A parliamentary panel recommended the government on Tuesday that adultery should be made a crime again because “the institution of marriage is sacred” and it must be “protected”, in its report on the Bharatiya Nyay Sanhita, a bill tabled by Union Home Minister Amit Shah in September.
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.
The panel’s report, if accepted by the government, is set to 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. It had been sent in August to the Standing Committee on Home Affairs, which is headed by BJP MP Brij Lal, for further scrutiny.
Congress MP P Chidambaram was among those who submitted dissent notes; “… 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”.
In 2018, a Supreme Court bench led by the Chief Justice Dipak Misra 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. The government’s attempt at overhauling the IPC, the CrPC and the Evidence Act are part of Prime Minister Narendra Modi’s oft-repeated statement about freeing India from colonial-era laws. In September this year and in October last year the PM spoke about the need for “contemporary laws”.
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 British-era law, this time criminalising homosexuality—be penalised again.
Section 377 was partially junked by the Supreme Court, also in 2018. The ban is irrational, indefensible and manifestly arbitrary, a bench led by former Chief Justice Misra said.
However, the panel has now claimed that though the court found the struck-down parts 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”.
“However, now, in the Bharatiya Nyaya Sanhita, no provision for non-consensual sexual offences against male, female, transgender and for bestiality has been made,” the panel had said.
As part of its major ‘overhaul’ of India’s criminal laws, the government is looking at changing punishments for those guilty of gang-rapes (20 years to life) and killing minors (the death penalty).
Among other big proposed changes are a 12-month jail term for those guilty of bribing voters during elections, and new offences in existing laws on secession, armed rebellion, subversive and/or separatist activities, and endangering the sovereignty or unity of the country.
