Continuing a week of weighty judgments, the Supreme Court of India said yesterday that while adultery can be a ground for divorce it just does not fit the concept of a crime. Section 497 IPC was accordingly scrapped unanimously by a five-judge constitutional bench. This provision criminalising adultery dates back to 1860. Given the epochal shifts towards gender equality, privacy and individual rights that have taken place in more than one and a half centuries that have elapsed, it was long past expiry date. The court concluded that not only is treating adultery as an offence tantamount to the state entering the private realm, Section 497 further erred in treating women as chattel. Today husband is not the master of wife.
To underline, Justice Indu Malhotra writes that the state must follow a minimalist approach in the criminalisation of offences, while respecting the autonomy of individuals over their personal choices. She also questions the thinking behind Section 497 whereby “a married woman, who voluntarily enters into a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.”
Government had taken a status quoist position in the matter, saying that “diluting” the adultery law would impact the sanctity of marriages. The only updation it suggested was making the law gender-neutral, render-ing the wife too eligible for arrest. This was a clear failure to comprehend why the law was an anachronism in the first place, where a rights-based modern jurisprudence seeks to respect rather than police diverse relationships between consenting adults. Everyone should be free to choose their own versions of love, intimacy, sex and marriage.
From recognising privacy as a fundamental right to demolishing Section 377 IPC that denied homosexual citizens the right to pursue their sexual orientation, the Supreme Court has emerged as a champion of individual liberties. Other institutions must follow suit. Consider the shocking police behaviour in a video that has circulated out of Meerut this week, where they beat and abuse a woman for choosing to be with a Muslim man. She said later that she was coerced into filing a false rape case against him. Authorities need to ditch medieval mindsets. They must go by laws rather than some capricious social morality. And laws should be in the spirit of the 21st, not the 19th century.