Guest Post: Lessons From Abroad — R v Tran and Provocation in India

(This is a guest post co-authored by Varshini Sudhinder and Jibraan Mansoor)

SATURNINUS: Because the girl should not survive her shame, And by her presence still renew his sorrows; 

OTHELLO: I will chop her into messes! Cuckold me?; 

Introduction

Shakespeare’s cuckold has been a prominent theme in various works such as, The Merry Wives of Windsor, Cymbeline, and The Winter’s Tale. But what was supposed to be a literary feature has often made inroads into the halls of justice. For instance, in R. v. Mawgridge [(1707) Keil. 119], Judge Holt wrote,“[A] man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property”. It is not uncommon to find Indian courts reaching the same conclusions. For instance, when in C. Narayan (1958 Cri LJ 476) a wife was strangled to death by her husband after she confessed her adultery, and in Murugian (AIR 1957 Mad 541) when a husband killed his wife in response to her defiance about her adultery, in both these cases courts agreed that this was not murder as the accused had acted under provocation.

In this post, we attempt to re-complicate some of these conclusions. Borrowing from the Canadian experience we argue that at the heart of the “provocation for adultery” question rests a need to carefully balance human frailty with considerations of sexual autonomy. The post broadly covers four aspects. First, we briefly explain how Indian law has come to understand provocation and we identify certain issues which remain unanswered. Second, having identified the issue, we discuss the Canadian case of R v. Tran (2010 SCC 58) [Tran], to understand how the Canadian Supreme Court has made attempts to resolve these issues. The third section showcases a possibility of using the Canadian decision to good effect in the Indian Context. Finally, we discuss how Indian courts might consider changes to granting provocation in cases of adultery at a time when adultery is no longer a crime per se. 

Indian Courts, and Provocation as an Exception to Section 300

The statutory text of provocation needing to be “grave” and “sudden” tells us barely half the story; judicial decisions have added a great deal of nuance in applying this test. Stanley Yeo, in his paper, Gravity Of Provocation Revisited, having analysed the Indian experience, suggests that the judicial inquiry into a provocation plea involves first analysing if a “reasonable man” would be so provoked, when placed under a similar situation, to lose his self-control like the accused. After such an examination, and seeing if the accused did the same, we need to trace the fatal blow to the “influence of passion” which arose from the provocation, and not after having sufficient time to “cool down”, to prevent any scope of premeditation.

However, as R.V. Kelkar in his paper, Provocation as a defence in the Indian Penal Code notes, the judiciary has not always clarified things. One of the main reasons for this is the acceptance of the objective standard, that of a reasonable man, to analyse the defence of provocation. Using the “reasonable man” standard can lead to a lot of problems because the associated characteristics of a reasonable man have not remained consistent over time, as courts have acknowledged that obviously no person is ideally reasonable, and in fact is associated with “mistakes” and “defects”.

The canonical Nanavati (AIR 1962 SC 605) highlighted the need for the “reasonable man” to belong to the same class category and social realities, as the accused, to bring within it the “emotional background” of the social class to which the accused belongs. The court associates this reasonable man with certain characteristics, customs, manners, ways of life, etc. Some courts over the years have reinterpreted “reasonable man” to be an “ordinary” or “normal” one. Yeo stresses on the relevance and the importance of doing something like this because all persons are differently placed and come from diverse backgrounds. According to him, an accused’s characteristics may be of relevance either if the provocation was directed at particular characteristics of himself/herself; or, if the accused belonged to a class of persons who tend to possess self-control which is less than others.

Even though the above discussions are important as they recognise the need to account for human frailty, yet they also raise concerns about not allowing sexual autonomy to women. More broadly, they make one wonder that if we allow for the “sudden and grave” provision to be exercised by those in power, then do we completely dismiss the normative horizons that criminal law seeks to achieve by altering individual behaviours? So, will the Indian Jurisprudence allow a defence of provocation to an ultra-conservative Hindu belonging to a culturally sensitive class who murders a Muslim offering Namaaz in front of them? Further, to what extent can psychological factors which do not directly harm one, can become justification for the person to employ the defence of provocation? In order to address some of these questions, at least in the context of adultery, we undertake a comparative jurisdiction analysis, or “lessons from abroad”, by analysing the Canadian Supreme Court in Tran, and try to analyse the applicability of the Canadian Court’s decision in the Indian context.

