The recent judgement of the Indian Supreme Court decriminalizing adultery needs to be viewed as a shot in the arm for the larger social justice movement. Adopting a nuanced position, while upholding how marriage is largely a private affair between two individuals, the judiciary has simultaneously retained with it the right to intervene in order to do away with the systemic inequalities present within the institution of marriage. Read along with the recent judicial pronouncements on right to privacy, section 377 of IPC and the Sabarimala temple, by deftly maintaining a careful balance between equality, liberty and privacy, the court can be seen to be moving in the direction of establishing just morality in the Indian society.
Recently, the supreme court struck down adultery. The section in question is Section 497 of IPC. It’s an archaic law which allowed the husband to prosecute the wife’s lover while shielding the wife if the relationship transpired without connivance or consent of the husband. At the same time, an identical right over the husband’s sexuality to the wife is conspicuous by its absence. Additionally, it does not criminalise adultery if the husband has consensual sexual intercourse with an unmarried woman, whereas a married woman having a similar relationship with a bachelor may find her paramour being punished for the offence.
INCHING TOWARDS WOMEN’S FREEDOM
What may have appeared to be a seemingly benign provision actually had insidious implications. On the surface, section 497 claimed to protect women. However, when read carefully, the law was shown to actually vest the control of the wife’s sexuality to the husband. The wife’s sexuality ended up becoming a matter of contention, to be solved between two men. Interestingly, the wife’s control over the husband’s sexuality was missing under the said provision. Needless to say, under the garb of marital fidelity, it actually protected male privilege.
That said, this judgement serves to rework the scales which had hitherto been tipped in favour of the husband while upholding the woman’s sexual autonomy and agency. It further challenges the narrative of the woman invariably being the victim.
MOVING AWAY FROM STATE’S LENS
We can further see questions being raised on whether there exists ‘public good’ in a private marriage which necessitates the state’s intervention through criminalisation. The treatment of adultery as a criminal offence thus is perceived as an instance of disproportionate punishment. Decriminalisation necessarily allows individuals to have control over their marital lives by giving them the prerogative of either opting for divorce or reconciliation. Pointing at the limits of statism, the judgement further underlines the need to draw a line between public and private, given how excessive state intervention in the private realm can prove to be detrimental to liberty.
OPENING THE PANDORA’S BOX
Additionally, the judgement has laid down the ground for recognition of marital rape. Thus, in locating his reasons for striking down Section 497 on the site of the agency of women within the institution of marriage, DY Chandrachud says, “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.”
STEP TOWARDS MODERN CONSTITUTIONAL MORALITY
To further understand the salience of the judgement, it needs to be viewed in light of the slew of progressive judgements which seek to assess laws, customs, practices on the touchstone of liberty, equality and privacy. It’s a move, therefore, towards modern constitutional morality.
One, however, wonders whether a judgment which talks about moving the state lens away from marriage is, in effect infringing upon individual liberty. Its salience ought to be understood through the need to balance different virtues of equality, liberty and fraternity given how unchallenged ideals are likely to undermine other values. Thus, for instance, uncontested liberty in marriage is likely to perpetuate practices which breed inequality between the two sexes. Intervention by state, which is supposed to uphold the interests of all, thus becomes imperative. Nonetheless, such intervention continues to be a qualified one given how an excess of it has a likelihood of undermining individual autonomy.
Regardless of how the intention behind the judgement is overwhelmingly progressive, its nuance might just get lost beyond the larger academic circles. Thus, the larger populace might perceive the judgement decriminalising adultery while upholding the sexual autonomy of wives and privacy, as hitting at the very roots of the supposedly sacrosanct institution which is marriage. Greater awareness about the judgement’s underlying reasons, therefore, becomes key. Additionally, the supreme court should have commented on the civil remedies available in the event of adultery or perhaps asked the legislature to elaborate on the same. Moreover, adultery continues to attract the scope of Section 306 of IPC. Thus, if an aggrieved spouse ended her life because of her partner’s adulterous relation, it could be treated as an abetment to suicide if evidence was produced. This needs to be done away with for decriminalisation to be made completely effective.
Critics may question the efficacy of judgements in bringing about substantive change, i.e. in bringing about a paradigm shift in the mindset of people. However, effectively taking away the state legitimacy from such discriminatory practices goes a long way in changing the mentality of the citizenry at large, albeit through a painstakingly long process.
Indeed, given how last few weeks have been, it’s almost as if the judiciary is trying to make up for the time lost during its internal crisis.
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