Author: Alamtra Anwar,  Faculty of Law, University of Lucknow

That's where this case comes in: The landmark Joseph Shine v. Union of India ruling advanced the constitutional discourse on gender equality and personal autonomy in India on 27th September 2018. This matter was brought back from obscurity to the highest court in the country through Public Interest Litigation filed by Joseph Shine under Article 32 of the Constitution, claiming to be an Indian citizen residing outside the country. He challenged the constitutional validity of Section 497 of the Indian Penal Code, 1860, and Section 198(2) of the Criminal Procedure Code, 1973, which together criminalized the act of adultery. Section 497, in the terms of the petitioner, is discriminatory and patriarchal. Under it, the man in an adulterous relationship is punished; the woman, on the other hand, is treated merely as a passive object almost akin to the property of her husband. A husband could prosecute a wife’s lover but a wife has no right if her husband is involved in adultery. This unequal treatment, the petitioner argued, is not only out of touch with current times but also violations of fundamental rights guaranteed under Article 14 (Right to Equality), Article 15 (Prohibition of Discrimination on Grounds of Sex), and Article 21 (Right to Life and Personal Liberty) of the Constitution. The matter has been put up before a five-judge bench of the Constitution, headed by Dipak Misra, the Chief Justice of India. After thorough deliberation, the Court reached the unanimous conclusion that the provisions of Section 497 IPC and Section 198(2) CrPC are unconstitutional. The Court further maintained that marriage does not mean a surrendering of autonomy, dignity, or sexual agency and that the criminalizing of consensual relationships between adults interferes with individual liberty. The case decriminalizes adultery but also marks a big change on how the Indian judiciary views personal liberty, privacy, and gender equality in the context of modern constitutional values.

• PARTIES INVOLVED: 

Joseph Shine was the petitioner in this case, he was an Indian citizen and non resident businessman who approached the Hon'ble Supreme Court through (PIL) Public Interest Litigation which comes under Article 32 of the Constitution. Union of India was the respondent, which was defending the constitutionality of law in question and representing the State, Section 497 of Indian Penal Code, 1860, and Section 196(2) of Code of Criminal Procedure, 1973.

• RELEVANT FACTS:

The petitioner had come to the Supreme Court to strike down Section 497 of the Indian Penal Code wherein adultery was made a criminal act. The petitioners alleged that the law is gender-biased, outdated, and a violation of their fundamental rights under Articles 14, 15, and 21 of the Constitution of India. Section 497 further stated that only a man was liable for having sexual intercourse with a married woman unless the husband had given the consent or was conniving, but the woman was not considered a party to the offence. She was not treated as an accomplice or as having committed any offence. According to the petitioner, women are treated as a property of their husbands, denied them equal protection under the law, and deprived them of their autonomy and dignity. Moreover Section 198(2) CrPC restricted the question of who could bring up the matter only to the husband of the woman who committed the offence. Thus, in case a wife decided to commit an act of adultery, the husband could not start the criminal proceedings. The petitioner contended that such provisions of law reflected the patriarchal mindset and hence, were discriminatory.

• PROCEDURAL HISTORY:

Before three-judges of the Supreme Court in December 2017, a PIL was initially listed for a hearing. The matter was being considered and the Bench, on the initial hearing, referred it to a five-judge Constitution Bench, observing the nature of the constitutional questions at issue. The Bench mentioned that the issue would be addressed through a re-consideration of the decisions in some cases, particularly in the decision of Sowmithri Vishnu v. Union of India (1985) and V. Revathi v. Union of India (1988), which were cited as Section 497's constitutionality confirmation. The Constitution Bench of five judges consisting of Chief Justice Dipak Misra, Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, and Justice Indu Malhotra, both sides— petitioner, amicus curiae, and the representatives of the Union of India— presented detailed arguments. The Court, after the deliberation, reserved its judgment, and, finally on 27th September 2018, revealed a unanimous decision to abolish both the Section 497 IPC and Section 198(2) CrPC as unconstitutional.

