Op-Ed: State has no business peeping into people’s bedrooms

Everyone in India, even the unlettered, has an opinion on everything under the sun. So, it was not at all surprising to find people from all walks of life holding forth with their own interpretation on the Supreme Court ruling rendering Sec 497 of the Indian Penal Code (IPC) null and void. The facts of the case, the blatant gender discrimination that the archaic, colonial era law has perpetuated and the arguments used by the apex court to hold it ‘unconstitutional’ were rendered irrelevant as people passed their verdict on the verdict: the Supreme Court has promoted immorality in society by opening the floodgates of promiscuity!

“Let us have extra-marital relationship now that it is no more illegal,” exhorted a friend on Facebook, only half in jest. [As if everyone desisted from an extra-marital relation so far only because it was a crime!] “No one’s wife is safe now. If someone professes love to you, you can no longer knock on the doors of the court because it is not illegal anymore,” pontificated another. [As if one only has to profess love to someone’s wife for her to go to bed with him!] And just about everyone appeared convinced that it would lead to moral degradation of this ancient, ‘sanskari’ civilization, conveniently overlooking the fact that extra-marital relationship has existed in India since the days of Mahabharat.

The outrage pouring out from the streets to the social media, in this columnist’s view, stemmed from one of two things. First, no one bothered to read the Supreme Court judgment or, at the very least, its operative parts before jumping on to the ’Slam Supreme Court’ bandwagon. Second, they saw in the judgment an opportunity to take the moral high ground and position themselves as the conscience keepers of the nation.

Had they taken the trouble of reading Sec 497 or the key parts of the judgment, they would have realized how anachronistic and discriminatory this particular law was. In fact, the outrage, if any, should have been over how this Victorian era law was allowed to remain in the statute book for so long. For the uninitiated, here is what the now annulled law said; “Whoever has sexual intercourse with a person who is and whom he knows or has reasons to believe to be the wife of another man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished.”

Critics of the apex court judgment would do well to dwell on two key aspects of the law. First, it conferred ‘ownership’ of a woman’s body to her husband. Second, the woman who has an extramarital relationship with a man is not guilty under the law, even if she has entered into the relationship of her own volition. [Why, she is not guilty even when she has initiated the relationship!]

It was precisely on these two counts that the Supreme Court has banished Sec 497 from the IPC. As the judgment noted, Sec 497 is ‘subsistence of a patriarchal order’ that views a woman as the ‘property’ of her husband. This was the ground on which the court rejected the Union government’s contention that striking down Sec 497 would be ‘detrimental to the intrinsic Indian ethos’ – and rightly so because courts are governed by ‘constitutional morality’ and not ‘public’ or ‘civilisational’ morality. Sec 497 fell foul of the court also because it was violative of the fundamental rights guaranteed by the Constitution that bars the State from discriminating among citizens on the grounds of caste, class religion and sex. In holding only the man, who is in an extramarital relationship guilty, Sec 497 violated this right.

Just look at the sheer incongruity of the law that has just been red-carded by the Supreme Court. Under Sec 497, a man could be hauled up for having a sexual relationship only with a married woman, but not if he does the same with an unmarried woman. And hold your breath! If the promiscuous man manages to obtain the consent of the husband to get into a sexual relation with his wife, even if he does so by threat or inducement, he is not guilty! [So much for the ‘morality’ that naysayers say the court has jeopardized!]

Fears of a spurt in extramarital relationship as a result of the Supreme Court judgment on Sec 497 are grossly unfounded – even laughable – to say the least. Those who want to get into an extramarital relation would do so anyway without first checking if it is legal or illegal. If Sec 497 did not deter people from entering into an extramarital relationship, why should we assume that they would jump headlong into it after its abolition? In any case, an extramarital relationship, like love, is not a one-way street. It takes two to tango. A married woman would not fall into the lap of a man merely because a man is not shackled by Sec 497 anymore.

In any case, once the Supreme Court accepted the principle that what two consenting adults do in the privacy of their bedroom is none of the State’s business while delivering its landmark judgment abolishing another anachronistic provision in the law book (Sec 377), it was inevitable that the same principle would be extended to Sec 497 too.

It was a mature judgment that marked a milestone in the progress of this ancient land into a free, modern and liberal society. After all, the State has no business peeping into people’s bedrooms.

(DISCLAIMER: This is an opinion piece. The views expressed are author’s own and have nothing to do with OTV’s charter or views. OTV does not assume any responsibility or liability for the same)