WITH EYES WIDE OPEN
D. N. Bezboruah
All at once, adultery and such other human failings are much in the news—all because the Supreme Court decided on Thursday to decriminalize adultery, thus striking down an ‘outdated’ law of the British days after declaring that it is time to say “husband is not the master of women” and underscoring a drive for equality that had been achieved through the ruling on homosexual relations earlier this month.
In doing so, the apex court strongly endorsed the right of a woman to explore her own sexuality, asserting that a wife is not a ‘chattel’ of a husband. In dismissing the Centre’s plea to retain the adultery law, the five-judge constitution bench of the Supreme Court said that the provisions of the adultery law sought to protect not the sanctity of marriage but the “proprietary right of a husband”.
Thereby, the bench also made an important observation on privacy, saying that treating adultery as an offence would tantamount to the State entering into a real private realm. The provisions that have been struck down are Section 497 of the Indian Penal Code that dealt with adultery and Section 198(2) of the Criminal Procedure Court that had to do with prosecution. Both the sections were deemed discriminatory towards both men and women. The bench was unanimous in striking down Section 497, holding it as manifestly arbitrary, archaic and a violation of the rights to equality and equal opportunity of women.
There are a few factors that governments tend to overlook when they deal with legislation introduced by foreign rulers that has become outdated even in a land long occupied by foreign rulers. One is that notions of what constitutes crime and what does not, change with the times especially when foreign rulers who enacted certain laws for their colonies are no longer the rulers and people are able to see that some laws were enacted to give the foreign rulers advantages over their subjects. The other important reason for more lenient views of crime is that human aberrations that were once regarded as crimes get subjected to reviews and result in altered perceptions about crime in societies that have managed to be more liberal with human failings. Crime is defined as an action that constitutes serious offence against an individual or the state and is punishable by law. The word comes from Middle English (in the sense of sin) via Old French from Latin crimen, ‘judgement, offence’, based on cernere ‘to judge’. Thus, there was clearly a time when the word crime was heavily loaded with the sense of what resulted in judgement (and consequently, punishment). The word adultery is derived from the obsolete adulter obviously derived from Latin adulter meaning ‘adulterer’ that might have been derived from the Latin adulterare meaning ‘debauch, corrupt’.
The foregoing etymological information may be of some use in getting a fair idea of the links between perceptions of crimes like adultery in ancient times and at present. The bench of the Supreme Court that ruled on adultery on Thursday also spoke of how the ancient regimes (like those in Babylon and Rome) treated adultery. Justice D.Y.Chandrachud spoke of how a sexual double standard existed in ancient Graeco-Roman societies where adultery constituted a violation of a husband’s exclusive sexual access to his wife, for which the law allowed for acts of revenge. In 17 BC, Emperor Augustus is said to have passed the Lex Julia de adulteris coercendis, which even stipulated that a father was allowed to kill his daughter and her partner if they were caught committing adultery in his house or the house of his son-in-law. “While in the Judaic belief, adultery merited death by stoning for both the adulteress and her partner, Christianity viewed adultery more as a moral and spiritual failure than as a public crime,” said Justice Chandrachud. The somewhat more lenient view of adultery in Christianity (as stated by Justice Chandrachud) is open to question in view of the subsequent observations made by him. “The penalties of Lex Julia were made more severe by Christian emperors. Emperor Constantine, for instance, introduced the death penalty for adultery, which allowed the husband the right to kill his wife if she committed adultery. Under the Lex Julia, adultery was primarily a female offence, and the law reflected the sentiments of upper class Roman males,” Justice Chandrachud said. How can Christianity be assumed to take a more lenient view of adultery if Christian emperors had the death penalty for adultery? What ought to be significant in determining whether adultery should be regarded as a crime or not is to determine whether it constitutes a serious offence against an individual or not. Since adultery does not constitute any kind of offence against the State, our assessment of whether it is a crime or not must be confined to the kind of offence that adultery does to any individual. Even for such an assessment, one must determine whether it is only visible physical injury to an individual that is tantamount to offence. Adultery, whether it is in the form of isolated acts or in more sustained relationships, can cause very great mental and psychological harm to human relationships based on social sanctions and human trust. It constitutes betrayal of trust that is both implied and sealed in the bondage called marriage. It constitutes the rejection of human ties that are deemed to be sacred in most human societies. And that is why, perhaps, even at the beginning of the 21st century not all countries are agreed on whether adultery constitutes a crime or not. This should be evident from the fact that in quite a few countries like Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, the Philippines, the United Arab Emirates, some States of the United States of America, Algeria, Congo, Egypt, Morocco and some parts of Nigeria, adultery is still a crime. By contrast, many more countries have decided that adultery is not a crime and is better seen as an aberration of sorts. These countries include China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, Seychelles, South Korea and Guatemala. It is certainly possible to claim that those countries that have decided not to make a hue and cry about not regarding adultery as a crime are more advanced, liberal or emancipated than other countries that still regard adultery as a crime. We have no way of deciding that they are right. At least not right away. But we have ways of determining which group of countries have done less harm to the institution of marriage. Whether or not the declaration by the Supreme Court that adultery is not a crime makes a difference to the way they view adultery from now on, the apex court’s decision of Thursday is bound to make a lot of difference to people whose regard for the institution of marriage has been above question. People are already beginning to express strong dissatisfaction at the Supreme Court’s decision to decriminalize adultery. Regardless of what the Supreme Court’s decision can do to the crime scenario in Assam, what remains to be seen is what it can do to the institution of marriage in the days to come.