This time, many constitutional questions regarding the validity of Section 497 of the Indian Penal Code, 1860, and Section 198(2) of the Code of Criminal Procedure, 1973 were sought to be answered by the Supreme Court of India. The challenge to the statute challenged the provisions on the basis of the infringement of fundamental rights. The issues of law put forward before the Court can be summarized thus:

• ISSUE STATEMENTS:

• Issue 1: Whether Section 497 of the Indian Penal Code, 1860 is inconsistent with Article 14 of the Constitution of India (Right to Equality)?

• Issue 2: Whether Section 497 of IPC is in breach of Article 15(1) of the Constitution (Prohibition of Discrimination on Grounds of Sex)?

• Issue 3: Whether Section 497 of IPC and Section 198(2) of CrPC are in conflict with Article 21 of the Constitution (Right to Life and Personal Liberty)?

• Issue 4: Whether the power derived by the institution of marriage from the State enables it to meddle with the private sexual choices of individuals by means of criminalizing adultery?

• Issue 5: Whether the earlier cases that had accepted the validity of Section 497 (like Sowmithri Vishnu v. Union of India and V. Revathi v. Union of India) need to be reviewed and reversed?

In Joseph Shine v. Union of India the legal issues were very important because they went after the constitutional validity of Section 497 IPC and Section 198(2) CrPC that were affirmed by the Supreme Court of India as incompatible with fundamental rights guaranteed under Articles 14, 15(1) and 21. The law has come under intense criticism because it has significantly different treatment of men and women by only punishing men for adultery thus, it effectively denies women legal agency and it is a continuation of the patriarchy. The law discriminated on the grounds of sex and it depicted women as the property of their husbands. Furthermore, it violated individuals' personal liberty, privacy, and dignity by making the law concerning marriage and regulation issues such as consent and relationships between adults into a matter of criminalization, thus violating the rights guaranteed in Article 21. The institution of marriage was questioned as to whether it allows the State to intervene in the private sexual decisions of individuals and this issue was raised besides the need to revisit outdated judicial precedents that justified such discriminatory laws which are still in place.

In a unanimous decision, the five-judge Constitution Bench of the Supreme Court of India, led by Chief Justice Dipak Misra, along with Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, and Justice Indu Malhotra, declared that Section 497 of the Indian Penal Code, 1860, and Section 198(2) of the Code of Criminal Procedure, 1973 were beyond the powers of the Constitution and therefore void It was an unanimous decision, the five judge Constitution Bench of the Supreme Court of India, which was led by Chief Justice Dipak Misra, along with Justice A.M. Khanwilkar,Justice R.F. Nariman, Justice Idu Malhotra, and Justice D.Y. Chandrachud declared that it is unanimous decision therefore void

HOLDING:

The Court decided that:

1. Section 497 IPC is discriminatory against the Constitution and hence unconstitutional due to the violation of Articles 14, 15, and 21.

2. The court also stated that Section 198(2) CrPC, which restricts the parties who can file a complaint concerning adultery, is illegal to the extent of that paragraph.

3. Adultery may constitute a civil wrong and can be one of the causes for the dissolution of marriage, but it is no longer considered as a crime.

RATIONALE:

• Violation of Article 14 – Equality Before Law

The Court pointed out that Section 497 definitely portrays women in a very negative light. It implies that women are goods or possessions of their husbands. It is a complaint of the man only that is taken cognizance of, whereas if a woman has committed an act of adultery, then she remains completely immune, irrespective of whether she was the one who committed the act or not. This kind of discrimination on the basis of sex is a very old-fashioned one and hence it is totally irrational and off the mark as far as the objective of the law is concerned. Thus, it is a clear case of violation of Article 14 of the Constitution.

2. Violation of Article 15 – Discrimination on the Ground of Sex

The Court reiterated that the section was fuelled by the stereotypes prevalent within society regarding the roles of each gender in the family, claiming without any proof that a woman is no more than a pawn and he/she does not have the power to make decisions in the relationship. Section 497 is discriminatory in that it denies the woman her rights as a human being in the aspect of criminal law, hence the female sex will be the one discriminated against. Such discrimination is exactly the type that Article 15(1) prohibits.

