Reporter's Diary: Gentlemen and Seamen

Bar & Bench September 23 2018

Reporter’s Diary is a series that brings you interesting snippets from court hearings across the country. It attempts to offer our readers a glimpse into the interactions between judges and lawyers appearing in cases, and offers a take on recent developments in the courts

Perhaps because of his in-depth research on Macaulay for the purpose of writing the judgment in Navtej Singh Johar, Justice Nariman happened to recall an interesting quote attributed to Macaulay, while hearing the arguments in Joseph Shine v Union of India, against the validity of Section 497 IPC, making adultery an offence, on August 8.

Senior counsel, Meenakshi Arora was making her submissions against the provision, saying criminal law should not be used to control conduct involving private morality or immorality. Additional Solicitor General, Pinki Anand, on the other hand, sought the retention of the provision as it seeks to protect the right to reputation of the husband. Justice Chandrachud asked how it would protect the husband’s reputation, as it envisages decriminalisation of adultery, if the husband gives his consent to adultery involving his wife and another person.

Why should Adultery be a Crime at all if it violates Article 14, DY Chandrachud J.

Adultery HearingMarriage is a sacred institution, any intrusion should attract penal consequencesPinky Anand[Day 3]

Decriminalisation of Adultery a threat to sanctity of marriage, Centre to Supreme Court

PIL in SC challenging adultery laws referred to Constitution Bench

The irony is that while the law criminalises adultery, and seeks to punish the paramour of a man’s wife, it considers the husband involved in adultery with another woman, married or unmarried, as innocent, if the other ingredients of the law are not attracted. For the offence under this provision to be complete, the man accused of adultery must have the knowledge or the reason to believe that the woman is the wife of someone else, if she is married, and her husband must not have consented for or connived at the alleged offence. The provision makes it clear that the wife shall not be punishable as an abettor.

The law’s double standard on the offence, was best captured by a well-known quote, attributed to Macaulay, by Justice Nariman. Macaulay, Justice Nariman recalled, said: “There were gentlemen and there were seamen in the navy of Charles the Second. But the seamen were not gentlemen; and the gentlemen were not seamen”.

Substitute seamen for paramour and gentlemen for the ‘innocent’ husband, and the analogy is clear.

In other words, the law does not seek to punish the husband for giving his consent or conniving at the adultery involving his wife and another man. Instead, it protects the husband for doing so, and also if he indulges in adultery with an unmarried woman.

If the husband indulges in adultery with another married woman, the law will kick in only if the other ingredients are satisfied. Once it does so, he ceases to enjoy the law’s protection.

Macaulay’s quote explained

Thomas Babington Macaulay

But Macaulay’s well-known quote referred to an entirely different historical context. The seventeenth century, especially the latter half, was a period of rapid growth for the English navy. There were more ships, and they were more frequently employed. The vessels themselves were of a new character – immense ships of the line, unlike anything else afloat, built and equipped for the sole purpose of fighting.

Who was to command these ships? What sort of men were fitted to coordinate them in battle? These were questions that the 17th century navy had trouble answering. It was not hard to find competent mariners, and mariners were used, but the drawback was that these “tarpaulin officers” rarely had the background and aptitude for effective command.

After the Restoration of the English monarchy under King Charles II in 1660, a good many persons of high birth, and negligible knowledge of the sea and ships, were entrusted with men of war. Macaulay sought to describe this situation with his famous quote, in his History of England from the Accession of James II. [From British Naval Administration in the Age of Walpole by Daniel A. Baugh, Princeton University Press, 2015, originally published in 1965.]

According to Macaulay, the gentlemen captains “were intellectually and morally incapable of ever becoming good officers”.

Above all, they thought only of making money and spending it. The way in which these men lived was so ostentatious and voluptuous that, greedy as they were of gain, they seldom became rich.

Clearly, such captains were seen as a threat, not only to the men who served under them, but to the nation as a whole. If the typical sea officer was such a sorry specimen, how did England survive the great series of wars against the Dutch and French that marked the age?

Macaulay’s answer was that, mingled with the gentleman captains, there were naval commanders of a very different description, men whose whole life had been passed on the deep, and who had worked and fought their way from the lowest offices of the forecastle to rank and distinction… It was by such resolute hearts that, in spite of much maladministration, and in spite of the blunders of more courtly admirals, the coasts were protected and the reputation of the flag upheld during many gloomy and perilous years, he wrote.

For all their qualities of skill and courage, however, even these commanders did not escape Macaulay’s censure. The gentlemen lacked ability, the tarpaulins manners, and the navy, its officer corps sharply divided between the two, lacked well-rounded professionals. [Source: The Image of the Sea Officer in English Literature, 1660-1710, by Robert E.Glass, Albion: A Quarterly Journal Concerned with British Studies, Vol.26, No.4, 1994, pp.583-599.]

The controversy over gentlemen and tarpaulins was a vital issue among sea officers themselves in the 1660s and 1670s, but over the succeeding decades the distinctions between the two groups became increasingly blurred. By the beginning of the 18th century, an officer of high rank but humble origins could expect to be treated as a gentleman, and aspire to an estate in the country. The entrance of tarpaulins into landed society and the mastery of seamanship by gentlemen made the distinctions between the two groups largely irrelevant, says another scholar. [The Image of the Sea Officer in English Literature, 1660-1710, by Robert E.Glass]

As the judgment in Joseph Shine is expected any time, one could expect Justice Nariman to dwell on the origins of Section 497 IPC, and Macaulay’s role in drafting it, at length. Hopefully, just as the distinctions between gentlemen and seamen got blurred over the passage of time, the artificial distinction created by Section 497 IPC between husbands and men accused of adultery would vanish with the pronouncement of the judgment in the case.