Case Comment: Joseph Shine vs. Union of India

Author: Ritika Dembla, a student at G.H Raisoni Law University, Amravati

Judges/Quorum – Dipak Mishra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu

Malhotra

Citation(s) – 2018 SC 1676

Abstract

The Supreme Court of India’s landmark judgment in Joseph Shine vs. Union of India represents a significant milestone in Indian legal history. This paper examines the implications of the court’s decision to strike down Section 497 of the Indian Penal Code and its application under Section 198(2) of the Code of Criminal Procedure. Through a comprehensive analysis of the case facts, legal contentions, and judicial reasoning, this study elucidates the constitutional principles underlying the verdict. The judgment addresses longstanding issues of gender discrimination and privacy infringement inherent in the criminalization of adultery. By invalidating Section 497, the Court upholds the constitutional guarantees of equality, dignity, and personal liberty enshrined in Articles 14, 15, and 21 of the Indian Constitution. The ruling reflects a nuanced understanding of evolving societal norms and recognizes the importance of individual autonomy in intimate relationships. Furthermore, this paper discusses the broader implications of the judgment on India’s legal landscape, emphasizing its significance in advancing gender equality and promoting progressive interpretations of fundamental rights. By contextualizing the decision within the framework of global legal trends, this study underscores its role in shaping future legal reforms and fostering a more just and equitable society.

Introduction

Adultery in India have historically reflected patriarchal and male-dominated societal standards, holding men criminally responsible for having sexual contact with another man’s wife but absolving the wife of culpability. The legislation also stated that if the husband consented to or connived in the act, it would no longer be considered adultery. This legal structure, based on ancient traditions, saw adultery as a moral offence committed by either a married man or woman. However, it portrayed women primarily as victims, duped into such activities by men.

Critics contend that Adultery in India violate key constitutional ideals such as equality, non-discrimination, and the right to live in dignity. Furthermore, these regulations have been criticized for gender discrimination and violations of private rights. Notably, around 60 countries, including South Korea, South Africa, Uganda, and Japan, have banned adultery as a criminal offence due to its discriminatory nature and violation of personal rights. Even Lord Macaulay, the architect of the Indian Penal Code, questioned the inclusion of adultery as a criminal offence, arguing that it would be better dealt as a civil wrong.

Recent judgements have expanded the scope of fundamental rights, owing to altering societal ideals and increased individual liberties. In alignment with these developments, a landmark judgment recently struck down a 158-year-old adultery law in India. This decision, which reflects evolving social and moral norms, represents a watershed point in legal history, recognizing the diminishing relevance of old rules in modern society.

Facts of the case

Joseph Shine filed a writ petition under Article 32, challenging the constitutionality of Section 497 of the Indian Penal Code (IPC) in conjunction with Section 198 of the Criminal Procedure Code (Cr. P.C.), alleging violations of Articles 14, 15, and 21 of the Constitution. Initially framed as a Public Interest Litigation (PIL) targeting adultery, the petitioner argued that the provision pertaining to adultery was arbitrary and discriminatory based on gender. The petitioner contended that such legislation undermines the dignity of women. Consequently, a constitutional bench comprising five judges was convened to adjudicate on the petition.

Issues

1. Is section 479 of the Indian Penal Code, 1860 constitutionally valid?
2. Is the law gender biased, since the offence was only considered when committed by a man and not a woman?
3. Should the woman of the offender be given a right to file a complaint for the act committed by her husband against the sanctity of their marriage?

