Adultery: How the Triple Talaq, Privacy, and S. 377 judgments spelt doom for Section 497

In a unanimous judgment passed yesterday, a Constitution Bench of the Supreme Court struck down Section 497, the penal provision relating to adultery, as unconstitutional. In effect, the debate on whether adultery should be an offence was put to bed, so to speak.

Through four separate but concurring judgments authored by Chief Justice of India Dipak Misra (for himself and Justice AM Khanwilkar), Justice Rohinton Nariman, Justice DY Chandrachud, and Justice Indu Malhotra, the Court struck down Section 497 on a number of grounds. These include manifest arbitrariness of the provision, the discrimination against women it perpetuated, the disregard for autonomy, agency and dignity of women, and the violation of privacy it entailed, among others.

Today’s judgment might not have been possible were it not for three judgments passed by the Supreme Court over the past year. These are the Triple Talaq judgment (Shayara Bano v. Union of India and others), the Right to Privacy judgment (KS Puttaswamy and another v. Union of India and others) and more recently, the Section 377 judgment (Navtej Singh Johar v. Union of India).

Each judgment authored today relies heavily on the principles laid down by the Court in these three cases.

To put it in CJI Misra’s words, the Court has traveled on the path of transformative constitutionalism, particularly in the field of gender rights. And after today, the Supreme Court can add Joseph Shine v. Union of India to the list of recent judgments through which it has promoted and engendered societal change in the country.

In this article, we take a look at how each judgment cited either of these judgments (or all three) in order to come to the conclusions that adultery is not an offence and that Section 497 was unconstitutional.

Judgment of Misra CJI

Justice Misra’s judgment speaks of the dignity of a woman, in the context of autonomy, desire, choice and identity. With this in mind, he refers to Puttaswamy, in which dignity was held to be an inalienable part of the Right to Privacy, which in turn was declared a fundamental right. Here is an excerpt of that judgment referred to by Misra J:

“…Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life…Privacy of the body entitles an individual to the integrity of the physical aspects of personhood.”

Judgment of Nariman J

Nariman J makes a reference to Shayara Bano, in which he himself reiterated manifest arbitrariness to be a ground for striking down a law. He held that the archaic law relating to adultery law has long outlived its purpose and does not square with today‘s constitutional morality, and is therefore liable to be struck down for being manifestly arbitrary. He notes,

“…when such law falls foul of constitutional guarantees, it is this Court‘s solemn duty not to wait for legislation but to strike down such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform. The majority view was the exact opposite, which is why Triple Talaq was found constitutionally infirm and struck down by the majority…”

Justice Nariman also cites Puttaswamy, another judgment he himself was part of. After stating how privacy and consequently, dignity, is covered by Article 21 of the Constitution, he writes,

“The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.”

Judgment of Chandrachud J

Chandrachud J, as he is wont, delves deepest into the issue, and makes multiple references into each of the three aforementioned judgments.

On the concept of manifest arbitrariness laid down in Shayara Bano, he writes,

“The decision in Shayara Bano, holds that legislation or state action which is manifestly arbitrary would have elements of caprice and irrationality and would be characterized by the lack of an adequately determining principle. An “adequately determining principle” is a principle which is in consonance with constitutional values.

With respect to criminal legislation, the principle which determines the “act” that is criminalized as well as the persons who may be held criminally culpable, must be tested on the anvil of constitutionality. The principle must not be determined by majoritarian notions of morality which are at odds with constitutional morality.”

Citing Puttaswamy, he sheds light on protecting privacy and dignity of women thus:

“The opinion delivered on behalf of four judges in K S Puttaswamy v Union of India has recognised the dangers of the “use of privacy as a veneer for patriarchal domination and abuse of women.” On the delicate balance between the competing interests of protecting privacy as well dignity of women in the domestic sphere, the Court held:

‘The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty’…”

As regards autonomy of individuals and the Centre’s argument that decriminalising adultery would affect the institution of marriage, he held,

“The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution.”

He cites Navtej most extensively on the topic of discrimination, referring to his own reflections in that judgment:

 “A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex…”

Citing the same case, he refers to the morality of majority and how it should not come in the way of determining whether Section 497 should remain on the statute books.

“These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.”

And finally, he makes a reference to what he himself held in Navtej on the topic of sexual privacy.

“In Navtej, one of us (Chandrachud J) held that the right to sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. The application of Section 497 is a blatant violation of these enunciated rights. Will a trial to prove adultery lead the wife to tender proof of her fidelity? In Navtej, the principle was elucidated thus:

‘In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters.’”

Judgment of Malhotra J

Malhotra J refers to Puttaswamy, which laid down a three-fold test to determine whether the State’s interference with the Right to Privacy is legitimate. Applying the same to Section 497, she held,

“…an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra): (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which ensures a rational nexus between the object and the means adopted. Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.”

Read the entire judgment here: