Date : 5/12/2023

Relevance: GS Paper 2- Governance - Intervention by State

Keywords: IPC, CrPC, Parliamentary Standing Committee, Law Commission, Lord Macaulay, Section 497 of the IPC.

Context-

• In a recent development, the Parliamentary Standing Committee on Home Affairs, responsible for evaluating three proposed criminal law Bills aiming to replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act, has recommended the re-criminalization of adultery.
• This move comes in stark contrast to the unanimous decision by a five-judge Constitution Bench of the Supreme Court in 2018, which decriminalized adultery on several grounds, including discrimination.
• Here we explore the grounds on which the Committee suggests the re-criminalization, look into the legislative history of adultery laws in India, and scrutinize the arguments both for and against this controversial proposal.

Committee's Rationale for Recriminalization

• The Committee's report proposes reinstating adultery as a criminal offense but with a significant twist – making it gender-neutral.
• This implies that both men and women would be equally culpable under the law. The core argument revolves around the perceived need to safeguard the sanctity of the institution of marriage.
• According to the report, the previous Section 497 of the IPC, which was revoked in 2018, only penalized the married man, effectively reducing the married woman to the status of her husband's property.
• The Committee contends that criminalizing adultery in a gender-neutral manner is crucial for upholding the sacredness of marriage in Indian society.

Opposition Perspectives

• Opposition Members of Parliament (MPs) counter this stance, asserting that elevating marriage to the level of a sacrament is outdated.
• They argue that the state should not intrude into the private lives of consenting adults.
• Former Home Minister P. Chidambaram, in his dissent note to the proposed Bills, emphasizes that adultery should not be treated as a crime but rather as an offense against the marriage compact, which can be addressed through civil remedies such as divorce or damages.
• The debate hinges on whether the state has a legitimate role in regulating the private affairs of couples.

Legislative History of Adultery Laws in India

Lord Macaulay's Influence

• The roots of adultery laws in India can be traced back to the early drafting process of the IPC under the influence of Lord Macaulay. Initially, Lord Macaulay was reluctant to criminalize adultery, favoring pecuniary compensation as a remedy.
• However, Court Commissioners reviewing the Penal Code deemed it necessary to make adultery an offense, with the proposed section holding only male offenders liable, considering the societal context of that time.

Law Commission's Deliberations

• In 1971, the Law Commission of India, in its 42nd Report, contemplated the advantages of criminalizing adulterous conduct.
• Despite some members leaning towards repealing the section, the Commission concluded that the existing position should not undergo a radical change at that time. Notably, there was a strong dissent advocating for the repeal, questioning the compatibility of Section 497 with contemporary notions of women's status within marriage.
• In 2003, the Malimath Committee recommended retaining adultery as an offense but proposed gender-neutral terms. The committee emphasized the objective of preserving the sanctity of marriage and argued that society condemns marital infidelity, warranting equal treatment for both spouses engaging in extramarital relationships.

Revocation of Section 497

• The turning point came in 2018 when a five-judge Constitution Bench of the Supreme Court, led by then Chief Justice Dipak Misra, unanimously struck down Section 497 of the IPC.
• The court declared adultery as not constituting a crime while affirming its status as a civil wrong and valid grounds for divorce.
• The decision was a response to a PIL filed by Joseph Shine, challenging the constitutional validity of Section 497 and Section 198(2) of the CrPC.

Arguments Leading to Decriminalization

Privacy and Autonomy

• The Supreme Court's decision in Joseph Shine versus Union of India underscored the importance of privacy and autonomy in marital relationships. The court argued that treating adultery as a crime would entail significant intrusion into the private sphere of matrimonial life.
• Justices highlighted that criminalizing adultery perpetuated gender stereotypes and treated married women as the property of their husbands.

Criticisms of Section 497

• Section 497 faced criticism for its inherent gender bias, exempting women from prosecution and empowering only the husband to file a complaint.
• The court's decision aimed to rectify these imbalances, asserting that the autonomy of individuals to make choices concerning their sexuality in the private sphere should be protected from criminal sanctions.

Contemporary Constitutional Morality

• The judgments emphasized the need to align laws with contemporary constitutional morality, rejecting archaic notions that undermined the autonomy and dignity of individuals.
• The court's decision was a significant step in recognizing the evolving societal norms and understanding the private nature of marital relationships.

Challenges in Reversing the Decriminalization

Precedent and Legislative Authority

• While the Supreme Court's decision establishes a precedent, the Parliament retains the authority to overrule judicial rulings through legislative action. However, such action would be valid only if it addresses the legal basis of the judgment.
• The court, in the Madras Bar Association versus Union of India (2021) case, established criteria for validating legislation, emphasizing the necessity of curing defects identified by the court.

Prospective and Retrospective Legislation

• The court has acknowledged that the legislature can pass laws to rectify defects in previous legislation, both prospectively and retrospectively.
• However, a cautionary note highlights that mere validation without addressing the identified defects renders subsequent legislation ultra vires.

Conclusion

In the ongoing debate over the re-criminalization of adultery, India finds itself at the crossroads of tradition and modernity. The Committee's recommendation to criminalize adultery on gender-neutral lines challenges the narrative of individual autonomy and privacy established by the Supreme Court in 2018. As the nation grapples with these conflicting perspectives, the outcome will not only shape the legal landscape but also reflect the evolving societal norms regarding marriage, autonomy, and individual rights.

Source- The Hindu