The Supreme Court has referred the petition challenging the validity of Section 497, Indian Penal Code, 1860 (‘IPC’), which penalises a man for having sexual intercourse with a married woman, without the consent of the husband, with imprisonment up to five years and fine, to Constitution Bench of 5 judges or more. The petition argues that Section 497, IPC is discriminatory and violates the doctrine of equality under Article 14 of the Constitution, by criminalising only men for adultery, and contends that prior decisions, where this provision was upheld, need reconsideration.
The offence of adultery is rooted in the Victorian notion of the married woman being the ‘property’ of her husband. So when a man has an affair with a married woman, he was said to be ‘tresspassing’ into the property rights of the husband, and was thus liable for punishment.
In its earlier order in December, 2017 the Supreme Court noted the hugely problematic nature of the offence of adultery and stated that “it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman when the Constitution confers equal status.”
This concern for gender justice was reiterated in the Apex Court’s reference order dated 05.01.2018, wherein the Court held that “the provision seems quite archaic and especially when there is a societal progress. Thus analysed, we think it is appropriate that the earlier judgments required to be reconsidered, regard being had to the social progression, perceptual shift, gender equality and gender sensitivity.”
The issue whether adultery should be a criminal offence has been agitating the minds of jurists and lawyers for a long time. No doubt, the sanctity of the marital relationship is important and the State has a legitimate interest in the continuation of marital relations, considering the plethora of state benefits bestowed upon marriage. However, it is equally true that no person can be forced to be in a relationship, whether marital or not. In that context, the act of adultery can be a ground for divorce, which it is under most personal law, including Hindu Marriage Act, 1955 or the Divorce Act, 1869. The question is whether it is arbitary and excessive and offensive to the dignity of women when the offence of adultery criminalises the man who had a sexual relationship with married woman, without the consent/connivance of the husband, thereby effectively treating the woman as a ‘chattel’. The crux of the matter is whether there can be criminal consequences for consensual relationships between two adult persons of sound mind.
This development comes at a critical time in the history of Supreme Court’s jurisprudence on privacy and autonomy, close on the heels of the emphatic assertion of the fundamental right to privacy by the nine judges bench of the Supreme Court in August, 2017. Questions of sexual relationships between consenting adults, whether in the same sex context or in the present case of adultery, are currently pending before the Court and pose questions about the primacy of the fundamental rights to autonomy, dignity and self-determination in the face of majoritarian condemnation.
The strength of the right to privacy judgment would now be tested in these cases, whether in Aadhar, adultery or in Section 377, and it is to be seen how far the Supreme Court applies its own principles of privacy and autonomy to these contentious issues, especially in the context of adult consensual sexual relations. [Joseph Shine vs. Union of India, Writ Petition (Criminal) No. 194 of 2017, date of order: 05.01.2018]
Major decisions –
- Ex-Prime Minister or President not entitled to Government Accomodation – Gopal Subramanium, Senior Advocate, appearing as an amicus curiae in a case examining the validity of an amendment made by the State of Uttar Pradesh alloting government bunglows to its former Chief Ministers, stated that a person after he demitted public office was not entitled to occupy any public premises for personal use. He further stated that a statute, which conferred public property on private citizens, who were no longer serving any public function, would undermine trust and confidence in the institutions of Government. [Lok Prahari vs. State of UP, Writ Petition (Civil) No. 864 of 2016]
- Notice issued to the Central Government and to all State Governments on better implementation of the Sexual Harassment at Workplace Law: The Supreme Court has sought responses from the Central Government and all the State Governments on a public interest litigation seeking proper and effective implementation of the Sexual Harassment At Workplace (Prevention, Prohibition and Redressal) Act To this effect, the petition has asked for multiple directions from the Supreme Court, including direction to the State Governments to give full support to the District Officers, collection of compliance reports from all organisations, collation of information on the number of cases filed and disposed of, and appointment of officers at Local Complaints Committees, amongst others. [Initiatives for Inclusion Foundation & Anr. Vs. Union of India, Writ Petition (Civil) No. 1224 of 2017, date of order: 04.01.2018]
- CBI Court sentenced Lalu Prasad Yadav to 3.5 years of imprisonment in Fodder Scam Case: Politician Lalu Prasad Yadav was finally sentenced to imprisonment for 3 years and six months, upon his conviction under the provisions of the Indian Penal Code and the Prevention of Corruption Act (‘PCA’) by the Special CBI Court. This sentence and conviction was in a fodder scam case relating to withdrawl of Rs 89 lakhs from Deogarh treasury in the 1990s. The Court also imposed a fine of Rs 5 lakhs each for offences under IPC and PCA on Mr. Yadav.
