Right to Life and Constitutional Validity of Indian Penal Code Provisions

- Dr Srividhya Jayakumar, Incharge Principal, VPM’s TMC Law College, Thane

No statute can transgress the grund norm – The Constitution of India. Every provision of every statute and obviously including the rules framed under statutes will have to pass the constitutional muster. Anything that violates the division of powers demarcated by the constitution, fundamental rights guaranteed by the constitution, procedures or time line stipulated by the constitution can never be allowed to stand. Hence we have judicial review to uphold the rule of the constitution. Since the time the Constitution is in place several provisions of statutes whether enacted before or thereafter have been continuously challenged for constitutionality. This has led to the development of rich constitutional jurisprudence. The courts relook at provisions that were approved earlier in the light of growing constitutional precepts and progressive perception. The purpose of this paper is to study the judicial decisions determining the constitutional validity of the provisions of Indian Penal Code, 1860 (here in after IPC) vis a vis right to life.

Recently the Supreme Court (SC hereafter) decisions on the IPC offences like adultery (S. 497) and unnatural sexual offences (S. 377) have evoked wide public debates. The execution of the Nirbhaya case1 convicts recently has put spot light on death sentence once again. This is the motivation behind this study. Right to life is the most crucial of all rights because without life no other right can be enjoyed. Art 21 recognizes right to life and personal liberty as a fundamental right of every person and bars the State from depriving them except by a procedure established by law. Art 21 reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Art 32 recognizes the right to move the SC to vindicate violation of fundamental rights.2

1 Brutal gang rape and murder of a medical student in Delhi in 2012 which caused huge public uproar and led to significant amendments to IPC, Criminal Procedure Code and Indian Evidence Act, 1872 2 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution The SC has asserted judicial review to scrutinize not only the substantive vires of the law depriving the rights under Art 21 but also the procedural vires of the law. The procedure ought to be fair, just and reasonable in order to justify the deprivation.3 IPC is the basic criminal law of India substantively defining offences, prescribing punishments and identifying defences to the charges of offences. A lot of other statutes also have penal provisions but IPC is the main law that deals with general offences, punishments for those offences and defences in respect of those offences. The pre constitutional major criminal statute has been amended from time to time; massive case law has emerged. The constitutional courts have been continuously put to determine the validity of the IPC provisions vis a vis the Constitution of India.

Structure of IPC: It has Sections 1- 511 with 61 sections being added and 21 deleted by amendments. The 1860 code has the following chapters added- VA on Conspiracy, IXA on elections and XXA on cruelty against married women. The 2013 Criminal Law Amendment has brought in several new provisions and modifications to enhance protection of women4. The chapters of IPC may be classified into general chapters and chapters on a specific class of offences. General- Chapter I is an introductory; Chapter II is providing definitions; Chapter III is on punishments; Chapter IV is on general defences; Chapter V is on abetment. Chapters VA –XXIII belong to the second category.

Constitutional validity of Death Sentence- State’s power to punish

International human rights jurisprudence is moving in the direction of abolition of death penalty. Second Optional Protocol to International Covenant on Civil and Political Rights calls upon the states to abolish death penalty except for heinous crimes committed during war. India has not ratified this protocol till date. Under IPC death punishment can be imposed for several offences like waging war against the state (S. 121), murder (S.302), causing death or leaving the victim in a vegetative state after rape (S. 376A), dacoity with murder (S.396). Constitutional validity of death punishment has been raised in several cases on the ground that it violates Arts 14, 21. Art 14 which is a guarantee of equality has emerged as also a guarantor against arbitrary exercise of power.5 In Jagmohan Singh v State of U P6 SC refused to apply American rule striking down unguided discretion. It was challenged that S. 302 is allowing the judges

3 Maneka Gandhi v UOI, AIR 1978 SC 597 4 See particularly Ss 354- 354D and Ss 375-376E 5 Royappa v State of TN, 6 (1973) 1 SCC 20 unguided discretion in choosing between death sentence and sentence of life imprisonment. The court held that the facts and circumstances are different in each case and the court shall consider the aggravating and mitigating circumstances of the crime. Mistakes in the exercise of discretion are liable for correction by superior courts and therefore there is no violation of Art 14. Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1872 constitute the procedure established by law as required in Art 21 for deprivation of life or personal liberty by State. The provision was upheld as valid. In Santa Singh v State of Punjab7 the question again came before the court. The court expressed its view that the new CrPC provision S.235 that gives the accused an opportunity of hearing on the sentence is in consonance with the modern trends in penology. S.302 was found valid.

