In a not-so-surprising move, the Parliamentary Standing Committee on Home Affairs has recommended reinstating a provision to criminalise adultery in the Bharatiya Nyaya Sanhita (BNS) Bill, 2023 – a proposed law to replace the Indian Penal Code (IPC), 1860.
This comes five years after the Supreme Court struck down IPC section 497, which criminalised adultery, for being violative of Article 14 (equality), 15 (discrimination) and 21 (personal liberty) of the Indian Constitution.
In the Joseph Shine v Union of India case in 2018, the court had held that the state should not interfere in the private matters of consenting adults and that their choices in matters of personal relationships should be protected.
However, this week, the committee put the onus back on the state and said that the institution of marriage is considered sacred in Indian society – and there is a need to safeguard its sanctity. In the 246th report on the BNS, the committee argued that the revised adultery law must treat it as a "gender-neutral" crime.
Section 497 & 'Consent' Of the Husband
In 1956, a private member's bill titled Indian Penal Code (Amendment) Bill: Amendment of section 497 was moved to decriminalise adultery as an offence.
The moot point was regarding the equal treatment demanded for fairer sex keeping in mind the societal status and access that the women had during those times. The prevailing societal norms and assumptions about women's roles at the time influenced the debate.
Those advocating for holding only men accountable argued that they disrupted the sanctity of relationships. When this was debated, it was presumed that a woman stayed inside the confines of her house, and it was the man who chased her.
The criminal law, however, proceeds on gender-neutrality but in the provisions of section 497, the said concept was notably absent. Section 497 criminalised adultery and punished a man for engaging in sexual relations with a married woman “without the consent or connivance” of the husband.
It only granted the aggrieved husband to enforce the right, whereas if there was a wife of an adulterer in the equation, she had no rights to do so.
The immunity granted to the wife wherein she would not be punished as an abettor, showed a gendered character, which in turn raised a challenge ground of equal protection before law.
Why Did SC Decriminalise Adultery?
The decriminalisation of adultery, five years ago, was laid on the ground of principles of privacy set in Justice KS Puttaswamy vs Union of India, which emphasised on privacy as a facet of Article 21 of the Constitution, and on the dignity of an individual.
In the Joseph Shine vs Union of India judgment, the bench concluded what the framers of the Constitution had debated in 1956 on whether women can be considered equal while dealing with the impact of the law.
As per the Shine judgment, section 497 IPC created distinctions based on gender stereotypes, which creates a dent on individual dignity of women. With the emphasis on the 'connivance or consent of the husband', and therefore the same violated Article 21 of the Constitution.
While the court did enforce the interpretation of privacy principles as laid forth in Puttaswamy and they also left room for legislative action, allowing a more subjective interpretation based on the legislature's will and intent.
While adultery breaks a relationship, elevating it to a crime is crossing the line between the right the state has over the autonomy of an individual.
The Parliamentary Standing Committee's report effectively uses the wiggle room provided in the Joseph Shine case to retain adultery as a crime albeit making it gender neutral.
'Cannot Force a Relationship by Fear Or Punishment'
Marriage today has transformed from an institution binding two individuals to the one made for choice.
Elaborating on the individual autonomy in Shakti Vahini vs Union of India in the year in 2018, the apex court observed, “When two adults consensually choose each other as life partners, it is a manifestation of their freedom of choice guaranteed under Articles 19 and 21 of the Constitution.”
Individual freedom holds more importance as has been already laid down by various other landmark judgments of the court. Even the deliberations in back in 1956 have accepted that adultery has been left to the individuals and the social sanctions are way more effective than the judicial ones.
If the parties to the marriage have chosen to get out of the relationship and seek commitment or comfort elsewhere it has already created a dent in the marriage and the onus to decide the future course should only be on the parties how they deal with the situation.
Adultery is ground for divorce, but to retain it as crime, is presuming that it will deter the individuals from going outside the institution to forge relationships by choice. Individuals are not bound by the societal norms of treating marriage as once in a lifetime institution.
State or even individual husband or wife in the present scenario cannot enforce commitment in a relationship by fear of punishment.
While decriminalising adultery, the court did state that the right to privacy and personal liberty is not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved.
To put public interest and sanctity of marriage on the same pedestal is literally removing the concept of privacy of the individuals once they enter marriage as an institution.
Criminalise Adultery In Gender-Neutral Manner
The committee’s recommendations to retain the character of adultery as a crime is to elevate an individual wrong to that of wrong against the society.
Surely, the ones in the union suffer agony but its not a crime against society at large.
The union affected by that has recourse by way of divorce on the same grounds. Enforcing laws against adultery can be challenging and may lead to complicated legal situations.
Decriminalisation of the same shifts the emphasis from legal punishment to a focus on consent and the rights of individuals within a relationship This also aligns legal frameworks with the principles of personal autonomy and mutual agreement in adult relationships.
The journey from the 1956 debate to the Joseph Shine vs Union of India case reflects a dynamic interplay between societal norms, legal interpretations, and evolving perspectives on individual autonomy and privacy.
While the decriminalisation of adultery marks a significant milestone, ongoing discussions on retaining the same as crime underscore the delicate balance between protecting personal liberties and addressing societal concerns, particularly regarding the sanctity of marriage.
(Tahini Bhushan is partner at Tatvika Legal, a full service law firm based out of Delhi-NCR. The views expressed are the author’s own.This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)