Joseph Shine Vs. Union of India and Ors. - (Case Commentary)

 

JOSEPH SHINE ………………………………… PETITIONER

V.

UNION OF INDIA AND ORS…………………………….RESPONDENT

(Writ Petition Cr. Appeal no. 194 of 2017)

 

COURT : THE HON’BLE SUPREME COURT OF INDIA

DECISION : 27 JULY 2018

BENCH : DEEPAK MISHRA

                 JUSTICE A.M. KHANWILKAR

                 JUSTICE D.Y. CHANDRACHUD

                 JUSTICE INDU MALHOTRA

                 JUSTICE R.F. NARIMAN

RELEVANT ACT/SECTIONS/ARTICLES : ARTICLE 15, 21 and ARTICLE 14

                                                                              RIGHT TO LIFE

                                                                              RIGHT TO EQUALITY

                                                    SPECIAL PROVISIONS FOR WOMEN AND CHILDREN

RELEVANT FACTS OF THE CASE

Joseph Shine, an Italian based Indian businessman, who hails from Kerala, filed a Public Interest Litigation ( PIL ) in the Supreme Court of India under Article 32 of the Constitution, which gives the power to citizens to move to the supreme Court and file a Writ petition. Here Joseph Shine filed PIL under Article 32, challenging the validity of section 497 as the language of this section suggests that women are property of their husbands after the marriage. Advocate Jayna Kothari, an executive director of CLPR, represented the intervenor “ Vimochana”. She contended that section 497 is violating the right to privacy which is an important Article 21 of the Constitution as per the Supreme Court’s views in the judgement of Puttaswamy case.

ISSUES BEFORE THE COURT

1.     As per the language of Section 497, the offense of adultery is no longer an offense once the consent of the husband is given. So, wife is being treated as the property of his husband.

2.     Absence of gender neutrality in the disputed section of I.P.C. as it only punishes the husband, but not the wife. There is an arbitrary distinction between the woman and the man.

3.     In the view of the above two issues, section 497 is violating Article 14 and Article 21 of the constitution and thus should be declared unconstitutional. 

JUDGEMENT

The Court struck down Sec 497 as unconstitutional being violative of Art 14, 15 and 21 of the constitution and held that Sec 198(2) of CrPC shall be unconstitutional to the extent that it is applicable to Sec 497 IPC.

• The independence of an individual to make his or her choices with respect to his/her sexuality is the most intimate choice of life and should be protected from public censure through criminal sanction.
• A wrong which is punishable with criminal sanctions must be a public wrong against the society as a whole and not merely an act committed against an individual victim.
• There cannot be a male-controlled monarchy over the daughter or, for that matter, husband’s monarchy over the wife. And there cannot be a community exposition of masculine supremacy.
• Section 497 is a pre-constitutional law which was passed in 1860. There would be no acceptance of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be verified on the anvil of Part III of the Constitution.
• The right to live with self-esteem includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to control what conduct requires state interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose and should examine the impact of such conduct on the society.
• Andrew Simester and Andreas von Hirsch preach that a necessary pre requisite of criminalization is that the conduct amounts to a moral wrong. Though sexual disloyalty may be morally wrong conduct, this may not be a sufficient condition to criminalize the same. The Destruction Principle states three elements for criminalization namely, (i) harm (ii) wrong doing and (iii) public element. These elements are required to be proved before the State can categorize a wrongful act as a criminal offence.
• Criminal law must be in consonance with constitutional ethics. The law on adultery imposes a construct of marriage where one partner is to cede her sexual autonomy to the other. Being adversative to the constitutional guarantees of liberty, dignity and equality, Sec 497 does not pass constitutional muster.
• The Malimath Committee on Reforms of Criminal Justice System mentions that Section 497 should be suitably amended as “whoever has sexual intercourse with the spouse of any other person is guilty of adultery”.
• 156^th report of the Law Commission of India, suggested to introduce an amendment to incorporate the concept of equality between sexes in marriage vis-à-vis the offence of adultery. And also in its 42^nd report it recommended that the adulterous woman must be made equally liable for prosecution. 

ANALYSIS

The petitioner contended that the disputed provision of IPC is quite ancient. The fact that wife is to remain subordinate to the husband and that only husband can seduce other women outside his marriage are not relevant concepts in present times. Now, Article 14 delivers for the right to equality and prevents class legislation. But at the same time, it encourages intelligible differentia for certain groups of people on the condition that the differentia should have a reasonable nexus with the object of statute. Also it was contended by petitioner that aforesaid section also violates the right to privacy under Article 21 of the Indian Constitution which provides for the right to life as it violate the sexual autonomy of the spouses by not allowing them to indulge in the sexual intercourse outside the marriage. The respondents argued that the section 497 of the IPC should be retained as adultery violates the right of the married parties to live a good and peaceful marital life. The instance of adultery is also very problematic for mental health of the victim. He is fraught with inferiority complex as well as complex. So it’s contrary to his right to live a good life under Article 21. Now, just like other fundamental rights enshrined in the Indian Constitution, right to privacy under Article 21 is not an absolute right and is conditioned to public decency, morality and order apart from some other exceptions. The apex court declared that section 497 as unconstitutional as it violates article 14, 15 and 21. The court struck down the above section. Thus, adultery was decriminalized. It however remains a ground for divorce under the various personal laws and is still be considered as a private wrong.

CONCLUSION

After looking into the several aspects of the judgement of the apex court in the Joseph Shine case and the different areas that were required to be considered for the analysis, the researcher holds himself in discrepancy with the judgement of the apex court.

The researcher opines that aim of the gender equality could also have been achieved through amending the provisions related to adultery. The court could have provided for equal rights for both the gender to prosecute their respective adulterous spouses. Also the court could have provided for the provision of punishment to both women and men. Also the language of  section 497 could have been like “ any person who has sexual intercourse with another person who is, or whom he knows or has reason to believe to be a spouse of another person, without the consent of that person, such sexual intercourse not amounting to offense of rape, will be guilty of offense of adultery and will be punished with 5 years of imprisonment, with or without fine. The women is also to be considered as an abettor” .

 - Anushka Kansal

Amity University