[dropcap]O[/dropcap]n August 1, the five-judge Constitutional bench — comprising of Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra — commenced hearing on the challenge to Section 497 of Indian Penal Code and Section 198 of Criminal Procedure Code, both of which criminalise adultery. Today, August 2, was the second day of hearing. Advocates Kaleeswaram Raj, Meenakshi Arora and Sunil Fernandes argued for the petitioners and the intervenors against criminalisation of adultery, in which a man is jailed for a maximum of five years for having sexual intercourse with a married woman. All of them argued that penalising adultery was akin to treating women as chattel — or, property of men.
Kaleeswaram Raj: Why criminalise consensual sex?
The argument commenced at 11:30 am with advocate Kaleeswaram Raj arguing on behalf of his petitioner, Joseph Shine, saying that the issue of adultery is historically and politically significant. Quoting Deborah L Rohde, he said adultery might be a wrong but imprisoning a person for the act of consensual sex is worse. He said: “The question this constitutional court will face today is quite specific and narrow. The question is whether it is permissible for the state to impose criminal law and send someone to jail merely because they engage in consensual sex.”
He pointed to the fact that adultery as ground for divorce already exists in all personal laws. But there is no compelling state interest or a valid rational behind the state to penalise an act of consensual sex between adults. By engaging in consensual sex, two persons do not infringe on any protected rights of others, but by jailing them for that, the state does interfere with the constitutionally protected rights of the citizens.
DY Chandrachud J remarked that idea of adultery is to protect the sanctity of marriage. “If a married man has sex with unmarried woman it is not adultery but does it still not affect sanctity of marriage?”, he questioned.
Criticising Section 497 of Indian Penal Code, Raj said that if an act was committed with consent and connivance of the husband, it is not offence. Upon which Justice Chandrachud said, “If we apply the doctrine we would be enhancing the severity of the offence. And I am not sure if the doctrine should be applied to make the offence more sever.”
Raj went on to the say that “a penal provision cannot rest on popular morality or society’s perception about morality”.
Reminding the bench of what Dr B R Ambedkar said in the Constituent Assembly on constitutional morality not being a natural sentiment, Raj added that in India, it is something to be cultivated. Raj continued to say that decriminalisation of the consensual sex between two adults irrespective of their marital status is thereof, in essence, a plea for substitution of constitutional morality for popular morality.
Justice Nariman evoked Macaulay who himself did not want it to be a part of Indian Penal Code in the first draft. South African Supreme Court also struck down the provision for adultery. Even Justice Chandrachud pointed to the peculiarity of the provision on IPC. He said, “Without consent or connivance of the husband, the woman is committing adultery, but if there is connivance of the husband, then the act of connivance ensures that there is no adultery. This is peculiar.”
Justice Indu Malhotra further opined that it is a gender-biased law which considers women like chattel.
Moral judgments are not the business of law. Adultery is a violation of Articles 14, 15, 21 of the Constitution. It infringes on the right to privacy which will include the right to sexual privacy. State doesn’t have a legitimate interest to punish the citizens for this
Raj further said: “Moral judgments are not the business of law. Adultery is a violation of Article 14,15,21 of the Constitution. It infringes on the right to privacy which will includes the right to sexual privacy. State doesn’t have a legitimate interest to punish the citizens for this.” He quoted the Law Commission report (1957) which states, “the provisions violate Articles 14 and 15 of the Constitution. Those, while being discriminatory against men, are also gender biased as those treat women as mere chattel. It reflects an erroneous notion regarding the “conditions of women in the country”.
Breaking down the provision of Section 497, advocate Raj said, “Firstly, S. 497 of the IPC criminalises sexual intercourse with a married woman. It does not cover sexual intercourse with an unmarried woman. Secondly, if the act is conducted with the consent of husband of the married woman, then the act is no longer an offence of adultery. Thirdly, only men can be culpable and punished under the said provision going by its very definition. Women are excluded from punishment, even as abettors.”
Raj further stated that the provision is convoluted, ironical and paradoxical. It violated the rights of men under Article 14 and 15. Further Article 14 permits reasonable classification i.e. (i) classification based on “intelligible differentia” (ii) that intelligible differentia must have a rational nexus to the object sought to be achieved. Adultery and marriage had no rational nexus. This was argued by all the lawyers.
