The recommendation of the parliamentary consultative committee for the Union home ministry to re-criminalise adultery “to protect the institution of marriage” may fit right into the authoritarian agenda of the ruling dispensation but will militate against modern values which prize personal liberty and freedom of conscience and allows every adult their own agency while limiting scope for state interference in human relations. The panel’s other demand for criminalising homosexuality is equally or more reprehensible as it turns it back on our ever-expanding knowledge and understanding of the human species.
Before it was struck down by the Supreme Court in 2018, Section 497 of the British-era Indian Penal Code was a piece of legislation that mocked the very idea of a woman as an individual citizen and vested state agencies with powers that were outrageous in civilised society. It would punish a man who had consensual sexual intercourse with a married woman without her husband’s additional consent with a five-year jail sentence while the woman herself would not be punished.
The Supreme Court has rightly pointed out that the law made the woman the chattel of her husband. Its inconsistency with the Indian Constitution was irreparable as it violated fundamental rights ensured through articles 14, 15 and 21 — articles considered foundational to our democracy because they ensure equality before the law, protection against discrimination and the right to life. It was this inconsistency which forced the top court to dismiss Section 497 of the Indian Penal Code as “archaic, arbitrary and paternalistic and infring[ing] upon a woman’s autonomy, dignity and privacy”.
The parliamentary panel reviewing the three bills introduced by Union home minister Amit Shah to replace the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act now wants the proposed Bharatiya Nyaya Samhita which will replace the IPC to re-incorporate the section as it is “of the view that the institution of marriage is considered sacred to Indian society and there is a need to safeguard its sanctity”. Yet marriage in Indian law is a civil contract between two adult individuals, and the role of the state is limited to facilitating it. Nowhere does the Constitution or the law give the state a role in the preservation, protection and defence of that institution.
It goes without saying that ideas and ideals about individual freedom keep changing and hence it is inevitable that the nature of such contracts between individuals might also evince variations. But a basic understanding of the history of the “institution” the honourable members of the panel are purporting to conserve would convince them that it, too, has undergone tremendous transformation. It will be a futile and illogical exercise for the state to wish to “fix it” for posterity.
The panel has forwarded the ludicrous suggestion to make the new law gender-neutral so that the woman in the relationship gets a punishment equal to the man. This is a cure worse than the disease as it fully extinguishes her choice with respect to relationships.
The panel’s demand for the reintroduction of Section 377 of IPC, which deals with the practice of homosexuality, meanwhile, qualifies for all the objections cited above. It may be remembered that the Supreme Court in 2018 read down this law, too, after finding it “irrational, indefensible and manifestly arbitrary”.
Prime Minister Narendra Modi has time and again spoken about getting rid of the colonial laws and making them current, but the House panel would now want one of the most evolving institutions in human history — marriage — to be tied down to the colonial mindset as reflected in colonial law. It is a different matter altogether that any attempt to follow that trajectory should be resisted as it is tantamount to opposing social reform as well as the Constitution.
