Decriminalising adultery – Centre seeks clarification

Sept. 30, 2022

In News:

A five-judge bench of the Supreme Court is hearing a plea filed by the Central government which seeks clarification of the Court’s earlier judgement on adultery.
In 2018, the Supreme Court, in the case titled ‘Joseph Shine v/s Union of India’ had declared provisions penalising adultery as unconstitutional.

What’s in today’s article:

Background:

Adultery is defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse.
Under Section 497 of the Indian Penal Code (IPC), adultery was a criminal offence in India.
IPC Section 497 says it is a punishable offense for a man to have sexual intercourse with a married woman without the consent of her husband.
- The man committing such an offense can be imprisoned for five years or more and can also be asked to pay a fine.
One big concern regarding this provision was that it does not appear to be gender-neutral. In case of any act of adultery committed, the law calls for punishing the man but not the woman involved.
Also, Section 497 does not enable a woman to file a complaint against her husband when he has had sexual intercourse with another woman.

Joseph Shine v/s Union of India case:

In 2017, a writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of Section 497 of IPC.
In 2018, the Supreme Court struck down Section 497 of the IPC as unconstitutional, being violative of Articles 14, 15 and 21.
The Court held that Section 497 was archaic and constitutionally invalid as it stripped a woman of her autonomy, dignity and privacy.
Violation of Article 14 of the Constitution –
- Article 14 provides for equality before the law or equal protection of the laws within the territory of India.
- The court held that Section 497 disregarded substantive equality as it reaffirmed the idea that women were not equal participants in a marriage.
- Therefore, this Section was held to be in violation of Article 14.
Violation of Article 15 of the Constitution –
- Article 15 prohibited discrimination only on the grounds of: religion, race, caste, sex or place of birth.
- The court held that Section 497 was based on gender stereotypes and in doing so, contravened the non-discrimination provision of Article 15.
Violation of Article 21 of the Constitution –
- Article 21 states that no person shall be deprived of his life or personal liberty.
- The court held Section 497 to be violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy.

Central Government’s plea seeking clarification:

In 2019, a plea was filed by the Central government seeking a clarification on whether disciplinary action can be initiated against army personnel under the Army Act, 1950 for adulterous acts, despite the Joseph Shine case verdict.
Central Government’s argument –
- Disciplinary actions were taken against certain army personnel for adultery.
- But, the Armed Forces Tribunal quashed such proceedings in many case, citing the Joseph Shine judgment.
- The government argued that action against adultery is necessary to ensure that the officers who are serving in far flung areas away from their families do not feel insecure or dispirited.
- The government added that actions taken in Army are gender neutral and female officers are also subjected to disciplinary action.

Supreme Court’s Observation:

The Supreme Court said the military should have a mechanism to act against officers found to have engaged in adultery.
The Supreme Court highlighted that adultery would inflict pain and could shake the life of the officers.
Further saying that "discipline is paramount" for the military, the court said adultery in the military cannot be treated lightly.
The court said that the Joseph Shine verdict cannot be referred to halt disciplinary proceedings against those guilty of adultery in the military.
The Supreme Court has posted the matter for further hearing on December 6, 2022.

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