In repose to which Justice Nariman said, “Not all men. Certain kind of married men. Married man who has something to do with unmarried woman would be excluded.”
Chief Justice of India, Deepak Misra opined, “When there is connivance or consent, there is manifest arbitrariness. You have built on that. Parties engaged in adultery derive the benefit of the same act. One is treated as a victim and another as accused. There is no rationale behind this.” He further said that women do not become abettor because of Article 15 (3), adding that the institution of marriage is built on two pillars. Everybody should be equally responsible.”
Amidst all the argument, the courtroom burst out in laughter when Justice Nariman commented that widows live much longer than widowers.
CJ says connivance and consent are absolutely not acceptable in Law.
Chandrachud J says offence of bigamy is gender neutral but in 497 is not. 497 discriminates against women because it limits sexual freedom of married women but not that of a married man
— The Leaflet (@TheLeaflet_in) August 2, 2018
Chief Justice further said that the offence is basically a confused one, adding that connivance and consent are absolutely unacceptable in law. He called it a “tripartite jungle”. Justice Chandrachud added that bigamy is gender-neutral and doesn’t use the same yardstick as 497. He added that he was not saying that Section 494 is unconstitutional. Commenting on it, Chief Justice Misra, a said section 494 entails permanent relationship, Section 497 does not. Justice Chandrachud responded saying, “I know of a couple that is not married for 40 years and have children. Please look at it from a different perspective.” Justice Chandrachud went on to say, sexual intercourse when marriage is subsisting is not a cause but the sign that marriage has already broken down.
Post lunch, advocate Kaleeswaram Raj talked about sexual autonomy of women, but Chief Justice, Dipak Misra did not entertain it. Quoting Lawrence V. Texas, Raj made an argument that the views on marriage differ to which Chief Justice Misra responded, “Lawrence was rendered in a different context. Please don’t attack the institution of marriage.”
[Read the Written Submissions of Advocate Kaleeswaram Raj.]
Meenakshi Arora: Origin of adultery lies in seeing women as property
Next, Advocate Meenakshi Arora commenced on behalf of the intervenor- Partners for Law in Development.
She began her arguments tracing the history of the origin of the law in question. She said: “The idea of such a law emerges from the fact that women were considered the property of men. If a third person steals the property, the man owning it is allowed to sue the third party. So is the case with adultery.”
She argued that moral responsibility cannot be a ground to make adultery a criminal offence. Chastity of women was regarded to be to very important to protect the male heir line. Only father had the right to permit man to have intercourse with her. She goes on to example how in 14th – 15th century, if a woman was abducted, she was forced to marry the man who abducted her. Then wealthy families prompted statute of rape, so that property of a father or husband doesn’t go to the perpetrator. That didn’t consider whether the act was voluntary or was rape.
Quoting Uma Chakraborty, Arora told the court that Brahmanical ideas maintained land, woman and spirituality (and rituals). She further said that purity of caste couldn’t be guarded without protecting the purity of woman. Without pure caste line, purity of rituals couldn’t be protected. Manu reserved the highest punishment to a wife who violates her duty to her “lord”. Initially, it was spiritual offence against God. Arora cited Blackstone where he says, a man killing the adulterer was manslaughter and not murder because it was the highest invasion of property.
To which Justice Nariman said since manslaughter was equal to culpable homicide and not murder, the “provocation” was the only grave error Nanavati made (of the infamous Nanavati case in the 1950s), to which the courtroom saw much laughter.
Next, Meenakshi Arora pointed out that adultery still has a similar kind of mindset even today. Women are denied custody and maintenance on this notion. Arora asserted that adultery should be struck down on the single premise that woman is not a property of man. On what basis can an offence survive that thinks of woman as a property.
Justice Nariman said with the passage of time, this provision has become arbitrary. Justice Chandrachud pointed to the fact that Justice Chagla had opined that the provision was archaic and left it to the legislature. Justice Chandrachud added that saying it’s not a crime does not amount to saying that it is morally proper. He further says that the fact that the law has not made something criminal is not a license for people go indulge in it. Similarly, decriminalisation of adultery is not licensing adultery.
