The beauty of the Indian Constitution is that it includes I, you and we. Such a magnificent monumental and social document embodies the emphatic inclusion which is nurtured by judicial sensitivity into the golden triangle of Fundamental Rights. The existing vogue in the society regarding the dominance of one sex over the other sex must be patronised as so far the dignity of the individual is concerned. The norms as well the culture of the society need to show kindness and to honour the individuality of woman in the society. Various policies framed by the Parliament or by the Legislature carved out the inequality and unfairness which has resulted to outrage the modesty of women in the society. There has been various dispute between the interest groups and lawmaking body over the issue of Section 497 of Indian Penal Code which would be dealt in this case analysis.
BACKGROUND OF THE CASE
Joseph Shine, a hotelier has challenged the Constitutional validity of Section 497 of the Indian Penal Code before the Honourable Supreme Court of India on the ground that Section 497 of the Indian Penal Code discriminates against men and violates Article 14, 15 and 21 of the Indian Constitution. When sexual intercourse takes place with the consent of the parties there is no good reason for excluding one party from the liability. The core reason behind such writ petition was to protect the Indian men from being punished for extra martial relationship by vengeful women or their husbands. The said petitioner i.e. Joseph Shine close friend has committed suicide after the woman made against him the malicious rape charges. Section 497 of the Indian Penal Code is egregious occurrence which shows unfairness and authoritative imperialism as its provision are vulnerable to Article 14, 15 and 21 of the Constitution of India. The traditional framework of Section 497 for which it was drafted serves no important purpose in the modern society.
- SECTION 497 of the Indian Penal Code violates Article 14 and Article 15 of the Indian Constitution.
- Section 497 infringes and Right to life and Right to Privacy embodied under the sphere of Article 21.
SECTION 497 VIOLATES THE ARTICLE 14 OF THE INDIAN CONSTITUTION
The provision of Section 497 of the Indian Penal Code is discriminatory and violative of Article 14 of the Indian Constitution. Section 497 of The Indian Penal code and Section 198 of Criminal Procedure Code of 1973 makes it clear that only a man can be penalised for the commission of adultery. This is evident from Section 198(2) of Criminal Procedure Code and Section 497 which criminalizes sexual intercourse with a married woman. This provision does not deal the aspect of sexual intercourse with an unmarried woman. Further if the act is conducted with the consent of husband of the married woman than the act is no longer the offence of adultery. Primarily Section 497 of the Indian Penal Code discriminates against men. In a sexual intercourse with the consent of both the parties there is no good reason to punish only one parties of such intercourse. There is no rational of penalising only one of the participants of the intercourse. It has been held by the Supreme Court in number of the cases that person situated similarly cannot be subjected to discriminatory or dissimilar treatment. Thus, this is the crux of the constitutional guaranteed under Article 14 of the Indian Constitution. The true scope of Article 14 of the Indian Constitution was highlighted in the case of Maneka Gandhi v. Union of India in which it was held by the Supreme Court that:
“The basic principle which therefore informs about Article 14 is equality and inhibition against discrimination. Equality is a dynamic concept which cannot be crib bled cabined and confined with the traditional and doctrinaire limit. From a positivistic point of view, equality is antithetic to arbitrariness.  It is in fact that equality and arbitrariness are the sworn enemies as one belongs to the rule of law in a republic while other to the whim and caprice of an absolute monarchy. Where an act is absolutely arbitrary it is implicit in that it is unequal both according to the political logic and constitutional law and therefore is violative of Article 14 of the Indian Constitution.
Further in the case of Ajay Hasia v. Khalid Mujib it was held as follows that
“If the society is an authority and therefore the State within the meaning of Article 12 it must follow that it is the subject to the constitutional obligation under Article 14 of the Indian Constitution. The true scope and ambit of Article 14 of the Indian constitution has been the subject matter of the numerous dimensions. Article 14 came to be identified with the doctrine of classification because the view was taken that Article 14 forbids discrimination and there would be no discrimination where the classification making the discrimination fulfil the two conditions”.
- Firstly that the classification is founded on intelligible differentia which distinguishes the person that is grouped together from others left out of the group.
- Secondly differentia has a rational relation to the subject sought to be achieved by the impugned legislations or executive action.
Thus Section 497 of the Indian Penal Code and Section 198(2) of Criminal Procedure Code 1973 fail to meet the test of equality. The implication and proposition that men are arbitrarily punished and women are not for committing the same act is unjust, illegal and unconstitutional.
SECTION 497 INFRINGES WOMEN’S RIGHT UNDER ARTICLE 15(3) OF THE INDIAN CONTITUTION.
