(Illustration: Saurabh Singh)
THE INDIAN PENAL CODE (IPC) dates all the way back to 1860 and so you could perhaps even excuse Section 497 as something from a different era with different ethos. It deals with adultery and specifies it as a crime. But it became an increasingly strange crime as times progressed into a more enlightened modern era. Adultery is a sexual relationship outside marriage. If a married man and a married woman committed it, rational thinking would tell you that even if you accepted adultery as a crime, both would be prosecuted. That is not what the section said. Only the man would be but this was not in service of protecting women. The sentiment was different. Only the man was liable because the woman was not considered a human being at all. She was only the property of the husband and to have a relationship with the wife was a crime against the husband. Since properties cannot commit crimes, the woman was excused. This was also the reason that if a married man had a sexual relationship with an unmarried woman, he had nothing to worry about. There was no husband he had wronged and his wife was, after all, his property.
What is remarkable about Section 497 was that it continued to be on the books not till 1947 when India got its independence or many decades after that, but till 2018 when the Supreme Court finally decriminalised it through a judgment. Even till then, Parliament, which should be the one to make and remove laws, had not seen it necessary to strike off this anachronism that seemed to have missed all the rights that women had fought for themselves in over a century-and-a-half. It was not just women that this section was an affront to. Adultery, most would agree, is wrong because it betrays the trust of marriage. That is a moral failing, the breach of an agreement that underpins marriages, and something to be addressed between the two parties by way of divorce or a settlement. To make it criminal was to turn an offence against an individual into one against society and state.
Even after adultery was decriminalised by the Supreme Court, adultery wouldn’t let itself go easily and reared its head when the government set out to bring in a new criminal law, Bharatiya Nyaya Sanhita Bill, 2023, to replace the Indian Penal Code. It had first been introduced in August but then withdrawn so that the views of a Parliamentary Standing Committee on Home Affairs could be taken into account. And the committee decided that adultery needed to stay on as a crime. Its report said: “The Committee notes that the Supreme Court Bench headed by the then Chief Justice of India, in the Joseph Shine v. Union of India, 2018 case struck down Section 497 of IPC as it violated Articles 14, 15, and 21 of the Constitution. The Court held that this law was archaic, arbitrary, and paternalistic and infringed upon a woman’s autonomy, dignity, and privacy. The provisions under this section only penalised the married man and reduced the married woman to be the property of her husband. In this regard, the Committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity. For the sake of protecting the institution of marriage, this section should be retained in the Sanhita by making it gender neutral.”
What is remarkable about Section 497 was that it continued to be on the books not till 1947 when India got its independence, but till 2018 when the Supreme Court finally decriminalised it through a judgment. Even till then, Parliament, which should be the one to make and remove laws, had not seen it necessary to strike off this anachronism that seemed to have missed all the rights that women had fought for themselves in over a century-and-a-half
Ergo, it might have addressed the issue of women being considered property but now had the potential consequence of making women who entered into extramarital relationships criminals too. They weren’t better off because it made them legally vulnerable whereas earlier, only men were. And there was still no real answer to why a civil issue should be a crime. Fortunately, when the Bharatiya Nyaya Sanhita Bill, 2023 was reintroduced in Parliament this week, wiser heads prevailed. Adultery did not feature as a crime in it. The committee’s recommendations had been ignored on this front.
Another issue related to the Bill was “unnatural sex”. A clause of the IPC, Section 377, had criminalised any sexual act that went against the order of nature, which effectively meant anything in which men and women didn’t participate with each other was a crime. The community most impacted by this clause had been homosexuals. While they had become considerably more accepted in Indian society, this section made every gay person a criminal by how the “order of nature” was viewed legally. There had been a longstanding struggle by activists to get it removed and finally, in 2018, it would again take the Supreme Court to deliver a landmark judgment that decriminalised homosexuality by stating that the section couldn’t be applied to consensual sex between adult men. Section 377 however hung on in the IPC in its watered-down form.
The Standing Committee had recommended in its report that the Bharatiya Nyaya Sanhita Bill should retain the offence. One of their arguments was that there was no concept of rape of men in Indian law and this had been a section that could be used to prosecute such crimes. Or even bestiality, performing sexual acts on animals, had no basis as a crime except with this clause. The report said: “The Committee feels that to align with the objectives stated in the BNS’s Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain the Section 377 of the IPC. The Committee therefore recommends the Government to include Section 377 of IPC, in the proposed law.” Their reasoning in this, as against adultery, had some legitimacy but the government chose to not retain the crime in the Bill.
As the Bill is debated in Parliament, there will be modifications and, hopefully, the lacuna will be addressed. But the fundamental sentiment behind the removal of these sections—that a consensual act between human beings is not a crime—signals laudable reform.
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