R v Tran and New Beginnings 

The facts of R v Tran (2010 SCC 58) are straightforward. A man estranged from his wife snuck into their former home to discover her in bed with her new lover. He then flew into a rage, fatally stabbing his estranged wife’s lover with a knife, while also harming his estranged wife with that weapon. While there were various aspects in the decision which have interesting implications — how the court read the facts to understand “sudden” — for our purpose, the court’s assessment of what constitutes as a harm enough to allow for provocation is central. 

The court explains that the “… ordinary person standard must be informed by contemporary norms of behaviour…”, but these must not derogate the fundamental values of equality (the court refers to the Canadian Charter of Rights and Freedoms) and the “accused must have a justifiable sense of being wronged”. The court gives examples of how it would be apposite if the “ordinary person” included the relevant racial characteristics, had they been at the receiving end of a racial slur, but not homophobic characteristics had they been the recipient of a homosexual advance. Furthermore, it held that “there can be no place in this objective standard for antiquated beliefs such as ‘adultery is the highest invasion of property’ nor indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’.”

We see in this decision that the court is making a conscious attempt to limit the attribution of certain characteristics in determining whether provocation took place. More specifically, the Court is acknowledging that they have to balance between accounting for human frailty and justice. It is trying to denude the power differentials that are ascribed to people just by virtue of their birth and belonging, as opposed to individual choices. Furthermore, the court by recognising that the “accused must have a justifiable sense of being wronged”, seeks to highlight that there ought to exist some legitimate harm, wherein legitimate has to be understood as a normative exercise constrained by institutional principles — which was accrued to the accused for the partial defence to be granted. But can we reconcile this approach with the manner in which we historically understand provocation as a category, i.e., if provocation is to be understood as a psychological question accounting for human frailty in the Indian experience, would placing social normative values be a plausible exercise? 

Is R v Tran possible in India?

Botswana’s High Court in State v. Segana Seleke [1974 (1) BLR 102 (HC)] made certain interesting observations about the Indian experience. While the court recognised that the English experience has applied “considerations of social morality to what in the final analysis is a psychological problem”, but in “many jurisdictions in India such a distinction, [issues] based wholly on the question of whether or not a relationship sanctioned and approved by the law exists between the accused and the other party to the adultery, is not countenanced.”

This observation of Botswana's court can be re-affirmed by (Kota) Potharaju [AIR 1932 Mad 25]. Here the accused found his “mistress ... in the arms of a former lover, lest control of himself and stabbed her”. The Madras High Court accepted a plea of provocation and held: “One cannot supply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she his wife or his mistress, in the arms of another man he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person … she is a woman, of whose person he desires to be in exclusive possession and that is, for the moment, enough for him”.

This case was contested in Murgi Munda [(1939) ILR 18 Pat 101], where prevalent custom dictated that any unmarried man and woman may cohabit with each other, but if the woman is impregnated by a man, he must marry her. In this case, the deceased, Gansa, used to be in that kind of a relationship with Bandai, and when he moved away, she and Murgi entered into a relationship. The night when Murgi found Bandai and Gansa together, he killed the latter in rage, and then pleaded provocation in the Court.

Justice Fazl Ali and Justice Agarwal held that they disagreed with (Kota) Potharaju, since, “the mere fact that a person’s desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in the 1st exception to section 300, Penal Code, is something which is recognized as provocation in law and not merely something which arouses the uncontrollable anger of a particular individual.” Further, “In the case of a wife the position is entirely different. The law recognizes that a husband is entitled to expect fidelity from her”. And in the present case, their relationship was not one where Bandai owed him any form of fidelity. 

