2018 Supreme(SC) 955

SUPREME COURT OF INDIA
DIPAK MISRA, CJI., A.M. KHANWILKAR, J.
Joseph Shine – Petitioner
Versus
Union of India – Respondent
WRIT PETITION (CRIMINAL) NO. 194 OF 2017
Decided On : 27-09-2018

IMPORTANT POINTS
Concept of certainty of law should be allowed to prevail and govern.
A Bench disagreeing with decision of a larger or coequal Bench can only refer the matter to a larger Bench. Secondly, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which is in doubt, needs correction or reconsideration then by way of exception it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing.
Manifest arbitrariness invalidates legislation.
Section 497 is manifestly arbitrary and it violates Articles 14, 15 and 21; hence is unconstitutional.
Adultery does not fit into the concept of a crime. It should better be left as a ground for divorce.
Consequent upon section 497 IPC being declared unconstitutional, its procedural provision in section 198 CrPC also becomes unconstitutional.
Article 15 refers to State making laws. Cannot include existing law.
In contextual interpretation ‘context’ means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy.
There is no presumption of constitutionality in respect of pre-constitutional law.
Sowmithri Vishnu and V. Revathi overruled.

Headnote:Per Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)

       (a) Administration of justice – Concept of certainty of law – Should be allowed to prevail and govern. (Para 2)

       (b) Administration of justice – Judicial discipline – A Bench disagreeing with decision of a larger or coequal Bench – Can only refer the matter to a larger Bench – it cannot disagree or dissent – Exceptions – Chief Justice can direct any particular matter to be placed for hearing before any particular Bench of any strength – Secondly, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which is in doubt, needs correction or reconsideration then by way of exception it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. (Para 8)

       (2005) 2 SCC 673 – Relied upon

       (c) Constitutional law – Validity of law – Article 14 – Arbitrariness – Manifest arbitrariness invalidates legislation – However, it must be something done by the legislature capriciously, irrationally and/or without adequate determining principle – Excessive and disproportionate provisions would make the legislation manifestly arbitrary. (Para 19, 20)

       (2017) 9 SCC 1 – Relied upon

       (1968) 1 SCR 349; (1975) Supp SCC 1; (1974) 4 SCC 3; (1978) 1 SCC 248; (1984) 3 SCC 316; (1981) 1 SCC 722; (1996) 2 SCC 226; (1983) 2 SCC 277; (1978) 4 SCC 494 – Referred

       (d) Indian Penal Code, 1860 – Section 497 and Section 198, Code of Criminal Procedure, 1973 – Adultery – Married woman treated as property of husband – Extra marital relationship with unmarried woman not covered – Relationship with married woman is adultery while that with unmarried woman is not – woman with whom the adulterer makes relationship is aggrieved person but wife of the adulterer is not – Conferring a licence on husband to deal with the wife as he likes – Held absolutely and manifestly arbitrary – Violative of Article 14. (Para 23)

       (2017) 9 SCC 1 – Relied upon

       1954 SCR 930 : AIR 1954 SC 321; (2012) 1 SCC 358 – Distinguished

       (1985) Supp SCC 137 : AIR 1985 SC 1618; (1988)2 SCC 72 – Overruled

       (e) Indian Penal Code, 1860 – Section 497 r/w Article 21, Constitution of India – There cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over the wife – Also, there cannot be a community exposition of masculine dominance – A woman is entitled to dignity and equality in the context of autonomy, desire, choice and identity, and privacy upheld – Held, section 497 offends Article 21. (Para 36, 37, 41)

       (2010) 9 SCC 218; (2015) 7 SCC 681; (2017) 7 SCC 780; (2015) 5 SCC 705; (2013) 4 SCC 1; (2015) 1 SCC 192; (2018) 7 SCC 192; (2017) 10 SCC 1; (2014) 5 SCC 438; (2018) 5 SCC 1 – Relied upon

       [1991] 4 All ER 481 – Referred

       (f) Indian Penal Code, 1860 – Section 397 – Adultery – Different from other matrimonial offences like denial of maintenance to wife, demand of dowry or dowry death or domestic violence – Further, adultery not treated as an act for commission of an offence under Section 306 IPC – So is the case with section 498-A – Held adultery does not fit into the concept of a crime – It should better be left as a ground for divorce. (Para 49, 50, 51, 53)

       (1986) 3 SCC 156; (2018) 5 SCC 1; (2013) 10 SCC 48; (2015) 11 SCC 753 – Relied upon

       (g) Constitutional law – Validity of legislation – Substantive provision in section 497, Indian Penal Code, 1860 declared unconstitutional – Hence the procedural provision in section 198, Code of Criminal Procedure, 1973 also declared unconstitutional. (Para 56)

       Per R.F. Nariman, J. (Concurring)

       (h) Constitution of India – Article 15(3) – Refers to State making laws – Cannot include existing law. (Para 15)

       AIR 1953 Bom 311 – Referred

       (i) Indian Penal Code, 1860 – Section 497 and section 198 Code of Criminal Procedure, 1973 – Adultery – Not an offence when committed with an unmarried woman or widow, with married woman with consent or connivance of her husband – To protect and preserve the sanctity of marriage is not the object – Treating a woman as chattel – Manifestly discriminatory – Provision demeaning or degrading status of woman – Section 497 and 198 held violative of Articles 14, 15(10 and 21, Constitution of India and struck down. (Para 22, 24, 25, 27, 28)

       (2017) 9 SCC 1; (2017) 10 SCC 1 – Relied upon

       193 US 473 (1904); [1966] 3 All E.R. 601; 1952 ILR Bom 449; AIR 1953 Bom 311; (Case No. SA77-14) (19.08.2016) [Supreme Court of Namibia] – Referred

       1954 SCR 930 – Distinguished

       (1985) Supp SCC 137; (1988) 2 SCC 72 – Overruled

       Per Dr. Dhananjaya Y. Chandrachud, J. (Concurring)

       (j) Jurisprudence – Law – Legislative provision – Must be understood as a ‘discourse’ about social structuring – The ‘discourse’ however not always homogeneous – Section 497 IPC – Regards individuals as ‘gendered citizens’ – Understanding the law as a discourse would lead to the recognition of the role of law in creating ‘gendered identities’ – Law can act as an agent of social change as well as social stagnation – Evolution of a jurisprudence of rights-granting primacy to the right to autonomy, dignity and individual choice and granting stature of a Constitutional right to the right to sexual autonomy and privacy. (Para 2, 3, 4)

       (k) Interpretation of statute – Contextual interpretation – Context means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy. (Para 7)

       (2001) 4 SCC 139 – Relied upon

       (l) Indian Penal Code, 1860 – Section 497 – For the benefit of the husband, for him to secure ownership over the sexuality of his wife – Aimed at preventing the woman from exercising her sexual agency – Section 497 was never conceived to benefit women – Offence applies only to the man committing adultery, the woman not considered to be an “abettor” – Power to prosecute for adultery rests only with the husband of the woman, not wife of the adulterer – Sexual relationship with married woman is an offence while that with a single woman is not – Woman treated as chattel of her husband – Section 497 deprives a woman of her agency, autonomy and dignity – Section 497 held manifestly arbitrary and violative of Article 14, Constitution of India. (Para 7, 14, 30, 32, 35, 36)

       (1974) 4 SCC 3; (2017) 9 SCC 1; Writ Petition (Criminal) No. 76 of 2016 – Relied upon

       (1707) Kel. 119; (2007) UGCC 1; [2015] ZACC 18 – Referred

       1954 SCR 930 – Distinguished

       1985 Supp SCC 137; (1988) 2 SCC 72 – Overruled

       (m) Code of Criminal Procedure, 1973 – Section 198 – Re-enforcing the stereotypes implicit in Section 497, IPC – Providing that cognizance would be taken on a complaint only by husband of the wife engaging in relationship with the adulterer – Section 497 itself having been held unconstitutional, section 198 ceases to have any practical relevance. (Para 37)