3. Violation of Article 21 – Right to Life and Personal Liberty

The Court strongly argued that human dignity, privacy and the right to make private choices about one's sexuality are all aspects of the coverage of Article 21. It would be illegal to treat private consensual relationships between consenting adults in a criminal way, even if they were morally wrong, as it would result in a gross violation of personal freedom. The law infringed upon the area of individuals' privacy and thus, it did not pass the test of being a legitimate interference with their rights according to Article 21.

4. Rejection of the Doctrine of "Romantic Paternalism"

The Court went on to say that the argument that the law is "for the good of" women, is not valid, as it was based on the fact that women were not included among those to be punished. This concept was dubbed by the court as "romantic paternalism" which is the idea that women are weak and therefore need protection. The court further went on to say that such reasoning cannot be offered as a constitutional defence.

5. Marriage Does Not Make a Woman Lose Her Freedom

The Court unequivocally declared that marriage cannot be equated with the relinquishment of constitutional rights. A female cannot be considered sexually autonomous or have an identity without a relationship marriage. Consent, dignity, and equality have to be present in the marriage just as they are outside of it.

Most of the judges, by a unanimous decision, held Section 497 IPC to be unconstitutional, as it infringes articles 14, 15, and 21. CJI Dipak Misra and Justice Khanwilkar, who represented the minority opinion, reflected that the law was against the treatment of women as if they were the property of no rights and without any rational basis. Justice Nariman stressed its arbitrariness and consequently repealed Section 198(2) CrPC for procedural inequality. Justice Chandrachud gave a deep and strong critique about the law stating that it perpetuates the patriarchal stereotypes and thus, it withdraws the agency from women. He pointed out that it is destructive of dignity and liberty if a woman is to be treated in such a way. Morally wrong actions being turned into criminal offenses would not be right, Justice Indu Malhotra said in her concurring opinion. The Court now does not follow the earlier decisions of Sowmithri Vishnu (1985) and Revathi v. Union of India (1988). The relevant statutes are Section 497 IPC and Section 198(2) CrPC, both of which were declared unconstitutional. The decision was unanimous. There was no dissenting opinion recorded.

• IMPACT OF THE CASE

The Joseph Shine verdict was a watershed moment in Indian criminal law and gender justice. From the point of law it set a precedent of great power by affirming that fundamental rights of personal liberty, equality, and dignity cannot be infringed by the old moral codes. The decision reaffirmed the principles of the reform of laws through constitutional morality instead of societal trends by first going over and then deepening the changes brought about by the case of Sowmithri Vishnu. From the social perspective, the ruling has effectively dismantled the patriarchal perception of women given to their husbands as mere objects and, thus, it has granted the woman recognition as a sexual being going by her own will inside the marriage. Besides, it has also invited a wider community to join the discussion on the topic of marital rights, equality, and individual freedom. In the political arena, the supreme court was taking a decisive step when it struck the decriminalization of consenting adulthood, thus, the narrowing down of the state's role in private relations. The decision, in turn, opened up the possibility for further liberal discussions on gender-neutral laws and marital rape, turning it into a decisive milestone in the course of India’s struggle for personal liberty and equality.

The Joseph Shine verdict is a brave and modern move that has justly affirmed gender equality and personal freedom. One of the biggest positives is definitely its decision to reject the patriarchal norms and to accept the woman’s autonomy. The Court’s faith in constitutional morality rather than social one was a loud signal. On the downside though, the Court has not quite unequivocally proclaimed the civil and criminal parts of the marital issues which can cause some confusion. A different situation could have been the case if the Court had changed only the gender system of the adultery crime but had not allowed its full decriminalization. The decision is still a solid basis for further going into the issues of marital rights and gender justice.

The Supreme Court had correctly acknowledged that criminal law should not interfere with consensual private relationships. This ruling not only enables individual freedom but also opens the door for the dismantling of patriarchal mindsets that have been deeply entrenched. The decision is a strong call for the law to reflect the changes in society and to be the protector of the freedom of all citizens, irrespective of gender. The case sets a clear turning point for India to be a more fair and equal society in the future.