Parliamentary Committee’s Recommendation on Adultery

What’s in today’s article?

• Why in news?
• News Summary: Parliamentary Committee’s Recommendation on adultery
• What is the legal position on adultery now?
• Key takeaways of the SC judgement
• What has the House Committee recommended?
• Can the Supreme Court’s decision in this case be undone?

Why in news?

• The Parliamentary Committee on Home Affairs has suggested that adultery should be re-instituted as a crime in the Bharatiya Nyaya Sanhita (BNS), 2023.
  • BNS 2023 is the proposed law to replace the Indian Penal Code (IPC), 1860.
• Recently, the Parliamentary Committee had adopted reports on the three Bills meant to replace the IPC, the CrPC, and the Indian Evidence Act.

News Summary: Parliamentary Committee’s Recommendation on adultery

What is the legal position on adultery now?

• Before SC Judgement of 2018
  • Until 2018, Section 497 of IPC defined adultery as a criminal offence that attracted up to five years in prison, or a fine, or both.
  • However, only men could be punished under Section 497, not women.
    • As per this section, the wife shall not be punishable as an abettor.
  • This was contrary to both the common understanding and the dictionary definition of adultery.
  • As per these, adultery is simply voluntary sexual intercourse between a married person, man or woman, and someone other than that person’s current spouse or partner.
• SC Judgement of 2018
  • In Joseph Shine vs Union Of India (September 2018), a five-judge Bench of the Supreme Court unanimously struck down Section 497 of the IPC on grounds that included discrimination.

Key takeaways of the SC judgement

• Discriminatory nature of Section 497
  • Section 497, and its manifest arbitrariness in punishing only men for adultery, was one of the grounds. As per the SC, Section 497 was violative of Articles 14, 15, and 21 of the Constitution.
  • The court underlined the autonomy of women as a facet of human dignity and declared that the husband is neither master of his wife, nor does he have legal sovereignty over her.
• Adultery does not fit into the concept of crime
  • If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.
  • To treat it as a criminal offence will offend the two facets of Article 21 of the Constitution:
    • dignity of husband and wife, as the case may be, and
    • the privacy attached to a relationship between the two.
• Section 497 was replete with anomalies
  • An adulterous relationship would not be an offence if the married woman had her husband’s consent.
  • Also, a wife could not prosecute her husband or his lover, even if they committed this offence.

What has the House Committee recommended?

• The report on the BNS 2023, which was adopted by the Committee recently, said that adultery should be reinstated as a criminal offence.
• However, the report said that it should be made gender-neutral — that is, both men and women should be punished for it.
  • As per the committee, section 497 of IPC only penalised the married man, and reduced the married woman to be a property of her husband.
• The Committee was of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.
• In essence, the report has argued that Section 497 was struck down on grounds of discrimination, and making it gender-neutral would address this deficiency.

Can the Supreme Court’s decision in this case be undone?

• A ruling of the SC is the law of the land. Parliament cannot simply pass a law that contradicts a ruling of the top court.
• However, it can pass a law that removes the basis of the court’s judgment. Such a law can be both retrospective and prospective.
  • In the Madras Bar Association vs. Union of India case in 2021, SC held that to check if a law fixing a problem is valid, one needs to see if the court's decision would have been the same if the corrected situation existed when the judgment was made.
  • In simpler terms, if the issue raised in the court was fixed by the new law, the basis of the court's decision is no longer valid.

Q1) What is Indian Penal Code (IPC), 1860?

The Indian Penal Code (IPC) of 1860 is a 160-year-old criminal code of India. It was established by the British Government in 1860 and is primarily based on the principle of "master and servant". The Code has not been completely amended since its introduction.

Q2) What is Bharatiya Nyaya Sanhita, 2023?

The Bharatiya Nyaya Sanhita, 2023 (BNS-2023) is a bill that was introduced in the Lok Sabha on August 11, 2023. The bill aims to repeal and replace the Indian Penal Code, 1860 (IPC). The IPC is the principal law on criminal offences.

Source: Why adultery was struck off IPC, and why a House panel wants to make it a crime again