The Right To Sexual Privacy Makes The Law On Adultery Open To Constitutional Scrutiny
G.S. Paper 2
Right to sexual privacy and adultery law affecting it Account on foreign jurisprudence
Joseph Shine v. The union of India, the petition challenging the constitutional validity of the criminal prohibition on adultery under Section 497 of the Indian Penal Code, has now been referred to the Constitution Bench by the Supreme Court.
The petition was admitted by the court with the preliminary observation that the provision attacks the independent identity of the woman and is archaic in its nature.
What is right to sexual privacy?
The right to privacy is valued and cherished for it involves the most intimate decisions and choices
The right to engage in sexual intercourse is an intrinsic part of the right to privacy
Privacy has to invariably contain the right to bodily integrity, self-determination and sexual autonomy
How is adultery law affecting the right to privacy?
By criminalizing adultery, the state is, in fact, showing a paternalistic attitude by telling individuals how to lead their lives and what behaviour to adopt It carries moralistic undertones of imposing what living an ideal life means for the state
Such an approach seriously undermines the underlying values of personal liberty
Upholding the right to privacy
In the celebrated privacy judgment in K.S. Puttaswamy case (2017), exercising the police power of the state in matters of private choices was repelled by the apex court SC judge had said that nobody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life It seems to follow that individuals must be free from the interference of the state in matters of their sexual choices, or even in choosing their sexual partner
A brief account on foreign jurisprudence
None of the European countries has criminalized adultery In most of South America, adultery is no longer a crime Many States in the U.S. have either repealed adultery laws or put them to disuse
Following this global trend, in 2012, a working group of the United Nations called upon countries to do away with laws penalizing adultery
The approach of the Supreme Court of India
SC approach towards the right to sexual privacy has been ambivalent.
The judgment in Suresh Kumar Koushal case (2013) upholding the criminalization of voluntary sexual intercourse between those of the same sex remains a serious blow to the right to sexual freedom.
Subsequently, in NALSA v. Union of India (2014), the Court said that the value of privacy is fundamental to those of the transgender community.
Reviewing law on adultery is perhaps the first occasion where the privacy judgment in Puttaswamy case is going to be doctrinally and forensically tested.
It is equally crucial that the right to sexual privacy forms a distinct and independent ground.