Taking the Supreme Court’s judgement in Joseph Shine v Union of India seriously in the time of so-called “love jihad” violence, “anti-Romeo squads” and “honour killings” (that are actually caste murders), requires a herculean effort to overcome cognitive dissonance. On the one hand, the Supreme Court is adamant that the right to privacy as protected under Article 21 of the Constitution of India gives women the right to choose their sexual partners and on the other, a woman who actually chooses to do so must run the gauntlet of sanctions imposed by her own family, society and the Indian state. Reading the judgement holding Section 497 of the Indian Penal Code unconstitutional, one cannot help but ask a pertinent question: “So what?”
There is nothing wrong as such about the four opinions delivered by the same bench which also held Section 377 of the penal code to be unconstitutional. Chief Justice of India Dipak Misra’s opinion (also inevitably, on behalf of Justice AM Khanwilkar), cuts to the heart of the matter – that Section 497 treats a married woman as nothing more than her husband’s property. That adultery, under the penal code, is an offence really against a married man and since it’s not an offence if the married man gives consent, one cannot but draw the conclusion that this provision of the code robs a married woman of any say in the matter. He finds also that while Section 497 “protects” the woman who has committed adultery, it offers no succour to the woman whose husband has cheated on her and is therefore a blatant violation of Article 14 of the Indian Constitution. So much for the “sanctity of marriage” argument used to defend criminalising adultery.
Justice Rohinton Nariman once again gives us a magisterial history lesson on the provision before arriving at pretty much the same conclusions as Misra, while Justice Indu Malhotra notes that simply because something meets societal or moral disapproval, it cannot be made a criminal offence, while arriving at the same conclusion as the others.
Justice DY Chandrachud’s opinion, on the other hand, is perhaps the most significant of the four. In locating his reasons for striking down Section 497 on the site of the agency of women within the institution of marriage, Justice Chandrachud effectively lays down the foundation to strike down the marital rape exception under Section 375 of the penal code. One cannot help but see the following as a prelude to striking down the second exception to Section 375 as unconstitutional, when one reads in the judgement:
“That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity.”
This could potentially be by far the most impactful aspect of this judgement – even more than the striking down of Section 497 itself.
Thursday’s judgement is a case of fourth-time lucky to rid India of Section 497. Three prior judgments of the Supreme Court (Yusuf Abdul Aziz v State of Bombay, Sowmithri Vishnu v Union of India, and V Revathi v Union of India) had upheld Section 497 of the penal code and also Section 198(2) of the Code of Criminal Procedure, 1973. All three have now been held to be no longer good law – a development that reflects the changing jurisprudence on understanding the right to privacy to include choice and consent. Whereas past judgements are unable to get out of the framework of imagining that what meets societal disapproval must also necessarily be criminal, the Supreme Court’s approach in this judgement is a refreshing departure, accepting that criminal consequences cannot lie simply because of larger societal disapproval.
In this respect, the Joseph Shine judgement only follows the logical course of the law laid down in Navtej Johar v Union of India – a reminder, if any were needed, that gay rights is never just about sexual orientation of gay people but also about affirming the right to choose, whatever be one’s sexual orientation.
That still leaves us though with the question: “So what?” Whereas decriminalisation of gay sex throws open the doors for equal treatment of the Lesbian, Gay, Bisexual, Transgender, Queer community in the eyes of law, of recognising sexual identity, and allowing persecuted communities to breathe free, the mere decriminalisation of adultery does nothing of the sort. Decriminalising adultery may legally re-affirm the right of a woman to choose her sexual partner, but it must not blind us to the imminent and much greater threats to women’s sexual freedom in India.
Whether it is family, society, gangs of thugs, or political parties, the threats to women’s freedom to choose in India are many and varied. To the above list, one may add the police and the judiciary as well. The agencies tasked with protecting the rule of law have been content to be passive observers when women face violence for their choices – when they are not actively aiding and abetting violence against women. As the Hadiya case and others have shown, even the higher judiciary is not above meddling in women’s choices for paternalistic considerations.
Does any of this change as a result of Thursday’s verdict in Joseph Shine? Most likely not.