In Bachan Singh v State of Punjab8 while the SC considered the question of validity of S. 302, the issue of constitutional validity of CrPC S 354(3) was also raised. It was contended that the CrPC provision is bad for investing the courts with untrammelled and unguided power to choose between life sentence and death sentence. The SC once again upheld the S.302 and the CrPC provision as valid. However the court laid down that death sentence can be awarded only in the rarest of rare cases and listed out guidelines. In Machchi Singh v State of Rajasthan9 the SC proposed the balancing of aggravating and mitigating circumstances as a check against arbitrariness with elaborate guidelines to aid the court in exercising the discretion. One may say that this balance sheet is a device to shield the sentence from challenge vis a vis Art 14.

The SC in Mohinder Singh v State of Punjab10 expressed that capital sentencing is one such field where the safeguards continuously take strength from the Constitution. In a 2013 judgment11 the SC expressed its support for the recommendation of Malimath Committee on Reforms of Criminal Justice System to amend S. 53 introducing ‘life imprisonment without commutation or remission.’ The amendment to IPC by the Criminal Law Amendment Act, 2013 has taken to the Malimath recommendation and imposed life imprisonment for the remainder of that person’s natural life for the offences of rape under Ss 376A (rape leading to death or permanent vegetative state of victim) , 376C (sexual intercourse by persons in authority), 376D (Gang rape), 376E(repeated offenders). In Nirbhaya case- Mukesh v State of Delhi12 SC upheld the

7 (1976) 4 SCC 190 8 (1980) 2 SCC 684 9 (1983) 3 SCC 470 10 (2013) 3 SCC 294 11 State of Rajasthan v Jamil Khan, 2013 (12) Scale200 12 2017 (5)Scale 506 death sentence saying that the devilish treatment of the victim was as if a story of another world where humanity is despised.13

S. 303 prescribes death penalty for a life convict if he/she commits murder. S. 303 reads : Punishment for murder by life-convict.—Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death. In Mithu v State of Punjab14 this section has been struck down as unconstitutional vis a vis Arts 14 and 21: The law that regards, without scientific evidence, a life convict to be of a dangerous class is arbitrary and hit by Art 14. The section that cuts out judicial discretion completely is not a fair just and reasonable procedure and hence offends Art 21. In 2012 SC struck down S. 27(3) of the Arms Act, 1959 for the same reason of imposing mandatory death sentence. The court reiterated that judicial review is a basic feature of the Constitution.15

The death by hanging prescribed by S.354(5) of Cr P C was challenged by a PIL filed by Rishi Malhotra in April 2018. It was contended that the section that requires a person with death sentence to be hanged by the neck till he is dead is barbaric, inhuman and cruel. Centre is defending the provision, the matter is pending decision. Death by hanging was upheld by the SC in Deena v UOI.16 It is important to note that by 262nd Report, the Law Commission of India has in 2015 recommended that death penalty should be retained in the statute book only for terrorism related offences and waging war. It has cited reasons of international developments, the failure of deterrence purpose, arbitrariness and bias in awarding, the issues in the exercise of executive clemency etc. The struggle and success of Nirbhaya’s mother for death sentence of the rapists and murderers of her daughter and the jubilance of public at the police encounter of rapists in Hyderabad depict the public support for the retention of death penalty.

Constitutional validity of the offence of attempting to commit suicide- Individual’s right to die and right to euthanasia/right to die with dignity

S. 309 of the IPC is as follows:

13 Nirbhaya case was decided on the basis of IPC before 2013 amendment 14 AIR 1983 SC 473 15 State of Punjab v Dalbir Singh, AIR 2012 SC 1040 16 (1983) 4 SCC 645 "309. Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both." S. 63, IPC rules that when the fine amount is not specified, the amount is unlimited but shall not be excessive. It is pertinent to note S.115 of the Mental Health Care Act, 2017-

Presumption of severe stress in case of attempt to commit suicide 115. (1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

The offence in S.309 is substantially decriminalized and only where the state is able to rebut the presumption of severe stress can anybody be tried and punished. However the developments that led to decriminalization is interesting and is discussed below.

