#5 Decriminalisation of Adultery

5.1 – Who is Joseph Shine?

5.1.1 – Joseph Shine, the petitioner in the case is a hotelier from Italy who had approached the court in public interest and asked the Court to strike down Section 497 of the Indian Penal Code (IPC). Though Shine was not personally affected by the law, his petition was accepted in view of the relaxed rules of locus standi in Public Interest Litigation cases. Interestingly, this relaxation has been critiqued by Indu Malhotra J, one of the judges on the Bench, in her dissenting opinion on the Sabarimala Temple Entry issue.

5.1.2 – Section 497 IPC criminalised adultery.

5.1.3 – Previously, the Supreme Court had upheld Section 497 IPC as constitutionally valid first in 1954 in the case of Abdul Yusuf Aziz and again in the cases of Sowmithri Vishnu (1985) and V Revathi (1988).  On all three occasions, barring the issue of privacy, the Court had upheld the criminal provisions on the very same grounds that were relied on for striking down Section 497 in Joseph Shine.

5.2 – Was this case about women’s rights or the sanctity of marriage?

5.2.1 – The petitioners’ case was premised on the argument that the law criminalising adultery is unconstitutional as it discriminates against women. They argued that the law deprives women of the fundamental right to sexual autonomy.

5.2.2. – The Central Government on the other hand argued that Section 497 IPC is essential for maintaining the sanctity of marriage. The government recognized that the the law was discriminatory against women and proposed to make the offence of adultery gender neutral.

5.3 – Did the Court have no option but to strike down Section 497 IPC?

Our Pre-judgment Matrix outlines the different orders the Supreme Court could have issued.

5.4 – Why did 4 judges express 4 separate opinions?

5.4.1 – In September 2018, the Supreme Court struck down Section 497 of the Indian Penal Code, decriminalising adultery.

5.4.2 – Though the Court in 4 separate concurring opinions agreed that the provision criminalising adultery was discriminatory towards women, 4 of the 5 Judges did not elaborate on the issue of sexual autonomy of married women. This aspect was only dealt with in the decision authored by Chandrachud J.

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5.5 – 5 must Reads

5.5.1 – Anand Grover, Talish Ray and Sudhir Mishra answer the question, “Should Adultery be a Crime?” in The Hindu.

5.5.2 – Alok Prasanna Kumar praises the judgment, but asks whether it further women’s sexual autonomy on the ground.

5.5.3 – Abha Singh criticises the judgment as “A Setback to the Institution of Marriage in India”, arguing that the Court could have made the law gender neutral without decriminalising adultery.

5.5.4 – Writing prior to the judgment, Sonakshi Awasthi traces the colonial origin of 5 archaic Indian laws, including adultery in The India Express.

5.5.5 – In the Socio-Legal Review, Abhinav Sekhri critiques rationales which defend criminalising adultery.