Murgi Munda further cited Palmer [(1913) 2 K.B. 29] to justify the need for fidelity in order to explore the nature of relationships which legitimately allow the defence of provocation. Palmer is important since the Court of Criminal Appeal held, “… the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in the position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of manslaughter we think that it was right.” In both Murgi Munda and Palmer, we notice how the courts are eager to distance themselves from the kind of reasoning seen in Potharaju, as the courts are highlighting that there are certain relations which aren’t socially perceived as being as sacrilegious as others, and hence shouldn’t be entitled to the defence of provocation. Immediately, one suspects of whether the Indian courts are completely treating provocation as a psychological issue to begin with or not. Further, one wonders how Murgi Munda’s decision which relied upon the law recognising the husband’s entitlement of fidelity from his wife, would change after Joseph Shine [AIR 2018 SC 1676].

The second engagement between the High Courts which is relevant for the current issue can be seen by analysing Murugian and Jairam Chandrabhan. In Murugian [AIR 1957 Mad 541], Basheer Ahmed Sayeed J. observed, "But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights." However, in Jairam Chandrabhan [AIR 1959 Bom 463], where the accused murdered his wife as he saw her enter someone else's house and when confronted told the accused that she'd continue engaging in the relationship, the court disagreed with Murugian. The court held that “In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India ... Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.”

The court subsequently held that the offence would not constitute “grave and sudden provocation” for the accused to be given the partial defence from 300. Even though the court in Jairam Chandrabhan does not explicitly denounce adultery, it is anxious to allow violation of marital rights from becoming the sole ground for allowing for the partial defence to be granted. So instead of following the reasoning seen in R v Tran, the court tried to ignore the Indian courts’ approach of “cumulative provocation” and held that mere exchange of words between the accused and his formerly deceased wife—completely ignoring the act of adultery itself—couldn’t constitute as “grave and sudden” provocation. Even though Jairam Chandrabhan could be accused of compounding the confusion as it erodes “cumulative provocation”, the importance of this case is a) in its ability to recognise that violation of marital rights might not be enough to constitute provocation and b) given the widespread norm of adultery, the anxiety of male heterosexual violence which might be perpetuated if the partial defence is guaranteed. [Note: Jairam Chandrabhan also becomes important for it subtly challenges the assumption about the various attributes of the “ordinary person” (by questioning the distinction between village communities and western countries), while Indian courts attempt to be sensitive to cultural contexts. However, the implications of this observation are beyond the scope of this post.]

Indian courts have not resolved these questions directly and have more often than not continued to allow for adultery to be a ground for provocation. But from the above discussions, if there is a possibility of social morality becoming the guiding force of what we consider as “provocation” enough, it might be so that today when adultery is no longer a crime following Joseph Shine, instances of adultery in some cases might not be enough to be treated as an exception to 300.

Joseph Shine’s impact on Provocation

The main focus in Joseph Shine was constitutional questions posed by the adultery offence (Section 497 IPC) Even so, the various opinions made some extremely important remarks about how questions of adultery are in essence gendered questions concerning monogamy, sexual subjugation and treatment of women as property. For instance, Chandrachud J. noted that, “throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these”, and further, ”To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”

While Section 497 IPC operated in clear gendered differentia, it might not be too difficult to claim that provocation as a defence in cases of adultery has empirically more often than not been used by men. By the court recognising that adultery being treated as a harm enough is an impediment to constitutional rights of women, one cannot help but wonder whether allowing adultery to be a provocation “grave” enough, ends up embedding the same stereotypes which allow for exercising control and dominion over a woman’s body? 

We are even more afraid when we take into account the importance that the judiciary has attributed to notions of property over the years. For example, in a case like Muthu, [(2007) 12 SCALE 795] where the victim was killed for merely throwing garbage into the property of the accused, we see the Court allowing provocation to be granted to the defence. Just like Muthu, we are worried that the courts are yet again placing undue premium on conception of property, especially from a man’s perspective, as opposed to recognising or at least deliberating the question of a woman’s control over her autonomous body. 

