On Thursday, 27th September 2018 the Supreme Court dismissed the section 497 of India Penal Code dealing with adultery cases, as they were seen to be unconstitutional. Before this dismissal of verdict, the Apex Court had considered adultery law as constitutional for three times in the past, and had maintained its validity.

What is section 497?

Section 497 is adultery law, which states that if a man gets involved with a married woman sexually without the consent of his spouse, then he is legally punishable. The man will need to pay fine or go to jail for more than 5 years.

What really is adultery?

According to Wikipedia, adultery can be defined as, ‘Voluntary sexual act between a married person and a person, who is other than the spouse’.

What are the petitioners issues regarding section 497?

  • Petitioners want adultery law to be made gender neutral. Here the man gets punishment under adultery, but there is no penalty whatsoever for the involved woman.

 

  • According to section 497, the woman whose husband is having sexual relationship with another woman has not right to file a complaint, as there is no such provision made for her in the law.

 

  • The IPCs adultery law has reduced the status of woman to an object, because married woman’s consent is not considered as crucial in the sexual act. According to section 497, the action is not a crime, if woman’s husband agrees. Therefore, many have termed section 497 as a women biased law.

Past supreme court judgments regarding adultery

1951’s petitioners’ plea

Section 497 was described as violation of right to equality as per Constitutions Article 14. It differentiates men, because according to this law, females are not regarded as criminals.

Supreme Court’s verdict

Section 497 retained its validity via Supreme Court’s judgment given in 1954. There is a special provision for females under Constitutions Article 15[3]. Court said, ‘hypothetically, men are expected to seduce or not, but not women. So, women commit adultery but are not felonious.’

1985’s petitioners’ logic

According to IPC section 497, if an unmarried man establishes a sexual relationship with married woman, then he is legally eligible for punishment. Alternatively, if unmarried woman has sexual bonding with married man, then she is legally not entitled to be punished. Under such situations, marriage purity is dissolved. So, it is necessary to include unmarried women under this law.

Supreme Court’s judgment

Demand to bring unmarried women under section 497 act was denied. Court said that to protect marriage sanctity, men were not allowed to indict their wives for adultery offence. For same reason, the women were not allowed to sue their husbands. Adultery offence was seen more as a crime committed by one man against another man.

1988’s Petitioners’ reasoning

Petitioner complained that Section 497 is discriminatory law. Man gets the right to protest, but woman cannot sue her cheating husband. It is violation of penal procedure’s section 198[1] & [2].

Supreme Court’s decree

The adultery law of not including woman under adultery prosecution cases was promoted as ‘social good’. According to the court, this gave couples an opportunity to resolve disputes, and keep their marriage intact. Adultery law was said to be a protector rather than a sword. The existing adultery law was not infringing any constitutional provisions, thus becoming the reason for retaining the validity of section 497.

Besides the above three supreme court verdicts, there were a couple of crucial legal views regarding adultery law.

  • 1971 – The Law Commission recommended section 497 to be free from sexual viewpoint in their 42nd
  • 2003 – The Malimath Committee was formed to reform the criminal laws. They suggested section 497 to be made gender neutral.

Minutiae – Plea challenging the section 497 in the year 1985 was dismissed by the Supreme Court bench, who had Justice YV Chandrachud residing on it. 33 years later, it was his son Justice DY Chadrachud residing on the Supreme Court bench, who took steps to make judgment relevant to present day.

Highlights of Supreme Court’s 2018 verdict regarding Section 497

Bench of five Supreme Court judges struck Section 497 penal provision unanimously as unconstitutional.

  • Adultery can be considered as grounds for divorce or marriage annulment, but is not a criminal offence anymore.

 

  • Only adultery is not a crime, but if distressed spouse commits suicide due to their partner’s extramarital relationship, then it can be considered as abetment to suicide, but only if the evidence is produced.

 

  • Unequal treatment towards women summons the rage of Constitution. Women cannot be asked to reason in a way the society desires.

 

  • Equality is governing principle, which states husband is not the wife’s master.

 

  • Adultery may not be the main cause of unhappy marriage, but can also be the consequence of unhappy marriage.

 

  • Section 497 destructs woman’s self-respect and dignity, because she is treated as husband’s chattel [item or property].

