Decriminalising Adultery?

Yesterday, the Supreme Court issued notice in a petition challenging the constitutional validity of the Indian Penal Code. Section 497, titled adultery, provides that:

“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.”

The petition also challenged Section 198 of the Code of Criminal Procedure, which states, in relevant part:

“… no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code.”

It should be immediately obvious that these sections do three things. First, the offence of adultery applies only to the man committing adultery. Secondly, a woman committing adultery is not even deemed to be an “abettor” to the offence. And thirdly, the power to prosecute for adultery lies only with the husband of the woman.

Taken together, the underlying logic of these provisions is straightforward. In making only the man, and not the woman, liable for adultery, they are founded upon sexual stereotypes that attribute sexual agency only to men, and sexual passivity to women (or, in simpler language, men are the seducers (and therefore criminally liable), while women are the seduced). And in making the husband the only person who can prosecute for adultery, they are founded upon the idea that, in a marriage, the status of the wife is akin to that of the property of the husband.

As I have argued before, for these reasons, Section 497 is a textbook case of unconstitutional sex discrimination, and invalid under Article 15(1) of the Constitution (prohibition of discrimination on grounds of sex). The problem, however, is the judgment of the Supreme Court in Yusuf Abdul Aziz, which upheld Section 497 by invoking Article 15(3) of the Constitution, which states that:

“Nothing in this article shall prevent the State from making any special provision for women and children.”

In Yusuf Abdul Aziz, the Supreme Court held that in granting immunity to women from criminal liability for adultery, Section 497 was a “special provision” for their benefit, and therefore valid despite being potentially discriminatory under Article 15(1).

There are at least two reasons why the Supreme Court’s judgment was incorrect. First, the Court failed to note that Article 15(3) was not a free-standing provision in the Constitution. It was a sub-set of Article 15, which deals with discrimination. The purpose of Article 15(3), therefore, is not to give a carte blanche to any law that might provide tangible or material benefits to women, but to sanction laws that accord favourable treatment to women in order to achieve substantive equality and remedy existing discrimination. The immediate example that comes to mind is that of affirmative action, where there is a tangible link between favourable treatment, and achieving substantive or genuine equality. While the question of whether a particular law or executive action falls within the ambit of remedial action can often be a question of debate (see, for example, this judgment of the South African Constitutional Court), it seems obvious that  the immunity for women under Section 497 is in no sense a remedial law, designed to or serving the goal of, remedying past discrimination or achieving substantive equality.

Secondly, the Supreme Court failed to notice that even though the law ostensible benefited women by providing them with a tangible benefit (immunity), it was based upon a set of assumptions that were deeply discriminatory (see above). Consequently, not only did Section 497 discriminate against men (which was the only argument considered by the Court), but in actual fact, it discriminated against women as well. Such discrimination, even if not clearly unconstitutional in 1954, when the case was decided, is certainly unconstitutional after the 2007 judgment of Anuj Garg, where the Supreme Court made it clear that laws ostensibly for the benefit of women, but which were based on sexual stereotypes, were unconstitutional.

The constitutional case against adultery, therefore, appears to be unanswerable, and the Supreme Court’s decision to issue notice means that the only possible hurdle – refusing to reconsider Yusuf Abdul Aziz (and subsequent cases) on the grounds of stare decisis – has been surmounted.

However, in some of the reports over yesterday and today, the case has been pitched not as being about striking down adultery, but about upholding it and making it gender-neutral. On this view, the Court will simply hold that women can also be made criminally liable for adultery, and in this way, “cure” the constitutional defect.

There are a number of reasons why this is unlikely.

First, the petitioners themselves have only asked that the section be struck down. There is no prayer in the writ petition that asks for retaining the provision, while making the provision gender-neutral. In fact, the petition itself argues that not only is S. 497 discriminatory against men, but is also discriminatory against women (for the reasons I’ve discussed above).

Secondly, making Section 497 gender-neutral would essentially amount to rewriting it in toto, something that a Court is not competent to do. Recall that Section 497 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…”

Now, while Section 13 of the General Clauses Act lays down a default rule (subject to context) that the masculine gender is taken to include the feminine, the reverse is not true. In other words, while – in general – a statute using the word “man” can be read to include “woman”, in Section 497, “wife” cannot be read to include “husband.” Furthermore, in any event, the context of Sections 497 and 198, read together, makes the gendered nature of the provision abundantly clear: both the words, and the legislative intent, signify that the section is not, and was never meant to be, gender-neutral. The only way the Court can make it so now is by rewriting it altogether.

It has been argued, however, that the Court might simply strike down the last sentence – “in such case the wife shall not be punishable as an abettor” – creating a legal regime where the man is tried as the primary offender, and the woman as the secondary offender.

While it is, of course, possible to do this, it would be entirely illogical. If the reasoning of Yusuf Abdul Aziz was to apply, then the entire section would have to be held constitutional under Article 15(3). On the other hand, if the Court was to strike it down – and the only way it could strike it down was by applying the anti-stereotyping analysis – then only striking down the last sentence would in no way cure the constitutional defect. Making women secondarily liable for adultery perpetuates and endorses the exact same stereotypes about gendered sexual agency as exempting them from liability altogether.

Consequently, there are only two realistic options before the Court: follow Yusuf Abdul Aziz and uphold Section 497, or strike it down on the basis of Anuj Garg’s anti-stereotyping analysis. There’s no middle course of “levelling up” or striking down just the last sentence.

In fact, the order issuing notice demonstrates that the Court is likely to follow the latter course. The order states, in relevant part:

Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

It’s clear that the Court is thinking along the right lines. All that is left is a reasoned judgment striking down this “quite archaic” provision.

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1 Comment

Filed under Article 15 (general), Equality, Non-discrimination

One response to “Decriminalising Adultery?

  1. Shreyas Shridhar

    Sir, if the Court goes with the option of decriminalising adultery all-together, then won’t it give license to married couples to engage in coitus outside their married life? What sort of penal punishment will then be available? Won’t amending Section 497 be a better option?

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