Section 497 cannot be interpreted as beneficial as a beneficial provision under Article 15(3) of the Indian Constitution. Article 15(3) of the Indian Constitution states that- “Nothing in this Article shall prevent the State from making any special provision for women and children”. Article 15(3) of the Indian Constitution permits affirmative action’s in favour of women. This provision is not meant to exempt the married women from the liability of action and punishment in case of criminal offences. When women and men are on equal footing, discrimination against any sex would offend Article 14 and Article 15 of the Indian Constitution. Thus, this has never been the intention of the Constitution framers to bring the criminal offence under the exemption of Article 15(3) of the Indian Constitution. Therefore the permissibility of affirmative action is different and distinct from exemption from criminal offence. The scope and ambit of Article 15(3) was discussed by the Supreme Court in the case of Thota Sesharathama and Anr. V. Thota Manikyamma and Others in the following words:
“Freedom of contract would yield to place to the public policy and it must be tested on the anvil of the socio economic justice, equality status and it is the duty to oversee whether it would sub serves the constitutional animation. Article 15(3) of the Indian Constitution relives from the rigour of Article 15(1) and imposes duty on the state to make special provision to accord for women socio economic equality. Therefore the purpose of Article 15(3) is to accord for socio economic equality of women but this article cannot be operated as a licence for criminal exemption and the jurisprudence of Article 15(3) clearly marks this. The differential treatment accorded to men and women under the impugned provision of Section 497 of the Indian Penal code have no justification and rationale behind. The assumption that women are incapable of committing adultery is irrational and perverse. Such an assumption is a part of institutionalised discrimination. Lord Denning in his book “Due Process of law” has observed that a woman feels as keenly thinks as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom to develop her personality to the full as that of man. When she marries she does not become the husband’s servant but his equal partner. If his work is more important in the life of the community, her’s is more important in the life of the family. Neither can do without the other. Neither is above nor above the law but they are equals. Thus, exempting women from the criminal offence of adultery does not fulfil the test base on the reasonable classification. Firstly the married women are not the special class for the purpose of prosecution of adultery. Secondly there is no purpose sought to be achieved by the legislation having a reasonable nexus with this exemption. Therefore the woman whose husband is committing adultery is left with no remedy. Wives of those men committing adultery are also equally aggrieved by the adulterous act. Excluding women from the purview of criminal offence of adultery has no rhyme or reason. Thus, such an exclusion of women from the offence of adultery is unjust, illegal and is violative of Article 14 and article 15 of the Indian Constitution.
SECTION 497 OF THE INDIAN PENAL CODE INFRINGES RIGHT TO LIFE AND RIGHT TO PRIVACY EMBODIED UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION.
Section 497 of the Indian Penal code suffers from the vices of irrationality, arbitrariness and perversity to the extent that right to life includes right to engage in sexual intercourse as an intrinsic part of right to life under Article 21 of the Indian Constitution. A large number of judgements delivered in the foreign courts have recognised the right to privacy as falling in one or the other aspect of human rights. In the case of Child rearing and education, Pierce v. Society of sisters  , it was held that right to privacy of an individual is essentially a natural right which inheres in every human being by birth. Such right remains with the human being till he/she breathes the last breath. It is indeed inseparable and inalienable from human being. Thus, right to privacy invariably has to include the right to sexual privacy also. In the case of Bowers v. Hardwick Justice Blackmun observed that depriving individual of the right to choose for them how to conduct their intimate relationship poses greater threat to the values that are most deeply rooted in the nation. There is no reason to criminalize consensual sexual intercourse between the two adults. In the case of Lawrence v.Texas it was held that the criminal laws against adultery were held not be in legitimate state interest. On global as well as in the International level there has been concern about decriminalising adultery. Recently in the year 2015 the Supreme Court of South Korea has struck down the offence of adultery and stated that it violates the basic human rights and international obligations. in the year 2012 the working group on the issue of discrimination against the women in law and practice established by the United Nations in the year 2010 had urged the countries to eliminate laws that classify adultery as a criminal offence. The Supreme Court in the case of Shafin Jahan v. Asokan N.M observed that;
“The Constitution of India recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decision on aspects which defines one’s personhood and identity. The choice of partner whether within or outside the marriage lies with the exclusive domain of each individual. An intimacy of marriage lies within the core zone of privacy which is inviolable. Neither the State nor the law can dictate a choice of partners or limit the free ability of person to decide on these matters. They form the essence of personal liberty under the Indian constitution.
