Women and Chattel Distinguished

Aanchal Khandelwal[1] and Moulika Diwakar[2]

Abstract

The progress of society is based on the premise of the ability of law to reform itself. The reform of such law, in turn, arises out of frailty in statute books. In the very recent past, judgments like Joseph Shine v. Union of India, have laid down the distinction between constitutional and public morality to common ground. The personal choices of an individual are something that the law of the land should keep their hands off from. It is important to draw the required line between illegality and immorality. Joel Feinberg’s comment is worth mentioning: “Indeed, everything about a person that the criminal law should be concerned with is included in his morals. But not everything in a person’s morals should be the concern of the law.”  The subject of the law is not always morality. Every ‘unacceptable’ conduct of a spouse cannot be regarded as ‘criminal’ in nature. The rights guaranteed by the Constitution of India get undermined when legal restriction with grave consequences are imposed on consenting adults while choosing sexual partners of their own choice. This happens for the mere reason that these choices do not always fit into the moral framework laid down by the society at large. The freedom and dignity of an individual have several consequences, as the concept of judicial values and constitutional morality assume multifarious dimensions in a democratic order. A section of the law which sustains the rationale behind the oppression of women is unsustainable in law. Such laws cannot take the guise of protective discrimination. So, after 71 years of independence, small segments of independence are still celebrated and with a view of recent judgments will continue to concur until the middle ground between the constitutional morality and public or social morality is achieved and established.

Introduction

Indian laws made in the 19th century are still applicable in modern times, with few amendments in the time being, shows the astute and brilliant mindset of our law makers. But with due time, some amendments had to be incorporated in the picture because the society is a dynamic structure and so is the mindset of the people which is actually the very basis of forming laws for people themselves. One such law which called out for its change with the modern times is that of adultery being a criminal offence. Many countries have already struck it down and made it a civil wrong instead of a criminal one since it is a consent and privacy of an individual and the above two things can override the sanctions of state in the sphere of marriage sanctity. The concept of the State maintaining such marriage sanctity and women being the victim was part of the 19th century but now people do accept the importance of equality and the equal status of women in the society rather than treating them as the chattel of men which can be swayed away easily by some other men. This provision was merely incorporated to satisfy the ideals of patriarchal society by establishing the whim of men over women. The discrepancy between the basic human rights and the lacunae of such law necessitated the judges to uphold the constitutional morality and establish the interpretation with contemporary public morality. Through this paper, it has been traced how the dictation of morals by the society as a whole led to the nation being governed by a gender-biased and prejudiced law by neglecting the morals and principles embodied in the Constitution.

Significance of Constitutional Morality

The year 2018 has seen some of the major changes in the interpretations of the constitutional law and the need to uphold the very fundamental rights of the individuals that have been violated and came into the picture lately. Many positive outcomes came from the various judgments including the judgment of Joseph Shine v. Union of India[3] (henceforth referred, Joseph Shine case). The judgment portrayed the significant bridge between public and constitutional morality and how both of them have to be established through an unprejudiced ground. The judges confirm the superiority of fundamental rights which form the Basic Structure[4] of our Indian Constitution and thus establishing constitutional morality over the established public morality of adultery as being an ill will in the society. But at the same time, the judgment provided for such morality of adultery as being the basis of ending a marriage under the civil law. In order to understand the motive of the judges for establishing constitutional morality, we need to understand what it actually means and why it is indispensable.

Compliance to the very basic and vital principles of the democracy established by the constitutional can be termed as Constitutional morality at large. It would mean that there is an effective balance achieved between diverging interests of the people given the power by the people and the people themselves so as to reconcile these both ends and settling the altercations, if any, without hampering the peace within the society. Dr. B.R. Ambedkar, the father of our Constitution, has the view that the moral fabric constituting the people and the governance of the society must be strong enough to work in harmony. Therefore the public, as well as the constitutional morality, has to be kept together for a strong democracy to survive and the progression of the society at large. Conferring from the above statements, it can be noted that constitutional morality cannot be defined but can only be explained as it cannot be to limited to the ensuing the constitutional provisions but also to interpret them in such a manner so that the very reason for Constitution farming can be achieved by making the socio-legal aspects of the society to converge. It is not a set procedure to be followed by the judiciary but an interpretation and concept to be followed to work towards independent judiciary to embody public interests.

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It is important to tread on the heels of the constitutional morality is because of the diversity prevalent in India. If the document, supreme to all and followed by all is not to be interpreted there will be disarray among the people. But this also doesn’t imply that constitutional morality is favoring the popular morality because if so is the case then the government will turn out to be promoting majoritarianism which is again against the principle of basic development goals of the country and rule of law as was the vision of our constitution makers to maintain a common ground between minorities and majorities. For a society being so diverse and plural, there ought to be a way of functioning in such a way so that discrete person’s identity should not be lost in the way of representing the public morality and thus causing dissension.

