JOSEPH SHINE VS UNION OF INDIA

Author- Ayush Shukla, Savitribai Phule Pune University

Court – Hon'ble Supreme Court Of India

Judges/Quorum – Dipak Mishra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra

Citation(s) – 2018 SC 1676

Introduction

Until recently, the adultery laws in India have their basis in a lot of patriarchal and male chauvinistic notions. Only the man was supposed to be held criminally liable under the adultery laws if he had sexual relations with another man's wife. It would not amount to adultery if the woman's husband had given consent or was a party to such an act. This is a legal framework that for many years has been neglecting women's rights, considering them victims who are being seduced by a man rather than actors who deserve liability on their own.

Adultery in ancient times was considered a sin committed by either a married male or female. However, the existing Indian law is not gender-neutral while dealing with the issue and espouses views that are extremely archaic. It has been accused of breaching fundamental constitutional principles such as equality, no discrimination and right to live with dignity.

Adultery laws, because they are discriminatory in nature and violate the right to privacy, have been struck down by several countries such as South Korea, South Africa, Uganda, and Japan. Even Lord Macaulay, one of the chief architects of the Indian Penal Code, had objected to treating adultery as a criminal offence and said it should be a civil wrong. Legal reforms have been made to catch up with today's values and recognition of individual rights, which changed with time. Recent judicial pronouncements have widened the scope of fundamental rights in keeping with changed times. If this is the background, the judgement that set aside the 158-year-old adultery law marks a paradigm shift in recognition that such laws have outgrown their utility in the face of changing social and moral mores.

Facts Of The Case

The PIL, seeking to decriminalise Section 497 of the IPC, was filed by a hotelier, Joseph Shine. He had contended that since the latter punished only Indian men for extramarital relationships, and no corresponding legal recourse has been provided to women who may also face similar situations, it discriminated against them. Shine was partly motivated by the tragic incident of a friend from Kerala committing suicide when faced with false rape allegations by a female coworker. Shine contended that Section 497 reeked of severe gender bias, acts of authoritative overreach, and male chauvinism. Shine took the view that the traditional context in which Section 497 was enacted no longer shares the values and norms of contemporary society.

Issues

Constitutionality of Section 497: Whether Section 497 of the IPC is unconstitutional?
Gender Bias: The petitioner stated that Section 497 is prejudicial to women in various ways, to wit :
One-Sided Liability: As the law punished men for committing adultery, there were no corresponding legal provisions to deal with the role of the women involved in such a situation, thus causing an imbalance on the gender level.
Lack of Legal Recourse for Women: The complaint against adultery was not enabled under Section 497 on the part of women against their husbands. Consent as a Defence: The law maintained that if the husband had consented to the act of adultery, it would not amount to a crime. This provision treated women as mere objects of such acts rather than individuals with rights. We petition:

Petitions

Joseph Shine has filed a petition before the apex court challenging the constitutional validity of Section 497 in December 2017. The case, which first came up for consideration before a three-judge bench headed by Chief Justice Dipak Mishra, was thereafter referred to a five-judge constitution bench. This five-judge constitution bench consisted of Chief Justice Dipak Mishra along with Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra. The petition contends that Section 497 reeks of constitutional as well as gender-based discrimination. The counsel for the petitioner pressed a spate of arguments on constitutionality arising from Section 497 of the Indian Penal Code, which, in their estimation, runs counter to fundamental rights.

Historical Background: The learned counsel contended that Section 497 was legislation in the British era and is archaic, without applicability in today's modern world.
Article 14: Counsel informed the Court that Section 497 read with Section 198(2) of the Criminal Procedure Code infringes Article 14 of the Constitution of India, 1949. It was argued that the adultery law is an onslaught on the constitutional guarantee of equality before the law on gender. There was no reasonable explanation behind such discrimination; hence, it could not be considered valid classification. The wife's consent is immaterial under this provision, which is again a violation of the equality principle.
Property Concept: The counsel argued that Section 497 was based on the outdated concept that a woman was her husband's property. That the exception to the law, which divests the marital offence of its criminal character if the husband gives his consent, is pegged on the same scholastic, patriarchal thought.
Gender Discrimination: The Section was contended to be discriminatory in nature as it provides right to a case of adultery only against the male, which is in violation of Article 15 of the Constitution. If the husband of a woman has sexual relations outside the wedlock, the law has made no provision on that score to confer a legal right upon her.
Violation of Article 21: The counsel contended that Section 497 degradingly affects the dignity of women because it makes no recognition of the sexual autonomy and self-determination of the woman and is hence violative of Article 21. The right to privacy, so the lawyers maintained, encloses the freedom of individuals in consensual sexual activity and that criminalising it invades that privacy.
Objectification of Women: Counsel placed much emphasis on the fact that under the existing law, a woman is treated like an object whereby her criminality for adultery depends upon the consent or denial of consent by the husband.
Fundamental Rights: Counsel reiterated that Section 497 and the related statutory provisions are violative of Arts. 14, 15 and 21 of the Constitution, being patrician in character and arbitrary.
Mutual Liability: Sexual intercourse, it was submitted, is a mutual act entailing mutual consent; hence, both parties should incur equal liability.
Right to Sexual Expression: The counsel thus argued that right to extra-marital consensual sexual relations should ipso facto be enjoyed by a person of choice regardless of his or her marital status and gender.