The Supreme Court in the landmark Judgement of K.S. Puttaswamy’s v. Union of India unanimously held and recognised the right to privacy as an overreaching fundamental right under Indian Constitution which has encompassed within its ambit the right to dignity, autonomy and bodily integrity and various other aspects of the personal life. The Supreme Court further observed that:
“Privacy of the individual is an essential aspect of dignity. Privacy enables the individual to retain the autonomy of the mind and the body. The autonomy of the individual is the ability to make decision on the vital matters concerned with the life. Privacy of the body entitles an individual to the integrity of the physical aspect of personhood. The intersection between one’s mental integrity and privacy entitles the individual to the freedom of thought, freedom to believe in what is right and the freedom of self determination. When these guarantees intersect with the gender they create a private space which protects all those elements which are crucial to the gender equality. The marriage, the family, the procreation and the sexual orientation are all integral to the dignity of the individual. Above all the Privacy of the individual recognises inviolable right to determine how freedom shall be exercised. The freedom guaranteed under Article 19 of the Indian Constitution can only be fulfilled where the individual is entitled to take decision on its preference. Article 21 of the Indian Constitution secure the liberty, dignity of the individual including what and how one will eat, the one the way will dress, the faith the one will espouse and myriad other matter which autonomy and self determination requires a choice to be made within the privacy of mind.
Thus, privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and the sexual orientation.
Thus under the provision of Section 497 of the Indian Penal Code, husband is the aggrieved person and wife is neglected as a scapegoat from the punishment under Section 497of the Indian Penal Code. Thus, the provision of Section 497 is contemplated with lots of complexities and there is a need to formulate such policy which may create uniformity of situation and justice to file the case also bestowed in the hands of wife as well. But in case of Adultery the law requires to be multitudes to remain faithful and maintain the sexual fidelity and make the adulterer criminal. At this juncture, it is necessary to state that there is a necessity of certainty of law with the societal change when the rights are expanded by the court in respect of certain aspects having regarded to reflect the perception of the organic and living constitution. Thinking adultery as an offence from the view point of criminality would be a retrograde step. The Supreme Court of India has travelled on the path of transformative constitutionalism and therefore it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence treating Adultery as an offence in a criminal law would be unwarranted in law. The position which forms the basis of the legislation of Adultery as a criminal offence is based upon the concept of patriarchal view. Section 497 of the Indian Penal Code is based on the perception of righteous which disappoints to accord with conditions on which the constitution of India was established. With the independence of India, the Indian Constitution was constituted to provide equality which guarantees that men and women are equal. Therefore Section 497 of the Indian Penal code is unconstitutional and adultery should not be treated as offence and it is also appropriate to declare Section 198 of Criminal Procedure Code which deals with the procedure for filing complaint in relation to the adultery is unconstitutional. When the substantive provision goes unconstitutional, the procedural has to pave the same path.
In the case of Yusuf Abdul Aziz v, State of Bombay the Double Bench of Bombay High Court held that Section 497 of the Indian Penal Code does not violate Article 14, 15 of the Indian Constitution.
In the case of Sowmithri Vishnu v. Union of India and Anr it was held by the Honourable Supreme Court of India that the offence of adultery should also include women in its ambit.
On an international level many countries have repealed the offence of adultery as it violates the principle of equality embodied in the International Statutes such Universal Declaration of Human Rights. Section 497 violates the Article 14 of the Indian Constitution which lays for equitable procedure for equality before law and distinguishes between the martial standing. It also impedes women from initiating any criminal proceeding. Therefore Section 497 of the Indian Penal Code is violative of Article 21 which in its ambit includes the right to privacy and domain of person’s liberty over the other. Further it is apparent from Article 21 of the Indian Constitution that every individual has unfettered power whether married or not, either man or woman to involve Sexual Intercourse outside his or her martial relationship.
Thus, in the case of Joseph Shine v. Union of India, the Supreme Court Struck down 158 age old offence of Adultery unconstitutional on the ground that Section 497 of the Indian Penal code is violative against Article 14, 15 and Article 21 of the Indian Constitution. The Supreme Court making reference to the Article 21 of the Indian Constitution stated that:
“Right to privacy is an inalienable right which is closely associated with the innate dignity of the individual and right to autonomy and self determination to take decision.
 Maneka Gandhi v. Union of India, (1978)2 S.C.R. 621(India).
 E.P Royappa V State Of Tamil Nadu, 1974(4), S.C.C. 3 (India).
 Ajay Hasia v. Khalid Mujib, A.I.R. 1981, S.C. 487 (India).
 Thota Sesharathama and Anr. V. Thota Manikyamma and Others, (1991) 4 S.C.C. 312 (India).
 Child rearing and education, Pierce v. Society of sisters, 268 U.S. 510, (U.S.A).
 Bowers v. Hardwick 106 S. Ct 2841.
 Lawrence v.Texas 539 U.S 558(2003) (U.S.A).
 Shafin Jahan v. Asokan N.M 2018 SCC Online SC 343, (India).
K.S. Puttaswamy’s v. Union of India (2017) 10 SCC 1
 Yusuf Abdul Aziz v, State of Bombay 1954 A.I. R. 321 (India).
 Sowmithri Vishnu v. Union of India and Anr, 1985 Supp S.C.C. 137(India).