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If we can learn one thing from the judgements that recently struck down section 497 of the Indian Penal Code which considered adultery a criminal offence, section 377 which prohibited ‘carnal intercourse against the order of nature’, and the judgement that established right to privacy as a fundamental right of the Indian Constitution, it is that law can no longer be seen as the perfect embodiment of justice. Laws often deny justice to those who do not adhere to the majoritarian ideals of our society. The judgements demonstrate that justice often lies at the threshold of law. Different people negotiate that threshold in different ways, thereby constantly altering the notions of legality and right. Our regressive and patriarchal Indian society has, since time immemorial, ensured that negotiating the threshold between justice and law proves to be difficult and sometimes nearly impossible for some – namely, women, dalits, Muslims and the LGBTQ community of our country, among others. By declaring the sections unconstitutional, the judgements upheld the values enshrined in the Indian constitution – the values of our right to equality and the right to personal liberty, autonomy and dignity – values that form an indivestable core of our very being as citizens. As advocate Maneka Guruswamy rightly notes, ‘The beauty of the Constitution is that it compels us to unlearn our prejudices.’ So, in order to understand how it compels us to unlearn our longstanding prejudices, especially those exposed in the judgement that struck down colonial-era law that criminalised adultery, in the following section, we attempt to closely read the judgement.
What is Section 497?
Section 497 of the Indian Penal Code states:
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
In other words, it would penalise a man for having sex with the wife of another man. However, the man can be exonerated if the sexual act is performed with the ‘consent’ or ‘connivance’ of the husband. The provision exempts the wife from any kind of punishment and emphasises that she should not be treated as an abettor. However, the same section does not have any provision to allow the wife to charge adultery or file a complaint against her ‘adulterous husband’.
The judgement not only questions adultery but raises several other pertinent questions and issues that we, as citizens, should take cognisance of. It emphasises sexual autonomy, highlights the strength of the transformative nature of our constitution, questions the sanctity of the age-old institution of marriage, regressive family ‘values’ and ideas of conjugality, and upholds right to privacy among other things. The overall background of adultery provisions and the state’s rationale for upholding the same betrays notions of pervasive gender biases and systemic discrimination. The judgement decriminalises consensual sex between two consenting adults while retaining adultery as a valid reason or ground for seeking a divorce. If any particular act of adultery leads to the suicide of the aggrieved spouse, such cases would be tried for abetment of suicide under section 306 of the IPC. Misra notes, ‘There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage’ before emphasising that the pivotal question for him remains that whether ‘adultery’ can be treated as a criminal offence.
The Law and its Colonial History
On 27 September 2018, a five-judge bench of the Supreme Court of India comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra 2018 struck down the 158-year-old archaic law, deeming it unconstitutional. They further added that the section is ‘arbitrary and violative of Article 14 (right to equality) of the Constitution.’
CJI Misra notes that section 497 reinforced the long-standing prejudice about women’s subordination to their husband and violated their right to dignity, which is, in turn, seen as a violation of Article 21 of the Indian constitution – Justice Nariman draws from the Preamble to the Constitution of India and notes that the ‘dignity of the individual is a facet of Article 21 of the constitution.’ He further notes that section 497 as a ‘statutory provision belonging to the hoary past… demeans or degrades the status of a woman which falls foul of modern constitutional doctrine.’
Justice Indu Malhotra delves into the history of the legislation to define the regressive notion adultery that emerged from the historical context of Victorian morality, ‘where a woman is considered to be the property of her husband; and the offence was committed only by the ‘adulterous man’. The ‘adulterous woman’ could not be proceeded against as an abettor, even though the relationship was consensual because women were not understood as individuals in their own right but one who belonged to another man.’ Drawing from Uma Chakravati’s Gendering Caste Through a Feminist Lens(2003), Justice Malhotra notes,
Indo-Brahmanic traditions prevalent in India mandated the chastity of a woman to be regarded as her prime virtue, to be closely guarded to ensure the purity of the male bloodline. The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her purity in order to ensure the purity of his own bloodline.