Contentions

Petitioner

1. The counsel for the petitioner highlighted many areas of Section 497 that breached fundamental rights.
2. The counsel for the petitioner also mentioned the historical history of Section 497, claiming that the law was written during the British rule and has no relevance in present times.
3. The petitioner’s counsel argued that Section 497 and Section 198(2) of the CrPC contravene Article 14 of the Constitution by criminalizing adultery solely based on gender classification, lacking a rational basis to achieve its intended purpose. Furthermore, the counsel asserted that the provision disregards the wife’s consent, thereby violating Article 14.
4. The petitioner maintained that Section 497 reflects the antiquated notion of a woman being considered the property of her husband, with the provision stipulating that adultery is not committed if the husband consents.
5. The adultery provision exhibits gender discrimination by granting exclusive prosecution rights to men, thereby violating Article 15. Women lack the ability to file complaints if their husbands engage in extramarital relations, further exacerbating this gender bias.
6. The petitioner argued that the provision infringes upon a woman’s dignity by disregarding her sexual autonomy and self-determination, thus contravening Article 21. Additionally, engaging in consensual sexual activity falls under the Right to Privacy, and disclosing such private information would constitute a breach of Article 21.
7. Women are portrayed as objects under this provision, where the legality of the act hinges solely on the husband’s consent or lack thereof. This objectification underscores the discriminatory nature of the law.
8. The counsel additionally argued that the provisions contravened fundamental rights enshrined in Articles 14, 15, and 21 of the Constitution of India, citing their paternalistic and arbitrary characteristics.
9. It was further contended that since sexual intercourse involves mutual consent from both parties, both should be subject to punishment.
10. Moreover, the counsel asserted that every individual, regardless of marital status or gender, possessed an unrestricted right to engage in sexual activity, including extramarital intercourse.

Respondent

1. The respondents’ counsel argued that adultery, being an offense, disrupts family bonds, necessitating deterrent measures to safeguard the institution of marriage.
2. It was contended by the respondents that adultery adversely impacts spouses, children, and society at large, and as such, perpetrators of such acts should be held accountable for their actions.
3. Additionally, the counsel asserted that adultery, as a criminal offense, is morally repugnant to society, and all individuals engaging in such behavior should face penalties. The act, committed knowingly by an outsider, undermines the sanctity of marriage and familial relationships.
4. The defense of the provision against discrimination was grounded in Article 15(3), which permits the state to enact special laws for the protection of women and children.
5. Furthermore, the respondents’ counsel emphasized that adultery, being morally objectionable and causing harm to society members, warrants punishment and classification as an offense.
6. The counsel also argued that while the Right to Privacy and Personal Liberty guaranteed under Article 21 of the Constitution is not absolute and can be subject to reasonable restrictions in the interest of public welfare, engaging in sexual activity with a married person outside one’s marriage does not fall under the purview of privacy protection.
7. Additionally, the counsel contended that Section 497 served as a form of affirmative action benefiting women.
8. It was further argued that Section 497 acts as a safeguard for society against immoral activities that could undermine the institution of marriage, thus advocating against its annulment.

Case Laws

In the case of Yusuf Abdul Aziz v. State of Bombay (1954) SCR 930, the constitutionality of Section 497 was contested, with the argument that it contravened Article 14 and Article 15 by exempting wives from culpability even as abettors. A three-judge bench deliberated on the matter and upheld the validity of the provision, deeming it a special measure designed for the benefit of women and thus falling within the ambit of Article 15(3). The bench reasoned that Article 14 is a general provision that must be interpreted in conjunction with other articles, and that gender constitutes a legitimate classification. Consequently, when considering both provisions together, the bench deemed the provision to be constitutionally sound.

In the case of Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137, a petition was presented under Article 32 of the Constitution contesting the constitutionality of Section 497 of the Indian Penal Code (IPC). The challenge was predicated on the contention that the provision’s failure to grant women the right to prosecute the individuals with whom their husbands commit adultery renders it discriminatory. The three-judge bench presiding over the case upheld the validity of Section 497, asserting that the expansion of the scope of the offense falls within the purview of legislative jurisdiction rather than judicial mandate. It was argued that the gravity of the offense, likened to the dissolution of a family unit, warranted the imposition of punitive measures, thereby justifying the provision. Furthermore, the court acknowledged the provision’s premise that only men can commit adultery.