The Indian Penal Code (Amendment) Bill, 1978 seeking to repeal S.309 in accordance with the 42nd Report of the Law Commission in 1971 was passed by the Rajya Sabha. The Law Commission felt S.309 was harsh, unjustifiable and should go. Unfortunately, before it could be passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed.

Arguments emerged that if the Constitution has conferred right to live it has also conferred a right not to live similar to assertions of right not to speak, right not to associate etc. Thus there started claims of right to die while challenging the authority of the state to punish attempt to commit suicide and abetment to commit suicide. The Bombay HC was the first to consider this argument in Maruti Shripati Dubal v State of Maharashtra.17 The petitioner poured kerosene and tried to immolate self due to acute desperation and exasperation. He was a police constable who had put in 19 years service when he met with an accident which changed the course of his life. He was injured and afflicted with mental disturbances and was under treatment. There was a pending application of his wife for a license to sell vegetables in the market that he was pursuing. On the fateful day when the petitioner brought a letter of recommendation from a minister and wished to meet the Municipal Commissioner he was rudely turned out. His requests fell into deaf ears; vexed and feeling helpless he took to the extreme step. Later he challenged the validity of S. 309 when criminal charges were pressed against him by the Mumbai police.

17 (1986) MhLJ 913 The HC, pointing out Kharak Singh v. State of U.P18 said that personal liberty as used in Art. 21 has been held to be a compendious term to include within itself all the varieties of rights which go to make personal liberties of the man other than those dealt with in Cl. (d) of Art. 19(1)(d). It further pointed out the Olga Tellis case19 to emphasize that the sweep of right to life is wide and far reaching and includes other rights as right to livelihood. Illustrating Excel Wear v UOI20 SC held that the fundamental rights are positive and as well negative and therefore right to live as recognised by Art. 21 will include also a right not to live or not to be forced to live.

The court considered the religious scriptures of various religions, the decriminalization of the offence of attempt to commit suicide and concluded that S. 309 was violative of Art 21. The provision was also found to be offensive of Art 14 that guarantees equality because the section fails to classify the attempts under different circumstances and lay down differently like how S.300 classifies causing death into culpable homicides amounting to murder and those not amounting to murder. The arguments that striking down the section will bring claims for euthanasia and safeguard death baiters were rejected saying that S.306 which punishes abetment to commit suicide will sufficiently take care of those situations. The court quashed all pending prosecutions and those launched in the state.

In the State v Sanjay Kumar Bhatia21 while acquitting a young man of suicide charges the Delhi HC remarked- “The continuance of Section 309 of Indian Penal Code is an anachronism unworthy of a humane society like ours. Medical clinics for such social misfits certainly but police and prison never. The very idea is revolting.” In Court on its own Motion v Yogesh Sharma22, the CJ of the Delhi High Court has quashed the proceedings in 119 cases under S.309 where they were dragging for years together and declared each of them to be acquitted. The court felt that they have faced enough misery and continuance will amount to abuse of the process of law.

The question of constitutional validity of S.309 again came up, this time before the HC of Andhra Pradesh. In Chenna Jagadeeswar vs State Of Andhra Pradesh23 the appellant, a doctor administered poisonous tablets to kill his four children and wife; further he himself also consumed them. Whereas the children died but the doctor and his wife were saved with timely medical treatment, they were charged for murder and attempt

18 AIR 1963 SC 1295 19 Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180 20 AIR 1979 SC 25 – court ruled that right to close down a business is integral part of the right to carry it on. 21 1986 (10) DRJ 31 22 Mentioned in the SC judgment in P. Rathinam v UOI discussed herein 23 1988 Cri L J 549 to commit suicide. The doctor accused was convicted for murder and attempt to commit suicide and abetment to commit suicide. Doctor’s wife was convicted under S.309. It was in these circumstances that the constitutional validity of S.309 came before the court. Even though the judgment of Bombay HC in the above discussed case of Maruti Shripathi Dhumal was raised by the appellants on the basis of media reports, the court could not scrutinize it as it was not available in reliable reports.

