. ADU LTE R Y
Why in News?
The Supreme Court unanimously struck down Section 497 of the Indian Penal Code (IPC) that makes adultery a punishable offence.
Court’s Stand
• Supreme Court held that the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality). It destroys and deprives women of dignity and offends sexual freedom of women..
• Mere adultery can't be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC. It can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.
Section 497
• Section 497 says "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."
• The offence of adultery entailed a maximum punishment of five years, or with fine, or both
• The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.
• Equality is the governing principle of a system and husband is not the master of the wife. Women must be treated with equality and any discrimination shall invite the wrath of Constitution. Section 497 IPC which deals with Adultery is absolutely manifestly arbitrary.
• The apex court also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional.
72 www.visionias.in ©Vision IAS
Ambiguities in Adultery Law
• If a married man has sexual intercourse, outside his marriage, but with an unmarried woman, that does not amount to an offence under the provision though it also effects the sanctity of marriage.
• If the husband of a woman connives with another man for the latter to participate in sexual intercourse with
the former’s wife, then there would be no adultery.
• A woman committing adultery is not even deemed to be an “abettor” to the offence. Also it legalises the act of Adultery if committed by with the consent or connivance of the husband of the woman who is party to the act.
• Section 198(2) of the Cr. P. C. allows the initiation of criminal proceedings for Adultery only at the instance of the husband of the adulteress, but the wife of the man party to the act of adultery cannot institute a complaint.
Conclusion
The SC’s new verdict that matrimonial issues fall in the realm of civil law and need not be resolved by criminal law is quite rational. The verdict is not promoting adultery; it just says that adultery is not a criminal offence. However, it should also be the duty of court and the society to make sure that the changes are not used to perpetuate adultery.
7.4. SE CTI ON 377 DE CR I M I NALI ZE D
Why in news?
In Navtej Singh Johar v/s Union of India case the 5 judges Constitutional Bench, headed by Chief Justice declared the parts of Section 377 of the IPC unconstitutional thus decriminalizing homosexuality.
More on News
• The ruling declares that Section 377 violates Articles 14, 15 and
21 insofar as it penalises any consensual sexual relationship
between two adults in private, be it homosexual, heterosexual,
lesbian or transgender persons.
• Provisions of Section 377 remain applicable in cases of non- consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.
• Section 377 of the IPC states: “Whoever voluntarily has carnal inter course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
• Section 377 does not penalise sexual identities per se. It prohibits sexual acts that are considered against the order of nature.
Background on Section 377 of IPC and related Judicial Pronouncements
• Section 377 of the Indian Penal Code, 1861, (IPC) came into
force in 1861 during the British rule to criminalise sexual activities “against the order of nature”, including homosexual activities.
• One of the first legal challenges to Section 377 came in 1994, when the NGO AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition for its repeal which was dismissed.
• In July 2009, in Naz Foundation case the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.
• The Supreme Court in 2013 in the Suresh Kumar Koushal versus Naz Foundation case overruled the Delhi High Court’s order on the basis of the fact that “miniscule fraction of the country’s population constitute LGBTQ,” and that in over 150 years less than 200 people were prosecuted for committing
Two landmark judgments on sexual
orientation and privacy
• National Legal Services Authority (NALSA) case, 2014- In this case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity.
• In Justice K.S. Puttaswamy (2017), or the
‘privacy case’, a nine-judge Bench ruled that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles
14, 15 and 21 of the Constitution”.
offence under the section. Thus, the Supreme Court reinforced the criminalisation of homosexuality.
73 www.visionias.in ©Vision IAS
Highlights of the verdict
• Sexual autonomy and Right to Privacy: A person’s sexual orientation and autonomy to choose his/her sexual partner is an important pillar and an in segregable facet of individual liberty. It is an expression of identity protected in various ways by Article 14, 15 and 21. Discrimination on the basis of sexual orientation is violation of freedom of choice and expression (Article 19).
• Restrain on State Action: Expression of intimacy is at the heart of right to privacy. Right to sexual orientation is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. The state has no business to intrude into these personal matters. This also includes right of persons of the community to navigate public places on their own terms, free from state interference.