Decriminalization of Section 377 towards homosexuality

On 6th September, Thursday bench of five Supreme Court judges decriminalized homosexuality, striking partially the ancient provisions in IPC Section 377. However, the partial Section 377 relating bestiality, non-consensual sexual conducts, and sex with minors, will still remain enforced.

What is section 377?

Indian Penal Code was introduced during British rule [1864], which included section 377. It states that voluntarily having carnal intercourse with any woman, man, or animal against nature order, will be imprisoned for ten years or penalized. Even though this statute was hardly used to prosecute, its presence consistently reminded the LGBT community that the state regarded their sexuality as illegal.

In 2009, portion of Section 377 was erased as unconstitutional with regard to homosexual community by Delhi High Court. On 2013, the Indian Supreme Court overturned this judgement. Court said that cancelling or amending of section 377 is the matter that parliament needs to handle, and not the judiciary. On 2016, three court member bench reviewed curative petitions that were submitted. They decided that the petitions would be reviewed by a 5 member constitutional bench.

In 2017, Supreme Court supported right to privacy as fundamental right according to the constitution. Court even asked for equality, and criticised discrimination. It specified that safety of sexual orientation remains at the crux of fundamental rights. In addition, the LGBT population rights are genuine, and initiated on constitutional code. This verdict was alleged to indicate section 377 as not constitutional.

In January 2018, Supreme Court approved to hear an appeal of the 2013 verdict. On 6th September 2018, Section 377 was unanimously considered as unconstitutional, because it turns consensual sexual act, between the adults of same sex, as a criminal offence.

Highlights of section 377 judgment

Key part of the verdict that struck section 377 to be violation of fundamental right to equality are given below.

  • Section 377 is unreasonable, vulnerable, and clearly arbitrary. Bodily independence is personal matter of choice. LGBTQ community needs to be empowered against indiscrimination. It is their journey to liberty, equality, and dignity.
  • Time has come to say goodbye to prejudicial perception, which are ingrained deeply in social mindset. Sexual orientation is biotic and natural. No one can control to whom they become attracted to. Repression of any kind is an infringement of free expression.
  • Anguish and tragedy that section 377 inflicted needs to be remedied. State cannot determine the boundaries of nature. Section 377 is deep rooted gender stereotype law that persecutes people, and crushes them to survive in silence.
  • LGBTQ holds comprehensive assortment of constitutional rights, including partner choice and sexual orientation. The community possess equal citizenship and equivalent protection from laws.

The judgment was regarded as a landmark for overall democracy. It reflects quick social changes in India, where 5 years ago Supreme Court supported this same law. Campaigners held movements and public protests against section 377 to spread awareness regarding homosexuality rights.

Developing political unanimity

Successive governments have supported the ancient section 377 based on 19th century Victorian morals. Nonetheless, the powerful debate among media and society has forced political class to alter its viewpoint.

  • The current ruling party, BJP had defended Supreme Court’s judgment of upholding section 377, but today it is supporting the court’s verdict of de-criminalizing consensual homosexual actions in private.
  • Congress has openly backed legalizing homosexuality.
  • Communist Party and Aam Admi Party have also given their support to declaration of section 377 as unconstitutional.

International developments

LGBT community has witnessed optimistic support on international front. In the year 2015, Ireland and the US legalised same sex marriages. Other countries like Brazil, Belgium, Canada, Iceland, France Norway, Luxembourg, Spain, Portugal, Sweden, South Africa, and Uruguay allow same sex marriages. Besides India, France, UK, and Australia have de-criminalized homosexuality.

Reaction of public towards de-criminalization of homosexuality

There are still many people, who are against the legalizing of same sex relationship, and they argue it to be something against their society’s moral values. India is a strong conservative and traditionalist country.

Nevertheless, technological and economic development has spurred modifications in thoughts, where India has created rich and free thinking groups of urban youths. Pop culture, theatre and film are openly showing gay characters, but still conservative defiance towards homosexuality continues.

Several LGBT Indians never speak it out with their families, because they fear mockery and ostracism. Few bold ones had to undergo therapies and rituals, which proclaim to ‘cure’ homosexuality.

With the optimistic verdict, activists cannot express their happiness enough. Activists have pledged that this ruling was just the beginning, and have declared that they will continue to seek legal protection against abuse and violence of LGBT people, as well as pursue their marital rights and rights to adopt kids.

 

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