- Major entitled to take her own decisions: The Supreme Court has reiterated the primacy that ought to be given to the decision-making ability of a person who is a major in the eyes of law. While rejecting an appeal from a Kerala High Court case pertaining to a habeas corpus petition, where the mother challenged her adult daughter’s decision to stay with her father in Kuwait, the Apex Court dismissed the mother’s objections. The Court categotically held that “attaining the age of majority in an individual’s life has its own significance. S/he is entitled to make her/his choices. The Courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the Court should not assume the role of a super guardian.” [X v. Y, Contempt Petition (Civil) No. 1606 of 2017 in Special Leave Petition (Civil) No. 18761 of 2011, date of order: 05.01.2018]
- Women allowed to be recruited in the Territorial Army: In a landmark decision, the Delhi High Court permitted women to be recruited and appointed as part of the Territorial Army. A division bench of Acting Chief Justice, Ms. Gita Mittal, and Justice Hari Shankar held that a blanket prohibition on the appointment of women to both departmental and non-departmental battalions of the Territorial Army, without any credible or reasonable justification for such restrictions. Accordingly, the Court struck down the advertisements that sought to recruit only male candidates. [Kush Kalra vs. Union of India, Writ Petition (Civil) No. 10498 of 2015, date of judgment: 05.01.2018, Delhi High Court]
- Law providing fixation of maximum fees in private schools upheld: The Gujarat High Court dismissed the petitions challenging the validity of the Gujarat Self-financed Schools (Regulation of Fees) Act, 2017 to check excessive fee and profiteering by schools. As per the Act, the schools could only charge a certain maximum amount for pre-primary, primary, secondary and higher secondary schools. The High Court held that the Act did not violate the doctrine of equality or the fundamental right to freedom of trade guaranteed under Articles 14 and 19(1)(g) of the Constitution as well as did not violate the provisions of the Right to Education Act, 2009. [Atul Kumar Dave & Ors. vs. State of Gujarat, Special Civil Application No. 9523 of 2017, date of judgment: 27.12.2017]
- Central Pollution Control Board asked to submit a detailed response on a plea to ban fire crackers all over India: The Supreme Court directed the CPCB to file a detailed affidavit on the pollution situation in Delhi and the adjoining NCR areas, having a proper comparative study of pre and post Diwali period. The Court had issued notice in December, 2017 to the Centre and all the State Governments on a petition seeking a complete ban on fireworks across the country and a series of other measures to curb pollution.
- Denial of information under RTI on the basis of lack of Aadhar card is impermissible: The Central Information Commission came down heavily on HUDCO, a public authority, for repeatedly denying information under the Right to Information Act, 2005, about the alleged malpractices in HUDCO, on the basis that the applicant had to prove his citizenship and identity by providing his passport and Aadhar card. The CIC categorically held that denial of information for lack of Aadhar card would be a serious breach of right, which was guaranteed under the RTI Act, and also amounted to harassment of the applicant.
- Instances of breach of Aadhar security brought before the Supreme Court: The Petitioners challenging the mandatory linking of Aadhar with social welfare benefits have brought on record several instances of breach of Aadhar security mechanism in the Supreme Court, which have affected almost 135 million Indians till date. They also highlighted that how Aadhaar had caused widespread exclusion from access to welfare services such as PDS, MGNREGA, Old Age Pension, Scholarship for EWS etc and even fatalities among the most vulnerable and marginalized. The final arguments in the case will start from 17th January, 2018. [Shanta Sinha & Anr. Vs. Union of India, Writ Petition (Civil) No. 342 of 2017]
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