• Section 377 of the IPC: Observing it as “capricious and irrational”, the court said that
o Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults making it manifestly arbitrary. This is violative of the right to equality that includes the right against arbitrariness.
o Moreover, it does not take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society.
• Rule of Law instead of Rule by the law: Court observed that Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. Section 377 “infringed” on the fundamental right to non-discrimination, to live a life of dignity, and privacy guaranteed in the Constitution.
• Constitutional morality: It must seek to make a society pluralistic and inclusive. Any attempt to impose a homogeneous, uniform, consistent and a standardised philosophy would violate constitutional morality. It is the responsibility of all three organs of the State to curb any propensity of popular sentiment or majoritarianism.
• Against Majoritarianism: While rejecting the logic in Suresh Koushal case(2013) that the LGBTQI community forms only a tiny part of the population, the SC said that Constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction.
• Health aspect: Homosexuality is neither mental illness nor moral depravity. The SC quoted the Indian Psychiatric Society’s view that “homosexuality is not a psychiatric disorder”, and that same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality. Moreover India’s new mental illness law does not consider homosexuality to be a mental illness.
Analysis of the judgement
• Court pronounced that LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws. It will help in enforcing principles of social justice, based upon the importance of
diversity and human rights.
• Court has added a new test of constitutional morality to examine the constitutionality of laws enacted by Parliament. The verdict enlarges the scope of personal freedom by giving preference to constitutional morality over social morality.
• Transformative constitutionalism, that is, treating the Constitution “dynamic, vibrant and pragmatic”, responsive to its citizens, and not a lifeless text.
• Right to Sexual Health: The verdict highlights both
Current social acceptance of same-sex relationships
• A study spanning 19 states by the Delhi-based Centre for the Study of Developing Societies (CSDS) in 2016 found strong views against homosexuality.
• 61% of the respondents disapproved of homosexual relationship. Only a fourth of the respondents approved of a homosexual relationship.
• The youngest respondents (15 to 17 years of age) were more approving of same-sex relationships than people in an older demographic.
negative and positive obligations of the state to ensure the health and well-being of LGBTQ individuals.
o Negative obligations amount to the state’s non-interference with the right to health.
o Positive obligations entail access to health services and treatment facilities. It asks for sensitive counsellors and health workers “to help individuals, families, workplaces and educational and other institutions” to understand sexuality and foster equality, non-discrimination and a respect of human rights.
74 www.visionias.in ©Vision IAS
o In addition, it would help efforts at HIV/AIDs prevention which was hindered due to stigma and fear of prosecution among homosexuals and transgender persons.
• The SC also emphasised that attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to become who they are not.
• The SC urged the government to broadcast this judgement and organise public awareness campaign to eliminate stigma against LGBTQ people. Government officials, police, should be given periodic sensitisation campaigns.
• The SC also apologised to the India’s LGBTQ people (lesbian, gay, bisexual, transgender, queer) and their
families, for the delay in providing redressal for the ignominy and ostracism they have suffered.
Concerns yet to be addressed
• Since the ruling would not be retrospective, so people convicted under Section 377 are left without any effective remedy. According to data from the National Crime Records Bureau (NCRB) between 2014 and 2016, there were 4,690 cases of persons being booked under Section 377.
• Decriminalising gay sex is only the first step towards creating a more equal society. A 2016 survey by Mission for Indian Gay and Lesbian Empowerment (MINGLE) revealed one in five LGBT employees were discriminated against at the workplace. Such discrimination has economic costs too. A 2014 World Bank report said India loses $31 billion due to stigma and exclusion of the community.
• Court judgments or laws cannot remove social prejudices on their own. The recent judgment on mob lynching is an example. India’s social and political groups will have to show the courage and will power to realise the judgement on ground.
• Supreme Court judgment has merely decriminalised homosexuality but it has not altered the civil law/Personal laws on it. The validation of homosexual marriages, inheritance and adoption require legislation on which Parliament has to work.
