By Silvia Martelli
Last week, New Delhi took a further step towards civil rights by decriminalising adultery. The vote was unanimous: every member of the special five-judge bench agreed on the colonial-era law being unconstitutional as it discriminated against women.
The law, which dated back 158 years, established that having a sexual relationship with a woman without her husband’s consent was a criminal offence, punishable with up to ve years in prison. However, this solely applied to men. According to the text, women could neither report nor be punished for the crime. As such, the judges believed the law was archaic and deprived women of agency. “Any provision treating women with inequality is not constitutional,” said former Chief Justice, Dipak Misra, who demitted office last Monday. “Legal subordination of one sex over another is wrong in itself” he added, quoting philosopher John Stuart Mill.
Although there is no official data on how frequently men were prosecuted under the law, local lawyers admitted that it was often raised in divorce proceedings. “I welcome this judgment by the Supreme Court,” said Rekha Sharma, the head of India’s National Commission for Women. “It was an outdated law, which should have been removed long back. This is a law from British era. Although the British had done away with it long back, we were still stuck with it.”
The decision is one of several socially progressive rulings by the court this session. Only a few weeks ago, on September 6, the justices ruled to decriminalise homosexuality following 24 years of fierce legal battles. Once again, the vote was unanimous. The decision was embraced by many across the country as an act of decolonising India’s Raj-era criminal code. The Delhi high court is currently examining another law that makes an exception for sexual assault if the perpetrator and victim are married. Karuna Nundy, a Supreme Court lawyer leading the case to overturn the marital rape law, said the court had shown in recent judgments that it now believed “sexual autonomy is not for forfeited at the marital door”.
Despite the latest progress towards civil rights, many are still skeptical. Gautam Bhatia, a Delhi-based lawyer and legal scholar, stated “I wouldn’t yet call it a progressive era in the court. In cases such as the adultery or homosexuality rulings, the court was dispensing with laws that had clearly fallen behind social mores. These are the low-hanging fruit”. It is however undeniable that the succession of high-profile cases helped shape a positive send-off for Misra, an at times controversial Chief Justice who was often subject to public complaints over his handling of politically sensitive cases. Only last January, four fellow judges had made public their concerns that Misra was threatening “the court’s integrity” as well as “the country’s democracy”. Regardless, the former Chief of Justice will most likely be remembered as a strong advocate for civil rights.