There aren’t many cases in Indian legal history that have affected society as a whole and upended long-standing conventions like Joseph Shine v. Union of India. In addition to overturning a legislation from the colonial era, this historic ruling by the Supreme Court of India in 2018 altered the parameters of individual liberty and gender equality. Understand the significant ramifications of a decision that signaled a new era for gender justice and individual liberty in India by delving into this case brief.

Facts: The petitioner had filed a public interest litigation suit under article 32 of the Indian constitution to review the constitutional validity of section 497 of the Indian penal code along with section 198 of the code of criminal procedure. 


  • Whether section 497 is gender discriminator, thus violating article 14 of bye Indian constitution?
  • Whether the said section provides excessive penalisation, and if so, should it be decriminalised?

CJI Dipak Mishra-

The focal arguments of CJI Dipak Mishra revolves around constitutional relevance granted to section 497 and the gender discriminatory clauses violating fundamental rights granted in article 14, 19 and 21. Atop that, CJI also mentions the relevance of article 15 (3) stating special provisions in the context of the said substantive and procedural provisions. 

This case has a constitutional overtone that overrides the criminal aspect of the said provisions. CJI Dipak Mishra starts with discussing the golden triangle of fundamental rights and the judicial sensibility that gives the constitution its public relevance. CJI goes ahead to dismiss the predominant historical notion of giving meaning to a woman’s identity only as far as her relationship with a man goes. He says that such a concept proves to be counterproductive and detrimental to the idea and identity of a woman. Moreover, he quotes John Stuart Mill to elucidate his point- 

“The legal subordination of one sex to another-is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other”.

The second aspect of his arguments focuses on the doctrine of state decisis, that states the binding nature of precedents and how it obligates the courts to follow historical verdicts when similar cases come along. Delving into aspects of doctrine of stare decisis, CJI mentions how they might not be construed to mean that precedents should not be regarded as such and that the obligatory character of precedent should not be diminished or allowed to maintain its position under the pretext of a shift in perception. CJI also points out the problematic verdicts in the previous cases that were to determine the validity of section 497. This brings us to the cases of Yusuf Abdul Aziz v. State of Bombay MANU/SC/0124/1954 : 1954 SCR 930 : AIR 1954 SC 321, Sowmithri Vishnu v. Union of India and Anr. MANU/SC/0199/1985 : (1985) Supp SCC 137 : AIR 1985 SC 1618, V. Revathi v. Union of India and Ors.MANU/SC/0562/1988 : (1988)2 SCC 72. In doing so, he talks about the gender-biased nature of the provisions, male chauvinism and state paternalism in granting women protection they barely need. Only adultery committed by a man is illegal in India under Section 497 of the Penal Code, and only the spouse of the “adulteress” may bring charges against the man she had an affair with; the wife of that man is not permitted to do so under Section 198 of the Code of Criminal Procedure. If we look more closely at the justifications the court uses to support the law in question and the case laws that surround it, we can see how the court defines the “nature” of the harm that adultery causes. The husband’s exclusive “property rights” over his wife’s body and sexuality are deemed to be violated in cases of adultery but the same “rights” are not grated to the wife of the man. Because the husband is subject to damage when he loses control over his wife’s body, so only the husband may prosecute the man and never the adulterer’s wife. However, as the wife does not have the same rights as her husband, this is not a breach of her rights. In the case of Yusuf Abdul Aziz, the court was to determine the validity of section 497 and the violation of article 14 and 15 and the relevance of article 15(3) granting special provisions to women and children. In the light of this, the CJI clarified that the court is not to take a paternalistic approach in saying that 15(3) grants women the permission to commit or abet crimes. There was a contention that Clause (3) ought to be restricted to measures that are advantageous to women and should not be employed as a means of enabling them to commit or assist in criminal activity. Regarding this, the court said that they cannot accept that a provision that forbids punishment is equivalent to a license to commit the offense for which punishment has been forbidden, nor can they read any such restriction into the law.

Similarly, in the case of Sowmithri Vishnu, the court delved into aspects of adultery laws. The argument made before the three-judge bench was that while Section 497 gives the husband the ability to prosecute the adulterer, it gives the wife no legal authority to pursue charges against the woman her husband has an adulterous relationship with; in other words, the wife is not granted the ability to pursue charges against her husband for having an adulterous relationship with another woman. Upon initial observation, the legislation may seem favourable and tailored to support women’s interests; however, upon closer inspection, it becomes apparent that the Section’s provision represents a form of “romantic paternalism” rooted in the notion that women are men’s property, much like chattels.

Through KS Puttuswamy judgement, while discussing the cardinality of right to privacy and its intersectionality with individual personhood, it is noted that the right to equality serves as a safeguard against arbitrary state action. Through the institution of marriage, the claw expects loyalty out of the two parties and holds the adulterer responsible. CJI’s argument therefore highlights the fact that this legal requirement is an order that touches on the essence of privacy. Aside from that, it is a sociomoral and discriminating order. Even if two people split ways for the aforementioned reason, it is inappropriate to associate criminal liability with it.

Therefore, CJI mentions that it is appropriate to declare Section 198 Code of Criminal Procedure, which deals with the process for filing a complaint in relation to the offence of adultery, to be unconstitutional since it is already established that Section 497 Indian Penal Code is unconstitutional and adultery should not be treated as an offence. The procedural provision must follow the same course as the substantive provision.

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