Joseph Shine v. UOI [AIR 2018 SC 4898]

It overturned Suresh Kumar Kaushal judgement and unanimously repealed Section 377, making same-sex relationships amongst consenting individuals of majority age legal.

Bench – Dipak Misra, DY Chandrachud, Rohington Nariman, AM Khanvilkar, and Indu Malhotra.

Facts – The question in this case was regarding a challenge to the validity of the offence encased under Section 497 of IPC regarding adultery, read with Section 198 (2) of CrPC on the grounds that they are in contravention to the constitutional provisions of Article 14, 15 and 21.

The same has been earlier challenged in the case of Yusuf Abdul Aziz v. State of Bombay 1954 AIR 321 wherein the decision was against the decriminalisation. In the case of Revathi v UOI1988 AIR 835, it was decided by the court that the sections are not sexually discriminating and hence are not violative of the constitution.

Issues –

• Whether Section 497 of IPC stands as arbitrary and violates the fundamental rights enshrined in the Constitution or not?
• Whether Section 198 (2) of CrPC unconstitutional and violates the fundamental rights enshrined in the Constitution or not?

Judgment – The court overturned all earlier rulings regarding the challenge of constitutionality of Section 497 of IPC and Section 198 (2) of CrPC. In its decision in this case, the court deemed Section 497 of the IPC unconstitutional, ruling that it stands in violation of the provisions enshrined under Articles 14, 15, and 21 of the Constitution. Section 198(2) of the CrPC is likewise constitutionally invalid to the degree that it applies to Section 497 of the IPC on the grounds that it is discriminatory and against Article 14, 15 and 21.

In a statement, the court stated that each individual has complete sovereignty over their sexual lives.  If a crime has criminal consequences, it should be regarded as a public wrong; nevertheless, in adultery situations, the wrongdoings are deemed private. Punishments should only be given when absolutely required, according to the right to dignity, and only after a thorough investigation. The court, furthermore, ruled that a woman cannot be treated as a chattel or a piece of property and that the rule is nearly a century old and was enacted during a time when there was existence of a Constitution, thus its validity was not even a consideration. However, patriarchal laws no longer hold any weight in modern society.

Although sexual infidelity is an ethically terrible act, it does not meet the necessary criteria to make it a crime. There are three components to the harm principle, i.e., wrongdoing, harm and a public element. To designate an unlawful conduct as a criminal offence, all of these factors must be proven. However adultery does not constitute the same. As a result, in its ruling on the aforementioned lines, the Apex court concluded that the law is discriminatory and out of date, and thus declared it void. As a result, adultery as a crime has been dissolved, and it can no longer be cited as a justification for divorce, yet its perpetrators are immune from punishment.