In the case of V. Revathi v. Union of India (1988) 2 SCC 72, the court affirmed the constitutional legitimacy of Section 497 in conjunction with Section 198, contending that this provision prohibits both spouses from prosecuting each other for adultery, thereby eliminating discrimination. It exclusively targets individuals external to the marital union who seek to undermine its sanctity. Consequently, the court characterized this provision as an instance of “reverse discrimination” in favor of the spouse rather than being prejudicial against them.

In the case of W. Kalyani v. State through Inspector of Police and another (2012) 1 SC 358, the issue of the constitutionality of Section 497 was not directly addressed. However, the judgment establishes that the appellant, being a woman, is entirely exempt from charges of adultery, thereby granting her immunity from prosecution for such an offense.

Decision

The Supreme Court rendered Section 497 of the Indian Penal Code (IPC) unconstitutional, citing violations of Articles 14, 15, and 21, and deemed Section 198(2) of the Code of Criminal Procedure (CrPC) unconstitutional in its application to Section 497. This landmark ruling overturned prior judgments that had upheld the criminalization of adultery.

In its ruling, the Court deemed Section 497 outdated and constitutionally unsound, as it eroded a woman’s autonomy, dignity, and privacy. The provision was found to encroach upon a woman’s right to life and personal liberty by perpetuating an unequal concept of marriage through the imposition of penal consequences based on gender disparities in relationships. Emphasis on the husband’s connivance or consent was deemed to subordinate the woman, leading to an imbalance in the relationship dynamics. The Court reaffirmed the notion of sexual privacy as an inherent right protected under the Constitution.

The judiciary found Section 497 to be in contravention of constitutional provisions, citing violations of Article 14, 15, and 21. The section was criticized for perpetuating gender stereotypes and undermining the principle of substantive equality by portraying women as unequal participants in marriage, devoid of independent consent in sexual matters. Furthermore, it was deemed violative of Article 21 for denying women their constitutional rights to dignity, liberty, privacy, and sexual autonomy.

Adultery, while no longer considered a criminal offense, was recognized as a civil wrong and a valid ground for divorce. The court asserted that criminalizing adultery encroached upon personal matters and infringed upon individuals’ privacy within the marital sphere. Justice D. Misra highlighted the intrusion into matrimonial privacy and the affront to the dignity and privacy of spouses resulting from criminalizing adultery, citing Article 21.

Justice D.Y. Chandrachud emphasized the right to privacy implicated by adultery, stressing the need to reject regressive societal attitudes that undermine individual autonomy and dignity. Referring to landmark cases, he underscored the importance of sexual autonomy as a fundamental aspect of personal liberty under Article 21. Similarly, Justice I. Malhotra argued for the protection of individual autonomy in intimate matters, stating that criminalizing adultery failed to meet the criteria for justifiable invasion of privacy outlined in previous judgments.

Overall, the judiciary concluded that Section 497’s criminalization of adultery infringed upon fundamental rights, including dignity, liberty, and privacy, and upheld the importance of individual autonomy in personal relationships within the framework of the Constitution.

Conclusion

The landmark judgment in Joseph Shine vs. Union of India by the Supreme Court of India marks a pivotal moment in legal history. The decision to strike down Section 497 of the Indian Penal Code and its application under Section 198(2) of the Code of Criminal Procedure underscores the court’s commitment to constitutional principles and protection of fundamental rights. The ruling exposes the outdated and discriminatory nature of Section 497, which undermined women’s autonomy, dignity, and privacy within marital relationships. By criminalizing adultery and perpetuating unequal standards, the provision violated constitutional guarantees of equality and dignity.

Furthermore, the judgment highlights the evolving interpretation of fundamental rights, particularly the right to privacy and sexual autonomy. By recognizing personal agency and freedom of choice, the Court reaffirms principles of justice and individual liberty.

In essence, the Joseph Shine case signifies a step towards a more equitable legal framework in India, aligning with global trends in decriminalizing adultery and promoting gender equality. The ruling sets a precedent for future legal reforms aimed at advancing social justice and protecting individual rights.