The court refused to accept right to die as all rights are based on this vital right to live and the state exists for the welfare of the people. Also the court regarded that the acceptance of right to die will decriminalize S.306 thereby promoting abetment of suicides. The court also pointed out that the difficulty of dealing with threatened hunger strikes and self immolations in the absence of S.309. The court held that the punishment under S.309 is sufficiently flexible and the Probation of Offenders Act, 1958 can be used in appropriate cases to admonish and release persons accused under S.309. To quote: “ To confer a right to destroy one-self and to take it away from the purview of the Courts to enquire into the act would be one step down in the scene of human distress and motivation.”24 The court even feared that if S.309 is held illegal the women who are largely illiterate and tradition bound may be put to inhuman and barbaric pressures.25

Supreme Court in P. Rathinam v. Union of India26 held that the right to live brings within Art 21 right not to live a forced life, and therefore, S. 309 violates Art 21. The cases before the court were those hapless persons who had tried to take away their own lives. The court turned to religious scriptures, literature, laws of other countries and medical science to strike down S.309. The SC said that the provision should be effaced from the statute book and penal laws should be humanized and globalised as in majority parts of the world attempt to commit suicide is no offence. The court felt that the attempt has no baneful effect on the others and society.

In Naresh Marotrao Sakhre v Union of India and Others 27 on the strength of the judgment in P. Rathinam the validity of S.306 was challenged in the HC of Bombay. The court held that S.306 is an independent offence and rejected the argument that suicide is the principal offence and the abettor cannot be punished if attempt to commit suicide is not punishable. S. 306 was upheld as free from any constitutional vice. It is shocking to note the application to Kerala HC of a retired teacher above 80 years age; another old teacher also joined: C A Thomas master v UOI. They wanted ‘voluntary death’ as they

24 Id Para 34 25 Id para 32 26 AIR 1994 SC 1844 27 1994 (2) Mh L J 1850 had accomplished their life and wanted to quit. They wanted to end their lives lawfully by donating their organs and asked for establishment of voluntary death clinics. The petition was dismissed as this may be misused.28 Subsequently in Gian Kaur v State of Punjab,29 P. Rathinam judgment was overruled by a Constitution Bench of the Supreme Court, holding that Art 21 cannot be construed to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein, and therefore, it cannot be said that S. 309 is violative of Art 21. The Court expressed that the natural right to live cannot be said to include the unnatural urge to commit suicide. The court rejected the advance of euthanasia argument to buttress the claim of right to die. The facts can quickly convince us the stand of the court. Gian Kaur and her husband Harbans Singh were charged with abetting the suicide of their daughter in law who poured kerosene and lit herself. They were charged under S. 306, convicted by the trial court and HC. S.306 reads- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The matter came to court on appeal challenging the conviction in the background of the division bench decision in P. Rathinam. It was their contention that S.306 cannot be legal as one cannot be punished for assisting in the enforcement of a fundamental right to die. The court threw out the contention. It is important to note that the court had expressed that the Parliament may consider permitting euthanasia in deserving cases and provide law for the same. The Law Commission submitted its 156th Report in 1997 after the pronouncement of the judgement in Gian Kaur, and supported retention of S.309. Contrastingly in 2008 the Law Commission in its 210th report on Humanization and Decriminalization of Attempt to Suicide recommended deletion of S. 309 but retention of S.306. The commission felt that S. 309 of the Indian Penal Code provides double punishment for a person who has already got fed up with his own life and desires to end it. S. 309 is also a stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide. The commission stated that the unfortunate person deserves sympathy, counselling and appropriate treatment, and certainly not prison. Calling S.309 as inhuman and anachronistic the Commission wished the effacement of the provision from IPC.

Aruna Ramachandra Shanbaug v UOI30 is yet another unmissable case in the odyssey of right to die. One journalist Pinki Virani claiming to be the next friend of the petitioner sought dignified death for the petitioner who was in a hopeless vegetative state for 36

28 2000 Cri L J 3729 29 AIR 1996 SC 946

30 (2011)1 SCALE 673 years. The petitioner, a nurse had been sodomized and brutally injured by the assailant in the hospital when she was on night duty. Since then she was in the hospital. Her body worn out, she was fed by the hospital staff and confined to bed. It was prayed that the hospital be ordered to stop feeding her and let her peacefully die. The question before the court was the ethical dilemma whether euthanasia should be permitted: is there a right to die with dignity? The SC while reiterating that there is no right to die it admitted a right to die with dignity as within the right to live. The court sent a three doctor team to visit the petitioner and report; also it considered a video of her screened in the open court31 and opined that she was not completely dead. The court held that Ms Pinky Virani was not having a better claim to represent the petitioner than the Dean of KEM hospital that took care of her for more than 36 years. By affidavit the dean declined any wish for euthanasia and hence the SC dismissed the petition.

