MC Mehta v.

Union of India (Oleum Gas Leak Gas Case)

Citation 1987 AIR 1086, 1987 SCR (1) 819

Introduction

The Indian Judiciary has often been posed with the issue of striking a balance
between economic progress and environmental protection. While the former
is essential for the country’s economic progress, the latter raises concern
regarding the health and safety of not only the present but also the future
generation.

The Oleum Gas leak case is a classic example of the above dilemma. It is a
landmark judgement in the history of environmental law cases in India
because it was in this case that Justice P.N. Bhagwati laid down the Principle
of Absolute Liability. In simpler terms, Absolute Liability is Strict Liability that
is subjected to no exceptions. If an enterprise engages in a hazardous or
inherently dangerous activity and brings anyone harm, the concerned
enterprise is liable to compensate for the same. The concept has a reflection
of the principle of Polluter Pays. The bench reached the conclusion that the
Strict Liability Principle established by the English case Rylands v. Fletcher
cannot be applied to all cases.

Facts of the case

Shriram Foods and Fertiliser Industries functioning under the public limited
company Delhi Cloth Mills Ltd. was located in the highly populated area of
Kriti Nagar. The company was spread over 76 acres of land. It was engaged
in production of caustic chlorine and oleum along with various other
chemicals, all being produced in the same complex. The complex was
surrounded by thickly populated colonies such as Punjabi Bagh, West Patel
Nagar, Karampura, Ashok Vihar, Tri Nagar and Shastri Nagar. An
approximate population of two lakh people lived within the radius of 5Km of
the complex. The manufacturing process involved various chemical
processes that polluted the environment and could prove to be harmful to
the people working in the factory as well as living in the vicinity.

Notable environmental activist and lawyer Mr. Mahesh Chandra Mehta (M.C
Mehta) filed a Public Interest Litigation[1](PIL) to the apex Court, demanding
relocation or closure of the industries. Within a month’s time, while the PIL
was still under consideration, a leakage occurred in one of the units. An
oleum gas tank burst out. It affected several people and resulted in the
death of a lawyer practising in the Tis Hazari Court. As the people were
recovering from this shock, another leakage from a pipe joint occurred after
two days, though the damage caused this time was lesser.

This incident came as a shock only years after the infamous Bhopal Gas
Tragedy that had shaken the international media as well. It came out that
the reason behind the oleum gas leak was a fault in the mechanism and
structure of the plant.

Following this, immediate action was taken by the District Magistrate of

Delhi. He ordered under section 133(1) of CrPC for the stoppage of
production of lethal gas and removal of those harmful chemicals and gases
from that area within seven days. The Industry was told to show cause why
this order shall not be enforced in a court hearing on 17th December, 1985.
Factories were closed down by the Inspector of Factories and the
Commissioner (Factories) issued separate orders under the Factories Act,
1948. The Supreme Court, noting the gravity of the case, directed for
presenting the issue to a larger bench.

Issues

1. What is the true scope of Articles 21 and 32 of the Constitution?

2. Whether Strict Liability Principle should be followed?
3. What are the principles and norms that could determine the liability of
large enterprises manufacturing and selling hazardous products?
4. How to quantify the damages in such cases of liability?
 5. Should such hazardous enterprises be allowed to function in such
densely populated areas?
6. If permission is granted for their operation, what measures should be
taken to reduce the hazard to the workmen and the community living
in the neighbourhood to a minimum?

Arguments from appellant side

The appellant argued that the industries engaged in hazardous activities

should be held to an absolute standard of absolute liability for any harm
caused by their operations and not by principle of strict liability. It was
contended that the principle of strict liability established in Rylands v
Fletcher was insufficient to protect the public from the dangers posed by
modern industrial activities. Mehta emphasized the need for a more stringent
standard that would compel such industries to bear full responsibility and to
adopt the highest safety measure for any accidents.

Arguments from Respondents side

The principle of strict liability was initially argued by both parties i.e. Union
of India and Shriram Food Fertilizer Industries. It was contended that the
principle stated above had some exceptions which were sufficient to address
issues of industrial accidents. The respondents suggested that it might
discourage industrial growth and development if absolute liability on
industries is imposed.

