Why Is Parliamentary Panel's Decision To Retain Adultery As Crime Getting Flak?

A parliamentary panel has recommended the retention of Section 497 of the Indian Penal Code (IPC), which pertains to adultery, in the proposed Bharatiya Nyaya Sanhita. This move comes in the wake of the Supreme Court's 2018 decision to decriminalise adultery, citing the archaic, arbitrary, and paternalistic nature of the law that infringed upon a woman's autonomy, dignity, and privacy.

The Supreme Court's Stand

The Supreme Court bench, in its landmark decision, struck down Section 497 of the IPC, emphasising its violation of constitutional principles outlined in Articles 14, 15, and 21. The court held that the provisions of this section not only penalised the married man but also reduced the married woman to the status of her husband's property, marking a significant departure from the principles of individual autonomy and dignity.

Parliamentary Panel's Perspective

Contrary to the Supreme Court's stance, the Parliamentary Standing Committee on Home Affairs expressed the view that the institution of marriage holds a sacred place in Indian society, warranting the need to safeguard its sanctity. In its recently submitted report on the Bharatiya Nyaya Sanhita, the panel advocates for the retention of Section 497 by proposing a gender-neutral approach to preserve the sanctity of marriage.

The panel said it was of the view that, "the institution of marriage is considered sacred in Indian society, and there is a need to safeguard its sanctity. For the sake of protecting the institution of marriage, this section should be retained in the Sanhita by making it gender-neutral.”

Section 497 IPC: Adultery in India: A Historical Perspective

Section 497 of the Indian Penal Code (IPC) once defined the legal consequences of adultery in India. This provision, however, drew criticism for its gender bias, exempting women from prosecution and framing them as victims rather than perpetrators. In 2018, the Supreme Court of India intervened, decriminalising adultery. The court asserted that Section 497 violated the right to equality by perpetuating gender-based discrimination. This decision marked a transformative shift in legal perspectives on marital fidelity. As of today's date (2023-11-15), Section 497 no longer holds legal standing, aligning with the Supreme Court's decision to strike it down. 

Call for Gender Neutrality

Acknowledging the evolving societal norms and the imperative to address gender-specific biases, the committee recommends making Section 497 gender-neutral. By doing so, it aims to strike a balance between the protection of marriage as an institution and the promotion of individual autonomy and dignity.

Reintroducing Section 377: A Controversial Move

In an unexpected turn, the parliamentary panel also urged the government to reintroduce and retain IPC Section 377 in the Bharatiya Nyaya Sanhita.  Section 377, which deals with non-consensual sexual offences, was unanimously held unconstitutional by the Supreme Court in 2018. However, the committee argues that Sanhita's current draft lacks provisions for non-consensual sexual offences against all genders and bestiality, necessitating the retention of Section 377.

Ensuring Comprehensive Legal Framework

The committee's recommendation to reintroduce Section 377 aligns with its commitment to creating a comprehensive legal framework that addresses non-consensual sexual offences across all genders. Despite the Supreme Court's previous ruling, the committee contends that the specificities of Section 377 remain applicable in cases involving adults, minors, and acts of bestiality.

As the debate over the inclusion of adultery laws in the Bharatiya Nyaya Sanhita unfolds, the delicate balance between individual freedoms and the sanctity of marriage takes centre stage. The parliamentary panel's call for a gender-neutral approach and the unexpected push for the reintroduction of Section 377 adds complexity to an already nuanced legal discourse. 

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