[Preeti Joseph is currently a Teaching Assistant at National Law University, Jodhpur (India)]
A five-judge constitutional bench of the Supreme Court of India, on 27th September 2018, gave its decision in the case of Joseph Shine v. Union of India[1] and declared Section 497 of the Indian Penal Code [“IPC”] that criminalized adultery as unconstitutional. This Section was not only worded problematically but also concretized the idea that a woman has no sexual agency (especially within her marriage). In declaring this Section as unconstitutional, the Court has entered into the ‘private’ sphere of a family and has done a very apt application of the constitutional provisions, which is a marked departure from the position that existed previously. While expressing its concerns with regard to applying constitutional provisions within family matters, the Delhi High Court, in Harvinder Kaur v. Harmader Singh Choudhary[2] had observed that ‘applying the constitutional law in the home is most inappropriate. It is like introducing a bull in a China shop’.
Section 497 of the IPC read as follows:
497. Adultery – 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 of connivance of that man, such sexual 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 case, the wife shall not be punishable as an abettor.
This provision was loaded with problems. Firstly, it provided for punishment only for the ‘man’ who was a party to the adulterous act. An interesting conclusion that can be drawn from this provision is that a woman can never be the one who is seducing but she is so docile that she would only be seduced by a man. This understanding is inherently premised on the idea that a ‘virtuous woman’ would not step beyond the sexual contours of her marriage and will always be available for her husband. Secondly, the husband of the married woman could only bring an action against this man for committing such an act and thirdly, if the husband had ‘consented’ or ‘connived’ to such an act between his wife and the other man, then a cause of action could not be brought against the other man, that is, he could not be made liable under this provision. A plain reading of the second and the third points not only clearly indicate but also affirms the idea that a woman is a mere property which is owned and taken care of by a man. Even in matters of her sexuality, the ‘consent’ and ‘connivance’ of her husband would determine whether that act is criminal or not (irrespective of the fact that she would remain unpunished for the same!).
When this matter was brought to the Supreme Court, several people from the legal fraternity had thought that the Court would attempt to make this provision gender neutral and not scrap it completely from the Code. All of them believed that making the provision gender neutral would correct the imbalance that exists within it. It would also make women liable for the sexual choice that she makes outside her marriage hence giving her the sexual agency that they lacked before.
However, the Supreme Court did not choose to make this provision gender neutral because of several reasons. Primarily, the petitioners, in this case, had specifically asked the Court to read down this Section and not make it gender neutral, therefore the Court eschewed its tendency to go beyond what the parties had asked them to do. Secondly, making this provision gender neutral would have required the Court to do a rewriting of the entire Section, which is beyond the powers of the Court and rests only with the Legislature. Doing this would have only reflected the over-enthusiasm of the Court and would have made a clear case for judicial overreach.
Perhaps, there was another possibility of making this provision gender neutral by not doing much re-writing and that could be done by reading ‘she’ into ‘he’ for the purposes of this Section. Gautam Bhatia makes a very interesting observation with respect to such a reading of this Section[3]. He states that we will have to look at Section 13(1) of the General Clauses Act, which deliberates on this issue and specifically maintains that ‘words importing masculine gender shall be taken to include females’ and not vice versa (a term that has been specifically provided under Section 13(2) of the same Act which speaks about ‘words in the singular shall include the plural and vice versa’). Had the intention of the Legislature been to do a similar reading, then they would have specifically provided for the same, therefore reading ‘she’ into ‘he’ for the purposes of this Section would not be in accordance to the intention of the Legislature.
The rationale behind the existence of this problematic Section until now was drawn upon from Article 15(3) of the Constitution[4] and a reference of the same had been made in the case of Yusuf Abdul Aziz v. State of Bombay[5]. It emphasizes the need for ‘protecting’ women and other vulnerable groups. While addressing this specific point, the Court observed that a reliance cannot be made on the various provisions of the Constitution in order to ‘protect’ a particular group when such an idea of protection in itself is premised on such flawed patriarchal norms[6]. The Apex Court further made an observation on these lines where they emphasized the fact that the idea of protection cannot thrive on such violative assumptions[7].
Though this judgment has already faced a lot of criticism, it has also given a ray of hope that several other violative practices (marital rape being one of them) could be adjudicated upon by the Court and would not remain untouched merely because it is happening within the four walls of one’s house. The provision with respect to adultery continues to exist as a civil offence and hence continues to be a ground for divorce under various family laws.
[1] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.
[2] Harvinder Kaur v. Harmader Singh Choudhary, AIR 1984 Delhi 66.
[3] Gautam Bhatia, Decriminalizing Adultery, Indian Constitutional Law and Philosophy (Dec 9, 2017), https://indconlawphil.wordpress.com/2017/12/09/decriminalising-adultery/.
[4] Article 15(3), The Constitution of India – Nothing in this Article shall prevent the State from making any special provision for women and children.
[5] Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
[6] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017, ¶21, 22 (Dipak Misra, J).
[7] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017, ¶23 (Dipak Misra, J).
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