       (n) Indian Penal Code, 1860 – Section 497 and Article 15, Constitution of India – Section 497 rests on and perpetuates stereotypes about women and sexual fidelity – Denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse – Section 497 entrenching stereotypes and existing structures of discrimination, has no place in a constitutional order. (Para 46)

       (2008) 3 SCC 1; Writ Petition (Criminal) No. 76 OF 2016 – Relied upon

       (o) Constitution of India – Article 15 – Does not exist in isolation – Articles 14 to 18 constitute a single code on equality, supplementing each other and incorporating a non-discrimination principle – Neither Article 15(1), nor Article 15(3) allow discrimination against women – In exempting women from criminal prosecution, Section 497 implies that a woman has no sexual agency and that she was ‘seduced’ into a sexual relationship – ‘Protection’ afforded to women u/s 497 imputes lack of sexual agency to a woman – Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women. (Para 48)

       (1995) 4 SCC 520; (2017) 10 SCC 800 – Relied upon

       (p) Indian Penal Code, 1860 – Section 497 – Chains the woman to antediluvian notions of sexuality – Violates Article 21, Constitution of India, sexual autonomy being a facet of individual liberty under (Para 53, 61)

       (2017) 10 SCC 1; Writ Petition (Criminal) No. 76 of 2016 – Referred

       (q) Indian Penal Code, 1860 – Section 497 – Criminal law must be in consonance with constitutional morality – Section 497 enforces a construct of marriage where one partner is to cede her sexual autonomy to the other – Antithetical to the constitutional guarantees of liberty – Held unconstitutional. (Para 67)

       Per Indu Malhotra, J. (Concurring)

       (r) Indian Penal Code, 1860 – Section 497 – Provision a pre-constitutional law – No presumption of constitutionality – Would have to be tested on the anvil of Part III of the Constitution. (Para 10)

       (s) Indian Penal Code, 1860 – Section 497 and Article 14, Constitution of India – Section 497 making two discriminating classification – As to who can prosecute and who can be prosecuted – Treating adultery as theft of husband’s property – Classification violative of Article 14 – Liable to be struck down. (Para 12)

       (2012) 1 SCC 358; 2018 SCC Online SC 343; (2017) 10 SCC 1; (2005) 1 SCC 394 – Relied upon

       [1966] 3 All E.R. 601; 875 F. Supp. 1465; No. 15 CVS 5646 (2017); 539 US 558 (2003); [2014] ZASCA 133; 1914 AD 88 – Referred

       (t) Indian Penal Code, 1860 – Section 497 – Might have been justified at the time of its enactment – But has become outdated and discriminatory with the evolution of society and changed circumstances – A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality – Held, no justification for continuance of Section 497 of the I.P.C. as framed in 1860, to remain on the statute book. (Para 13)

       (1984) 1 SCC 222; (1986) 3 SCC 385; (2003) 6 SCC 611; (2008) 3 SCC 1 – Relied upon

       (u) Indian Penal Code, 1860 – Section 497 – Taking away rights of women to prosecute – Cannot be termed as ‘beneficial legislation’ – Held violative of Article 15, Constitution of India. (Para 14)

       (1991) 4 SCC 312; (2012) 1 SCC 358 – Relied upon

       (v) Indian Penal Code, 1860 – Section 497 and Article 21, Constitution of India – Invasion of privacy must be (i) legal (by law), (ii) have legitimate State interest and (iii) be proportional (having a rational nexus between the object and the means adopted) – Held, section 497 failing on all three counts – Must be struck down. (Para 15)

       (2017) 10 SCC 1 – Relied upon

       (w) Indian Penal Code, 1860 – Section 497 – Adultery – Whether a criminal wrong – Criminal sanction justified in case where public element is involved, or in case of public wrong – Adultery is a moral wrong qua the spouse and the family – Held, making it a criminal offence punishable with imprisonment not justified – State must consider whether the civil remedy will serve the purpose. (Para 17)

       Facts of the case:

       The constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC) has been challenged in this writ petition.

       Finding of the Court:

       Act of adultery does not fit into concept of crime. Section 497 IPC and section 198 CrPC held unconstitutional.

       Result: Petition allowed.