Why in News?
The Supreme Court unanimously struck down Section 497 of the Indian Penal Code (IPC) that makes adultery a punishable offence.
Court’s Stand
• Supreme Court held that the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality). It destroys and deprives women of dignity and offends sexual freedom of women..
• Mere adultery can't be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC. It can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.
Section 497
• Section 497 says "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."
• The offence of adultery entailed a maximum punishment of five years, or with fine, or both
• The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.
• Equality is the governing principle of a system and husband is not the master of the wife. Women must be treated with equality and any discrimination shall invite the wrath of Constitution. Section 497 IPC which deals with Adultery is absolutely manifestly arbitrary.
• The apex court also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional.
72 www.visionias.in ©Vision IAS
Ambiguities in Adultery Law
• If a married man has sexual intercourse, outside his marriage, but with an unmarried woman, that does not amount to an offence under the provision though it also effects the sanctity of marriage.
• If the husband of a woman connives with another man for the latter to participate in sexual intercourse with
the former’s wife, then there would be no adultery.
• A woman committing adultery is not even deemed to be an “abettor” to the offence. Also it legalises the act of Adultery if committed by with the consent or connivance of the husband of the woman who is party to the act.
• Section 198(2) of the Cr. P. C. allows the initiation of criminal proceedings for Adultery only at the instance of the husband of the adulteress, but the wife of the man party to the act of adultery cannot institute a complaint.
Conclusion
The SC’s new verdict that matrimonial issues fall in the realm of civil law and need not be resolved by criminal law is quite rational. The verdict is not promoting adultery; it just says that adultery is not a criminal offence. However, it should also be the duty of court and the society to make sure that the changes are not used to perpetuate adultery.
7.4. SE CTI ON 377 DE CR I M I NALI ZE D
Why in news?
In Navtej Singh Johar v/s Union of India case the 5 judges Constitutional Bench, headed by Chief Justice declared the parts of Section 377 of the IPC unconstitutional thus decriminalizing homosexuality.
More on News
• The ruling declares that Section 377 violates Articles 14, 15 and
21 insofar as it penalises any consensual sexual relationship
between two adults in private, be it homosexual, heterosexual,
lesbian or transgender persons.
• Provisions of Section 377 remain applicable in cases of non- consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.
• Section 377 of the IPC states: “Whoever voluntarily has carnal inter course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
• Section 377 does not penalise sexual identities per se. It prohibits sexual acts that are considered against the order of nature.
Background on Section 377 of IPC and related Judicial Pronouncements
• Section 377 of the Indian Penal Code, 1861, (IPC) came into
force in 1861 during the British rule to criminalise sexual activities “against the order of nature”, including homosexual activities.
• One of the first legal challenges to Section 377 came in 1994, when the NGO AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition for its repeal which was dismissed.
• In July 2009, in Naz Foundation case the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.
• The Supreme Court in 2013 in the Suresh Kumar Koushal versus Naz Foundation case overruled the Delhi High Court’s order on the basis of the fact that “miniscule fraction of the country’s population constitute LGBTQ,” and that in over 150 years less than 200 people were prosecuted for committing
Two landmark judgments on sexual
orientation and privacy
• National Legal Services Authority (NALSA) case, 2014- In this case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity.
• In Justice K.S. Puttaswamy (2017), or the
‘privacy case’, a nine-judge Bench ruled that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles
14, 15 and 21 of the Constitution”.
offence under the section. Thus, the Supreme Court reinforced the criminalisation of homosexuality.
73 www.visionias.in ©Vision IAS
Highlights of the verdict
• Sexual autonomy and Right to Privacy: A person’s sexual orientation and autonomy to choose his/her sexual partner is an important pillar and an in segregable facet of individual liberty. It is an expression of identity protected in various ways by Article 14, 15 and 21. Discrimination on the basis of sexual orientation is violation of freedom of choice and expression (Article 19).
• Restrain on State Action: Expression of intimacy is at the heart of right to privacy. Right to sexual orientation is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. The state has no business to intrude into these personal matters. This also includes right of persons of the community to navigate public places on their own terms, free from state interference.
