Under Section 497 of the Indian Penal Code, the criminal offence of adultery is committed only when a man has sexual intercourse with another man’s wife. Only the adulterer (the man) can be prosecuted for committing the offence, and not the adulteress (the woman). Furthermore, the adulterer can only be prosecuted if the husband of the adulteress lodges a complaint before a magistrate.

This state of affairs was challenged in a writ petition filed by a man called Joseph Shine before the Supreme Court last week, with Shine arguing that Section 497 is unconstitutional as it discriminates against men, and there is no reasonable basis for not holding the woman criminally liable when she was a willing participant in the criminal act.

In response, the Supreme Court, while issuing a notice to the Union government asking for its views on the matter, declared that “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.”

With this pronouncement, India’s highest court continues its fine tradition of missing the wood for the trees when it comes to offences relating to marriage, focusing on what the provision says about the status of women in India as opposed to whether adultery should be a criminal offence at all.

Special provisions for women

In 1857, the Law Commission of India, tasked with drafting a new penal code for the Presidencies of Bengal, Madras and Bombay, recommended the criminalisation of adultery. It said: “While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognisance to adultery committed with a married woman, and considering…the condition of women in this country, in deference to it, we would render the male offender alone liable to punishment.”

It is plausible, therefore, that criminal liability was not fastened only upon the adulterer under Section 497 on the ground that a woman was her husband’s chattel or property, but by their plight in Indian society at that time. It was this argument that won the day in 1954, when the constitutionality of Section 497 was challenged before a five-judge bench of the Supreme Court for the very first time.

In the case of Yusuf Abdul Aziz v The State of Bombay, the court decided that Section 497 did not violate the right to equality enshrined in Articles 14 and 15 of the Constitution. While Article 14 guarantees individuals equality before the law, Article 15(3) allows the state to detract from from such equal treatment when it comes to making special provisions for women and children.

Interestingly, Justice Vivian Bose emphatically rejected an argument that was canvassed before the Supreme Court last week, which was that Article 15(3) should be confined to those provisions that are beneficial to women and should not be used to give them a licence to commit and abet crimes. Speaking for the court, he stated that they were “unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited”.

Romantic paternalism

The next constitutional challenge to Section 497 came 30 years later, in 1985, in the case of Sowmithri Vishnu v Union of India. The husband of the petitioner had filed a complaint against the alleged adulterer Ebenzer, and Sowmithri, the alleged adulteress approached the Supreme Court, where her lawyer Nalini Chidambaram argued that Section 497 violated Article 14 as “by making an irrational classification between man and woman, it unjustifiably denies to women the right which is given to men”.

Her argument was that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extra-marital relationships with unmarried women. Chidambaram labelled Section 497 a flagrant instance of gender discrimination and contended that the provision represents a kind of “romantic paternalism”, which seeks to put women on a pedestal, but ends up putting them in a cage. Her contentions were soundly rejected by Chief Justice YV Chandrachud, who wrote: “We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman.”

The constitutional challenge failed as Justice Chandrachud felt that criminalising adultery promoted the stability of marriages, and that was “not an ideal to be scorned”. One hopes that the bench hearing the matter of Joseph Shine v Union of India will examine the rationale underlying Justice Chandrachud’s declaration.

A Biblical world-view

With the Union government yet to offer any reaction to the Supreme Court’s observations, the onus will probably once again be on the apex court to decide an issue where the question of human choice is front and centre. The court’s recent record in cases concerning an individual’s right to choose, as demonstrated by the outcome in the Hadiya case, does not bode well for those hoping that the court will decriminalise adultery on the ground that it denies two consenting adults the opportunity to exercise their free will.

Today, only 20 countries in the world criminalise adultery, with the large majority of them being nations governed by Islamic law. This includes Pakistan, where adultery is punishable with death. The only industrialised country to criminalise adultery is the United States of America, where it remains an offence in 18 states, including New York and Massachusetts, though prosecutions are rare. What these American states have in common with India is the fact that criminalisation of adultery was brought about by men with a Christian upbringing and a biblical world-view.

The Bible has a lot to say about the vice of adultery, though one line from the Book of Proverbs stands out: “But the man who commits adultery has no sense, for he destroys himself.” Perhaps the same can be said for a society that criminalises voluntary sexual intercourse between two consenting adults in the 21st century.

By a twist of fate, the latest constitutional challenge to Section 497 will be heard by a bench comprising Justice DY Chandrachud, the son of the erstwhile chief justice. It remains to be seen whether the younger Justice Chandrachud will apply his mind, unlike his father before him, to the question of whether adultery should be a criminal offence in the first place, and not simply to the issue of whether it should be a gender-neutral offence.

The plight of the younger Justice Chandrachud brings to mind another biblical principle, which declares that the sins of the father are visited upon the children. Whether the son chooses to wash them away remains to be seen.

Abhishek Sudhir is the founder of Sudhir Law Review, a legal education website.