SEPTEMBER proved to be one of the most unusual months in the history of Indian jurisprudence as two antiquated and colonial pieces of legislation were struck down by a five-judge Constitution Bench headed by Chief Justice Dipak Misra. Constitutional morality and transformative constitutionalism appeared to be the leitmotif and operative sentiment in both the judgments that sought to protect individual rights, privacy and autonomy, including sexual autonomy. Transformative constitutionalism, the judges ruled, was “abhorrent to any kind of regressive approach”.
After reading down Section 377 of the Indian Penal Code (IPC), 1860, which outlawed same sex relationships, in the first week of September, the bench once again ruled unanimously that Section 497 of the IPC, which made adultery a criminal offence, with the male adulterer punishable with imprisonment for a term which may extend to five years, or with fine, or with both, was unconstitutional and “manifestly arbitrary”.
The 250-odd-page judgment also declared Section 198 (2) of the Code of Criminal Procedure unconstitutional as it laid down the procedure for prosecution under Section 497. It was reasoned that as the law had been declared unconstitutional, the procedure had to follow suit. “Progression in law and the perceptual shift compels the present to have a penetrating look to the past,” Chief Justice Dipak Misra and Justice A.M. Khanwilkar stated in the lead judgment. A perceptual shift had indeed been made 158 years after the provision came into force. In fact, the father of the IPC, Lord Macaulay, had been averse to criminalising adultery. Justice Rohinton F. Nariman quoted Macaulay as having said that “the man who treats a generous benefactor with gross ingratitude and insolence deserves more serious reprehension than the man who aims a blow in passion or breaks a window in frolic”. Macaulay’s somewhat liberal opinion was overruled by court commissioners. But post-Independence India was no different. The 42nd Law Commission report in 1971 had recommended the retention of Section 497, making the wife also punishable for adultery.
A ‘tripartite labyrinth’
The main judgment was delivered by Chief Justice Misra and Justice Khanwilkar while separate and concurring opinions dwelling on a range of issues from the antiquity of adultery to sexual and individual autonomy interspersed with legal, historical and literary anecdotes were delivered by Justices D.Y. Chandrachud, Nariman and Indu Malhotra. While Justice Chandrachud dwelt considerably on the connection between patriarchy and the subordinate status of women in marriage, Justice Indu Malhotra called Section 497 “institutionalised discrimination” which “legalised adultery”. Treating it as an offence was tantamount to the state entering into a real private realm, ruled Chief Justice Misra and Justice Khanwilkar. The provision, they said, was reflective of a “tripartite labyrinth”.
The issue was not only about decriminalising Section 497; it was also about contextualising law and its reading of it in a contemporary milieu. The matter came to the court after the constitutionality of Section 497 was challenged. The section had been challenged before as well on grounds that it was not gender neutral; it was discriminatory as it did not allow the wife of an adulterer to seek remedy; it did not allow the husband of the adulteress to seek remedy against the wife; it in fact sanctioned adultery if it was in connivance with the husband or someone who was in charge of the wife in the absence of the husband.
‘Romantic paternalism’
“A constitutional court cannot remain entrenched in precedent for the controversy relates to the lives of human beings who transcendentally grow,” observed the lead judgment. In fact, the main judgment and the concurring ones conceded that Section 497 basically ruled out the existence of the woman, either as an adulteress or as an aggrieved party as having any independent agency, more so as the law allowed an adulterous relationship of a woman with another man provided her husband connived or gave consent to such an alliance. Yet, in a situation where there was no such connivance or consent, the third party, that is, the adulterous male, could be prosecuted against. All the judges, including a previous three-judge bench ruling in Sowmithri Vishnu vs Union of India , concurred that the section had an element of “romantic paternalism” wherein it reduced the woman to a chattel and the property of a man, to be treated as he deemed fit. The three-judge bench had concluded then that adultery could only be committed by a man and not a woman.
Under Section 497, “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such intercourse not amounting to the offence of rape is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such cases, the wife shall not be punishable as an abettor.” Only the husband of the woman was treated as aggrieved for offences punishable under Section 497 and Section 498. The right to prosecute the adulterer was restricted to the aggrieved husband and not to the wife of the adulterer. Section 487, and the concept of adultery, circumscribed as it was to monogamous relationships, was curiously silent on extramarital relationships between a married man and an unmarried woman or widow. A man was criminally liable under certain conditions and not under another set of conditions. It was, therefore, arbitrary and defied rational norms. Both the “offence” and the definition of aggrieved person was absolutely and manifestly arbitrary as it did not even appear to be rational, ruled the judgment. “It conferred a licence on the husband to deal with the wife as he liked which is extremely excessive and disproportionate,” stated the order.
