FROM CRIMINAL OFFENCE TO CONSTITUTIONAL FREEDOM: REVISITING ADULTERY LAWS IN INDIA

This blog explores the shift from colonial-era notions of ‘adultery' as a crime to the new interpretations of ‘adultery' as an issue of freedom and autonomy under the Constitution of India. It critically examines Section 497 of the Indian Penal Code, an importation from colonial times which classified women as passive objects to be controlled by their husbands. It sheds light on how the provision was an illustration of Victorian attitudes to men as the agents of the law and women as lacking autonomy and equality in the law. The paper also delves into the case of Joseph Shine v Union of India in which the Supreme Court of India ruled that Section 497 was unconstitutional and infringed upon Article 14, Article 15 and Article 21 of the Constitution. The judgment was a radical one from the point of view of state morality to the constitutional morality because it declared dignity, privacy, equality and sexual autonomy as constitutional rights. Further, the study covers the impact of Justice K.S. Puttaswamy v. Union of India which extended the concept of freedom of person and intimacy of relations. Further, the paper examines the connection between marriage, morality and criminal law, suggesting that in the absence of public harm adultery can be considered a civil wrong, but not a crime. The study argues that the decriminalisation of adultery is a forward-looking constitutional development, which respects individual freedom, gender justice, human dignity over the patriarchal social norms and colonial legal traditions.