“The Harm Principle states three elements for criminalization namely, HARM, WRONG DOING AND PUBLIC ELEMENT. These elements are required to be proved before the State can classify a wrongful act as a criminal offence”


Case name:Joseph shine V/S Union of india
Case number:Criminal appeal number-194 of 2017
Court:The supreme court of india
Bench:Justice Deepak Misra, Justice A.M. Khanwilkar, Justice D.Y Chandrachud, Justice Indu Malhotra, Justice R.F. Nariman.
Decided on:JULY 27, 2018
Relevant Act/Sections:Section 497 of the IPC, 1860, Article 14, 15 and 21 of the Constitution of India, 1950

1.     In February 2016, the Hon’ble President of India had called for a thorough revision of the Indian Penal Code. Archaic provisions of the Code were sought to be removed and “The IPC has undergone very few changes in the last one hundred fifty-five years. Very few crimes have been added to the initial list of crimes and declared punishable. Even now, there are offences in the Code which were enacted by the British to meet their colonial needs. Yet, there are many new offences which have to be properly defined and incorporated in the Code.” In view of the same, it is submitted that Section 497 is a also an outdated provision, in addition to being illegal and violative of fundamental rights.

 2.     In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Art 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Sec 497 of IPC read with Sec 198(2) of the CrPC.

  • However the respondents are of the view that consensual sexual relationship outside marriage would breakdown the institution of marriage and it does not warrant protection under Art 21. And moreover the right to privacy and personal liberty is not an absolute one and is subject to reasonable restrictions when legitimate public interest is involved. Art 15(3) saves the provision as a special provision for the benefit of women which is an enabling provision providing for protective discrimination. This provision was challenged before this Hon’ble Court.
  • This Writ Petition is filed challenging the constitutional validity of Section 497 of IPC and Section 198 (2) of CrPC. This is a Public Interest Litigation. Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India. When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability. The said discrimination is against the true scope and nature of Article 14 as highlighted in Maneka Gandhi v. Union of India, (1978) 2 SCR 621, R.D. Shetty v. Airport Authority, (1979) 3 SCR 1014 and E.P Royappa V State Of Tamil Nadu, 1974(4) SCC 3.
  • Whether Section 497 of the Indian Penal Code, 1860 is unconstitutional being unjust, illegal, arbitrary and violates of fundamental rights?
  • Whether Section 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional being unjust, illegal and violates of fundamental rights?
  • The court observed that on reading of Section 497, women are treated as subordinate to men in as much as it lays down that when there is connivance or consent of the man, there is no offence. It treats her as the property of man and totally subservient to the will of the master. It would be unrealistic to proceed on the basis that even in a consensual relationship, a married women who knowingly and voluntarily enter into a sexual relationship with another married man, is a ‘victim’ and the male offender is the ‘seducer’. Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman, a widow or a divorced woman.
  • The court also observed that Under Sec 497 if the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery. Sub-section of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary. Sec 497 fails to meet the three fold requirement for a restriction on Art 21 to be reasonable and valid ie, legality, need and proportionality. S Puttaswamy (Retd) & Anr v. U.O.I & Anr)
  • The court opined that Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires state interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose and should examine the impact of such conduct on the society.
  • The court opined that a necessary pre requisite of criminalization is that the conduct amounts to a moral wrong. Though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.
  • The Harm Principle states three elements for criminalization namely, (i) harm (ii) wrong doing and (iii) public element. These elements are required to be proved before the State can classify a wrongful act as a criminal offence. Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Sec 497 does not pass constitutional muster.
  • The court decided to struck down Section 497 as unconstitutional being violative of Art 14, 15 and 21 of the constitution and held that Sec 198(2) of CrPC shall be unconstitutional to the extend that it is applicable to Sec 497 IPC.
  • The court also decided that Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

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