The first draft of the Indian Penal Code brought out by the Law Commission of India in the year 1837 did not include adultery as a criminal offence because Lord Macaulay was of the opinion that ‘adultery or marital infidelity was a private wrong between the parties, and not a criminal offence.’ But the second report reinstated adultery as a criminal offence because the law commissioners feared that in the absence of a law, the ‘native’ husband, in order to avenge his wife’s betrayal, would want to take matters into his own hands and inflict greater violence on the wife and the man. In order to pre-empt such violence among the ‘natives’, adultery was included as an offence. They also reasoned that adultery, if not treated as a criminal offence, may give sanction to immorality. The colonial nature of the law is visible in their perception of the Indian society as inherently ‘immoral’ comprising hapless women who need to be saved from brutish native men. The following excerpt from the second report where they argue against the punishment of women for the offence will prove this point:
… The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still young. They are often neglected for other wives while still young. They share the attention (sic) of a husband with several rivals… We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy…
In a bid to reduce the ‘suffering’ of women, they took away their right to speak and assert their singular autonomy in instances of ‘adultery’.
Transformative Constitutionalism: Towards a Progressive Jurisprudence upholding Sexual Autonomy
With respect to the concern that the striking down of section 497 might pose a threat to the moral sanctity of the institution of marriage, Misra notes,
… a constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach… To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men…
Justice D Y Chadrachud, on the other hand, refers to the recently established fundamental right to privacy, foregrounds the question of sexual autonomy. He notes that ‘the right to sexual autonomy and privacy has been granted the stature of a Constitutional right.’
He further adds that the law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman. His wife is not regarded by the law as a person whose agency and dignity are affected. The rationale behind this is that a single woman (unlike a married woman) is not the ‘legal’ property of (another) man. In saying so, he emphasises the necessity to recognise and respect the autonomy, and more importantly, the sexual autonomy of a married woman. The most direct corollary of this is the recognition of the fact that consent to marry does not equate consent to sex, and the acknowledgement of sexual violence in marriage, especially marital rape.
In an argument that is markedly different from the other judgements, Chandrachud highlights the discursivity of law. He points out that law is not bereft of the society but the two are, as he notes, “intrinsically connected and oppressive social values often find expression in legal structures. The law influences society as well but societal values are slow to adapt to leads shown by the law. The law on adultery cannot be construed in isolation…every legislative provision must be understood as a ‘discourse’ about social structuring.’ He draws from Spivak (1990) and writes, ‘The idea of neutral dialogue is an idea which denies history, denies structure, denies the positioning of subjects… In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far.’
He emphasises that the absolute recognition of the role of law and society in the lives of women will also to prevent patriarchal social values to permeate legal norms in order to further obstruct the exercise of constitutional rights by the women of our country. He writes that the adultery provision discriminates on grounds of sex, reinforces stereotypes about women’s sexual agency, and gender roles within the family.
Moreover, he puts forth some important remarks about the public-private divide in constitutionalism, opening up the known ‘private sphere’ of the family for scrutiny. One must necessarily apply constitutional norms to and within the family structure, he adds, ‘therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny.’ He adds that the enforcement of forced female fidelity by curbing sexual autonomy is an affront to the fundamental right to dignity and equality.
Justice Indu Malhotra further adds that the ‘time when wives were invisible to the law and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereotypes in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.’ The law prevents married women’s right to prosecute for marital infidelity, which, according to Justice Malhotra is not only discriminatory against women but also violative of article 14 ‘which irradiates anything which is unreasonable, discriminatory, and arbitrary.’ Section 497 fails to consider both men and women as equally autonomous individuals in society and perpetuates the oppression of women. The judges struck down section 497 arguing that it is a form of “protective discrimination” and therefore, unsustainable in law, a law violative of Articles 14, 15 and 21 of the Constitution.
Can the (married) woman speak?
If there is one lesson to be learnt from Spivak’s well-known, but often misread essay ‘Can the Subaltern Speak?’ where she writes about the mysterious circumstances of Bhuvaneshwari Bhaduri’s death by hanging, it is to pay attention to the performative force of the question of the essay’s title and to resist the urge to immediately establish answers. This important lesson can further help us make sense of this colonial-era law and interpret the judgement that struck down this law, more accurately. In a bid to save women from native men, the law made it impossible for women to have their say and assert their singular autonomy by first speaking about their experience. In their defence of women and their argument against the offence of women, the colonial law commissioners ended up reinforcing the same patriarchal structure in the legislation that had kept them from speaking in the first place. One may argue that the decision to strike down section 497 is a judgement informed by the performative force of the question ‘can the (married) woman speak?’. It compels us to forsake our neutral view-point towards history where women have been denied the right to speak and to assert their autonomy; think of answers as possibilities and promises for the future of Indian women.