Penal Code, 1860: s.497 – s. 198 of Cr.P.C – Offence of Adultery – Whether unconstitutional, being violative of Articles 14,15 and 21 – Held: (Per Court): s. 497 IPC and s. 198 Cr.P.C. being violative of Articles 14, 15 and 21 of the Constitution, are unconstitutional – (Per Dipak Misra, CJI): s. 497 treats women, subordinate to men – The rationale of the provision suffers from absence of logicality of approach and therefore suffers from viceof Art. 14 being manifestly arbitrary – Section 497 also creates invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women and hence offends Art. 21 – Offence of adultery u/s. 497 IPC does not fit into the concept of crime – If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere – Section 198 Cr.P.C. deals with procedure for filing complaint in relation to offence u/s. 497 IPC, and hence it is also unconstitutional – (Per R.F. Nariman, J.): What is punished as ‘adultery’ is not ‘adultery’ per se, but the proprietary interest of a married man in his wife – The archaic law u/s. 497 has long outlived its purpose and does not square with today’s constitutional morality – It has become utterly irrational, manifestly arbitrary and discriminatory and hence violative of Art. 14 and 15(1) – Dignity of individual is a facet of Art. 21 – A statutory provision which degrades the status of women,falls foul of modern constitutional doctrine and must be struck down being violative of Art. 21 – Section 198 Cr.P.C. also being discriminatory provision, is held constitutionally infirm – (Per Chandrachud, J:): Right to sexual autonomy and privacy has been granted the stature of a constitutional right – Section 497, in its effort to protect the sanctity of marriage, has adopted a notion of marriage which does not regard the man and the woman as equal partners – Section 497 thus subordinates the woman to a position of inferiority – Constitutional morality requires the court to enforce constitutional guarantees of equality before law, non-discrimination on account of sex and dignity, all of which are affected by operation of s. 497 – Therefore, s. 497 IPC violates Art. 14 – It is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Art. 15 – It is also a denial of the constitutional guarantees of dignity, liberty, privacy and sexualautonomy which are intrinsic to Art. 21 – Thus, Section 497 IPC is unconstitutional – (Per Indu Malhotra, J.): Section 497 IPC fails to consider both men and women as equally autonomous individuals in society – The anomalies and inconsistencies in s. 497 IPC would render the provision liable to be struck down on the ground of being arbitrary and discriminatory – 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 – Right to privacy u/Art. 21 would include the right of two adults to enter into a sexual relationship outside marriage – An invasion of privacy u/Art. 21, by the State must meeta three-fold requirement i.e. (i) legality, (ii) need and (iii) proportionality – Section 497 IPC as it stands today fails to meet the three fold requirement and therefore violative of Art. 21 – Section198(2) of Cr.P.C. which contains the procedure for prosecution under Chapter XX of IPC shall be unconstitutional only to the extent that it is applicable to the offence of adultery u/s. 497 IPC –Constitution of India – Arts. 14, 15 and 21.

Constitution of India:

Art. 15(3) – Protective discrimination – Applicability of – To s.497 IPC – Held (Per: R.F. Nariman, J.): Art. 15(3) is applicable only to the law made by the State after coming into force of the Constitution and not to “existing law” – s. 497 is, in constitutional language, an “existing law” which continues, by virtue of Art. 372(1), to apply, and could not be said to be law made by the “State” – (Per D.Y. Chandrachud, J.): - Art. 15 (3) does not protecta statutory provision that entrenches patriarchal notions in garb of protecting women – ‘Protection’ afforded to women u/s. 497 highlights the lack of sexual agency that the Section imputes to a woman – (Per: Indu Malhotra, J.): – The purpose of Art. 15(3) isto further socio-economic equality of women – Section 497 cannot be considered to be beneficial legislation covered by Art. 15(3) – Penal Code, 1860 – s. 497.

Art. 21 – Right to privacy and personal liberty – Held: (Per Indu Malhotra, J.): An invasion of privacy u/Art. 21, by the State must be justified on the basis of a law that is reasonable and valid – Such invasion must meet three-fold requirement i.e. (i) legality, (ii)need and (iii) proportionality – Section 497 of IPC fails to meet the three-fold requirement – Therefore, right to privacy u/Art.21 would include the right of two adults to enter into a sexual relationship outside marriage – Penal Code, 1860 – s. 497.

Art. 21 – Right to live with dignity – Scope of – Held: (Per: Indu Malhotra, J.): – Right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary – Penal Code, 1860 – s. 497.

Criminal Law:

Criminal sanction – When justified – Held: (Per: Indu Malhotra, J.) – Criminal sanction may be justified where there is a public element in the wrong – State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices – Adultery is only a moral wrong qua the spouse and the family – In order to determine what conduct requires State interference through criminal sanction, the State must consider whether civil remedy will serve the purpose – Where civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State – Penal Code, 1860 – s. 497 – Remedy.

Presumption:

Presumption of constitutionality – Held: (Per Indu Malhotra, J.) – There would be no presumption of constitutionality in a pre-constitutional law – Constitutionalism.

Legislation:

Purpose of legislation – Held (Per Dipak Misra, CJI) – A legislation should serve and promote good life – It should be fit and equitable so that it can have a right to command obedience.

Law:

Constitutionality of procedural law – When substantive provision is held unconstitutional – Held (Per Dipak Misra, CJI) When the substantive provision goes, the procedural provision hasto to pave the same path.

Doctrine/Principle:

Principle of Conventure – Explained.

Maxim:

‘Cessante ratione legis, cessat ipsa lex’ – Applicability of.

Words & Phrases:

‘Adultery’ – Meaning of.

‘Crime’ – Meaning of.