Illegality and immorality – socio-legal analysis

In order to understand the very explanation of laws being precisely followed and not the morals, within the society, we must delve into the meaning of the extremely common words yet covering the very ambit of the functioning of the society, which are: Illegality and immorality. The common parlance drawn between these two spheres is that an act can be immoral and yet not illegal for as to be punishable under law but all illegal acts are immoral. Taking an example as simple as lying, it is immoral to lie but still we can lie openly without fearing the gravity of it since we are safe under law for committing it (although there are some exceptions like perjury in court). A crucial question we still need to establish is that even though all illegal acts are immoral, why not the vice versa is true? There are many explanations to this proposition. Firstly, that every individual’s morality in the country so populous is diverse. If we are to embody everyone’s morality in our constitution, we would never be able to complete our laws as a document. Secondly, too many laws would then be applied to people and it will result in chaos as it would mean we are expecting too much from the people. One more way to understand this can also be that morality (public morality) changes with the new wave of movements and revolutions in the society or the impacts on public’s mind and so incorporating everything with this dynamic world in over and time again is not an intelligent way to go about making laws. Hence, this is not a rational way to govern as well as maintain peace and order in the society as it will result in conflicts between morality and no idea of secularism or diversity would be able to sustain in the chaos. Therefore, Immorality has been given a larger circle and not illegality. Everything need not to be controlled by the people elected because if that so, liberty will be hampered and played with, which is definitely against the idea of framing the Indian Constitution itself.

The reason why we are laying the foundations of the illegality and immorality is to understand the very basic nature of adultery law which existed since the constitution of Indian Penal Code, 1860. The public morality that existed then was that women are treated as property of men and inferior to them. The makers of the Code were under the impression that they are to be protected under men and this is not the scenario now. The consideration of women as an equal gender has now been recognized and so we had to done away with the archaic law of the land. The morality changed and so the law needs to be modified as morality do form some very essential part of the law because it is the people for whom it is for. As we have already established above that immorality does not necessary means illegality therefore, the striking down of such law has been done because of the violation of fundamental rights of women but since it is still considered immoral by society at large to commit adultery and so a provision for claiming this as a basis of divorce is to be recognized by the judges. This not only upholds the public morality at large but also puts constitutional morality on the high pedestal thus creating a balance between the two which is important to establish tranquility in the society and to avoid conflicts.

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Judicial Interpretations of Section 497

Tracing back to the history of this country, from the 19th century, one of the well-established facts that prevailed in this society was to perceive women as the “chattel” or property of men. In 1954 when the Supreme Court of India laid down the constitutional validity of Section 497 for the first time in Yusuf Aziz v. State of Bombay[5], the argument succeeded in the day because of the plight of women that existed in the Indian society during that time. 

The petitioner in Yusuf Abdul Aziz in 1951 challenged the validity of the Section in the Bombay High Court on the grounds of it being discriminatory against the women and in favour of men. The High Court of Bombay, however, upheld the constitutional validity of the provision. The Court held that due to the unequal position of women in society, a special legislation was much required in order to protect them, and Section 497 was a provision that took “a sympathetic and charitable view” of the weakness of women in this society. The Court also held that such discrimination was saved by the Constitution under Article 15(3).

In its appeal to the Supreme Court of India, Vivian Bose, J. speaking for the Constitutional Bench held, “We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a license to commit the offence of which punishment has been prohibited.”[6]

This judgment was a portrayal of the outlook of society, which was accordingly reflected by the judiciary, that women were to be perpetually perceived as the subordinate section of the society. The Court took a position to interpret the law as a shield for the protection of women rather than guiding itself by the principles of equality in the Constitution. It proved the instilled notion of the weakness of women. Again three decades later, the law again came into review in Sowmithri Vishnu v. Union of India[7]. The arguments this time around considered important questions such as, (i) the absence of the corresponding right of women to file a complaint against the woman with whom her husband was involved, (ii) absence of the right of wife to prosecute the adulterous husband (iii) and how the law failed to take within its ambit the unwarranted freedom of husband to have relations with an unmarried woman.

The Supreme Court once again upheld the validity of the provision by reiterating its earlier stand and observed: “It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the legislature to consider whether Sec 497 should be amended appropriately so as to take the note of the ’Transformation’ which the society has undergone.”[8]

The Court took the view that the sanctity of the matrimony is preserved and an even-handed justice is meted out by the law not allowing neither the man to prosecute the wife for the adulterous offence and nor the wife to do the same against her unfaithful husband.