Judgement

The court observed that the scope of Article 32 under which the Supreme
Court may issue writs was not limited as preventive measures when
fundamental rights were at threat, but also as remedial measures when such
rights stand violated.
The Court further stated that the rule of Strict liability that emerged in the
19th century in England was not enough to deal with the emerging number
of environmental law cases especially when science has advanced a lot.
Therefore, industries were deemed to work with utmost caution and be made
absolutely liable in case of any harm caused to the society, even in the
absence of negligence on their part.

The Court allowed the caustic chlorine plant of Shriram Foods and Fertilisers
Industries to be restarted with stringent restrictions. The restrictions were in
accordance with the procedures laid by the Manmohan Singh and the Nilay
Choudhary Committees. They included regular inspections by Pollution
Control Boards. The Court ordered that the amount of compensation was to
be in proportion to the magnitude and capacity of the industries.

The Court ordered the Shriram Industries to deposit twenty lakh rupees and
further furnish a bank guarantee of fifteen lakh rupees for the payment of
compensation to the victims. The guarantee was for compensating the
victims if any further escape of chlorine gas happened within three years
from the date of order. The amount of compensation was left to be decided
by the District Judge of Delhi if such a case ever arose. The petitioner was
also awarded as a token of appreciation a Rs. 10,000 by the way of costs
paid by the Shriram Industries.

The Apex Court recommended the formation of an independent Centre “with

professionally competent and public spirited experts to provide the needed
scientific and technological input”. In needed times, opinions of such
Ecological Sciences Research Group could be of value while delivering
environment-related judgements. Such a Group could also act as an
information bank for both the Government and the Courts.
Vishaka vs. State of Rajasthan

Facts of the case

At the outset, it is necessary to put forth the facts of the case in detail to
render a better understanding. Firstly, there was an immediate cause
responsible for initiating this fight for gender justice which was the case of
the alleged brutal gang rape of a woman in a village in the State of
Rajasthan. Bhanwari Devi, a social worker was gang-raped for doing the
noble act of preventing child marriage. Unfortunately, this criminal case
pursuant to the insufficient evidence proving the crime was dismissed.
However, this incident gained momentum among various social activists and
NGOs, enforcing the necessity for specific legislation for sexual harassment
of women at the workplace in the light of Gender Equality. Subsequently, this
writ petition was filed by certain social activists and NGOs under Article 32
on the ground of violation of Articles 14, 15 and 21 of the Constitution.

Issues:-

1. Whether sexual harassment in the workplace is a violation of

Fundamental Rights under Articles 14, 15 and 21 of the Constitution?
2. Whether International Convention can be applied in cases of the
absence of appropriate domestic laws?
3. Whether there is a need for mandatory guidelines to be laid in the light
of Sexual harassment at the workplace?

Key contentions

The Council on behalf of the Petitioners contended that the sexual

harassment undergone by women at the workplace is a violation of Articles
14, 15, 19(1)(g) and 21 of the Constitution. Adding on, the counsel pointed
out the need for the legislation by highlighting the lacuna of appropriate
provision of law in the view of a safe working environment for women. The
counsel on behalf of the respondent, indeed, extended considerable
assistance required to aid the Court in dealing with the discussed social evil.
Additionally, Ms. Meenakshi Arora and Ms. Naina Kapur also lent a helping
hand to the Court. Further, Shri.Fali S. Nariman being appointed as Amicus
Curiae as well assisted the Court. Therefore, it goes without saying that the
judicial assistance provided, portrays the willingness to work together,
towards a better upshot on taking the interests of the people into account.

Judicial reasoning

Firstly, the court ruled that such an incident is a crystal clear violation of
Article 14, 15, 19(1)(g) of the Constitution. Furthermore, the Court indicated
few other provisions relevant, in particular, Article 42 (Provision for Just and
humane conditions of work and maternity relief) and 51A (Fundamental
duties of the citizen).

Secondly, the Court dealt with the application of international conventions in

the absence of required Domestic Law. The court highlighted that a relevant
International Convention which is consistent with the fundamental rights as
well in harmony within its scope can be applied for the promotion of the
Object of the Constitutional guarantee as implied under the Article 51 (c) and
Article 253 (Power of the Parliament to enact laws for the implementation of
the International Conventions and Norms) read along with the Entry 14 under
the Union List in the 7th Schedule of the Indian Constitution. In addition to
this, the court also emphasized Article 73 (Extent of Executive power of the
Union).