Agreeing to which Arora says, in any case there is a civil liability as a ground for marriage.
Arora argued that most of the progressive countries have repealed such reactionary laws. Arora cites portions of Puttasamy judgment (privacy) authored by justice Chandrachud where he says intimate relationship and family life is an apt illustration of individual privacy. Chief Justice Misra intervened now, saying as far as the criminalisation of act is concerned, it is different. He asked Meenakshi Arora if she was suggesting that criminalisation would negate adultery as a ground for divorce? To which Arora said no.
Justice Chandrachud added that adultery as a ground for divorce can be viewed as ground for reasonable restriction. So this wouldn’t mean that there is no sexual autonomy. It would only mean there are valid limits to one’s sexual autonomy. Adding to which Chief Justice Misra said that exercise of choice needs to be understood. Man and woman enter into consensual relationship. That choice can’t become a right.
Meenakshi Arora argued that harm as result of adultery is not suffered by society at large but the spouses alone. In her closing argument she pointed to the fact that Guatemala has also struck down a similar provision.
[Read the Written Submissions of Advocate Meenakshi Arora.]
Sunil Fernandes: Criminalising adultery violates Article 14 and 21
Advocate Sunil Fernandes, on behalf of Awaaz-E-Niswaan, Akshara, Sandhya Gokhale and Chayanika Shah — intervenors in this matter — made the argument that there were provisions in all marital laws for divorce on the grounds of adultery. He questioned the Union of India’s argument on Section 497 protecting the “sanctity of marriage”. He said that when men are allowed to have sexual relationships outside marriage, the idea that Section 497 protects the sanctity of marriage is misconceived. “Moreover, if the husband “consents”, then intercourse of a man with that husband’s wife is not Adultery. This too is inimical to the sanctity of marriage”, Fernandes stated.
Fernandes further said that Section 497 denies women autonomy, self-determination and respect, which a liberal democratic constitutional regime cannot countenance.
Pointing to National Crime Records Bureau’ (NCRB) data, Fernandes said that Section 497 lacks deterrence value. No empirical data has been collected by the NCRB of Section 497 prosecutions. Responding to this Justice Nariman quipped, “must be very low”.
Next, Fernandes quoted various judgments and Articles of CEDAW, that secure status of a woman with respect to right to privacy, freedom of choice and autonomy. To which Chief Justice Dipak Misra questioned Fernandes if making adultery a criminal offence is unconstitutional. CJI MIsra asked Fernandes: “Are you contending that a married woman has a choice to fall in love outside marriage? Acknowledging that such a thing is happening and as a right is different.” However, Justice Nariman pointed that treating a married woman like chattel would affect her right to dignity.
Responding to which Sunil Fernandes said, recognition of her dignity would not affect other civil wrong provisions. Justice Nariman countered saying that if you got married, you will have certain restrictions, to which Fernandes responded, “Striking down (Section 497) doesn’t mean you are endorsing it (adultery).”
Advocate Fernandes further argued that court should strike down adultery not only on the basis of Article 14 but also under Article 21 so that the state may not come up with a law making adultery gender neutral. Chief Justice Misra opined that anything affecting the dignity may invite Article 21. It was then Justice Chandrachud commented that marriage didn’t mean there was always sexual consent and that women (and men) should have right to say “no” even within marriage, thereby foregrounding the question of consent within marriage. Thus, an interesting link between criminalising adultery and resistance to criminalization of marital rape was found, which lay in the consent of the married woman and her right to have sex of her own volition, with a partner of her choice.
Advocate Sunil Fernandes concluded his argument saying gender equality formed the basic structure of our constitution, and Section 497 was in clear violation of that fundamental principle.
Read the Written Submissions of Anand Grover.
Read the Submissions of Sunil Fernandes.
[Editor’s note: Senior Advocate Anand Grover could not be present during the Days 1-2 of the constitutional bench case hearing on adultery. Sunil Fernandes argued on behalf of Grover as well.]
With inputs from Priyam Cherian and Aanchal Singh.