The court laid down that passive euthanasia may be adopted in India by filing applications by next friend in the HC. HC will, without delay decide by the report of three doctors to be appointed by the court and by the report of the hospital staff. On such procedure a person may be allowed to have a dignified death.32 The Supreme Court advised the Union government to consider repealing the anachronistic S.309 from IPC.33

III

Constitutional validity of the unnatural sexual offence- Individual’s right of sexual choice/autonomy

International human rights norms have impacted another provision of IPC- S. 377. Chapter XVI of IPC is titled Óf Offences Affecting the Human Body’ and the offences herein are classified under seven different heads. The last of those is unnatural offences with only one section- S.377. It reads-

Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

31 The screening in the court is criticized as violation of right to privacy of Aruna Shanbaug: See Zia Mody, 10 Judgments That Changed India, Penguin Random House, 2013, p 216 32 Id para 137-142 33 Id Para 100 The section seeks to punish unnatural carnal intercourses like sodomy, buggery and bestiality. It outlaws homosexual behavior. The section is gender neutral. In Navtej Singh Johar v UOI34 the constitutional validity of S. 377 punishing unnatural sex was challenged as unconstitutional vis a vis Art 21 inter alia35. Recognizing right to sexual autonomy and expression as rights under Article 21, S. 377 was held unconstitutional to the extent that it penalizes consenting adults. The court declared that S. 377 will continue to govern non-consensual acts against adults, all acts of carnal intercourse against minors and acts of bestiality. The court ruled that societal morality or Victorian morality will not prevail over constitutional morality. To quote: “Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.”

It is quite interesting to know that Member of Parliament Mr Shashi Tharoor tried to get a private member bill passed to replace S.377 with a provision to punish only non consensual sexual acts. The bill was introduced in 2015 and again in 2016 in the Parliament but could not be passed. The judicial action in respect of S.377 started with a petition in the Delhi HC in 2001 by an activist group Naz Foundation Trust working in intervention and prevention of HIV/AIDS challenging the validity of S. 377. But the petition was dismissed in 2003 on the ground that the petitioner had no locus standi. On appeal against this order of the high court Naz Foundation went to the SC. Recognizing the locus of the petitioner, the SC sent the matter back to the HC for consideration of the petition in merits. At this juncture several persons supported the cause and joined as interveners in the petition. The government had an interesting stand- Home ministry opposed but Health ministry supported the petitioner; the law minister felt the provision was outmoded.

The case was heard and decided in 2009 which meant a huge celebration for all the LGBT. The Delhi HC read down the section and held punishing consensual adults was violating fundamental rights in Naz Foundation v UOI. 36 While the government decided not to appeal against the decision, an appeal was filed by Suresh Kumar Koushal. A two judges bench of the SC reinstated the S- S.377 in its full form back into

34 (2018) 10 SCC 1 35 Arts. 14 (Equality), 15 (Gender Equality) & 19 (freedoms) 36 2009 SCC Online Del 1762 IPC: Suresh Kumar Koushal v Naz Foundation Trust.37 The SC expressed the view that the Parliament should decide what should be offences.

Against the SC judgment in Suresh Kumar Koushal, eight curative petitions were filed in the SC in 2016. As the curative petitions were pending, the SC recognized right to privacy under Art 21 while dealing with the question of validity of Aadhaar Act in Puttaswami v UOI.38 This gave a fillip to the pending matter on S.377. Ultimately in Navtej Singh Johar 39 the SC adopted the 2009 Delhi HC judgment decriminalizing consensual sex between adults by reading down S. 377 to make it satisfy the requirements of Arts 14, 15, 19 and 21. Thus the decision trimmed and truncated S.377 to fit the human rights bill.

Constitutional validity of the offence of adultery- Is adultery a public wrong?