Thirdly, the court acknowledged the need for guidelines to render Gender
equality and emphasized the significance played by the International
Convention and Norms as the very nature of protection of sexual harassment
and right to work with dignity being universal.
Judgment

On considering the absence of domestic law regarding gender equality and

protection from sexual harassment at the workplace, the Court formulated
the guidelines and norms to be observed at all the workplaces until the
enactment of legislation under Article 32 for the enforcement of the
Fundamental Rights of the Constitution. Adding on, the court declared this as
a law under the ambit of Article 141 of the Constitution.

The guidelines prescribed are:

1) It basically defines the duty of the employer- With respect to treatment of

employees of the firm. It was laid down that it is the responsibility of the
employer to make sure that there is proper redress mechanism in the
company that would entertain all the issues related to harassment of
employees.

2) A more elaborative definition of harassment- The definition now includes

any kind of immoral actions, words spoken that are against the chastity of
women. Any words enough to signify demand of intercourse, any kind of
illicit material if displayed, or any kind of verbal or non- verbal abusive
words.

3) It is the duty of the employer to make sure that all the rules in relation to
this are to be notified to all the employees along with action consequences of
their act. The provision for the inclusion of penalty is also to be added. The
court also said that now it is the duty of the employer to make sure that
there is a stress free environment in the workplace.

4) The victims of such crimes are now given option to get remedy
immediately, they are to be given a option to get the accused to be
transferred from that place.
D.K Basu vs State of West Bengal.

Facts:-

DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-

political organization on 26/08/1986 addressed a letter to the Supreme Court
of India calling his attention to certain news published in the Telegraph
Newspaper about deaths in police custody and custody. He requested that
the letter be treated as a Writ Petition within the “Public Interest Litigation”.

Considering the importance of the issues raised in the letter, it was treated
as a written Petition and the Defendants were notified.

While the writ petition was being considered, Mr. Ashok Kumar Johri
addressed a letter to the Chief Justice of the Supreme Court calling his
attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police
custody. The same letter was also treated as a Request for Writing and was
included along with D.K.Basu’s Request for Writing. On 14/08/1987 the Court
issued the Order issuing notices to all state governments and a notice was
also issued to the Law Commission requesting appropriate suggestions
within a two month period.

In response to the notification, several states submitted affidavits, including

West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu,
Meghalaya, Maharashtra, and Manipur.

Additionally, Dr. A.M.Singh vi, Principal Counsel was appointed Amicus Curiae
to assist the Court. All of the attorneys who appeared provided useful
assistance to the Court.

Issues:-
 1. Why are crimes against persons in lockups or custody increasing day
by day ?
2. Is there any need to specify some guidelines to make an arrest?

Arguments Advanced from the side of Petitioner:-

The petitioner argued that bodily pain and mental agony suffered by a
person within the four walls of a police station or confinement should be
avoided. Whether it is physical assault or rape in police custody, the scope of
trauma experiences is beyond the purview of the law. The petitioner further
contended that there is a need for a civilized nation and some major steps
should be taken for its eradication.

Arguments advanced from the side of Respondent:-

Counsel representing different states and Dr. A.M. Singhvi asserted in DK

Basu v State of West Bengal that everything was already well-established
within their respective states. They presented their beliefs and provided
valuable assistance to the court in examining various aspects of the issue.
They also made suggestions for the court to establish guidelines aimed at
reducing, if not preventing, custodial violence and providing support to the
relatives of those who die in custody due to torture.

Judgement

Relying on Nilabati behera vs. State of Orrisa (1993), the court stated
that any form of torture or cruel, inhuman or degrading treatments falls
within the ambit of article 21, whether it occurs during investigation,
interrogation or otherwise. The rights guaranteed by article 21 cannot be
denied to undertrials, convicts, detenus and other prisoners in custody,
except according to the procedure established by law by placing such
reasonable restrictions on the right as are permitted by law.
Even after laying down procedural requirements in Joginder Kumar vs.
State of U.P., it has been observed that the police arrested a person
without warrant in connection with the investigation of an offence and the
arrested person has been subjected to torture to extract information or a
confession.