In 1988, again in V. Revathi v. Union of India[9], the Supreme Court upheld the constitutionality of Section 497 IPC and Section 198(2) Cr.P.C. The provision was held to be dealing with “an outsider” to the matrimonial unit who invades its peace and privacy.  Thakkar, J. of the Supreme Court held: “… There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. …In the ultimate analysis the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.”[10]

In the above two judgments, the Court failed to take a holistic view of the situation by regarding the protection of matrimonial sanctity to be achieved through the non-prosecution of an adulterous husband or wife, and rather the “outsider” who poisoned the relationship between the two. As much as such an outsider had a part to play, equally did the unfaithful wife or husband. The privacy and peace of a marriage was not affected by firstly, the gender of the involved partner in the marriage, and secondly not by the existence of the outsider only.

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While the interpretation of the Court was based on the idea of protecting the sanctity of marriage across the country through law, it failed to recognize the crucial aspect of human nature in it. The State should not have the power to intervene in the unit of matrimony as it is to be constituted as a matter of private nature of the two adults. Through forced criminalization or the so called “protection” guaranteed by the provision according to the Court, led to the country being governed by a law that was from the beginning lacking in the means to achieve its goal.

The failure of the Apex Court to have a deeper insight into the lacunae of the law in true consonance of the Constitution, led for the nation being governed by a gender-biased, patriarchal and an archaic law which validated the notion of women being mere property.

However this came to an end on 27thJuly, 2018 when the Supreme Court through a 5-judge bench unanimously struck down Section 497 of the Indian Penal Code as being in violation of Articles 14, 15 and 21 of the Indian Constitution

In Joseph Shine case, the Court officially declared progress of society by stating as a woman to not be the property of man. It held that Section 497 deprived a woman of her privacy, dignity and autonomy. Sexual autonomy is an integral part of Article 21 as it included in the ambit of personal liberty.

The Court succeeded in appreciating, which in previous years it turned a blind-eye on, as the success of a relationship lies in the element of companionship and mutual respect of each other and their respective choices. Such respect is achieved when each spouse is given the opportunity to treat each other with equal dignity.

The Court held that the intervention of State by treating adultery as a criminal offence was a violation of privacy. It appreciated for the matter of adultery to be a personal discretion between two individual.

Lastly, the Court very rightly declared the law to be arbitrary in nature. The much required loopholes, such as the husband giving consent to wife to have an extra-marital relation or prohibition of women to file a complaint, were pointed out.

Through such progressive judgment, not only the country breathed fresh air from the shackles of archaic laws and ideologies, but also marked the history of declaring the spirit of Constitution to govern rightly the lives of individuals by guaranteeing them dignified rights and status.

Conclusion

Joseph Shine judgment not only manifested the faith in independent judiciary but also opened the doors for interpreting Constitution in such a way so as to establish the fact that it is high time to done away with archaic provisions of the law contravening the basic human rights and intruding the privacy which wasn’t recognized before. With the complexity of understanding human emotions and also maintaining them, new conventions and approaches are to be followed to maintain a balance between socio-legal aspects of the society. It has now become important to acknowledge the thin line between these socio-legal aspects to establish as to whether they will affect the individuals or the society at large. Sanctity of marriage was an important concept in golden times and formed a part of public morality but now with the recognition of privacy and consent of an individual as the basic human rights, it can be seen that this institution cannot violate the latter. Not only the law states that, but consent has been considered cardinal for an individual to determine the liberty they are embodied with, in the Constitution itself. The previous law violates the very essence of equality as it proclaimed women to be the victim but to establish the supremacy of the Constitution and its provisions, this provision has been rightly done away with giving both the spouses to claim a civil action on the same ground. This inaugurates the importance of consent and privacy as well as open the doors for any such offensive provisions to be struck down with due effect keeping in mind the objective of maintaining peace and tranquility in the society.


[1] 2nd Year, B.B.A.L.L.B, National law University Odisha.

[2] 2nd Year, B.A.L.L.B, National law University Odisha.

[3] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

[4] Kesavananda Bharati and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225.

[5] Yusuf Aziz v. State of BombayWRIT PETITION (CRIMINAL) NO. 194 OF 2017.

[6] Yusuf Abdul Aziz v State of Bombay, 1954 SCR 930.

[7] Sowmithri Vishnu v. Union of India 1985 AIR 1618.

[8] Sowmithri Vishnu v.Union of India, (1985) SCC (Cri) 325.

[9] V. Revathi v. Union of India 1988 AIR 835.

[10] V. Revathi v. Union of India, (1988) 2 SCC 72.