Framed otherwise, the above discussion leads to two questions: (1) While historically adultery had connotations of property, can we now move to a place wherein we recognise adultery as an autonomous private decision, and thereby limit the attribution of psychological provocation that courts have historically undertaken, and (2) Keeping in mind Palmer, Jairam Chandrabhan, Murgi Munda line of cases and R v Tran, do Indian Courts need to re-assess the question of provocation by recognising the need to balance human frailty with the normative horizons that criminal law wishes to achieve by altering human behaviour? These are both questions which the courts have to engage with seriously, for us to be able to have a just, clearer and more concrete understanding of provocation, as seen in exception to 300.

Supreme Court Holds The "Legislative Packet" of Adultery Unconstitutional

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.

Adultery Goes to the Supreme Court, Again

(This post first appeared on the Indian Constitutional Law and Philosophy Blog)

The Supreme Court of India is currently hearing a petition filed by Joseph Shine questioning whether the offence of "adultery", defined and punished under Section 497 of the Indian Penal Code, 1860 [IPC], and associated procedural rules under Section 198(2) of the Criminal Procedure Code 1973 [Cr.P.C.], are constitutional. The hearings are in full swing, and recent media coverage suggests that the Court is keen on definitely doing something, unlike the previous occasions when the offence was challenged and its validity upheld. The question then is, what might the Court do? This post draws on an article I published some time ago discussing the legality of adultery laws and poses the choices before the Court, discussing the potential pros and cons of going down any of those paths. But first, a quick recap on the law itself.

The Law on Adultery

Section 497 IPC says: 

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

It criminalises marital infidelity, but not all kinds. The criminal kind needs sexual relations between a person (commonly a man) and the wife of another man, without his consent or connivance. It is not a crime if you cheat on your spouse with an unmarried woman. Further, if you do cheat on your spouse with a married woman, that wife is deemed to be a victim whatever the circumstances. This separate treatment goes further and becomes more problematic when we consider the special procedural rules installed for registering adultery cases. 

Indian criminal law follows a principle that anyone can start the criminal law machinery. This rule has exceptions, found in Sections 190-199 of the Criminal Procedure Code, 1973 [Cr.P.C.] (in respect of IPC offences). Section 198 Cr.P.C. creates an exception by restricting persons who can start cases about "Offences against Marriage", that are defined and punished in Chapter 20 of the IPC. Perhaps respecting the private nature of the underlying conduct, Section 198(1) needs complaints by persons aggrieved by the offence to start cases. It goes on to then tell us who the law considers as aggrieved, and Section 198(2) says:

For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the [IPC]: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

The wife is deemed to be the victim of adultery in Section 497 IPC. But she isn't aggrieved by the offence to be able to trigger the legal machinery. That aggrieved person will be her husband, and if he isn't around, his nominee. That is the strange reality of the law on adultery: a victim isn't aggrieved to exercise her right of launching private prosecution. It is a reality that has survived judicial scrutiny on three prior occasions, but is now again in the spotlight, perhaps for the last time.

The Different Ways of Framing the Problem

Having seen what the law on adultery says, it's time to turn to what are the problems it seemingly poses. There are different ways to frame this problem, and broadly one could frame the question thus:

• Type I: Is Section 497 IPC illegal because adultery shouldn't be a crime at all? 
• Type II: Are Section 497 IPC and Section 198(2) Cr.P.C. illegal because they perpetuate unconstitutional gender-based discrimination? 
• Type III: Is Section 497 IPC illegal because it differentiates within adulterous relationships without any rational basis for that classification? 

