Today, a Constitution Bench of the Indian Supreme Court delivered the judgment and opinions in Joseph Shine v. Union of India [W.P. (Crl.) No. 194 of 2017, decided on 27.09.2018]. A unanimous Court held that Sections 497 of the Indian Penal Code, 1860 [IPC] and 198(2) of the Criminal Procedure Code, 1973 [Cr.P.C.] are contrary to Articles 14, 15, and 21 of the Constitution and are therefore struck down. The Chief Justice wrote the opinion for himself and Khanwilkar, J., while the three remaining Justices [Nariman, Chandrachud, and Malhotra] each penned a separate opinion. This post discusses what has been held by the Supreme Court, focusing on its impact on the criminal law and criminal process in India [the non-discrimination aspects have already been discussed here].
The Issue and the Broad Holding
During the course of arguments in Joseph Shine, I had discussed the issues on the Blog and need not repeat everything here. Suffice to say that Sections 497 IPC and 198(2) Cr.P.C. created a peculiar legal framework: punishing husbands for only certain kinds of marital infidelity, while expressly depriving the wife a right to institute prosecutions. There were multiple ways to grapple with the problems they posed, and the previous post suggested three such formulations:
- Type I: Is Section 497 IPC void because adultery shouldn't be a crime at all?
- Type II: Are Sections 497 IPC and 198(2) Cr.P.C. bad because they perpetuate unconstitutional gender-based discrimination?
- Type III: Is Section 497 IPC bad because it differentiates within adulterous relationships without any rational basis for that classification?
I had argued that the previous challenges to adultery provisions had mostly been Type II cases. The entire Court in Joseph Shine considered this set of arguments and held for the Petitioners. All five Justices held that the adultery provisions were contrary to Articles 14 and 15 of the Constitution, being manifestly arbitrary and perpetuating gendered discrimination. The Court also unanimously held that the provisions were bad for being contrary to Article 21, as they deprived women of the dignity assured by that fundamental right. Each opinion heavily criticises the provisions for their treatment of women as chattel and endorsing an outmoded conception of patriarchy and marriage. The argument of relying on Article 15(3) of the Constitution to propose these provisions as "beneficial legislation" for women was, to put it bluntly, scoffed at and rejected.
But the hearings in Joseph Shine suggested some ambiguity in how far the Court was interested in also hearing a Type I challenge, i.e., arguments on whether adultery could be criminalised. This sense of confusion is visible to varying extents in the several opinions in Joseph Shine. Nariman, J. does not discuss the Type I challenge at all, while Chandrachud and Malhotra, JJ. hint at this in some parts but mainly stick to a Type II argument. On the other hand, the Mishra, C.J. and Khanwilkar, J. in the lead opinion discuss the Type I challenge fully, as I elaborate below.
New Constitutional Limits on Substantive Criminal Law?
The substantive law issue posed by the adultery provisions arose largely out of Article 21, which the Supreme Court affirmed guaranteed a right to privacy. Thus, would criminalising adultery violate this constitutional right to privacy? As I mentioned above, barring Nariman, J., the rest of the Court did go into the substantive issue. Justice Malhotra discusses it at Paragraph 17 of her opinion, giving a general exposition of the principles of criminalisation:
"In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole. Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State."
Chandrachud, J. discusses the issue in two paragraphs, making more pointed connections between the issues and Section 497 IPC:
"... There is a fundamental reason which militates against criminalization of adultery. Its genesis lies in the fact that criminalizing an act is not a valid constitutional response to a sexual relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. ... Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing." [Paragraph 60]
"... The legitimate aims of the state may, it must be recognized, extend to imposing penal sanctions for certain acts within the framework of marriage. Physical and emotional abuse and domestic violence are illustrations of the need for legislative intervention. The Indian state has legitimately intervened in other situations such as by enacting anti dowry legislation or by creating offences dealing with the harassment of women for dowry within a marital relationship. The reason why this constitutes a legitimate recourse to the sovereign authority of the state to criminalize conduct is because the acts which the state proscribes are deleterious to human dignity. ... Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. ..." [Paragraph 61]
Note the problems. Malhotra, J. provides a useful exposition of the principles for criminalisation, and Chandrachud, J. adds to this with the specific problems created in the context of adultery. But neither of the opinions discusses how the analysis applies to criminalisation of adultery per se in India. While one wonders whether these Justices would have upheld a gender neutral formulation of the offence, it is clear that their opinions do not engage with the core substantive claim of whether adultery can be a crime.
The same cannot be said for the opinion by Misra, C.J., and Khanwilkar, J.:
"We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. ... A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. ... We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. ..." [Paragraph 49, Emphasis supplied]
The highlighted parts make it clear that this opinion expressly engaged with the privacy issue posed by a criminalisation of adultery per se and not only its specific formulation under Section 497 IPC. It also offers a clear rule rather than expositional rhetoric for future courts and legislatures to apply: do not criminalise conduct which is purely within the "real private realm" or affects the "extreme privacy" of certain spheres. But since the content of these terms has been left unclear, it is anybody's guess on how this rule applied in future decisions. Except, perhaps, one specific area of the criminal law in India which might finally be struck down: the marital rape exception under Section 375 IPC.
Article 21 and the Marital Rape Exception
The marital rape exception under Section 375 IPC, as the name suggests, deems non-consensual sex acts performed by a husband on his wife to be legal. The Delhi High Court had been hearing petitions on removing the exception even before today's decision in Joseph Shine, and the opinions should help the cause of those arguing for striking it down. Although the exception does not criminalise, at its heart is the same logic that has been declared unconstitutional by the Supreme Court: that the sexual autonomy and agency of a married woman is subservient to her husband's interests. Consider the following excerpts from Chandrachud, J.'s opinion, which could equally apply to marital rape as well:
"It proceeds on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinates the woman to a position of inferiority thereby offending her dignity, which is the core of Article 21." [Paragraph 11]
"A woman's ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law."[Paragraph 25]
"Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision." [Paragraph 32]
"The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage." [Paragraph 36]
"In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy." [Paragraph 59]
Conclusions
Credit must be given to the Court for taking up the constitutional issue and pruning the statute books, a task long overdue. The crime of adultery is gone, and thanks to the controlling opinion in Joseph Shine, it should be gone for good. It joins the other anachronism in the bin - criminalising consensual sexual relations between homosexuals. Make no mistake, Joseph Shine has its flaws. This was the second case where the Supreme Court invoked the right to privacy under Article 21 to strike down a penal provision - after Navtej Johar - and still nobody really knows where that fundamental right begins or ends. By not referring to the decision in Navtej Johar (except Chandrachud, J.), and adding new terms such as "real private realm", the Supreme Court is making a mess of the nascent privacy jurisprudence.
Ultimately, the Court had it easy in both Navtej Johar and Joseph Shine. Statistics suggest that both the underlying offences were dead letters and prosecutions were rare, and in the former the Union did not even defend the criminalisation. A more stern test of the liberal credentials of the Court is bound to come up where it is asked to practice what it preaches in a more contentious context. This, I suggest, is bound to be criminalisation of marital rape - an issue around which a different kind of lobbying exists. Predictions aside, legally the point should be straightforward: If constitutional morality is offended by legislative inequality between the spouses in their pursuit of sexual freedom outside marriage, the same yardstick must apply within the marriage itself. Any other conclusion is the worst kind of hypocrisy imaginable.
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