC) can quash a criminal proceeding which is not compoundable, after a settlement is reached between the opposing parties).
  • The legislature can amend and make the offense under Section 498A IPC compoundable so that a compromise could be arrived at with or without the permission of the competent court.


Judicial Overreach:

  • When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is referred to as Judicial Overreach.
  • In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.
  • Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers.
  • In view of this criticism, the judiciary has argued that it has only stepped when the legislature or the executive has failed in its own functions.


Cases of Judicial Overreach:

There have been several judgments of the Supreme Court wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution.


  • The ban on the sale of alcohol along national and state highways.
  • Imposition of Patriotism in National Anthem Case.
  • Ban on Firecrackers.
  • Order on sex workers


Basic Structure of Constitution:

  • The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973).
  • The ‘basic structure’ doctrine has since been interpreted to include:
  1. The supremacy of the Constitution
  2. Rule of law
  3. Independence of the judiciary
  4. Secular fabric of country
  5. Doctrine of separation of powers
  6. Sovereign democratic republic
  7. The parliamentary system of government
  8. The principle of free and fair elections
  9. Welfare state, etc.


Instruments of Checks & Balances

  • Legislature Control
  1. On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it.
  2. On Executive: Through a no-confidence vote it can dissolve the Government. Power to assess works of the executive through the question hour and zero hour. Impeachment of the President.
  • Executive Control
  1. On Judiciary: Making appointments to the office of Chief Justice and other judges.
  2. On Legislature: Powers under delegated legislation. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
  • Judicial Control
  1. On Executive: Judicial review i.e. the power to review executive action to determine if it violates the Constitution.
  2. On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.


Supreme Court

●    The Supreme Court of India is the highest judicial court and the final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review.

●    India is a federal State and has a single and unified judicial system with three tier structure, i.e. Supreme Court, High Courts and Subordinate Courts.

●    Articles 124 to 147 in Part V of the Constitution deal with the organization, independence, jurisdiction, powers and procedures of the Supreme Court.

●    The Indian constitution under Article 124(1) states that there shall be a Supreme Court of India constituting of a Chief Justice of India (CJI) and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

●    The Jurisdiction of the Supreme Court of India can broadly be categorized into original jurisdiction, appellate jurisdiction and advisory jurisdiction.

●    At present, the Supreme Court consists of thirty-one judges (one chief justice and thirty other judges). The Parliament is authorized to regulate them.

●    The judges of the Supreme Court are appointed by the President. The CJI is appointed by the President after consultation with such judges of the Supreme Court and high courts as he deems necessary.


High Court

●    In the Indian scheme of judicial system, high court works below the Supreme Court.

●    The judiciary in the state consists of a high court and a hierarchy of subordinate courts.

●    The institution of the High Court originated in India in 1862 when the high courts were set up at Bombay, Calcutta and Madras.

●    The constitution of India provides a high court for each state, however, the Parliament is authorized to declare a common high court for two or more states.

●    Parliament has been empowered to extend or curtail the jurisdiction of a high court over a Union Territory.

●    The number of judges in a high court, unlike the Supreme Court, is decided by the President of India rather than the parliament.

●    The judges of a high court are appointed by the President of India.

●    The Chief justice of a high court is appointed after consultation with the CJI and governor of the state concerned. If it is for a common high court, then the governors of all the concerned state high courts are consulted.

●    In case of appointment of other judges to high court, it was opined that CJI should consult a collegium of two senior-most judges of the SC before recommending a name to the President of India in the seminal third judges case.


Article 142:

It provides discretionary power to the Supreme Court as it states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.


Article 226:

●    It empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of the fundamental rights of the citizens and for any other purpose.

●    The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right.

●    This implies that the writ jurisdiction of the high court is wider than that of the SC.

●    This is because the SC can issue writs only for the enforcement of fundamental rights and not for any other purpose, that is, it does not extend to a case where the breach of an ordinary legal right is alleged.



Way Forward

  • Till the Mediation Bill, 2021 is enacted, the institutional mediation mechanism may help in settling the matrimonial disputes through the civil route.
  • The law of the land needs to be enforced strictly by both the police and the courts, without any dilution.
  • Any such directions which do not emanate from the provisions of law, are likely to be struck down by the Supreme Court again.
  • The investigating officers must be imparted rigorous training with regard to the principles stated by the Court relating to arrest. At the same time, wrongdoers need to be punished departmentally.
  • Repeated interventions of one organ into another’s functioning can diminish the faith of the people in the integrity, quality, and efficiency of the other organs, but too much accumulation of powers in organs of government undermines the principle of check and balance.



The Allahabad High Court’s directions in the context of marital discord, though noble in intent, seems to be judicial intervention into legislature. Critically analyze.

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