• Section 377 of the IPC: Observing it as “capricious and irrational”, the court said that
o Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults making it manifestly arbitrary. This is violative of the right to equality that includes the right against arbitrariness.
o Moreover, it does not take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society.
• Rule of Law instead of Rule by the law: Court observed that Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. Section 377 “infringed” on the fundamental right to non-discrimination, to live a life of dignity, and privacy guaranteed in the Constitution.
• Constitutional morality: It must seek to make a society pluralistic and inclusive. Any attempt to impose a homogeneous, uniform, consistent and a standardised philosophy would violate constitutional morality. It is the responsibility of all three organs of the State to curb any propensity of popular sentiment or majoritarianism.
• Against Majoritarianism: While rejecting the logic in Suresh Koushal case(2013) that the LGBTQI community forms only a tiny part of the population, the SC said that Constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction.
• Health aspect: Homosexuality is neither mental illness nor moral depravity. The SC quoted the Indian Psychiatric Society’s view that “homosexuality is not a psychiatric disorder”, and that same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality. Moreover India’s new mental illness law does not consider homosexuality to be a mental illness.
Analysis of the judgement
• Court pronounced that LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws. It will help in enforcing principles of social justice, based upon the importance of
diversity and human rights.
• Court has added a new test of constitutional morality to examine the constitutionality of laws enacted by Parliament. The verdict enlarges the scope of personal freedom by giving preference to constitutional morality over social morality.
• Transformative constitutionalism, that is, treating the Constitution “dynamic, vibrant and pragmatic”, responsive to its citizens, and not a lifeless text.
• Right to Sexual Health: The verdict highlights both
Current social acceptance of same-sex relationships
• A study spanning 19 states by the Delhi-based Centre for the Study of Developing Societies (CSDS) in 2016 found strong views against homosexuality.
• 61% of the respondents disapproved of homosexual relationship. Only a fourth of the respondents approved of a homosexual relationship.
• The youngest respondents (15 to 17 years of age) were more approving of same-sex relationships than people in an older demographic.
negative and positive obligations of the state to ensure the health and well-being of LGBTQ individuals.
o Negative obligations amount to the state’s non-interference with the right to health.
o Positive obligations entail access to health services and treatment facilities. It asks for sensitive counsellors and health workers “to help individuals, families, workplaces and educational and other institutions” to understand sexuality and foster equality, non-discrimination and a respect of human rights.
74 www.visionias.in ©Vision IAS
o In addition, it would help efforts at HIV/AIDs prevention which was hindered due to stigma and fear of prosecution among homosexuals and transgender persons.
• The SC also emphasised that attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to become who they are not.
• The SC urged the government to broadcast this judgement and organise public awareness campaign to eliminate stigma against LGBTQ people. Government officials, police, should be given periodic sensitisation campaigns.
• The SC also apologised to the India’s LGBTQ people (lesbian, gay, bisexual, transgender, queer) and their
families, for the delay in providing redressal for the ignominy and ostracism they have suffered.
Concerns yet to be addressed
• Since the ruling would not be retrospective, so people convicted under Section 377 are left without any effective remedy. According to data from the National Crime Records Bureau (NCRB) between 2014 and 2016, there were 4,690 cases of persons being booked under Section 377.
• Decriminalising gay sex is only the first step towards creating a more equal society. A 2016 survey by Mission for Indian Gay and Lesbian Empowerment (MINGLE) revealed one in five LGBT employees were discriminated against at the workplace. Such discrimination has economic costs too. A 2014 World Bank report said India loses $31 billion due to stigma and exclusion of the community.
• Court judgments or laws cannot remove social prejudices on their own. The recent judgment on mob lynching is an example. India’s social and political groups will have to show the courage and will power to realise the judgement on ground.
• Supreme Court judgment has merely decriminalised homosexuality but it has not altered the civil law/Personal laws on it. The validation of homosexual marriages, inheritance and adoption require legislation on which Parliament has to work.
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