JOSEPH SHINE V. UNION OF INDIA, 2018

Case Briefing: JOSEPH SHINE V. UNION OF INDIA

Case Title and Citation:

Joseph Shine v. Union of India (WRIT PETITION (CRIMINAL) NO. 194 OF 2017). Citation: 2018 INSC 862 (25 September 2018) (Note: The judgment date cited internally is September 27, 2018).

Facts:

The instant writ petition was filed under Article 32 of the Constitution, challenging the validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).

Section 497 IPC criminalised adultery only when a man had sexual intercourse with a married woman “without the consent or connivance of that man,” stipulating that “the wife shall not be punishable as an abettor”. Section 198(2) CrPC stated that only the husband of the woman shall be deemed to be aggrieved by the offense punishable under Section 497 IPC.

The provision was fundamentally based on the concept of Victorian morality, where a woman was considered to be the ‘property’ of her husband. The historical context in 1860, when the IPC was enacted, was that women had no rights independent of their husbands and were treated as chattel. The offense was designed to protect the proprietary interest of the husband in his wife.

Prior Supreme Court judgments (Yusuf Abdul Aziz (1954), Sowmithri Vishnu (1985), and V. Revathi (1988)) had upheld the constitutionality of Section 497, largely relying on Article 15(3) (affirmative action for women) or by viewing the law narrowly as legislative policy. The three-Judge Bench referring the matter felt the necessity to have a re-look, noting that the provision “prima facie, appears to be quite archaic” and creates a “dent on the individual independent identity of a woman”.

Issue(s):

1. Whether Section 497 of the IPC is violative of the fundamental rights, specifically Articles 14, 15, and 21 of the Constitution.
2. Whether the related procedural provision, Section 198(2) of the CrPC, is also unconstitutional.
3. Whether adultery should be treated as a criminal offense subject to penal consequences, or solely as a marital wrong.

Rule of Law:

• Article 14 (Equality): Equality is antithetic to arbitrariness. Legislation will be struck down if it is found to be “arbitrary”. The test of manifest arbitrariness applies to negate legislation if it is done capriciously, irrationally, and/or without an adequate determining principle, or is excessive and disproportionate.
• Article 15 (Non-discrimination): The State shall not discriminate against any citizen on grounds only of sex. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3).
• Article 21 (Life and Personal Liberty): The right to life includes individual dignity. Privacy is an essential aspect of dignity. The autonomy of the individual is the ability to make decisions on vital matters of concern to life, including choices in matters of sexuality, which are intrinsic to a dignified human existence.
• Separation of Powers: The Court is not making law or legislating, but only stating that a particular act (adultery) does not fit into the concept of a crime, as doing so would be an intrusion into the extreme privacy of the matrimonial sphere.
• Stare Decisis/Precedent: Precedents, even if binding, may be overcome when the controversy relates to human lives that transcendentally grow, and the Court is compelled to grow out of regressive precedents due to transformative constitutionalism.

Holding:

The Supreme Court, by a unanimous five-Judge Bench, held that Section 497 of the Indian Penal Code is unconstitutional.

The Court declared that the offense of adultery does not fit into the concept of a crime.

The Court also declared that Section 198(2) of the CrPC is unconstitutional to the extent it applies to the offense of Adultery under Section 497.

The prior decisions of Sowmithri Vishnu v. Union of India and V. Revathi v. Union of India were overruled.

Reasoning:

Violation of Article 14 (Manifest Arbitrariness): Section 497 is manifestly arbitrary. It is based on the reflection of social dominance that was prevalent when the penal provision was drafted.

1. Treats Woman as Chattel: The provision treats a woman as the property of the husband and totally subservient to the will of the master. The emphasis on the connivance or consent of the husband implies that the husband is the licensor of his wife’s sexuality; if he consents, no offense is committed, regardless of the wife’s agency.
2. Excessive and Disproportionate: The law confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate.
3. Inconsistent Scope: The law fails to apply equally to men and women: a married man having sex with an unmarried woman is not culpable, showing that the law is not protecting the sanctity of marriage but the proprietary interest of the husband.

Violation of Article 15 (Discrimination based on Sex/Gender Stereotypes): Section 497 places a married man and a married woman on different pedestals, leading to discrimination against women on the ground of sex.

1. Denial of Agency: The provision is based on a gender stereotype that men are the seducers and women are the passive, submissive, or naïve victims. This notion is deeply offensive to equality and destructive of the dignity of the woman.
2. Protective Discrimination Fallacy: The Court rejected the argument that the provision is saved by Article 15(3) as an affirmative action measure. Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women. A legislation which takes away the rights of women to prosecute cannot be termed as ‘beneficial legislation’.

Violation of Article 21 (Dignity, Autonomy, and Privacy): Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy, and sexual autonomy.

1. Sexual Autonomy: The provision disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. The sexuality of a woman is part of her inviolable core.
2. Privacy: Criminalizing adultery leads to immense intrusion into the extreme privacy of the matrimonial sphere. The organization of intimate relations is a matter of complete personal choice, especially between consenting adults.
3. Marital Subordination: Section 497 is based on the understanding that marriage submerges the identity of the woman, subjecting her to marital subordination. The identity of the woman must be as an ‘individual in her own right’; marriage does not result in ceding the autonomy of one spouse to another.
4. Criminalization Inappropriate: Treating adultery as a crime is inapposite; it is better to be left as a ground for divorce. Criminalizing it would tantamount to punishing people who are unhappy in marital relationships, regardless of whether the act was the cause or the result of a marital breakdown, making the law fall within the sphere of manifest arbitrariness.