The guidelines are as follows:

(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and
clear identification and name togs with their designations. The
particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest at the time of arrest a such memo
shall be attested by atleast one witness. who may be either a
member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be counter signed
by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-up,
shall be entitled to have one friend or relative or other person
known to him or having interest in his welfare being informed,
as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the
memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be
notified by the police where the next friend or relative of the
arrestee lives outside the district or town through the legal
Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after
the arrest.
 (5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon he is put
under arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the name
of he next friend of the person who has been informed of the arrest an
the names and particulars of the police officials in whose custody the
arrestee is.
(7) The arrestee should, where he so requests, be also examined at the
time of his arrest and major and minor injuries, if any present on
his/her body, must be recorded at that time. The “Inspection Memo”
must be signed both by the arrestee and the police officer effecting
the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by
trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director, Health
Services of the concerned Stare or Union Territory. Director, Health
Services should prepare such a penal for all Tehsils and Districts as
well.
(9)Copies of all the documents including the memo of arrest,
referred to above, should be sent to the Magistrate for his record.
(10) The arrestee should be subjected to medical examination by
trained doctor every 48 hours during his detention in custody
by a doctor on the panel of approved doctors appointed by Director,
Health Services of the concerned Stare or Union Territory. Director,
Health Services should prepare such a penal for all Tehsils and Districts
as well.
(11)Copies of all the documents including the memo of arrest,
referred to above, should be sent to the Magistrate for his
record.
Indian Young Lawyers Association & Ors. vs. The State of Kerala &
Ors. (2018)

Summary of Facts

There is a Hindu Temple dedicated to Ayyappan named Sabarimala shrine in

the State of Kerala. It is a temple located at Sabarimala inside the Periyar
Tiger Reserve in ‘Pathanamthitta’ district of Kerala.

The Sabarimala shrine, which is one of the most famous temples in Kerala,
had restricted women (of menstruating age) from entry.

Several women tried to enter the Temple but could not because of threats of
physical assault against them.

A group of five women lawyers had moved the Apex Court challenging the
decision of the Kerala High Court which upheld the centuries-old restriction,
and ruled that only the “Tantrik (Priest)” was empowered to decide on
traditions.

Issues before the Court

There were mainly three issues raised in this case:-

● Whether this restriction imposed by the temple authorities violates

Articles 15, 25 and 26 of the Indian Constitution?

● Whether this restriction violates the provisions of Kerala Hindu Place of

Public Worship Act, 1965?

 ● Whether the Sabarimala Temple has a denominational character?

Arguments by Parties on Issues

There were many arguments passed by both parties on these issues. These
are the following:-

Arguments in favour of women entry

The arguments given in favor of women entry by the petitioners were-

Menstruation is not impure, and that women should have equal rights to
enter the Sabarimala Temple. A criticism claims that we cannot consider
women are impure based on menstruation and it is gender discrimination.
The Chief Minister of Kerala, Pinarayi Vijayan, said that his party (Left
Democratic Front) has always supported gender equality and we provide
facilities and protection for women. This practice also violates Article 14
(Equality before Law) of the Indian Constitution as discrimination on the
basis of a specific age group of women is not reasonable discrimination. This
restriction violates Article 15, 25 and 26 of the Indian Constitution:

Article 15 deals with “prohibition on the ground of religion, race, caste, sex
or place of birth”. Here, this practice involves violation of Article 15 as
discrimination to enter the temple was based on ‘sex’.

Article 25 deals with “freedom of conscience and free profession,

propagation and practices of religion”. Here, this practice involves violation
of Article 25 as it prevents women from freedom of practice of religion.

Article 26 deals with “freedom to manage religious affairs”. Here, this

practice clearly violates the provision of Article 26.
The provisions in Kerala Hindu Place of Public Worship Act, 1965 which
support restriction to women’s entry in the temple is unconstitutional as it
violates Article 14, 15, 25 and 26 of Indian Constitution.

One of the arguments from the side of the petitioner that the Lord Ayyappa
temple was not a separate religious denomination for Article 26 because the
religious practices performed in Sabarimala Temple at the time of ‘puja’ and
other religious ceremonies are not different from other religious practices
performed in other Hindu Temples.

Arguments against women entry

The arguments given against women entry by Respondent- Such religious

practices are not so old as it is a tradition to respect God/Goddess of Temple.
Men are also restricted to enter and worship in several temples, for example,
Bramha temple, Pushkar.

