A parliamentary panel has recommended making adultery a crime again, asserting the need to protect the sacred institution of marriage through the Bharatiya Nyay Sanhita, a bill tabled by Union Home Minister Amit Shah in September.
The panel's report advocates for a gender-neutral approach, urging equal liability for both parties involved, thereby challenging the Supreme Court's landmark 2018 ruling that deemed adultery should not be treated as a criminal act.
In revisiting this legal perspective, the parliamentary panel seeks to overturn the 2018 decision by asserting the imperative to protect the institution of marriage. This stance directly contradicts the Supreme Court's rationale, particularly as articulated by Justice (as he was then) D.Y. Chandrachud, who emphasized a married woman's autonomy to make her own sexual choices.
"Justice D.Y. Chandrachud held that a married woman can make her own sexual choices. By marrying, she has not consented to refrain from sexual relations outside marriage without the permission of her husband. A husband is not the owner of his wife’s sexuality, a report by The Hindu had stated.
“To be human involves the ability to fulfil sexual desires in the pursuit of happiness, Justice Chandrachud said,” it added.
The court, in 2018, struck down the colonial-era law, deeming it archaic, arbitrary, and paternalistic, asserting that it impinged upon a woman's autonomy and dignity.
While the panel's report contends that the revised adultery law should be gender-neutral, holding both men and women equally accountable, dissenting voices, including that of Congress MP P Chidambaram, argue against state intrusion into the private lives of couples. Chidambaram's dissent notes highlight fundamental objections, including the claim that the proposed bills mirror existing laws, offering little substantive change.
The Bharatiya Nyay Sanhita, a component of a legislative triad intended to replace the Indian Penal Code (IPC), the Code of Criminal Procedure, and the Indian Evidence Act, is undergoing scrutiny by the Standing Committee on Home Affairs. Congress MP Chidambaram's reservations echo broader concerns about the potential implications of these proposed legal changes.
Before the 2018 verdict, the law said 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.
The Standing Committee on Home Affairs' report wants the adultery law brought back with that bit struck down; this means the man and the woman will both face punishment.
The panel has also asked that "non-consensual" sex acts - as once defined in the partly struck-down Section 377, another a British-era law, this time criminalising homosexuality - be penalised again.
This legislative development is part of a broader initiative by the Indian government to overhaul colonial-era laws, aligning with Prime Minister Narendra Modi's emphasis on ushering in contemporary legal frameworks.
The government's proposed changes extend beyond the realm of adultery, encompassing revisions to punishments for offenses such as gang rapes (with proposed sentences ranging from 20 years to life imprisonment) and crimes against minors (potentially punishable by the death penalty).
Additionally, the proposed legal amendments include a 12-month jail term for individuals found guilty of bribing voters during elections.
Furthermore, the government is exploring the introduction of new offenses within existing laws, addressing secession, armed rebellion, subversive activities, separatism, and actions perceived as endangering the sovereignty or unity of the country.