A law which discriminates between persons on the basis of sex alone and deprives women the right to prosecute is not gender-neutral and liable to be struck down, the Supreme Court judge Justice Indu Malhotra said Thursday.
Justice Malhotra was the lone woman judge in the five-judge Constitution bench which unanimously held that Section 497 of the Indian Penal Code, dealing with the offence of adultry, as unconstitutional and struck down the penal provision.
"The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by," she said.
"A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is therefore, no justification for continuance of Section 497 of the IPC as framed in 1860, to remain on the statute book," she added.
Section 497 of the 158-year-old IPC 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."
Adultery was punishable by a maximum five years in jail or fine or both.
In her 62-page verdict Justice Malhotra said that when the law was enacted in 1860, women had no rights independent of their husbands, and were treated as "chattel" or "property" of their husbands.
"Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination," said Justice Malhotra, who wrote a separate but concurring verdict.
She said that adultery was treated as an injury to the husband, since it was considered to be a "theft of his property", for which he could prosecute the offender.
"The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone," she said.
She also said that the provision which does not allow the wife of the adulterous male prosecute her husband for marital infidelity was discriminatory against women.
"Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary," Justice Malhotra said.
She said a law which could have been justified at the time of its enactment may become outdated and discriminatory with the passage of time with the evolution of society and changed circumstances.
"What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic," she said.
The judge also pointed out that with the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change and the historical background in which Section 497 was framed, was no longer relevant in contemporary society.
She termed as "unrealistic" to proceed that in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man becomes a "victim" while the "male offender becomes the seducer".
"Section 497 fails to consider both men and women as equally autonomous individuals in society," Justice Malhotra said.
She pointed out that the penal provision of section 497 cannot be considered as a "beneficial legislation" under Article 15 (3) of the Constitution as it takes away the rights of women to prosecute.
Article 15(3) of the Constitution deals with the State making any special provision for women and children.
"A section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination," Justice Malhotra said.
The judge, while striking down the archaic law, dealt with the matter of right to privacy which was raked up by the petitioners saying Article 21 would include the right of two adults to enter into a sexual relationship outside marriage.
"The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest.
"The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21," she said.
The judge also said that the state must follow the minimalist approach in the criminalisation of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.
"The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary," Justice Malhotra said.
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