Family is the basic unit of society and an important social institution. Right to found a family is a human right. It is worthy to note Article 23 of International Covenant on Civil and Political Rights, 1966-

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

The offence under S. 497 seeks to punish breaches of matrimonial commitment to fidelity. Adultery is seen as violence on the marriage and family as a sacred unit of the society. However the section is not truly balanced and therefore had been subject to challenges several times. IPC S. 497 states, "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."

37 (2014) 1 SCC 1 38 (2017) 10 SCC 1 39 Supra n 31 If S. 497 defines the offence and prescribes the punishment, S. 198(2) of the Cr PC lays down that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under S.497 and S.198(1) permits the court to take cognizance of the offence only upon a complaint made by such aggrieved person ie, the husband. A proviso to S.198 (2) allows the person who had care of the woman on behalf of the husband of the woman in the absence of the husband to make a complaint with the leave of the court.

The archaic provision does not permit a woman to complain against her husband. Nor is the woman punishable for adultery but the man can be punished with an imprisonment upto 5 years. The woman is not even seen as an abettor although she is in pari delicto. A man, even a married man is not committing the offence of adultery if he has sexual intimacy with an unmarried woman, a widow or even with a woman whose husband consents to it. The section looks at married woman as a property and fails to recognize her claim of fidelity of her husband.

In Yusuf Abdul Aziz v. State of Bombay40 complaint was filed against the man and the husband challenged the validity of S.497 as the wife could not be punished. The court upheld the protection of the woman as covered by the constitutional power of the State to make special provisions for woman as an affirmative action without inviting the bar on gender discrimination.41 The contention that such protection is only for beneficial schemes and not to give license to a woman to commit a crime was rejected. In Sowmithri Vishnu v State42by a petition under Art 32 it was challenged that in as much as S.497 doesnot permit the wife to prosecute the woman adulterer or the unmarried woman in adultery with a married man, it was male chauvinistic treating women as chattels. The plea of the petitioner to recast the section and widen the ambit to punish the woman also was held not maintainable as such pleas will if entertained come to court quite often. The court held the sentencing policy is better left to the legislature. The court was also of the opinion that S.497 was aiming at maintaining the sanctity and stability of matrimonial homes which are important in a society.

In V. Revathi v. Union of India and others 43 the court once again upheld S.497 considering that neither the woman can prosecute the man nor the man can prosecute the wife. The court felt it alright as neither the husband nor the wife can strike each

40 AIR 1954 SC 321 41 Art 15 (3) 42 : AIR 1985 SC 1618 43 (1988) 2 SCC 72 other with the weapon of criminal law; only the outsider who breaks the family is sought to be punished. The court refused to find any discrimination on the basis of sex.

The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 recommended amendment to the adultery law- both recommended to make S. 497 gender neutral. Recently entertaining a PIL under Article 32 in Joseph Shine v UOI44a constitutional bench45 has unanimously decriminalized adultery. An intervenor, Vimochana, assailed the provision by invoking the fundamental right to privacy; it was argued that the right to intimate association is a facet of privacy and protected under Art 21 of the Constitution.

Justice Nariman said that manifest arbitrariness is an anathema to constitutional morality and S.497 suffers the vice. He further said that S.497 punishing only men for adultery is archaic, utterly irrational and does not square with today’s constitutional morality. S. 497 has been struck down as violative of Arts 14, 15 and 21. Apart from finding S.497 violating the dignity of the women, the judges also held that treating adultery as an offence is offending Article 21 as it is an intrusion into privacy and sexual autonomy. In the words of Justice Indu Malhotra adultery is a moral wrong qua the spouse and family but the state should not punish the wrong as a crime without respect for autonomy of the individual and personal choice. Civil remedy will serve the purpose is her opinion:

“The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

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. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.”46

S.198(2), CrPC which contains the procedure for prosecution was also struck down as unconstitutional only to the extent that it is applicable to the offence of adultery under S. 497. The other judges viz Shri Deepak Misra and Shri D Y Chandrachud have considered the laws regarding adultery in other countries and have also similarly

44AIR 2018 SC 4898 45 Art 145(3) requires 5 judges to consider substantial questions of law in relation to the interpretation of the Constitution 46 Para 17 viewed that it should not be a punishable offence. The arguments of the state that adultery breaks up the marriage and family, that it is morally abhorrent in marriage and that it is potentially more harmful to marriage than battery could not help considering the anomalies in S.497.

