New Delhi: In its report on the Bharatiya Nyay Sanhita (a bill tabled by Union Home Minister Amit Shah in September), a parliamentary panel has recommended that adultery should be made a crime again because “the institution of marriage is sacred” and it must be “protected.”
The report has also argued that the revised adultery law must treat it as a “gender-neutral” crime, and has called for both parties – the man and the woman – to be held equally liable. Should the government accept the report, it will contradict a landmark 2018 ruling by a five-member bench of the Supreme Court that said “adultery cannot and should not be a crime”.
The Bharatiya Nyay Sanhita is part of a set of three that is supposed to replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. In August, it had been sent to the Standing Committee on Home Affairs headed by BJP MP Brij Lal, for further scrutiny.
Among those who submitted dissent notes was Congress MP P Chidambaram saying “the State has no business to enter into the lives of a couple,” he said as he raised three “fundamental objections” that included claims that all three bills are “largely a copy and paste of the existing laws”.
The 2018 SC ruling
Led by Chief Justice Dipak Misra, an SC bench said adultery “can be a ground for a civil offence… for divorce…” but could not be a criminal offence. The court reasoned that the 163-year-old, colonial-era law followed the invalidated concept of “husband is master of the wife”. In scathing comments, the court called the law “archaic”, “arbitrary” and “paternalistic”, and said it infringed on a woman’s autonomy and dignity.
It also partially junked Section 377 which criminalised homosexuality. The ban is irrational, indefensible and manifestly arbitrary, the bench said.
The law before 2018
A man who had sex with a married woman – without her husband’s consent – could face a five-year sentence if convicted. The woman would not be punished.
What the panel wants
The bit about only the man being punished for adultery be struck down and both the man and woman face punishment.
The panel has claimed that though the court found the struck-down parts of Section 377 violated Articles 14, 15, 19 and 21 of the Constitution, those “remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality”.