There is no violation of Article 15, 25 and 26 of the Indian Constitution as the

restriction is only in respect of women of a particular age group and not
women as a class. If the practice of restriction to the entry of women is made
for women as a class, then only it will violate the above-mentioned Articles of
the Indian Constitution.The provisions in Kerala Hindu Place of Public Worship
Act, 1965 also support this restriction.

Judgement

On 28th September 2018, the Court delivered its verdict in this case by 4:1
majority which held that the restriction of women in Sabarimala Temple is
unconstitutional. It held that the practice violated the fundamental rights to
equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1).
It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as
unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude
women from public places of worship, if the exclusion was based on
‘custom’.

The Apex Court has allowed entry of women of all age groups to the
Sabarimala Temple, and held that “Devotion cannot be subjected to Gender
Discrimination.”

Aruna Ramchandra Shanbaug vs Union of India

Facts of the case-

Aruna Ramchandra Shanbaug was a staff nurse employed in King Edward

Memorial Hospital, located in Mumbai. One of the sweepers of the hospital
attacked her on 27th November 1973. He choked and strangulated her via a
dog chain in order to restrain any movement from her end in an attempt to
rape her. Upon realizing that Ms. Aruna was menstruating he sodomized her.
The very next day, on 28th November 1973 Ms. Aruna was found lying on
the floor with blood everywhere and all over her. One of the cleaners found
her in an unconscious condition. The strangulation via the dog chain ceased
the supply of oxygen to her brain causing severe damage to the cortex of
the brain. She sustained brain stem contusion too along with cervical cord
injury. A petition for the case was filed under article 32 of the Indian
Constitution by a friend of Ms. Aruna in the year 2009, after as many as 36
years of the incident. For so many years Ms. Shanbaug has been in a
"Permanent Vegetative State". She has become extremely feeble and infirm.
Petitioner's arguments-

A petition was filed by Ms. Shanbaug's friend under article 32 of the Indian
Constitution. The counsel for the petitioner contended that the right to life
guaranteed under article 21 includes the right to life with utmost dignity. It
must therefore also include the right to die with dignity. Any individual
suffering from any terminal illness or is in a permanent vegetative state
must be included under the ambit of the "right to die" in order to end the
prolonged suffering and agony. She lacks any awareness of her
surroundings, is even devoid of the ability to chew her food, can't express
anything on her own, and is just bedridden for the past 36 years with no
scope of improvement. The patient is virtually dead and the respondents by
not feeding Ms. Shanbaug won't be killing her.

Respondent's arguments

The dean of the Hospital contended that Ms. Shanbaug was being fed and
taken care of by the nurse and hospital staff for as many as 36 years. The
staff had exceptionally and with utmost responsibility and willingness to take
care of her. Therefore, they oppose and resent the idea of Ms. Shanbaug
being euthanized. Now that the patient has crossed as many as 60 years of
age she might naturally succumb to death.

They begged the court to not permit the act of killing. The staff has been
diligently and with respect taking care of all her fundamental necessities and
prerequisites. On the off chance that this is legitimized, the act of euthanasia
can be profoundly inclined to abuse. One of the medical attendants has even
been willing to take care of her without being remunerated. The petitioner,
unlike the clinic staff, neglects to have such a close-to-home association with
the patients and lacks the necessary emotional attachment.
Since the staff diligently and with utmost dignity took care of Mrs. Shanbaug
for many years. They looked after her basic needs and requirements.
Legalization of passive euthanasia can be prone to misuse by family
members, relatives, etc. they pleaded with the court to reject the allowance
of practice of euthanasia. The hospital staff has an emotional connection
with the patient to the extent that one of the nurses is ready to look after
Mrs. Shanbaug for the rest of her life without being remunerated.

Terminating Ms. Shanbaug's life would be immoral and inhuman since she
has a right to live. Moreover, the hospital's staff's exceptional and selfless
service must also be taken into consideration. Furthermore, since the patient
herself is not in a condition to give consent for withdrawal from the life
support system the next big question to come into the picture Is who would
consent for Ms. Shanbaug.

