The right to sexual privacy makes the law on adultery open to constitutional scrutiny
Joseph Shine v. Union of India, the petition challenging the constitutional validity of the criminal prohibition on adultery under Section 497 of the Indian Penal Code, has now been
referred to the Constitution Bench by the Supreme Court. The petition was admitted by the court with the preliminary observation that the provision attacks the independent identity of the woman and is archaic in its nature. As widely argued, on the intuitive grounds of both directly discriminating against men and indirectly discriminating against women, there are overwhelming reasons why the apex court should strike down this provision. However, there is much less discussion on another significant aspect of adultery law: the right to sexual privacy.
Generally speaking, in a marital bond based on love and trust, it is true that the spouse will have a necessary grievance against the adulterous partner. It is in view of this breach of fidelity that the civil laws in the country provide for adultery as a ground for
divorce. It is important to clarify that the adultery laws having consequences such as divorce might well be in the legitimate state interest. It does seem quite unfair to compel an individual to remain with an unfaithful partner.
The problem, however, is with the fact that adultery is made a penal offence. Adultery covers sexual intercourse between consenting adults. What is under challenge is a punitive provision that existed since 1860, which crystallised Victorian notions of sexuality. To prescribe a criminal penalty for a voluntary sexual activity is strikingly disproportionate.
State’s flawed approach
The right to privacy is valued and cherished for it involves the most intimate decisions and choices. The individual is absolutely autonomous in her territory. She is free to err, resolve and experiment. She is informed and independent to make her own decisions. Privacy is freedom giving as well as empowering in this sense.
The right to engage in sexual intercourse is an intrinsic part of the right to privacy. Privacy has to invariably contain the right to bodily integrity, self-determination and sexual autonomy. By criminalising adultery, the state is in fact showing a paternalistic attitude by telling individuals how to lead their lives and what behaviour to adopt. It carries moralistic undertones of imposing what living an ideal life means for the state. Such an approach seriously undermines the underlying values of personal liberty.
In fact, in the celebrated privacy judgment in K.S. Puttaswamy (2017), exercising the police power of the state in matters of private choices was repelled by the apex court. Justice J. Chelameswar in clear terms held, “I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.” Likewise, it seems to follow that individuals must be free from the interference of the state in matters of their sexual choices, or even in choosing their sexual partner.
Foreign jurisprudence
It is pertinent to note that none of the European countries has criminalised adultery. In most of South America, adultery is no longer a crime. Many States in the U.S. have either repealed adultery laws or put them to disuse. Following this global trend, in 2012, a working group of the United Nations called upon countries to do away with laws penalising adultery.
The right to sexual privacy is increasingly recognised in jurisprudence around the world. In the U.S in particular, the courts have enthusiastically located a constitutional right to sexual privacy. In Griswold v. Connecticut (1965), the U.S. Supreme Court was cautious to highlight the importance of privacy in the peculiar sphere of marital bedrooms in the context of birth control. In Lawrence v. Texas (2003), when confronted with the question of the legality of certain sexual conduct between persons of the same sex, the court held that no “majoritarian sexual morality” could override legitimate privacy interests.
On the other hand, the approach of the Supreme Court of India towards the right to sexual privacy has been, at best, ambivalent. The judgment in Suresh Kumar Koushal (2013) upholding the criminalisation of voluntary sexual intercourse between those of the same sex remains a serious blow to the right to sexual freedom. However, subsequently, in NALSA v. Union of India (2014), the Court said that the value of privacy is fundamental to those of the transgender community.
The present challenge to the law on adultery is significant for various reasons. One of them certainly is that it is perhaps the first occasion where the privacy judgment in Puttaswamy is going to be doctrinally and forensically tested. It is also equally crucial that the right to sexual privacy forms a distinct and independent ground which makes the law on adultery further vulnerable to constitutional scrutiny.
Thulasi K. Raj is a lawyer at the Kerala High Court
