New Delhi: The Centre’s last-ditch effort to save Section 497 of the Indian Penal Code – which selectively criminalises adultery – from being struck down by the Supreme Court was rebuffed on Wednesday, as the Supreme Court’s constitution bench reserved its judgment after hearing arguments challenging and defending the provision.
Additional solicitor general Pinky Anand told the bench comprising Chief Justice of India Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra that the provision must stay in the interest of the institution of marriage, and to defend an individual’s right to reputation, which has been held to be a justification for criminalising the offence of defamation.
The bench, however, sought to know how the provision would help the institution of marriage if the couple separate and their divorce takes time to materialise. “Marriage is not consent in permanence,” observed CJI Dipak Misra. The CJI was emphatic that the Supreme Court’s judgment in Subramanian Swamy’s case, which justified criminalisation of defamation – and which was authored by the CJI himself – was not relevant in this case.
When Pinky Anand suggested that Section 497 could be either read down or interpreted to sever it from its parts considered discriminatory to women, the bench disagreed. Justice Chandrachud observed: “You can’t sever it. We will be creating a new offence, which parliament did not intend, if we do it”. The bench made it clear that making the provision gender-neutral is out of the question. “It either goes or stays; it can’t be severed”, observed Justice Nariman.
The CJI cited several instances of transfer petitions before the Supreme Court in which marriages are subsisting, despite having broken down. Criminalising adultery in such cases, he said, therefore, makes no sense.
Replying to the Centre’s submissions, senior counsel for the petitioners, Meenakshi Arora, told the bench that criminal law should not be used to control or check private morality or immorality. Criminal law should be used only as a last method of social control, she added.
Earlier, Jayna Kothari, representing the intervenor Vimochana Trust, argued that the right to intimate association is a facet of privacy which is protected under the constitution. Citing a US precedent, Eisenstadt v Baird, she argued that though a marital couple form an association, the individuals who are a part of that association enjoy the right to privacy. She cited another US case, Roberts v United States Jaycess, where freedom to intimate association of choice was upheld as part of the right to privacy. Even within marriage, the individuals do not lose their fundamental right to privacy, she noted.
She also referred to a Namibian Supreme Court decision which had considered the ‘institution of marriage’ claim in a challenge to adultery. The Namibian court had held that essence of marriage is founded on the morals of the parties to a marriage; if they lose theirn commitment to marriage, then it will fail; punishing a third party will not save the marriage.
She concluded by reiterating that the basis of the adultery offence is that a woman is considered as the property of the husband – that she cannot have relations outside of marriage, but the husband can.
Kaleeswaram Raj, counsel for the petitioner Joseph Shine, asked whether marital fidelity should be saved by the state through police powers. It rests on surer foundations like love, trust and honesty, he added.