The Supreme Court has recently agreed to reconsider the “archaic” provision of adultery under Section 497 of the Indian Penal Code (IPC) to ascertain whether it impinges upon the constitutional rights of the women by treating them as subordinates. Even though the constitutionality of such penal provision has been upheld by the Courts in a catena of decisions since 1954, it has become imperative to re-examine whether adultery should remain as a crime on the statute book with the ‘spring of new generation of thoughts’. More so, in light of the jurisprudence developed by the Supreme Court in the Right to Privacy judgment (Justice K.S. Puttaswamy v Union of India).
The crime of adultery, punishable with imprisonment upto five years under the IPC, is imbedded in the patriarchal philosophy of treating women as the properties of their husbands, making them devoid of any independent faculties and choices. Adultery, therefore, becomes a trespass upon the property of the husband, thus allowing him to get the ‘trespasser’ prosecuted for committing such “crime”. State interference is viewed as being justifiable on the ground that it is the responsibility of the State to preserve the sanctity of the institution of marriage and family. Indeed, criminalisation of adultery is considered to be a reflection of societal condemnation of such “offence”.
The decision of whether or not to criminalise adultery is a conflict between societal morality (saturated with the patriarchal ideas of subordination of women and resultant inequality) and the constitutional morality of liberty, personal autonomy, freedom and privacy.
I believe that the societal morality of adultery is based on the limited understanding of the constitutional directives. While declaring right to privacy to be a fundamental right, the apex court in the privacy judgment, unreservedly held that “privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life”. While acknowledging decisional privacy, the judgment upholds the cognitive decisions of every individual including “at its core the preservation of personal intimacies” – that is, the ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations.
Such view renders the provision criminalising sexual intercourse between two consenting and willing adults as being illegal and unconstitutional. The mutual decision of two agreeable adults to participate in sexual activity goes to the very core of the privacy jurisprudence and calls for removal of any restrictions on a person’s decision to participate or not participate in a sexual activity. Reference may also be made to Naz Foundation (2014), where the Delhi High Court had decriminalised Section 377 of the IPC relating to homosexuality on the ground that it “criminalised consensual sexual acts of adults in private”.
Though the Supreme Court had reversed the Delhi High Court decision on appeal, the larger bench of the top court in the privacy judgment did express its disagreement with such reversal.
It is true that adultery does undermine the institution of marriage and highlights that all is not well with the marital relationship. However, rather than treating adultery as a crime against the society at large and letting the State interfere in the private lives of individuals, the way out perhaps is to restrict adultery to civil cases having legal consequences, say, in divorce cases, the custody of children or the denial of alimony. Indeed, the idea of entailing civil liability in cases of adultery has been acknowledged by the Supreme Court in the case of Sowmithri Vishnu v Union of India (1985).
Thus viewed, it is so obvious that sexual decisions of an individual fall under that realm of personal liberty which commands no State interference. The Supreme Court’s decision to re-examine the constitutional validity of Section 497 of the IPC is a welcome step, and provides it with an opportunity to strike down this offensive provision as being inconsistent with constitutional principles and morality.
Kunika is a barrister and advocate at Supreme Court. Views expressed in this article are solely those of the author and do not necessarily represent the views of the publication.