SEX DISCRIMINATION: JOSEPH SHINE AND THE ANTI-STEREOTYPING PRINCIPLE

INTRODUCTION

On 27th September 2018, a five-judge bench of the Supreme Court of India in the case of Joseph Shine v. Union of India unanimously struck down section 497 of the Indian Penal Code, 1860 and Section 198 (2) of Code of Criminal Procedure, 1973. It is interesting to note that the Supreme Court of India on three previous occasions (Yusuf Abdul Aziz, Sowmithri Vishnu and V. Revathi) has upheld the constitutionality of Section 497. As a result while striking down this provision, the court not only struck down the provision, but, also overruled its previous verdicts in which the constitutionality of Section 497 was upheld.

While pronouncing this verdict Justice D.Y. Chandrachud in his judgment observed that “it’s the duty of the court to break stereotypes and ensure that the women are treated equally.” On similar lines, Justice Indu Malhotra observed that “the true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. Any legislation which takes away the rights of women to prosecute cannot be termed as beneficial legislation.”

In the light of the above facts the authors in this article have analyzed the Joseph Shine verdict and its impact on women rights.

BACKGROUND OF THE CASE

Section 497 of the Indian Penal Code criminalized adultery. The provision imposed penal liability (Maximum imprisonment of five years) upon the man who engaged in sexual intercourse with another man’s wife.  However, it is pertinent to note that women were exempted from prosecution. Furthermore, this section was inapplicable in cases wherein a married man engaged in sexual intercourse with an unmarried woman.

Section 198(2) of CrPC stated the procedure that “how a complainant may file charges for offences committed under Sections 497 and 498 IPC.” Section 198(2) CrPC specified that only the husband may file a complaint for the offence of adultery.

It is interesting to note that prior to the filing of this current petition, the Supreme Court of India on previous three occasions (Yusuf Abdul Aziz, Sowmithri Vishnu and V. Revathi) has upheld the constitutionality of Section 497. However with the passage of time the position of women improved in the society. They were no longer subservient to men; rather they developed an identity of their own. Post the privacy judgment of 2017 it was argued that Section 497 of the Indian Penal Code also violates right to privacy. A PIL was filed before the Apex Court challenging its constitutionality.  As a result it was necessary to look upon the constitutionality of this colonial provision which reduced the status of women to a chattel. 

JUDGMENT OF THE COURT

The Supreme Court in a unanimous verdict struck down Section 497 of the Indian Penal Code and Section 198 (2) of the Code of Criminal Procedure, 1973.  The Court in this case opined that Section 497 of the Indian Penal Code is anachronistic in nature and revolves around the Victorian ideals of marriage sanctity. Furthermore, the Apex Court also observed that Section 497 of I.P.C. and Section 198 (2) of CrPC are unconstitutional because it violates Articles 14, 15 and 21 of the Constitution of India, 1950.

The judges in this case relied upon the Supreme Court verdict in K.S. Puttaswamy v Union of India wherein the Apex Court held that right to privacy is a fundamental right. Furthermore, the judges in their judgment also discussed about the position of adultery law in different jurisdictions.

ANALYSIS AND WAY AHEAD

It is pertinent to note that for centuries women have been considered as inferior to men. Section 497 of the Indian Penal Code was a classic example of such patriarchal mindset. It is because under Section 497 of the Indian Penal Code only the husband could have filed a case of adultery. Apart from that it is also interesting to note that this provision would not be attracted in cases wherein the husband has given consent to any other man to have sexual intercourse with his wife thereby reducing the status of the women to that of a chattel. Therefore, the Supreme Court ruling in Joseph Shine v. Union of India can be considered as a transformative ruling.

The judgment of the Supreme Court is also important because the judgment guarantees women the right to bodily integrity, individual choice and personal autonomy not just against the State but also within her family and home. The authors believe that this judgment can also result in striking down of laws pertaining to restitution of conjugal rights because this law allows a court to “direct” one spouse who has left the company of the other spouse to return, even against his/her will.  Since individual choice and sexual autonomy are now being considered paramount; therefore it can be said that the law on restitution of conjugal rights is living on a borrowed time.

Secondly marital rape is not a crime in Indian laws. It has been argued by the critics that the offence of marital rape could affect the sanctity of the marriage. However, if we closely read the law laid down by the Apex Court in the case of K.S. Puttaswamy v Union of India and Joseph Shine one can say that now the offence of marital rape can be criminalized in India because individual choice and sexual autonomy are now being considered paramount by the Apex Court.

Thirdly many a state government have passed laws which prohibit marriage by means of conversion. These laws can be declared as unconstitutional by the Constitutional Courts now because it is based upon a patriarchal mindset which views women as lacking agency and autonomy, and therefore need protection form the state. The Supreme Court in its Joseph Shine ruling has clearly observed that “the Constitution does not allow ostensibly beneficial laws for women that are based on patriarchal or stereotypical assumptions.” Thus, these laws are now living on borrowed times and very soon we may see the striking down of these laws by the Honorable Supreme Court of India. 

The critics of this judgment argue that this verdict of the Supreme Court is a major setback to the institution of marriage in India.  However it would be wrong to say so. It is because the judges vide this judgment has not legalized the commission of adultery, but have only decriminalized it.   Adultery is still a civil wrong and a suit for judicial separation or divorce can still be filed on the grounds of adultery.

Joseph Shine v Union of India, (2019) 3 SCC 39.

Yusuf Aziz vs. State of Bombay, AIR 1954 SC 321.

Sowmithri Vishnu vs. Union of India and Anr, AIR 1985 SC 1618.

V. Revathi vs Union of India & Ors, 1988 SCC (2) 72.

Yusuf Aziz vs. State of Bombay, AIR 1954 SC 321.

Sowmithri Vishnu vs. Union of India and Anr, AIR 1985 SC 1618.

V. Revathi vs Union of India & Ors, 1988 SCC (2) 72.

K.S. Puttaswamy v Union of India, Writ Petition (Civil) No. 494 of 2012.

Joseph Shine v Union of India, (2019) 3 SCC 39.

Joseph Shine v Union of India (2019) 3 SCC 39.

Joseph Shine v Union of India (2019) 3 SCC 39.

By Raj Krishna (NLIU Bhopal) & Sagarika Swapnil (Advocate at Patna High Court, LL.M. Candidate)

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