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Decriminalisation of adultery is the first of many steps

It serves as a launchpad for greater freedom, equality, and independence within what is commonly understood to be the private sphere

analysis Updated: Sep 28, 2018 20:11 IST
Gautam Bhatia
Gautam Bhatia
On September 27, a five-judge bench of the Supreme Court struck down Section 497 of the Indian Penal Code(Sonu Mehta/HT PHOTO)

On September 27, a five-judge bench of the Supreme Court struck down Section 497 of the Indian Penal Code (IPC), and decriminalised adultery in India (it remains a “civil offence”, that can be a ground for divorce). The judgment is important not simply because it got rid of an archaic and patriarchal law, but also because of its consequences for the future.

Section 497 of the IPC — part of the British-enacted penal code of 1860 — criminalised adultery, but did so “asymmetrically”: that is, only the man — and not the woman — who engaged in adultery could be punished. Moreover, only the husband could bring a prosecution for adultery; but he would have no case if he had “consented” or “connived” in the adulterous act.

This set of bizarre conditions together constituted a near-perfect storm of patriarchy. The husband being authorised to bring a prosecution against the “other man” (but not if he “consented” to the relationship) smacked of the belief that, on marriage, ownership over a woman’s body passes from her father to her husband. The woman has no independent personality but is, instead, subsumed into the personality of her husband, for the purposes of law and for society. And exempting the adulterous wife from criminal proceedings — although seemingly a benefit to her — was nonetheless based on the idea that it is the man who is the seducer, and it is the woman who is sexually submissive, and lacking agency in a relationship (and hence, the asymmetry: you cannot punish someone for something they are not responsible for). Both these presumptions were staple features of Victorian law and morality, which was the basis of the Indian Penal Code of 1860.

Not only was this all a matter of historical record, but it had even been accepted by the courts. The Bombay High Court acknowledged, for instance, that the section was premised on the assumption that women were chattels (although the Supreme Court would ultimately go on to uphold the constitutionality). And the Supreme Court itself remarked, a few decades after this, that it was generally the man who acted as a seducer.

With all this in the background, it was an easy task for the Constitution Bench to unanimously strike down the section as unconstitutional. The four concurring opinions — authored by the Chief Justice, RF Nariman, DY Chandrachud, and Indu Malhotra — all agreed that the law was based on gender stereotypes, and therefore violated Article 14 of the Constitution (equal protection of laws), and also Article 15(1) (non-discrimination on grounds of sex). The exemption of women from criminal liability was not a benefit, but rather, part of a broader set of presumptions that effectively caged and limited them. But the court also went one step further: it also held that adultery could not be criminalised at all. The court held that subjecting interpersonal relationships (where there was no violence) to the rigours of criminal law would amount to an unwarranted intrusion into the right to privacy. Therefore, the legislature could not respond to the judgment by passing a fresh, gender-neutral adultery offence: that, too, would be unconstitutional, this time under Article 21 of the Constitution.

The judgment of the Supreme Court is also important, however, for the further implications that it may have. All the judges were clear that a woman has the right to bodily integrity, individual choice, and personal autonomy not just against the State, but also within the context of the home and the family. This immediately calls into question a number of our laws that actively deny these rights. Two of the most prominent ones include the restitution of conjugal rights (which allows a court to “direct” one spouse who has left the company of the other spouse to return, even against her will), and the marital rape exception (which states that rape within a marriage does not count as rape for the purposes of criminal law). Therefore, the decriminalisation of adultery may have a ripple effect that goes beyond its immediate context, and serves as a launchpad for greater freedom, equality, and independence within what is commonly understood to be the private sphere.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal

First Published: Sep 28, 2018 20:10 IST