Transformative Constitutionalism: The Scrapping of Section 497
"Indians today are governed by two different ideologies. Their political ideal set in the preamble of the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion denies them."
- B.R. Ambedkar
The Constitution makers envisaged the principles of liberty, equality and fraternity in order to build a just and egalitarian society. This fosters challenges to hegemonic structures of power in order to secure dignity and equality of citizens. The same is aided by considering Constitution as a transformative document which furthers the philosophy of “Transformative Constitutionalism.” The goal of the Indian Constitution is to remove archaic, deep-rooted, social and institutional injustices in order to promote the constitutional vision of equality. However, Courts usually refrain from dealing with sensitive issues of cultural and personal beliefs. But the Supreme Court, in the recent judgment of Joseph Shine v. Union of India (1) navigated the choppy waters of culture and Constitution by placing heavy reliance on the principle of Transformative Constitutionalism which is abhorrent to any kind of regressive approach. It imbibes that social change is the hallmark of a transformative Constitution and in order to bring a social change in the country by conferring equal status to women even in the family, there was a need to shackle male chauvinism and romantic paternalism. Thus, in order to eliminate the institutionalised discrimination of married woman, the need of the hour was decriminalising adultery.
The Law on Adultery
Marriage, founded on the doctrine of unity provided husbands with absolute hegemony over the sexuality and sexual autonomy of his wife. By virtue of this, women have consistently been conceived as the property of their husbands. This archaic and patriarchal law of section 497, formulated by virtue of Victorian morality, is based on the same notion. It considers women as the property of their husbands: a passive entity, bereft of agency to determine the course of her life(2) despite equal status being conferred by the Indian Constitution. However, with the conferment of equal status to women in the feminist revolution in the post 1970s and with the evolving nature of marriage which has been considered as a union of equals, women cannot be regarded as their husband’s chattel. With equality, being considered as the governing parameter, the notion of husbands being the master in a marital relationship has been expelled by the recent adultery judgment. Also, the beneficial exemption given to women in s. 497 was based on the notion that women are victims of adultery, which has been severely criticized by the feminist scholars who argue that this understanding of the position of women demeans and fails to recognise the women as equally autonomous individuals in the society.(3) This has been made possible by the liberal interpretation of the Constitution which has played a significant role in the evolution of society.
Recognizing the individuality of a married woman
This law on adultery denuded women of her right to dignity, privacy and individual autonomy enshrined in Part III of the Constitution. Dignity of a woman is sacrosanct. It is a part of her non-perishable and immortal self.(4) Privacy has been recognized as an integral part of dignity as it retains the autonomy of the body and mind of an individual.(5) The law shackled the sexual freedom of a married woman, which denied her right to sexual privacy, a natural right, which is fundamental to liberty and soul mate of dignity.
The recent adultery judgment, recognizing the rights of a married woman observed that the identity of a woman does not get submerged as a result of her marriage. The Apex Court, thus, had a multi-faceted approach on the offence of adultery. Firstly, the court observed that a married woman retains her sexual autonomy even after marriage and can share her personal intimacies with the person of her choice, thereby, recognizing her right to choose a partner and decisional privacy which are fundamental rights under the Constitution.(6) Secondly, the court, most importantly, recognized adultery as a form of sexual expression which is protected under the freedom of association under article 19 of the Constitution and observed that the commission of adultery by one of the spouses is an evidence of the fact that the bond of marriage between them has already diluted and therefore, there is no point in conserving such broken marriages. Thirdly, the act of adultery is protected under the shield of sexual privacy as the sexual conduct of a person is a natural consequence of the fact that a person belongs to himself and not to others nor to society as a whole.
Thus, the court through the judgment made it crystal clear that misogyny and paternalism finds no place in our constitutional order which recognizes the dignity as intrinsic to the person of which, autonomy constitutes an essential component.
We, the people of India, have given to ourselves a living and organic Constitution which could adapt flexibly to the changing times rather than being frozen to the time of adoption with little or no possibility of growth, development and adjustment to the changing societal needs. This imbibes the principle of Transformative Constitutionalism which aides the Court by providing adequate remedies to injustices inflicted on citizens. Thus, keeping in mind the fact that human beings transcendentally grow, the court criticized the precedents and referred them as skewed understanding of the man and took recourse of trans-formative constitutionalism which asserts itself every time. This approach of the court helped in recognition of the sexual autonomy even of a married woman which was previously, considered to be conferred on husband after marriage. The Court thereby aided in evolving the constitutional doctrines and has placed women on the same pedestal to that of men, thereby, fostering gender equality which is incidental to social change in Indian society.
The approach of the court wherein the sexual autonomy of a married woman was recognized as a component of article 21 and sexual association formed part of freedom of association under Art. 19 of the Constitution, the archaic and discriminatory provision was struck down keeping in mind the present position of a wife in a marriage, thereby, furthering Transformative Constitutionalism. Since no one can compel a woman to love, therefore, it is the duty of the courts to break these stereotypes of romantic paternalism and male chauvinism in order to promote a society wherein women are treated as equal citizens in all spheres of life whether public sphere or private sphere, thereby, furthering social change through evolution of constitutional law in the country, of which Transformative Constitutionalism is an essential part.
1 AIR 2018 SC 4898
2 Joseph Shine v. Union of India, AIR 2018 SC 4898
3 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law and Adultery in India, SLR 47, 63(2016).
4 State of Madhya Pradesh v. Madanlal, (2015) 7 SCC 681.
5 K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.
6 Shakti Vahini v. Union of India and Ors., (2018) 7 SCC 192.
Year IV, B.A.LL.B. (Hons.),
National University of Study and Research in Law, Ranchi
(Image used for representational purpose only. Image Courtesy: https://www.anandabazar.com/national/writer-sangeeta-bandyopadhyay-on-supreme-court-s-adultery-law-verdict-dgtl-1.871711 )