The court considered it important to review old laws and justified transformation as per changing times:

“…when the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time.”47

In view of Joseph Shine, the conviction and punishment awarded to the applicant under Section 497 was quashed and set aside by Bombay HC in Rupesh v. Charandas48 applying the rule retrospectively.

The sexual autonomy cannot be uniformly recognized for all alike; distinction between people who are married and unmarried ought to be maintained. Marriage is a social institution to be preserved and any revolutionary change aping the west is better avoided. Democratic process is more suitable to consider necessary changes in that regard.

Constitutional validity of the offence of defamation- right to free speech v right to reputation

Democracy brings new claims. It was claimed that the offence of defamation does harm to free speech which is a vital right. S. 499 is quite huge as it defines defamation, lists out 10 exceptions, 6 explanations and 15 illustrations. The provision is as below-

499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person

47 Para 3, CJI Deepak Misra 48 2018 SCC OnLine Bom 6292 intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Illustrations

(a) A says—“Z is an honest man; he never stole B’s watch”; intending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the exceptions.

(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s watch. This is defamation unless it fall within one of the exceptions.

(c) A draws a picture of Z running away with B’s watch, intending it to be believed that Z stole B’s watch. This is defamation, unless it fall within one of the exceptions.

First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Illustration

It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.

Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Illustrations

(a) A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as the opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further.

(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he express of Z’s character, is an opinion not founded on Z’s conduct as a witness.

Sixth Exception.—Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation.—A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Illustrations

(a) A person who publishes a book, submits that book to the judgment of the public.

(b) A person who makes a speech in public, submits that speech to the judgment of the public.

(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further.

(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine”. A is not within this exception, in as much as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.

Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Illustration

A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception. Eighth Exception.—Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Illustration

If A in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception.

Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

Illustrations

(a) A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

Tenth Exception.—Caution intended for good of person to whom conveyed or for public good.—It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

The challenge to Ss. 499, 500 as violating freedom of speech recognized as a constitutional right of citizens under Article 19(1)(a) is interesting. This case is included in the study even though the challenge is not on the basis of right to life because the court has upheld the validity of the provision by taking support of right to life.

S. 500 punishes defamation with simple imprisonment for a term which may extend to two years, or with fine, or with both. Dr. Subramanian Swamy v UOI49 is the case in which a two judges bench of the SC considered the question of validity of Ss 499, 500. Politicians Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal who were facing criminal charges for defamation petitioned under Art 32. The petitioners claimed decriminalization of defamation. Crimes are public wrongs and not a wrong of one individual against the other. It was argued that the provisions were arbitrary and excessive and therefore violative of the citizens right to free speech even though Art 19(2) recognizes defamation as a ground on which State may by law recognize reasonable restrictions. It was further argued that the provisions are unreasonable because they are imprecise, vague and do not even recognize truth as a defence in all cases.

The court has reiterated that right to reputation is part of dignity and therefore protected by Art 21. Holding that freedom of speech cannot trump the right to reputation under Art 21 and fraternity and fundamental duties will justify the restrictions on free speech , Ss 499 and 500 has been held to have passed the muster of constitutionality. Gautam Bhatia50 has seriously criticized the judgment and has raised questions of propriety on circumscribing free speech on grounds of Art 21, fundamental duties and preambular fraternity thereby traversing beyond Art 19(2). However it is felt that the court has only considered the right to reputation, fundamental duties and the concept of fraternity to strengthen the stand that the ground of defamation as permitted under Art 19(2) will include civil as well as criminal defamation.

The study reveals how the SC considers the new dimensions of Art 21 – right to privacy, right of sexual choice, right against death penalty, right to dignity – while interpreting the 1860 penal law. The court has boldly adopted modern human rights jurisprudence and has called for transformation. One wonders why legislature is a little slow and inactive in making IPC more suitable for today when the Constitution has conferred this function/duty on it.

49 2016 Cr L J 3214 50The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed https://indconlawphil.wordpress.com/2016/05/13/the-supreme-courts-criminal-defamation-judgment- glaringly-flawed/ See also Why the Supreme Court’s Criminal Defamation Judgment is Per Incuriam, https://www.legallyindia.com/views/entry/why-the-supreme-court-s-criminal-defamation-judgment-is- per-incuriam