Among its latest feats, the Supreme Court of India has struck down Section 497 of the Indian Penal Code (‘IPC’) and its procedural counterpart, Section 198 of the Code of Criminal Procedure (‘CrPC).The 5 judge bench, consisting of Chief Justice Dipak Misra, and Justices Khanwilkar, Nariman, Chandrachud, and Indu Malhotra, unanimously declared the adultery law as unconstitutional and overruled all previous cases that held otherwise.
Section 497 was held to be manifestly arbitrary and discriminatory against women, warranting invalidation on account of Article 14 of the Constitution.It was also stated that the effect of the law was to curb rather than to further the rights of women and it could not, therefore, be termed as a beneficial legislation under Article 15(3).
With respect to the question of whether adultery should be a crime at all, the court answered in the negative, holding that such a law would be violative of the fundamental rights of freedom of expression and privacy under Articles 19 and 21. In the backdrop of the fundamental rights argument, this post charts the historiography of monogamy and draws upon Roscoe Pound’s theory of social engineering so as to corroborate a socio-jurisprudential argument in favour of the judgment.
Monogamy: A Brief History
A glance into history would reveal that humans were not always monogamous. In fact, not restricted to the western societies, polygamy was also practiced in India in ancient times, although largely by rulers. Socio-biological reasons have been offered for the predominant culture of non-monogamy among humans. Men desired to mate with a large number of women to ensure the survival of their bloodline, and women desired to mate with several men to ensure greater resources and protection of their child. Moreover, research shows that some people may actually be genetically predisposed to adultery.
Why, then, did humans chose to organise themselves into monogamous societies? Men may have chosen to stay with one female to ensure the survival of his progeny who were at risk of being killed by other men. As lactating females do not ovulate and prefer attending to the child over mating, men would kill the infant to garner the female’s attention.
It has also been theorised that with the advent of capitalism came the desire to pass accumulated wealth down one’s own bloodline and restrictions began to be placed on women’s sexual freedom so that the man could identify his children despite having multiple sexual partners himself. This was furthered by the advent of the Victorian culture which saw sexual pleasure as taboo. This becomes significant when we realize that the adultery law is a colonial law. In fact, Indian society never repressed the erotic dimensions of human life as is evidenced by ancient scriptures.The Vedas spoke of ‘kama’ which was representative of the sexual aspects of one’s life. The Panchathanthra spoke of the importance of sexual gratification. It was only during the colonial era that Indian sexuality began to be curbed.
As stated above, Indian law on adultery comes from English common law. The wording is an unambiguous reflection of the patriarchal origins of monogamy.The justification for the law has, however, changed over the years. To late 20th century courts, it was a means of protecting women who were considered to be irrational and therefore the perpetual victims. Today, it is masqueraded as a tool to preserve the institution of marriage.
However, it does not appear to be effective in attaining its aims. In India, 23% of men and 8% of women admitted to being unfaithful to their spouse and 37% of women admitted to having knowledge about their husbands’ affairs. In 2015, an extramarital dating website was launched in India and a whooping fifty thousand women registered on the first day itself.
Surveys show that traditionally, the number of unfaithful men outnumbered that of women. However, this gender gap again had patriarchal roots since not too many married women were allowed to step outside their households. But there has been an upward curve in adulterous relations by women in recent times. If infidelity has been prevented only by a lack of opportunity, perhaps monogamy is an unrealistic lifestyle for a significant portion of the population.
One explanation may lie in the aforementioned socio-biological factors.Contemporary reasons include unwillingness to stay with the partner but inability to leave, or willingness to stay but desiring to satisfy unfulfilled sexual or emotional needs. Anderson calls this a gap between sexual and moral needs and suggests that open relationships may be a viable solution.
Regardless of the reasons for adultery, figures of its rampancy beg a reconsideration of the institutionalised enforcement of monogamy and a move towards social and legal acceptance of alternative lifestyles like polyamory which may help keep marriages intact while allowing individuals to fulfil their needs.
Pound: A Jurisprudential Analysis
Roscoe Pound was an eminent American scholar who wrote extensively in the field of sociological jurisprudence. His most celebrated work pertains to his theory of interests or social engineering which proposes that the aim of a jurist or social engineer is to harmonise conflicting interests in society.
He defined “interests” as desires that humans seek to satisfy individually or collectively and which must therefore be taken into account by the social engineer. Individual interests, he explained, relate to the specific and distinguished needs of an individual like reputation and property. Public interests are those of the state. Finally, social interests are collective demands of social groups.
According to Pound, determining conflicting interests requires, inter alia, a study of the effects of laws on society, effective methods to enforce laws, and sociological legal history of laws. The theory is functional and end or goal oriented in nature. Pound recognised that this end may differ in different societies. For instance, in the primitive era, it was the preservation of peace and under Greek rule, it was the maintenance of status quo where social order trumped individual liberties.
The Joseph Shine case appears to be a perfect illustration of the application of Pound’s theory. In determining whether adultery should be a crime, the court took into account individual interests of liberty, privacy, and bodily autonomy; social interests in protecting spouses from psychological harm/ mental cruelty and ensuring a stable household for children; and public interests in preserving the institution of marriage for the purpose of maintaining stability and progress.
The court also examined the history of the law, its effectiveness in achieving claimed objectives, the social effects of the law, and even the objectives themselves. Firstly, it was observed that the law has undeniable patriarchal origins. Moreover, the reasons offered for its introduction- prevention of disease, identification of bloodline, or the protectionist role of judiciary- are no longer relevant in this context in the modern day.
Secondly, the court established that the law has proven ineffective in preserving marriages. It was noted that adultery may well be the result of an unhappy marriage and not always the cause and therefore, punishing any party would be a fruitless and “manifestly arbitrary” affair. On the contrary, it would be a gross interference of individual rights under Articles 19 and 21, as elaborated in the Puttaswamy judgment. Thirdly, it was stated that the aim of the law was not to preserve marriage, but rather to protect the proprietary right of the man in his wife and such an objective cannot stand constitutional scrutiny.
Finally, in pursuance of the majority view in the Triple Talaq case, the court assumed a duty to act as a social engineer rather than waiting for legislation to bring social reform. It was emphasised that Article 19 includes the right to make unpopular choices. Holding that a law that curbs this right despite such choices being within the scope of constitutional guarantees amounts to an unreasonable restriction, the court struck down Section 497.
Monogamy being the dominant practice, cultural hegemony prevents us from criticising it. There exists an unwillingness to objectively analyse the defects in monogamy, including the effect it has on the sexual and emotional health of monogamous couples. The court overcame this unwillingness and recognised that sexual norms are not universal and it is unfair to impose a single standard upon all persons.
Notably, Pound suggested that where possible, individual interests must be subsumed under social interests. The court appears to have recognised that there is social interest in upholding individual rights of privacy and freedom of choice for the development of independent thinking personalities and societal progress. The significance of this judgment lies not only in the prioritisation of fundamental individual rights, but more so in the court’s analysis of the balance among competing rights. The judgment highlights the impact that sociological jurisprudence has on legal reasoning and is therefore historical in the context of interdisciplinary understanding and championing of individual rights in the Indian societal matrix.
Malika Nanduru is a student of law at West Bengal National University of Juridical Sciences.