Historically, the Supreme Court has dealt with the adultery laws on three different occasions. None of these involved a broad Type I Challenge. Instead, the Court has mostly faced Type II Challenges. In Yusuf Abdul Aziz [1954 SCR 930], the petitioner argued that Section 497 IPC was unconstitutional because it unfairly discriminated between men and women - exempting women from punishment. In Sowmithri Vishnu [(1985) Suppl. SCC 137], the petitioner argued that both Section 497 IPC and Section 198(2) Cr.P.C. were bad for unfairly discriminating on the basis of sex. There was a Type III challenge too, where the petitioner argued that Section 497 IPC didn't have any basis to only punish one kind of adulterous relationship. In V. Revathi [AIR 1988 SC 835], again only a Type II Challenge was made as the petitioner argued that Section 198(2) Cr.P.C. was unconstitutional for unlawfully discriminating against women by not considering them "aggrieved" to trigger the legal process.           

Why? Why did nobody make it their primary claim that the Supreme Court should Section 497 and Section 198(2) down because adultery should not be a crime? It was because, at some fundamental level, all these petitioners and their counsel accepted that the Supreme Court is not the place to make these arguments. It is not the Court's business to decide whether or not certain conduct should be a crime. The decision to criminalise is ultimately a reflection of what conduct the society considers bad enough for it to warrant censure and sanctions. Since society elected a legislature to reflect these, and other choices, the decision to criminalise is traditionally identified as a legislative choice. Parliament decides whether the conduct should be criminalised. When it expresses that will through a statute, the courts are bound to examine the validity of that legislative measure against the minimum barometers set out by the Constitution. 

Thus, the previous challenges to the adultery provisions were reflective of this traditional approach: petitioners approached the Court to argue that the manner in which conduct had been criminalised did not pass constitutional muster. The present petition in Joseph Shine is also framed as a traditional Type II Challenge. It argued that the adultery laws perpetuate unconstitutional discrimination, seeking a review of the previous cases where the Court had held otherwise. The Supreme Court issued notice last year and agreed to go down this path primarily because it had a problem with the provisions not being gender neutral (discussed by Dr. Tarunabh Khaitan on ICLP recently, and by Gautam Bhatia last year). But, going by news coverage, the Supreme Court now seems to be mulling about whether it wants to engage in a Type I Challenge instead and consider why adultery should be a crime at all. Notice the assumption underlying the question itself: there is a kind of conduct which a legislature cannot make a crime, and the Court can identify this category.  

While adultery cases did not involve Type I Challenges, such Challenges to penal statutes themselves are not totally absent from the history of Indian constitutional law. In fact, a number of cases were filed in the 1950s against new social welfare legislation which used criminal punishments against those violating licensing laws, arguing that such conduct could not be a crime. The Court agreed that a category of conduct beyond the scope of criminalisation does exist, and it located this within the Constitution itself in Article 19 rights to freedom read together with its many restrictions. Thus, in Harishankar Bagla [1955 SCR 313], the petitioner unsuccessfully argued that licensing laws on cotton were unconstitutional as they violated the rights guaranteed under Article 19(1)(g) and (f). Beyond Article 19, what else might be identified in the category of conduct that can't be penalised? The intuitive answer is the "right to life and personal liberty" guarantee under Article 21. While the Maneka Gandhi reading of Article 21 only did this indirectly by requiring laws to be "just, fair, and reasonable", the recent recognition of a right to privacy within Article 21 surely works as a basis to make Type I Challenges.     

The Implications of a Narrow or Broach Approach

A Type II Challenge in Joseph Shine would mean considering whether or not the statutes perpetuate illegal discrimination. This would involve testing the law on the basis of Article 14, and also the Maneka Gandhi version of Article 21 to see whether the adultery laws are "just, fair, and reasonable". But if the Court sticks to its guns and makes the adultery petition a Type I Challenge, then it must do more. It must decide whether consensual sexual relationships between adults can be criminalised, even if they involve marital infidelity. It cannot answer this question by testing the mechanics of the statute under Article 14, but will have to make a substantive inquiry, turning to Article 19(1)(a) or perhaps the right to privacy under Article 21, and the reasonable restrictions to these rights. Thus, the Court would have to decide whether criminalising adultery to protect the "sanctity of marriage" as the Central Government seems to argue, is a purpose falling within the "decency of morality" clause of Article 19(2). Similarly, it would have to engage with Puttuswamy and the separate opinions therein to establish how it will test the state intervention into this sphere of conduct. The statutory provisions on adultery can arguably be found constitutionally wanting in both scenarios. So what should the Court do in this situation? Play it safe and stick to a traditional approach based on the equality clause, or enter the substantive debate on criminalisation. There are pros and cons to both options. 