Violates Article 21
After pointing out the infirmities in the law, wherein the element of connivance was found offending Article 21 of the Constitution, the judges looked at the criminality of the adulterous act. The judgment referred to Section 498 A and the Prevention of Domestic Violence Act, both of which afforded women protection in matrimonial relationships and which were civil remedies. Adultery could be a ground for any kind of a civil wrong, including dissolution of marriage, they averred. Interestingly, the judges delved into basic definitional concepts, including that of crime and what constituted criminal liability. Was adultery then a crime that affected the security and well-being of the public and was there a public interest in its suppression? Whether adultery should be treated as a criminal offence was one of the central issues facing the court. Even if the right to file a case and to equality of status was given to the wife within Section 497, the whole situation was extremely private, the judgment observed.
“We are not making a law or legislating but only stating that a particular act, adultery, does not fit into the concept of crime,” stated Chief Justice Misra and Justice Khanwilkar. They cautioned that if Parliament treated it as a criminal offence, it would offend two facets of Article 21, the dignity of the husband and the wife and the privacy attached to the relationship between the two. It was also pointed out that adultery had not been granted separate exclusive space in the context of Sections 306 (abetment to suicide) and 498 A (husband or a woman or relative of her husband subjecting her to cruelty) of the IPC.
In his concurring judgment, Justice rNariman held that under the crime of adultery, what was punished as adultery was not adultery per se but the proprietary interest of a married man in his wife. He dwelt on the historicity of the dealing of adultery from Hammurabi’s code or the Babylonian Code of law dating to 1754 B.C., where adultery was punished by drowning, to Roman law which allowed the husband to have relationships outside marriage provided it was with a slave or an unmarried woman. In 17th century England, adultery was the only ground for divorce.
Decriminalised in most countries
In fact, by decriminalising adultery, India has joined the ranks of the People’s Republic of China, Japan, Australia and Brazil, among other countries. In some States of the United States adultery is still a criminal offence although the Model Penal Code had decriminalised adultery. It is a criminal offence in many Islamic countries. Smaller countries such as Trinidad and Tobago, Jamaica and Barbados have done away with criminalising adultery. In South Korea and Guatemala, provisions similar to Section 497 have been struck down by constitutional courts.
In any event, it is pointed out in the judgment that theoretically punishing adultery is no guarantee of saving a marriage. It said adultery was often not the cause of an unhappy marriage but a result of it. England, from where much of Indian jurisprudence draws its structure, illegalised adultery only in the 11-year period under Oliver Cromwell’s rule, also known as the period of puritanical England. In fact, for quite some time the act of adultery was referred to as “criminal conversation”, which was abolished in 1857.
Interestingly, Justice Chandrachud, in his concurring judgment, made a reference to the American writer Nathanial Hawthorne’s The Scarlet Letter, which depicts the travails and ignominy of an unmarried woman (Mistress Prynne) with a child out of wedlock and condemned to stitch and wear the letter “A” for adulteress on her garment. He dwelled on the role of law in creating gendered identities.
He held that used in a liberal perspective the law can enhance democratic values and that “law and the courts had a responsibility in the application and conferring of constitutional rights”. While testing the validity of Section 497, “we also test the constitutionality of moral and societal regulation of women and their intimate lives through the law”, he observed. Although earlier judgments upheld the constitutionality of Section 497, it did not prevent a Chief Justice of a High Court, while dealing with a case in 1954 ( Abdul Azis vs State of Bombay ), to observe that “Section 497 may not find a place in any modern code of law—days are past when women were looked upon as property by their husbands”. Earlier judgments, Justice Chandrachud noted, had generally held that as neither spouse could prosecute the erring spouse, the provision did not discriminate on the grounds of sex. Yet, he held that “a commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex and dignity of all which are affected by the operation of Section 497”. Deconstructing what could be the sociological and political dimensions of Section 497 type of laws, Justice Chandrachud, giving historical anecdotes, wrote that the main objective of laws such as Section 497 was to uphold the honour and property rights of a father, a husband and higher-status groups.
Women’s organisations
Women’s organisations such as the All India Democratic Women’s Association (AIDWA) have welcomed the decriminalisation of Section 497 by the Supreme Court which had “rightly held that the section was backward looking and retrograde and that adultery is not a criminal offence but a civil wrong and should not be criminalised”.
Kirti Singh, legal convener of AIDWA, said that if a spouse had a sexual relationship outside marriage, the other spouse could always file for divorce and other matrimonial relief. An aggrieved woman, she said, could also file under the Domestic Violence Act for monetary relief, separate residence and compensation if she had suffered physical and mental trauma or torture. She could also file a complaint under Section 498A of the IPC if, along with adultery, she has been treated with cruelty and tortured.
The decriminalisation of Section 497 marks a progressive step in independent India. It should have been done much earlier. While the principle of the application of constitutional morality is a fundamental one, the translation of that to make a meaningful dent in the lives of the majority in real material senses is still awaited. The subordinate nature of women is a combination of patriarchy and economic exclusion that may not find a solution in the trajectory of development that flies in the face of all moralities, including constitutional ones.
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