To Sum Up: The counsel for the petitioner thus contended that Section 497 is unconstitutional. It denudes equality, non-discrimination and personal dignity, apart from failing in its constitutional duty to bestow respect to contemporary values of privacy and individual choice.

Respondents

The counsel that appeared on behalf of the respondents argued that adultery is one serious offence, for it has already torn asunder family relationships hence disrespecting the institution of marriage. They reasoned that legal deterrence has to be in place for any semblance of respect to be maintained for the sanctity of marriage and, as a misdemeanour, for its devastating impact spills into spouses, children, and society at large. Adultery was morally wrong and should therefore be penalised for being an act by an outsider who is fully knowledgeable of an act eroding marriage sanctity to begin with.
The petitioners-respondents thus contended that the apparent discrimination in Section 497 is saved by Article 15(3) of the Constitution, which enables the state to make special provisions by law for women and children. It was urged that adultery is an act that tends to destroy social morality and injures public morals, and hence it should be punished.
In fact, the counsel argued that Right to Privacy and of Personal Liberty under Article 21 of the Constitution is not an absolute right, and reasonable restrictions may be imposed on such rights when larger public interests are involved. They thus argued that this right does not cover people indulging in extra-marital relations since they fall outside the ambit of normative marriage relationships.
He further argued that Section 497 protects society from immoral acts and the demoralisation of marriage and as such should not be struck down but modified to delete the unconstitutional feature while retaining its essence.
In other words, the appellants' counsel had prayed that the court render Section 497 as unconstitutional insofar as the unconstitutional part is separable and preserve it by retaining the provision as a necessary safeguard to the established social and moral values of the nation.

Judgement

A unanimous Court set aside Section 497 of the IPC as unconstitutional, thus quashing the law. The judgement further held that Section 198(2) of the CrPC, insofar as it related to Section 497 of the IPC too, was unconstitutional. This ruling, in effect, rendered previous judgments criminalising adultery null. Chief Justice Dipak Misra, in his judgement, held that wives are not the property of their husbands and that husbands do not have proprietary rights over them. Justice D.Y. Chandrachud, drawing inspiration from the recent jurisprudence of the U.S. Supreme Court, underlined how Section 497 invaded the right to privacy. He said patriarchal notions and misogynistic assumptions about women's sexuality need to be left out since it is unconstitutional to deny dignity and personal autonomy to women. He had also referred to the judgement in Navtej Singh Johar v. Union of India for bringing out the aspect of sexual autonomy as inalienable from individual choice. Justice Chandrachud explained that criminalising individual acts on the basis of obscure social attitudes necessarily denudes individual dignity and individual autonomy. He had also referred to K.S. Puttaswamy v. Union of India, on her hand, pressed the argument that women must be equal partners in the enterprise called marriage and that their privacy and dignity should be guarded against intrusive legal measures.

The judgement said that S 497 hindered sexual autonomy, dignity, and privacy and, therefore, it barred Articles 14, 15, and 21 of the Constitution. It explained that gender discrimination in the law curbed the principle of equality by relegating women to the status of properties with their husbands. This approach undermined personal liberty and sexual autonomy under Article 21. While concurring in the judgement in the case of Voluntary Health Association of Punjab v. Union of India, Justice Dipak Misra held that women are entitled to be treated as equal participants in life and granted equal rights and obligations.

The Court held that Section 497 was arbitrary on the ground that it granted the husband the right to give consent to the extramarital affairs of his wife and hence was failing to protect the sanctity of marriage. It preserved proprietary rights of the husband over his wife and did not contain provisions in cases where married men had relations with unmarried women.

Justice Indu Malhotra held that adultery ought not to be treated as a criminal offence but only as a civil wrong. According to her, though the freedom to have consensual sexual activities outside marriage is not to be criminal, the personal choice in regard to sexuality is to be kept private and criminal sanctions ought not to be imposed. She thus held that s 497 did not satisfy the triple test for invasion of privacy laid down in Puttaswamy.

Legal Reasoning

In its landmark judgement, the Supreme Court had held Section 497 of the Indian Penal Code unconstitutional on the ground of it being violative of Articles 14, 15 and 21 of the Indian Constitution. It had also held that Section 198(2) of the CrPC, which was read in conjunction with Section 497 of the IPC, was unconstitutional. Above all, this decision nullified the earlier decisions upholding adultery as a criminal act and made it clear that a person has a basic right to privacy while deciding on his or her personal life, especially his or her sexual life. Criminal laws must deal with public wrongs and not interpersonal relationships when the issue of adultery is, by its very nature, private. The Court further directed that the remaining laws were vestiges of an era gone by, carrying the stamp of a patriarchal rule that was no longer apt or relevant in the contemporary world. Whatever the moral dimensions of marital falsehood, criminalization has little to do with public harm. In satisfying the harm principle, three conditions have to be met, namely,

Harm
Wrongdoing
A public element

The judgement pronounced by the Supreme Court has punched in that Sec. 497 was discriminatory and anachronistic and did not accord with the mores of today. Adultery is no more a criminal offence; it has been added into a ground for divorce only. If any spouse engages in sexual relations with another person other than the spouse, it would not amount to a criminal liability.