Judgment-

The court drew the distinction between active and passive euthanasia. Active
euthanasia can be seen as the positive and deliberate termination of one's
life by injecting and administering lethal substances. It is considered to be a
crime worldwide except permitted by legislation. In India, active euthanasia
is a straight infringement of section 302 and section 304 of the IPC.
Moreover, physician-assisted suicide is an offense under section 309 of IPC.
Passive euthanasia on the other hand is the withdrawal of life-supporting
systems or medical treatment. The main distinction between active and
passive euthanasia is that in "active" something is done deliberately to end
life whereas in "passive" something is not done. A proper procedure and
guidelines were enlisted by the apex court for granting passive euthanasia in
the "rarest of rare circumstances" while rejecting the plea made by the
petitioner. The High Court under article 226 would be entitled to make
decisions regarding the withdrawal of the life support system. A bench must
be constituted by the Chief Justice of the High Court when an application is
received, before which a committee of three reputed doctors nominated
must be referred. There should be a thorough examination of the patient and
state and family members are provided with a notice issued by the bench.
The High Court must give a speedy decision.

Joseph Shine Vs UOI

Facts

A writ petition was filed under Article 32 by Joseph Shine challenging the
constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being
violative of Article 14, 15 and 21. This was at first a PIL filed against adultery.
The petitioner claimed the provision for adultery to be arbitrary and
discriminatory on the basis of gender. The petitioner claimed that such a law
demolishes the dignity of a woman. The constitutional bench of 5 judges was
set up to hear the petition.

Contentions

Petitioner

The counsel for the petitioner contended that the provision criminalizes
adultery on classification based on sex alone which has no rational nexus to
object to being achieved. The consent of the wife is immaterial. Hence
violative of Article 14 of the constitution. The petitioner contended that
provision is based on the notion that a woman is property of the husband.
The provision says if the husband gives consent or connive then adultery is
not committed.

The provision for adultery is discriminative on the basis of gender as it

provides only men with the right to prosecute against adultery which is
violative of Article 15. The petitioner contended that the provision is
unconstitutional as it undermines the dignity of a woman by not respecting
her sexual autonomy and self-determination. It is violative of Article 21.
Section 497 of IPC read with Section 198 of CrPC must be struck down.

Respondents

The respondents contended that adultery is an offence which breaks the

family relations and deterrence should be there to protect the institution of
marriage.

The respondents claim that adultery affects the spouse, children and society
as a whole. It is an offence committed by an outsider with full knowledge to
destroy the sanctity of marriage. The discrimination by the provision is saved
by Article 15(3), which provides state right to make special laws for women
and children. They request the court to delete the portion found
unconstitutional but retain the provision.

Issues raised

● Whether the provision for adultery is arbitrary and discriminatory

under Article 14?

● Whether the provision for adultery encourages the stereotype of

women being the property of men and discriminates on gender basis

under Article15?

● Whether the dignity of a woman is compromised by denial of her

sexual autonomy and right to self-determination?

 ● Whether criminalizing adultery is intrusion by law in the private realm

of an individual?

Previous Judgments

Yusuf Abdul Aziz vs. State of Bombay (1954) SCR 930

In this case, the constitutionality of Section 497 was challenged on the

grounds that it violates Article 14 and Article 15, by saying a wife cannot be
a culprit even as an abettor. The 3 judge bench upheld the validity of the
said provision as it is a special provision created for women and is saved by
Article 15(3). And Article 14 is a general provision and has to be read with
other Articles and sex is just classification, so by combining both it is valid.

Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137

In this case, a petition was filed under Article 32 challenging the validity of
Section 497 of IPC. The challenge was based on the fact that the said
provision does not provide the right to a woman to prosecute the woman
with whom her husband has committed adultery and hence is discriminatory.
The 3 judge bench in this case also upheld the validity by stating that
extending the ambit of offence should be done by the legislature and not by
courts. The offence of breaking a family is no smaller than breaking a house,
so the punishment is justified. The court accepted that only men can commit
such an offence.

V. Revathi vs. Union of India (1988) 2 SCC 72

In this case, the court upheld the constitutional validity of Section 497 read
with Section 198 by stating that this provision disables both wife and
husband from punishing each other for adultery hence not discriminatory. It
only punishes an outsider who tries to destroy the sanctity of marriage. And
thus it is reverse discrimination in ‘favour’ of her rather than ‘against’ her.
W. Kalyani vs. State through Inspector of Police and another (2012)
1 SC 358

The constitutionality of Section 497 did not arise in this case but it says that
mere fact that appellant is a woman makes her completely immune to the
charge of adultery and she cannot be proceeded against for that offence.

