Democratising liberty

Decriminalising adultery

Sex between consenting individuals was not illegal in India; and all acts of fornication did not amount to offences. Sex between consenting, unmarried persons never amounted to an offence and hence not punishable unless it has a commercial facet as indicated in the Immoral Traffic Prevention Act (1956). Though such acts are not covered by the Indian Penal Code (IPC), it does not follow that Indians ever embraced such practice on a massive or routine scale.

A married man’s sex with an unmarried woman also was not penalised, and for that reason the social fabric or family bond seldom suffered. The family as an institution must rest on the stronger edifice of love, intimacy and mutual trust, not on legal prohibitions. It also rests on cultural ethos. The contention that the recent judgement of the apex court in Joseph Shine will adversely affect societal morality is therefore fundamentally flawed. It is not a verdict that upholds adultery -– it does the contrary by labelling it as a moral wrong. Rather than a judgement on adultery, it is one on the penal provision dealing with adultery.

The adultery clause in the IPC (S 497) and its procedural supplement in S 198(2) of the Criminal Procedure Code (CrPC), penalised consensual sex in an extremely convoluted and partisan manner. The law exonerated the woman but penalised the man alone for having sex with a married woman without the consent of her ‘owner’, her husband. It was not even the act, but the lack of consent that made out the offence. Again, only the husband or some ‘caretaker’ of the woman could have filed the complaint, according to
S 198(2) of the CrPC. In such a proceeding, the ‘wife’ whose ‘chastity’ is questioned, could not even defend herself. In yet another situation, an aggrieved wife of an adulterous husband also could not set the law in motion, for want of locus.

The Constitution bench of the Supreme Court, by way of a unanimous verdict, has struck down the archaic law. The court said that the provisions negate the very concept of gender equality and human dignity and that they are plainly discriminatory.

In the words of Chief Justice Dipak Misra, “any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution”.

Justice Nariman rightly described the earlier judgement in Yousuf Abdul Aziz (1954), which said that the provision was intended to ‘protect the women’, as an instance of Homer nodding. All the judges on the bench in Joseph Shine disagreed with the earlier verdicts in Yusuf Abdul Aziz (1954), Sowmithri Vishnu (1985) and Revathi (1988), which quite strangely endorsed the impugned law.

Justice Chandrachud conducted an extensive global survey to say that “the last few decades have been characterised by numerous countries around the world taking measures to decriminalise the offence of adultery due to the gender discriminatory nature of adultery laws as well as on the ground that they violate the right to privacy”.

Justice Indu Malhotra’s judgement is significant in as much as it accepted the petitioner’s argument that the State has no legitimate ground, much less any compelling reason, to criminalise consensual private acts. The voice against “unprincipled criminalisation” is a plea for democratising liberty at the most fundamental level of society. Justice Malhotra said that “the State must follow the minimalist approach in the criminalisation of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices”.

The judgement is radical, for it emphatically conveys the message that a democratic State cannot act upon the idea of ‘external preferences’, where one decides the way in which others should live, which legal scholar Ronald Dworkin critiqued in his emblematic work “Rights as Trumps” (1984). The State cannot invoke its police power to define or prohibit human relations. As Chief Justice Misra recently held in Shafin Jahan (2018), an individual should be allowed to “write his/her script”.

Joseph Shine is much more than a verdict on man-woman relationship. It sought to abolish the onslaught of majoritarian moralism in criminal laws. It redefined the State–citizen relationship by recognising individual autonomy in one’s most intimate and private sphere.

As noted by the academic Latika Vashisht, the courts in India needed “to identify a ‘law-free zone’ which can be designated as the ‘right not to be unfairly criminalised’”, and Joseph Shine is a significant demonstration of this ideal. In a working democracy, every ethical question in one’s life does not call for State scrutiny.

The sanctity of marriage is a religious idea, not a constitutional concept. If the sanctity argument is accepted, divorce as such should be impermissible, which is not the case with our personal laws. Marriage is, no doubt, an important event in a person’s life. But every moral wrong in a matrimony, like private alcoholism or voluntary religious conversion against the will of the spouse, cannot and should not lead to criminal consequences.

The judgement in Joseph Shine has recognised the importance of marriage as an institution and held that adultery could lead to civil proceedings for divorce. Setting criminal law in motion is not a sane method to preserve families. Empirically, many Indian families have, instead, suffered break down due to criminal prosecutions for adultery.

Generally speaking, the praxis of family lawyering is almost alien to our country. Instead of taking wise and matured counsel, parties to the matrimonial dispute, many a times motivated by malice and vengeance, misuse the adultery provisions. Though, as held by the Supreme Court in Shreya Singhal (2015), potential for misuse is not a ground to challenge a law, by doing away with the adultery provisions on all legally available grounds, the court has enhanced the scale of justice within Indian families while fencing the State out of consensual acts in the private sphere. The court has also globalised and liberalised Indian constitutionalism in a splendid way.

(The writer is a Supreme Court lawyer)