Impact of the case

If ever the Indian marital laws and individual freedoms were to undergo drastic changes, it had to be in the form of this landmark decision taken by the Supreme Court to decriminalise adultery. The colonial-era Section 497 of the IPC, which let husbands prosecute other men for having sexual relations with their wives, was struck down by the Court. The immediate effect of this decision was to remove criminal penalties from adultery, thereby changing its definition in law. This decision and judgement deepened the doctrine of privacy and equality in marriage through the abolishment of gender-biased adultery laws.

On a societal level, the judgement was an important leap towards recognition of women's autonomy and sexual agency within and outside marriage. It ensured that women could not be booked under criminal charges for committing adultery, thus undermining some deeply entrenched patriarchal views of marriage in India. This was supposed to decrease the incidence of husbands bringing cases of adultery against their wives on grounds of divorce or cruelty. The civil remedies nonetheless remained, and therefore adultery, when proved, was still a good ground for divorce. This maintained legal routes through which marital infidelity could be tackled.

Decriminalising adultery, the Supreme Court had finally aligned India's legal stance in the institution of marriage with the modern era of human rights. That decision moved India closer in line with global practices prevalent regarding human rights into individual privacy and freedom. For women's rights activists, this was a milestone judgement in the future development of gender justice and equality within India's institution of marriage.

Critical Analysis

It appears that infidelity is higher in metropolitan cities living lifestyles that are more westernised. The tendency has received so much criticism, and some critics say that it has given people the licence to commit adultery and get away with it scot-free. The decriminalisation of adultery indeed gave more increase to it. Critics, most of them using the male perspective, purport that such legal alteration inhibits individual capacities to retain purity of family lineage. Most people feel that the recommendations from Law Commissions, which proposed equal punishment on both genders for adulterous cases, should have been passed by Parliament. There is also unhappiness over the Supreme Court judgement on the ground that, as some critics even suggested, it should have left the decisions on adultery laws to Parliament as a reflection of the changing social context. From a patriarchal perspective, one is worried that without any legal punitive measures against adultery, one can't ensure the legitimacy of the family line; an older value in which many feel the basis of stability in society rests. This thus speaks to an even larger anxiety of the dissolution of older values within the presence of newer legal reforms.

It can also be argued by many that those recommendations of the Law Commissions, purporting to make a balance in punitive measures against adultery by holding both men and women equally liable for the offence, ought to have been accepted by Parliament. In the light of this, sanctions on both sides would be fair and uphold equal justice. For some, the fact that Parliament decided not to carry out these recommendations was a missed opportunity in terms of addressing gender imbalances and ensuring that the law evolves to meet current societal values.

There is also wide-ranging criticism regarding the role of the Supreme Court in respect of this issue. Whereas some would assert that it is not upon the Court to lay down a judgement on adultery but leave it to Parliament for debate and to shape the law in accordance with the emerging pattern of morality. In this way, the Supreme Court would step aside to facilitate legislation more accurately representative of current social opinion and requirements. The argument that such intervention by the Court served to prematurely close off avenues of legislative reform and debate, relevant to the development of the law concerning adultery in a manner consistent with contemporary values, perhaps supports this perspective.

Conclusion

The year 2018 will be remembered for one of the path breaking verdicts in Indian legal history: decriminalising adultery. The Supreme Court declared Section 497 of the Indian Penal Code constitutionally invalid and thereby struck down a 164-year-old law that has been criticised for being regressive, patriarchal, and discriminatory against women.

This judgement has a deep implication for the advancement of gender equality and civil liberties in India. Justice Chandrachud, authoring the leading opinion for the five-judge bench, denounced the adultery law as one that reduces women to "chattel" and perpetuates the "patriarchal notion of women as property of men," thereby upholding violations of basic constitutional values of dignity, privacy, and equality for all citizens, irrespective of gender.

This judgement shall pave the way for other reforms that might be carried out with an object of bringing gender neutrality in the laws of India. Many other legal provisions have suffered from obsolescence on issues concerning gender roles and morals. The reasoning in the case of Joseph Shine—emphasising privacy, autonomy, and non discrimination— can be used as a pedestal for challenging similar kinds of laws on constitutional grounds.

The country needs to carry this tide of progressive judgments like Joseph Shine forward in order to establish a more just and equitable society. The scrapping of Section 497 was, for sure, a major leap forward, but still much more needed to be done so as to really achieve equality between genders under the law.