Day 2 Arguments (Morning)

August 8th 2018

The Constitution Bench started hearing the case at 11:30 A.M.

Ms. Jayna Kothari, representing the intervenor Vimochana, started making her submissions. She began by assailing the adultery offence by invoking the fundamental right to privacy, as recognised in Puttaswamy case. She argued that the right to intimate association is a facet of privacy which is protected under the Constitution. Citing, US precedent, Eisenstadt v. Baird, she argued that though marital couple form an association, the individuals who are a part of that association enjoy the right to privacy. Ms. Kothari cited another US case, Roberts v United States Jaycess, where freedom to intimate association of choice was upheld as part of the right to privacy. Even within marriage, the individuals do not lose their fundamental right to privacy, she noted.

Ms. Kothari then moved to her submission that decriminalizing adultery does not lead to weakening of the institution of marriage. She referred to Independent Thought where the Union had made a similar argument: diluting the exception to child marital rape provision would affect the sanctity of marriage.  Ms. Kothari submitted that the Supreme Court while criminalizing child marital rape had rejected this contention. The Court observed that marriage is a personal sphere and does not need institutional protection. She submitted that marriage can’t be destroyed except by a statute and a dent to the institution is not a valid reason to retain adultery.

Ms. Kothari then referred to a Namibian Supreme Court decision JS v LC , which had considered the institution of marriage claim in a challenge to adultery. In JS v.LC, the court had held that the essence of marriage is founded on the morals of parties to the marriage, if they lose commitment to marriage, then it will fail; punishing a third party will not save the marriage.

Ms. Kothari cited UK House of Lords decision in Regina v R where marital rape exception was set aside. The court addressed the institution of marriage claim to say that the form of marriage has undergone change over time. Ms. Kothari concluded by reiterating that the basis of adultery offence is that woman is considered as the property of the husband – she cannot have relations outside of marriage, but the husband can. She asserted that Section 497 violates right to privacy as well as liberty of women.

Next, Mr. Neeraj Jethra, appearing for an intervenor, began his arguments. He submitted that Yusuf Abdul Aziz, which upheld Section 497, was wrongly decided. It relied on Article 15(3) which allows for beneficial discrimination in the interests of women and children. This case merits reconsideration.

Mr. Jethra proposed a prism to look at laws using gender as basis for differentiation: first is using gender for positive discrimination; second is for using gender for furthering inherent biological differences; third, laws with unfavourable discrimination.

Article15(3) is not an independent fundamental right and must be read with Article 15(1). Mr. Jethra, referred to Anuj Garg to argue that unfavourable discrimination laws can’t be protected – Section 497 is an example of a law making such unfavourable discrimination.

Next, Ms. Pinky Anand, representing the Union, began arguments. She opposed the plea to decriminalize adultery. Ms. Anand argued that the notion of criminalising adultery follows from Stuart Mill’s harm principle and is aimed at addressing a public wrong.

Ms. Anand continued that adultery is morally abhorrent and the State has a legitimate interest in protecting sexual fidelity as a valuable goal for the society; hence criminalisation of adultery is justified. Ms. Anand submitted that adulterous relationship is not protected under privacy because marriage confers partners with a right to sexual fidelity.

J. Chandrachud intervened to observe that Section 497 does not target infidelity of all kinds. He said that Section 497 seems to exact fidelity obligation only on women. Ms. Pinky Anand argued that women cannot sue nor be sued: they are protected under Article 15(3).

CJI enquired if collective good is the basis for creating a crime. He questioned – what collective good is the state seeking to protect under Section 497?

At this point, the Bench rose for lunch.