If the Court decides to play it safe, then it can set the record straight on the previous cases. Moreover, it can avoid a debate about what the Court thinks is conduct worthy of criminal sanctions; an expression of societal mores traditionally expressed through elected representatives. But since there are constitutionally protected spheres of conduct, the Court can't fully avoid that question. If it does, then, decide to go ahead and address the substantive issue fully, it can lead to a Constitution Bench of the Supreme Court clearly identifying a set of basic principles that legislatures must adhere to while drafting criminal statutes, and locate these principles within the constitutional text. For instance, if the Court holds consensual sexual relations between adults are beyond the pale of criminal law, it can do so by locating this conduct within the scope of Article 19(1)(a) [right to freedom of speech and expression], or Article 21. Arriving at these basic constitutional minimums would potentially affect many other offences which involve similar conduct, as litigants get emboldened to file petitions. For instance, the principle would extend to excluding this entire category of conduct from the realm of Section 377 IPC, the provision currently criminalising "unnatural sex", even if it might be consensual and between adults. Ultimately, in the long run, the Court can trigger a fruitful late-spring cleaning of the Augean Stables that are the variety of crimes punishable under many statutes across India. 

But there is another side to that coin: the Court will now invite litigation challenging the legality of substantive crimes and further trample upon traditionally legislative functions. Already, the Court has broadened its jurisdiction to assume plenipotentiary powers and don the role of the White Knight in this horribly corrupt India. As Anuj Bhuwania argues, the Court has increasingly become inscrutable in carrying out this role, rendering poorly reasoned judgments or not rendering judgments at all or governing by a stream of non-reasoned orders, to slowly become part of the problem itself. This recent history suggests that opening up the gates for litigation will only lead to more chaos. And there is more basis for worry in this particular sphere of judicial review of substantive criminal law issues. The last major opportunity the Court had to engage in this kind of analysis was when it was asked to decide the constitutionality of the defamation offence, but it failed to address core legal issues and hid behind a veil of prose, rendering that decision only fitfully useful in future cases. The consequences of judicial intervention in Joseph Shine - regardless of the verdict - are not going to be so unremarkable given its status as a Constitution Bench decision.  

Conclusion: 

Recently, my friend and fellow skeptic Gautam Bhatia in an op-ed laid out a rival approach to the "narrow approach" where the Court sticks to the legal issue to avoid the "real" ones. This is what he called the "transformative approach", where the Court is fearless enough to "erase and remedy long-standing legacies of injustice". I have reservations in how Bhatia imagines the Court should go about this task, but Bhatia is right in his underlying premise, that if the Court has already broken down the barriers in terms of traditional power-relations between the different branches of government in India, it might as well do something useful. What holds me back from cheering him on is that there is too much to show that the manner in which the Court carries out its core function of answering legal issues - if it still is the core function - makes a transformative approach a double-edged sword. By inviting the Court to widen its range of targets, litigants run a risk that the Court is not going to stick to the identified targets. It will pick and choose which ones it wants to address, how to address them, and whether it wants to bring in new targets which you only find out while reading the judgment. Thus, at heart I yearn for more principled criminalisation of conduct in India, something that the Constitution Bench decision in Joseph Shine can help realise. But history often repeats itself, and that history tells me that the kind of reasoned decision needed to help realise this objective is unlikely to emerge. As I was reminded seeing the recent England-India test match: it is the hope that kills you.