Why it was wrong to pronounce law on adultery unconstitutional

Markandey Katju
Markandey KatjuOct 09, 2018 | 13:09

Why it was wrong to pronounce law on adultery unconstitutional

The decision of the Supreme Court of India in the Joseph Shine vs Union of India case striking down Section 497 of the Indian Penal Code (the law against adultery) is in my opinion incorrect, and to explain why I think so, it is necessary to go into the theory of judicial review of statutes.

Since the verdict given in the Marbury vs Madison case by the US Supreme Court in 1803, it is accepted that the court can strike down a statute on the ground that it is unconstitutional. This is because the Constitution is a higher law than ordinary statutes, and if there is a conflict between a constitutional provision and a statute, the former must prevail, and the latter must give way.


supreme-court-690_100918121736.jpgInvalidating a statute is a grave step. It cannot be taken lightly. (Source: PTI)

However, it must also be kept in mind that invalidating a statute is a grave step, and must never be done casually. This is because in a democracy people are supreme, and the legislature consists of representatives of the people. Invalidating a statute means thwarting the will of the people, which is a counter-majoritarian step, as pointed out by the eminent American jurist Alexander Bickel in his book The Least Dangerous Branch. Courts must respect the legislature, which is a coordinate organ of the state, instead of adopting a confrontationist stance.

So, when should the court declare a statute unconstitutional?

The answer to this question was given by James Bradley Thayer, professor of Law in Harvard University in an article titled, Origin and Scope of the American Doctrine of Constitutional Law, written in 1893 in the Harvard Law Review.

In this article, Thayer stated that a legislation can be held unconstitutional by the court only when the legislature has not merely made a mistake in the sense of apparently breaching a constitutional provision, but has made a very clear one, so clear that it is not open to rational doubt.


So if two views are reasonably possible, one holding the statute to be unconstitutional, and the other holding it constitutional, the latter is to be preferred. There is a presumption in favour of the constitutional validity of statutes, and the court must make every effort to uphold its validity, even if that requires a strained interpretation.

This rule recognises that having regard to the great, complex, ever unfolding exigencies of government, much of which seems unconstitutional to one man, or body of men, may reasonably not seem so to another, that there is a range of choices for the legislature, that in such cases the Constitution does not impose upon the legislature any specific choice, but leaves it open to the legislature to adopt the choice it thinks best, and that whatever choice is not clearly in violation of a constitutional provision is valid, even if the court thinks it unwise or undesirable.

This rule of self-restraint was followed by celebrated judges of the US Supreme Court such as Justices Oliver Wendell Holmes, Louis Brandeis and Felix Frankfurter (see, for instance, Justice Holmes' dissent in Lochner vs New York case), and the Indian Supreme Court in Government of Andhra Pradesh vs P Laxmi Devi case.


adultery-690_100918121906.jpgThe Supreme Court quashed the adultery law on the ground that it only punished men for the crime. (Source: Reuters)

Now, let us consider the Supreme Court judgment in Joseph Shine vs P Laxmi Devi case in the light of the above rule.

The court held Section 497 unconstitutional because it violated Article 14 of the Constitution since it did not incriminate the wife who was a partner in the adultery, and it did not incriminate married men for having sex with women other than their wives.

But it is well settled that a statutory provision is not unconstitutional merely because it is under inclusive. Thus, in the constitutional bench judgment of the Supreme Court in State of UP vs Deoman Upadhyaya case it was held, "In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced it has to be remembered that the legislature has to deal with practical problems; the question is not to be judged by merely enumerating other theoretically possible situations to which the statute might have been, but has not been, applied.”

Almost every statute is in some way under inclusive. Thus, a statute prohibiting use of loudspeakers near hospitals cannot be struck down merely because it does not also prohibit use of car horns or shouting near hospitals, or use of loudspeakers near schools.

chandrachud-690_100918122140.jpgJustice D Y Chandrachud said autonomy in matters of sexuality is intrinsic to a dignified human existence. (Source: India Today)

The court went further and held Section 497 to be also violative of Article 21 of the Constitution. Thus, Justice DY Chandrachud observed: "Sexuality cannot be disassociated from human personality. For to be human involves the ability to fulfil sexual desires. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices."

Justice Chandrachud further said, "Section 497 disregards sexual autonomy which every woman possesses as a necessary condition of her existence.”

Now these may be the personal, subjective notions of Justice Chandrachud, but it was surely not open to him to impose them on to Article 21 of the Constitution. India is still a highly conservative country, and most Indians would be horrified and highly offended by the idea that married women have a right to have sex with men other than their husbands as, according to Justice Chandrachud, that is necessary for their dignified existence.

One may hold outlandish, far-out and avant-garde ideas in one's mind, but in adjudication surely they must be eschewed. And to strike down a statute on this basis disregards Thayer's principle of judicial restraint, as well as the wise admonitions of Justices Holmes and Frankfurter.

Last updated: October 09, 2018 | 21:21
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