RECREMANILISING ADULTERY

• Introduced on August 11 in the Lok Sabha to revamp colonial-era criminal laws, the Bills underwent scrutiny by a 31-member Parliamentary Standing Committee, led by BJP MP Brij Lal. After consulting experts, the Committee, in a November 7 report, faced Opposition MPs' dissent, highlighting errors and suggesting over 50 changes. The dissent notes emphasized the lack of diverse expert opinions, questioned the rushed introduction, and criticized the new legislation as a 'copy-paste' of existing laws.
• The Committee recommended the gender-neutral criminalization of adultery to protect the sanctity of marriage, arguing for its reinstatement as a criminal offence. Opposition MPs, in disagreement, deemed it outdated to elevate marriage to a sacrament, asserting that the State shouldn't intrude into private lives.
• In a 350-page report, the Committee proposed making adultery a gender-neutral offence, considering marriage sacred and aiming to rectify the previous Section 497's gender bias. Dissenting, Congress MP P. Chidambaram opposed State interference in private lives, arguing that adultery should not be a crime, emphasizing the compact between consenting adults, and stating that the State has no role in punishing alleged wrongdoers.

3. History of Adultery in Indian Law

Adultery was introduced as a criminal offence in the Indian Penal Code (IPC) when it was enacted in 1860, reflecting the prevailing social and religious norms of the time.

• Hindu Marriage: In the absence of divorce laws for Hindus, adultery was seen as a violation of the sanctity of marriage, which was considered a sacrament.
• Lord Macaulay's Perspective: Lord Macaulay, involved in drafting the IPC, believed that adultery should not be a criminal offence but should be addressed through civil remedies. He argued that the law should not punish acts based solely on morality.
• Court Commissioners' Review: The Court Commissioners, tasked with reviewing the IPC, felt that adultery should be criminalized, but only the male offender was held liable, considering the prevalent societal views and the need to protect women.
• Law Commission's Deliberations: The Law Commission of India in 1971 discussed the need for criminalizing adultery. While some members favoured repealing the provision, others believed it was premature. However, a notable dissent by Anna Chandy advocated for removing adultery as an offence, considering the evolving status of women.
• Malimath Committee's Recommendation: The Malimath Committee in 2003 proposed retaining adultery as a gender-neutral offence, emphasizing the need to treat both spouses equally in cases of marital infidelity.

• In the 2018 case of Joseph Shine v. Union of India, a five-judge Constitution Bench, led by then Chief Justice Dipak Misra, declared adultery non-criminal under the IPC while affirming its status as a civil wrong and valid grounds for divorce. A subsequent five-judge Bench in 2020, led by former CJI Sharad A. Bobde, dismissed review petitions, deeming them lacking in merit.
• Initiated in 2017 by non-resident Indian Joseph Shine through a PIL under Article 32, the case challenged the constitutionality of adultery under Section 497 of the IPC and Section 198(2) of the Cr.P.C. This provision penalized a man for engaging in extramarital relations, with exemptions for the wife's consent. Notably, only the husband could file a complaint under Section 198(2) of the CrPC.
• In September 2018, the Bench delivered a unanimous ruling through four concurring judgments. Former CJI Dipak Misra, highlighting the privacy aspect, emphasized that treating adultery as a crime intrudes into extreme marital privacy, advocating its retention as a ground for divorce.
• Justice R.F. Nariman criticized Section 497 for making the husband the 'licensor' of his wife's sexual choices, not aligning with contemporary constitutional morality. Justice D.Y. Chandrachud argued that criminalizing adultery subjugates women, emphasizing the importance of individual autonomy in making sexual choices.
• Justice Indu Malhotra asserted the need to protect individual autonomy concerning sexuality in the private sphere, stating adultery, while a moral wrong within the family, doesn't harm society at large to warrant criminalization.

5. Criticism

• Legal experts argued against criminalization, highlighting the intrusion into private matters. Personal choices in a liberal society should be protected by the law, and criminalizing adultery might not command respect for the rule of law.
• Advocate Bharat Chugh suggested exploring tort or civil wrong remedies for adultery, akin to some countries, allowing individuals to sue for damages. However, he acknowledged the absence of a precedent or judgment in India supporting this perspective.
• Mr Sankaranarayan argues that the law's Victorian roots underscore an undue emphasis on marriage, suggesting it should be reconsidered as it has no place in criminal law. He makes an exception for dowry cases, acknowledging its limited scope.
• He highlights legal contradictions, citing the example of marital rape being exempt from prosecution, questioning the inconsistency when individuals living together face legal consequences for infidelity.
• Mr. Kirpal points out the paradox in recent recommendations, noting the Supreme Court's judgment in Supriyo, which seemingly devalues the right to marriage. If marriage is not deemed a fundamental right, restricting the sexual autonomy of individuals to protect marriage's sanctity appears illogical, he argues.

6. Challenges in Gender Neutrality

• The re-introduction of adultery in the IPC raises concerns about its dual problematic aspects, according to Mr Sankaranarayan.
• Criminalizing adultery based on the institution of marriage and treating women as property represents two-fold issues.
• While making it gender-neutral eliminates the second aspect, addressing "the patriarchy bit," the first issue persists.
• Mr. Kirpal notes that a gender-neutral provision would apply to all relationships recognized as marriage, encompassing heterosexual marriages between transpeople, as envisioned in the Supriyo v. Union of India judgment.

7. Impact on the LGBTQ Community

• For the LGBTQ community unless their relationships are legally recognized as marriage, prosecution is not possible. Once recognition occurs, legal consequences may follow.
• The decision to reintroduce adultery as a criminal offence prompts questions about its timing, especially after the Supreme Court's 2018 decision and the recent judgment on same-sex marriage.
• It reflects a specific mindset within the Parliament, aiming to control choices related to bodily autonomy.
• Section 377 of the IPC emphasises that societal disapproval alone shouldn't lead to automatic criminalization.

8. Legislative Overruling of Judicial Pronouncements

• While a Supreme Court ruling sets a precedent for lower courts, Parliament can overrule judicial decisions.
• However, legislative actions are valid only if they alter the legal basis of the judgment. The Supreme Court, in Madras Bar Association v. Union of India (2021), clarified that validating legislation must remove the basis of the judgment's defect.
• The court cautioned against merely validating acts without addressing the defects in previous legislation, as it would be considered ultra vires.
• In NHPC Ltd. v. State of Himachal Pradesh Secretary, a division bench reiterated that the legislature can rectify defects in earlier legislation as pointed out by a constitutional court.
• However, it emphasized that validating acts without curing defects renders subsequent legislation ultra vires.