Adultery law fails constitutionality test on equality and freedom of choice; SC must annul criminality clause
Adultery is not a crime in most of the European countries and at least half of the states in the USA. However, a few countries like Pakistan and Saudi Arabia have still retained adultery as a capital offence
Section 497 of the Indian Penal Code (IPC) has been in news recently. The Supreme Court is dealing with a challenge to its constitutionality. This means the court is testing the mandate of this law on the benchmark of Fundamental Rights, to see if it complies with them.
The provision makes it an offence for a man to have an affair with a married woman. There is no liability of the woman in this situation, as per the mandate of this IPC provision. Moreover, if a woman finds out that the husband is having an affair in a marriage, there too there is no culpability attached to the infidelity of the man, as is envisaged under this Section.
The Constitution of India has guaranteed the Equal protection of laws and Equality before the law under Article 14, which means there can't be any differential treatment of persons on the basis of religion, race, caste, sex or place of birth. Article 15 further prohibits any discrimination on any of the above grounds by the state.
On a plenary reading itself, of the IPC provision and the constitutional provisions, it is amply clear that they are at loggerheads. Section 497 of the IPC suffers from the vice of unconstitutionality on a minimum of two counts. First, in the case of an adulteress wife, only the man, she has been cheating with, is held liable and not the woman herself. This is based on an old common law concept where married women were considered as chattel (property) of their husbands. Hence, it was believed that the husband is wronged if someone has an affair with his wife. Second, in the case of an adulterer husband, no offence is made out and the wife is left remediless.
Therefore, the provision in its current form is constitutionally untenable because it discriminates between men and women. This unconstitutionality, prima facie, can be dealt through either of the two approaches. First is to decriminalise adultery altogether for everyone. The second is to criminalise it in a way that both men and women are made accountable in a similar manner.
Adultery is not a crime in most of the European countries and at least half of the states in the USA. However, a few countries like Pakistan and Saudi Arabia have still retained adultery as a capital offence, meaning that it is punishable by death. However, the case for a complete decriminalisation is quite strong.
Marriage in the eyes of the law is a civil union, or a social contract. The violation of any civil law can't give rise to criminal culpability in any case. In all democracies which have a robust nature of constitutionalism, individual freedom has been held in the highest prestige. Therefore, criminalisation of an act which is, legally speaking, akin to violation of a contract, can't have a criminal cost attached to it.
Crimes are those wrongs which are committed against the society and that is why state itself is the party in such cases, while launching a prosecution against such wrongs. If a society were to criminalise adultery, this certainly means that the marriage is considered as an institution, the preservation of which, is the concern of the society. This is without a doubt, an untenable argument in any modern society, because marriage is an institution, whose business is between two individuals – the husband and the wife. The society should have no interests attached in its materialisation or dissolution.
Hence, even if the law is made gender neutral and both men and women are made equally liable, only the nature of constitutional challenges will change and not the nature of constitutionality. This law will still attack at the fundamentals of human liberty and freedom of choice, which the human beings naturally inhere.
It is, therefore, in the interest of the nature of constitutional guarantees, which the people of this country enjoy, that the law on adultery, in its current form of according criminality to it, is made redundant by the apex court.
The author is an Assistant Professor of Law at Maharashtra National Law University, Mumbai. He can be reached at email@example.com, Twitter: @raghavwrong
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