-Thulasi K. Raj and Maitreyi Hegde
The judgment of the Supreme Court in Joseph Shine v. Union of India striking down Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure is monumental for reasons more than one. Rarely has the Court, in its institutional history, struck down a definitional provision of the Penal Code. Even in its significant verdict in Navtej Singh leading to legalisation of homosexuality in the country, the Court only read down Section 377, rather than annulling it entirely.
By striking down the adultery law, the Court has effectively overruled the three-judge bench decision in Sowmithri Vishnu v. Union of India AIR 1985 SC 1618 and the two-judge bench decision in V. Revathi v. Union of India AIR 1988 SC 835. An earlier five-judge bench judgment in Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321 addressed a single issue and therefore was distinguished by the Court.
In this comment, we seek to explore the judgment in further detail. In this part, we will argue that first, the judgment can transform the structure of anti-discrimination law in India. And secondly, it lays down the foundation for the doctrine of ‘principled criminalisation’ in our constitutional discourse. In the second part, we will highlight how the structural analysis on the right to privacy was deficient in Joseph Shine.
I. Direct and indirect discrimination
First and significantly, the law on adultery only punished men for the commission of adultery, thereby penalising only one of the parties to the same conduct . Secondly, the provision criminalised sexual intercourse with married women alone, as opposed to unmarried women. Therefore, if the husband engaged in a sexual affair with an unmarried woman, Section 497, IPC would simply not be attracted. Thirdly, as soon as the consent of the husband is given for a particular sexual act, it no longer is an offence of adultery.
The argument of the Petitioner based on Articles 14 and 15 was two-pronged – first, by punishing men alone and excluding women, the law is apparently arbitrary, making the provision intuitively vulnerable to constitutional scrutiny. Even though admittedly, adultery can only be committed by the participation of two persons, one is penalised and the other is exempted from any criminal liability. This is a case of a straightforward direct discrimination .
Notably, the judgment has very little to offer on direct discrimination against men, despite it being the principal ground of attack. The concurring opinion of Nariman J. does emphasise on the ‘manifest arbitrariness’ of the provision, a principle expanded in Shayara Bano v. Union of India (2017) 9 SCC 1. However, a comprehensive evaluation of how the provision falls prey to a classic case of discrimination does not come through in the various opinions.
Secondly, the law discriminates against women in two peculiar ways. One of them is by depriving them of sexual autonomy as enjoyed by a married man. For example, a married man can have uninhibited sexual relations with unmarried women. At the same time, a married woman is prevented from entering into any external sexual affair by virtue of the adultery law. The law acts as a ‘prior restraint’ on her lover who has to fear severe criminal consequences . This is so even in the case of de facto broken marriages where the parties have not obtained a divorce. This is a serious irregularity, which the judgment does not address with considerable appeal, barring the exception of Chandrachud J.
The other mode of discrimination is at the heart of all the four separate opinions. This disparity is more interpretative and less direct. The idea of the law penalising only the third party to the marriage when adultery is committed by a married woman is based on the assumption that the wife is the ‘property’ of the husband who is her sole and exclusive owner. Therefore, the intruder is punished similar to a trespasser. This interpretation is supplemented by the words of the provision in Section 198(2) of the Criminal Procedure Code which suggests that any person having ‘the care of the woman’ has the locus to initiate a complaint. This interpretation in fact, was the focal point of the popular and the media narrative on Joseph Shine.
This peculiar type of discrimination is fundamentally different from the conventional approaches in the law of anti-discrimination. For example, in Anuj Garg v. Hotel Association of India (2008) 3 SCC 1, the impugned law prohibited employment of women (and men below a certain age) in the premises where liquor and drug are consumed by the public. Here, the sexual stereotype associated with women was that of being required to stay away from intoxication. However, it is not only this stereotype that operated against women, but also the ardent refusal to extend equal employment opportunities to women which together constituted dual discrimination.
The significance of Joseph Shine lies in the fact that it essentially holds that this second limb is often indispensable for assailing a stereotypical law. It indicates that a law can arguably be discriminatory merely because it relies on societal stereotypes, which do not fit the Constitutional framework – an approach that could fundamentally alter how anti-discrimination law is structured in India.
