Daily Editorial Analysis

On re criminalising adultery (GS Paper 2, Polity and Constitution)

Why in news?

• Earlier, the Parliamentary Standing Committee on Home Affairs, examining the three new criminal law Bills set to replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act, recommended the criminalisation of adultery on gender-neutral lines.
• This comes after a five-judge Constitution Bench of the Supreme Court unanimously decriminalised adultery in 2018 on several grounds including discrimination.
• The Committee reasoned that adultery be criminalised in a gender-neutral manner on the ground that it is crucial to safeguard the sanctity of the institution of marriage.

What has the panel recommended?

• The Committee suggested that adultery be reinstated as a criminal offence, but be made gender-neutral, thereby making both men and women equally culpable under the law.
• The Committee also said that the revoked Section 497 of the IPC “only penalised the married man, and reduced the married woman to be a property of her husband.”
• In his dissent note to the three Bills, Congress MP and former Home Minister P. Chidambaram emphasised that interference by the State in the private lives of consenting adults must be avoided.

What is its legislative history?

• Lord Macaulay, instrumental in the early drafting process of the IPC, was not inclined to make adultery a penal offence, believing that a better remedy lay in pecuniary compensation.
• Distinguishing between a moral wrong and an offence, he wrote, “we cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent.”
• However, when the Court Commissioners reviewed the Penal Code, they believed it was important to make adultery an offence. The proposed section rendered only the male offender liable, keeping in mind “the condition of the women in this country” and the law’s duty to protect it.

42nd Report of Law Commission:

• In 1971, the Law Commission of India in its 42nd Report deliberated on the benefits of criminalising adulterous conduct.
• It noted, “though some of us were personally inclined to recommend repeal of the section, we think on the whole that the time has not yet come for making such a radical change in the existing position.”
• The Commission did, however, recommend an important amendment, removal of the exemption from liability for women. Such a recommendation was reiterated in its 156th Report, taking into account the ‘transformation’ society has undergone.

Malimath Committee:

• In 2003, the Committee on Reforms of the Criminal Justice System, known as the Malimath Committee, proposed in its report that adultery be retained an offence but on gender-neutral terms.
• It observed that the “..object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity.Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).”

Why was the earlier law repealed?

• A five-judge Constitution Bench of the Supreme Court led by then Chief Justice of India (CJI) Dipak Misra, and comprising current CJI D. Y. Chandrachud, and Justices A. M. Khanwilkar, R. F. Nariman, and Indu Malhotra, in Joseph Shine versus Union of India (2018), held that adultery is not a crime and struck it off the IPC. It, however, clarified that adultery would continue to remain a civil wrong and a valid ground for divorce.
• The inception of the proceedings date back to 2017 when Joseph Shine, a non-resident Indian, hailing from Kerala, filed a Public Interest Litigation (PIL) under Article 32 of the Constitution, challenging the constitutional validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
• The offence imposed culpability on a man who engaged in sexual intercourse with another man’s wife and was punishable with a maximum imprisonment of five years.
• However, the wife who had consented to sexual intercourse with a man, who was not her husband, was exempted from prosecution. The provision was also not applicable to a married man if he engaged in sexual intercourse with an unmarried woman or a widow.

Section 198(2) of the CrPC:

• Section 198(2) of the CrPC empowered only the husband (of the adulterous wife) to file a complaint for the offence of adultery.
• In July 2018, the Centre filed an affidavit in the case arguing that diluting adultery in any form would weaken the institution of marriage and that the ‘stability of a marriage is not an ideal to be scorned’.
• On September 27, 2018, the Bench pronounced a unanimous ruling in the form of four concurring judgments.
• Justice R.F. Nariman observed that Section 497 made a husband the ‘licensor’ of his wife’s sexual choices and that this archaic law does not square with today’s constitutional morality. He added that the offence perpetuates the gender stereotype that the ‘third-party male’ has seduced the woman, and she is his victim.
• Reiterating similar concerns, Justice D.Y. Chandrachud held that the criminalisation of adultery subjugated the woman to a position where the law disregarded her sexuality.
• Justice Indu Malhotra was categorical that the autonomy of an individual to make his or her choices concerning his/her sexuality in the private sphere should be protected from criminal sanction. She explained that adultery although a moral wrong qua the spouse and the family, does not result in any wrong against the society at large in order to bring it within the ambit of criminal law.

Can such a ruling be overturned?

• A ruling of the Supreme Court establishes a precedent and binds the lower courts to follow its dictat. However, the Parliament is well within its scope to overrule judicial rulings, but such legislative action will be considered valid only if the legal basis of the judgment is altered.
• Elaborating on this, the Supreme Court in Madras Bar Association versus Union of India (2021) held that “the test for determining the validity of validating legislation is that the judgment pointing out the defect would not have been passed if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. “
• In September 2023, a division bench of the Supreme Court in NHPC Ltd. versus State of Himachal Pradesh Secretary reiterated that the legislature is permitted to remove a defect in an earlier legislation, as pointed out by a constitutional court, and that laws to this effect can be passed both prospectively and retrospectively.
• However, the court cautioned, ‘..where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra-vires.’