India’s top court, the Supreme Court, struck two blows in as many days in favour of gender equality. On September 27, the SC decriminalizing adultery and the next day, it allowed women of all age to enter the Sabarimala Temple in Kerala. In two fell swoops, the top court demolished an archaic and patriarchal law and struck down a practice that treated men and women as unequal.
Section 497 of the Indian Penal Code (IPC) criminalized adultery but did so asymmetrically: that is only the man, and not the woman, who engaged in adultery, could be punished. So the burden of adultery was on a man. In the case of ban of women between 10 and 50 years on entering the temple in Kerala, the burden of men’s celibacy was on women because the ban said the presence of women deviates from celibacy.
Therefore, in both these cases, woman bore the burden of a patriarchal mindset. The Supreme Court has liberated women from these shackles. She doesn’t bear any of these burdens now. Menstruating or not, she’s free to visit Lord Ayyappa temple without having to obey rules made staggeringly sexist and crudely anti-woman society.
Now let us understand why the two judgments are historic.
In the IPC, section 497 is defined as this: whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.
The keyword in the section is “consent” and “connivance” of a man. The 19th-century law treats a husband as the master of his wife and therefore violates the right to equality, said the five-judge bench that called the law unconstitutional and arbitrary. “This offends the dignity of a woman,” Chief Justice of India Dipak Misra said as he read the judgment of the bench. The bench said the section gives the husband license “to use the woman as a chattel”.
There were other flaws in the section. For example, it interpreted adultery as a married man’s sexual relationship with a married woman which meant that his relationship with, say, a single woman was not. Also, only married men could invoke the section against another married man but a woman with a similar grievance could not approach court. This meant that a man could bring the adultery charge against a cuckold but his wife couldn’t if he also had an adulterous relationship.
Justice DY Chandrachud said section 497 exacts ‘sexual fidelity’ from women in marriage while curtailing her sexual agency and autonomy with an underlying assumption that they have given up their sexual self-determination and bodily integrity upon entering the institution of marriage. This, he said, was anathema to the constitutional morality as well as founded on gender stereotypes, which is impermissible under Article 15 (non-discrimination on grounds of sex).
He added that the law “perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes”.
The court’s observation that intimate personal choices of women do not cease after marriage, could lead to criminalization of marital rapes. The Delhi high court is hearing a case for declaring marital rape as a criminal offence.
The judgment also reinforces the sentiment that the state has no place in the private lives of people as long as they are engaged in consensual relationships.
Adultery, however, remains a ground for divorce but now is applicable to both parties involved.
How this came up in SC
Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law that he said discriminated against men by only holding them liable for extra-marital relationships and treated women like objects.
In his 45-page petition, Shine liberally quotes from American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary General Kofi Annan on gender equality and the rights of women.
Indian government opposed the petition, insisting that adultery should remain a criminal offence. “Diluting adultery laws will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,” government counsel told the court. He added that Indian ethos gives paramount importance to the institution and sanctity of marriage.
However, on September 27, the Supreme Court showed itself to be in sync with changes in society and swept aside regressive thinking.
The Sabrimala case
The Sabrimala shrine of Lord Ayyappa in Kerala’s Panthanamthitta district, 175km from Thiruvanthapuram, is a major draw for devotees especially between November and January. The temple disallows entry to menstruating women. In 1990, this was challenged in Kerala high court but the court overruled the challenge saying the restriction was part of an age-old religious tradition. In 2006, Indian Young Lawyers Association filed a public interest litigation (PIL) in the Supreme Court challenging the restriction on grounds that it was discriminatory and against gender justice. Twelve years later, on September 28, the top court agreed the ban violated the fundamental rights and constitutional guarantees of women.
Justice Misra said all devotees are equal and there cannot be any discrimination on the basis of gender, the same sentiment that the top court expressed in decriminalizing adultery.
Another judge on the bench said religion cannot become a cover to exclude and deny women their right to worship. There is muted resentment to this judgment by the temple authorities. But the decision has been hailed by feminists, who said the decision has demolished another male bastion.
However, there are dissenting voices, too. For one, the lone woman judge on the five-judge bench that decided the Sabrimala case, Justice Indu Malhotra, disagreed with the majority opinion. She said that religious freedom is also to respect in its own as a right, constitutional morality also includes this freedom and is not just about equality.