By this suggestion, Joseph Shine is signifying what the expressive function of the law requires. The idea is that law is not only an instrument of regulation or deterrence, but is a tool of expression as well. As Nozick argues, “A large part of the richness of our lives consists in symbolic meanings and their expression, the symbolic meanings our culture attributes to things or the ones we ourselves bestow”. Therefore, it matters what the text of the law says. It is further argued that the expressive theories of law are concerned with evaluating State action. On the rights and equality side of constitutional law, such theories assert that State action is required to express the appropriate attitudes toward persons. Section 497 ostensibly failed in duly observing this function, and although it took more than sixty-five years, the constitutional court ultimately had to recognise this failure.
II. The doctrine of principled criminalisation
The connection between constitutional law and criminal law is often overlooked. In India, the Penal Code was enacted much before the Constitution came into force. This necessitates the re-shaping of penal laws so that they can be infused with fundamental constitutional values. Only recently have Constitutional courts begun to shape this process of constitutionalising criminal law.
In this context, a significant contribution of Joseph Shine to our constitutional jurisprudence is the doctrine of principled criminalisation. During the course of the proceedings, one of the main arguments of the Petitioner was that Section 497 is a case of ‘unprincipled criminalisation’, where the State has criminalised a particular conduct without sufficient reasons to do so. This argument was based on Mill’s harm principle. The classic harm test requires that power should be exercised over any member of a civilized community, against his will, only for the purpose of preventing harm to others. In the context of criminalisation, mere harm is not sufficient; harm has to effectively mean ‘judicially’ or ‘legally cognizable harm.’ Incidentally, one of the aspects often overlooked about Gobind v. State of M.P. (1975)2 SCC 148 is that the Court specifically referred to the harm principle in the context of privacy. It was held:
“There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might he engaging in such activities and that such ‘harm’ is not constitutionally protective by the state.”
Therefore, when adultery does not cause a legally or judicially cognizable harm, there is no reason for the State to interfere with it.
Misra, CJI (on behalf of Khanwalikar J. and himself) does observe that “adultery does not fit into the concept of a crime” (Para. 49) and that conceiving so would be ‘retrograde’ (Para 55). However, except for reiterating certain definitions of ‘crime’, the principal judgment and the two concurring opinions do not discuss in detail what reasons could the State legitimately espouse for criminalisation.
The concurring opinion of Malhotra J. makes a happy exception in this regard. For something to be made criminal, Malhotra J. observed that it has to be a public wrong, reiterating Mill’s harm principle (Para 16.2). She has also noted that the State must follow the minimalist approach in the criminalization of offences. This understanding also aligns with the theory of ‘least restrictiveness’ developed by the South Korean Constitutional Court (Case No: 2009, Hun-Ba17, February 26, 2015) while striking down their adultery provision (per concurring opinion by Dr. D.Y Chandrachud J.) Therefore, it follows that a high burden of proof lies on the State to show a ‘compelling state interest’ for criminalising a particular conduct.
In fact, Latika Vashist vehemently argues that constitutional morality and objective accounts of harm should drive the policy of criminalization. She writes,
“No conduct can be made or remain criminal if it is not wrongfully harmful—wrongful harm defined in consonance with the spirit of constitutional principles, guided by the norms of constitutional morality. This re-formulation of policy of criminalisation by reading into it the constitutional norms sets in motion a serious debate in Indian criminal law tradition to decriminalise certain conducts like begging, adultery, homosexuality; and criminalise conducts like marital rape.”
Joseph Shine is a solemn attempt towards this reformulation.
(The authors are lawyers who appeared in the Supreme Court on behalf of the Petitioner along with Adv. Kaleeswaram Raj in Joseph Shine v. Union of India)
 There are other provisions in the Indian Penal Code, which punish only men for a particular offence such as section 498A penalising only the husband (or his relative) for cruelty. However, section 497 stands on a different footing since admittedly, the sexual conduct is engaged by two parties.
 By relying on State of Tamil Nadu, v. R. Vasanthi Stanley ((2016) 1 SCC 376) and other judgments, it was argued that exemption from criminal prosecution cannot be covered under Article 15(3) granting special provisions to women.
 Traditionally used in free speech law, prior restraint refers to governmental action that purports to restrict speech even before it takes place such as a blanket prohibition on criticism against the state.