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.
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
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”.