Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution bench comprising of CJ Dipak Misra and RF Nariman, AM Khanwilkar, Dr DY Chandrachud and Indu Malhotra, JJ., commenced with the day 2 on the Constitutional validity of Section 497 IPC hearing in regard to “Adultery”.

Learned Counsel Kaleeswaram began with the arguments and placed his first argument that adultery is historically and politically significant, by further quoting Deborah that “Adultery is bad but imprisoning for the act of adultery is worse. Making adultery ground for divorce is right but for penalizing is wrong.”

Indu Malhotra J., If there is consent of the husband, then there is no adultery which is absurd. This is another indicator of gender bias in that woman is considered chattel.

Dr DY Chandrachud J., If a married man has sex with an unmarried woman it is not adultery but does it still not affect the sanctity of marriage.

RF Nariman J. to Kaleeswaram: Lord Macaulay did not want inclusion of this Section.

CJ Dipak Misra: In the institution of marriage which is built by two pillars. The parties are equally responsible for the commission of an Act.

Advocate Kaleeswaram argued that Section 497 IPC is indirectly discriminatory towards women as the wife of an adulterous man suffers and she can’t even file a complaint against it.

Dr DY Chandrachud J.,  Offence of Bigamy under Section 494 IPC is gender neutral and women can also be liable.

Further, Advocate Meenakshi Arora began with her arguments and stated that moral reprehensibility is not a ground to make adultery a criminal offence.  She in continuation to her arguments stated that “The jurisprudence behind adultery was no different. The object was not to protect bodily integrity of woman but to protect man’s control over wife’s sexuality.”

Dr DY Chandrachud J., “De-criminalising adultery is not licensing adultery.”

On the conclusion of Advocate Meenakshi Arora’s arguments, Advocate Sunil Fernandes began with his set of arguments and stated that “Union of India has submitted that Section 497 IPC has the object of preserving sanctity of marriage. But it does not penalise a husband for having sex with an unmarried woman or widow though that hits the sanctity of marriage.”

Dr DY Chandrachud stated that “The right to say ‘no’ should be there after marriage as well.”

The matter is put up for further hearing on 07-08-2018. [Joseph Shine v. Union of India, WP (Crl.) No. 194 of 2017, order dated 02-08-2018]


Case BriefsSupreme Court

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. began the hearing on Day-4 of the constitutionality of Section 377 IPC.

Advocate Manoj George representing two Christian groups and supporting Section 377 stated that Section 377 is constitutionally valid’.

He said that the “carnal intercourse criminalised is b/w man and man, b/w woman and woman, b/w man and animal or between woman and animal”.

“If Your Lordships says there is nothing called “order of nature” with or without consent, then the entire Section will go”, submitted Manoj George.

DY Chandrachud J. intervenes and asks under Article 14, is there anything called order of nature?

Nariman J. points to Yogyakarta principles stating “Don’t forget, we have already expanded sex to include transgender“.

CJ Dipak Misra: ‘Whatever the principles stated in Yogyakarta principles, if it fits into our constitutional framework, it may be referred as well’.

“We have already expanded the scope of the meaning of sex. You need to respect the natural process of law, if any sex is against the order of nature, it doesn’t lead to procreation”: Nariman J.

Anything to be done with Section 377 IPC should have been done by the legislature not by the Court’: Advocate George

‘If we are convinced that it is unconstitutional, it is our duty to strike it down’: Nariman J.

CJ Dipak Misra: If Section 377 IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here! You cannot impose your sexual orientation on others without their consent.

Advocate George concluded his arguments on the note that ‘If anything needs to be done, it should be done by legislature’.

Senior Advocate Radhakrishnan began with his arguments by referring to Apex Court’s judgment in Govt. (NCT of Delhi) v. Union of India, in regard to the constitutional morality aspect.

Radhakrishnan also pointed out that ‘Homosexuals spread sexually transmitted diseases like HIV’.

Chandrachud J.: The cause of sexually transmitted diseases is not sexual intercourse.

Advocate Harshvir Pratap Sharma: ‘We know there is corruption everywhere. Will we abolish the police because it is corrupt? Likewise, should we strike down a law because it affects a few?’

Suresh Kumar Koushal’s lawyer submitted that ‘Section 377 needs to be retained as it is.

Supreme Court reserved the judgment on the constitutionality of Section 377 IPC, 1860 by concluding the hearing for today.