Recommendations

In the 42nd Law Commission report, it was recommended to include

adulterous women liable for prosecution and reduce punishment from 5
years to 2 years. It was not given effect.

In the 152nd Law Commission report, it was recommended introducing

equality between sexes in the provision for adultery and reflecting the
societal change with regards to the status of a woman. But it was not
accepted.

In 2003, the Malimath Committee on Reforms of Criminal Justice System was

formed which recommended amending the provision as ‘whosoever has
sexual intercourse with a spouse of any other is guilty of adultery’. The same
is pending for consideration.

Court observations

Issue 1

The test of manifest arbitrariness should be applied to invalidate the

legislation or any sub-legislation. Any law found arbitrary will be struck down.

The classification is found to be arbitrary in the sense that it treats only the
husband as an aggrieved person given the right to prosecute for the offence
and no such right is provided to the wife. The provision is not based on
equality.

The offence is based on the notion of women being a property of husband

and adultery is considered to be a theft of his property because it says
consent or connivance by the husband would not make it an offence.The
provision does not treat the wife as an offender and punishes only the third
party.

Such classification is arbitrary and discriminatory and has no relevance in

present times where women have their own identity and stand equal to men
in every aspect of life. This provision clearly violates Article 14.

Issue 2

This provision discriminates between a married man and a married woman to

her detriment on the ground of sex. This provision is based on the stereotype
that a man has control over his wife’s sexuality and she is his property. It
perpetuates the notion that women are passive and incapable of exercising
their sexual freedom.

Section 497 protects women from being punished as abettors. It is

enunciated that this provision is beneficial for women, which is saved by
Article 15(3). Article 15(3) was inserted to protect the women from
patriarchy and pull them out of suppression. This article was aimed to bring
them equal to men. But Section 497 is not protective discrimination but
grounded in patriarchy and paternalism.

Thus the said provision violates Article 15(1) of the constitution because it is
discriminatory on the basis of gender and perpetuating the stereotype of
controlling a wife’s sexual autonomy.

Issue 3

The dignity of an individual and sexual privacy is protected by the

constitution under Article 21. A woman has an equal right to privacy as a
man. The autonomy of an individual is the ability to make decisions on vital
matters of life. The provision allows adultery on the husband’s consent or
connivance, which gives a man control over her sexual autonomy. This
makes her a puppet of the husband and takes away all her individuality.
When the penal code was drafted the societal thinking regarding women was
backward and she was treated as a chattel but after 158 years the status of
women is equal to that of men. Her dignity is of utmost importance which
cannot be undermined by a provision which perpetuates such gender
stereotypes. Treating women as victims also demeans her individuality and
questions her identity without her husband. The enforcement of forced
fidelity by curtailing sexual autonomy is an affront to the fundamental right
to dignity and equality provided under Article 21.

Issue 4

A crime is defined as an offence which affects society as a whole. Adultery,

on the other hand, is an offence which tantamounts to entering into the
private realm. Adultery may be committed by two consenting adults making
it a victimless crime. This provision aims to protect the sanctity of marriage
but we have to admit that because of a pre-existing disruption of marital tie
adultery is committed.

The other offences related to matrimonial realms such as Section 306, 498-A,
304-B, 494 or any violation of Protection of women from Domestic Violence
Act, 2005 or violation of Section 125 CrPC are related to the extinction of the
life of a married woman and punishes her husband and relatives.

In adultery, a third party is punished for a criminal offence with a maximum 5

years imprisonment. This is not required in the opinion of the court. This
provision makes a husband an aggrieved person and a woman a victim. Even
if the law changes and provides equal rights to women against adultery, it is
totally a private matter. Adultery is better left as a ground for divorce and
not a crime.

Section 497 of IPC is struck down and adultery can be grounds for any civil
wrong including dissolution of marriage.

Critical analysis
Infidelity is more common in larger cities where people are moving towards
westernization. This decision has been widely criticized on the ground that it
paved a way for people to commit adultery without any fear. There has been
an increase in adultery since its decriminalization. Males have claimed that
now there is no way to ensure the purity of bloodline. Many claims that
recommendations from Law Commissions should have been accepted by the
parliament in order to punish men and women both equally for adultery. The
Supreme Court has also been criticized that they should have let parliament
take decisions on adultery according to the changing social environment.