Ax­ing adul­tery law

Mak­ing con­sti­tu­tional moral­ity as the ba­sis of its judg­ment, the Supreme Court de­crim­i­nalises adul­tery, hold­ing that Sec­tion 497 of the IPC is “backward look­ing and ret­ro­grade”.


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.


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

Di­pak Misra and Jus­tice A.M. Khan­wilkar. They stated in their lead judg­ment that “pro­gres­sion in law and the per­cep­tual shift com­pels the present to have a pen­e­trat­ing look to the past”.


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