In a move that has stirred significant debate, a parliamentary committee is actively considering the reinstatement of the adultery law and Section 377, which addresses non-consensual sexual activities involving men, women, and transpersons.
This development comes from the Standing Committee on Home Affairs, chaired by BJP Rajya Sabha MP Brij Lal. The committee is currently examining three transformative bills that propose to replace the Indian Penal Code (IPC) of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872. Introduced in the Lok Sabha by Home Minister Amit Shah in August, these bills are named the Bharatiya Nyaya Sanhita Bill, Bharatiya Nagarik Suraksha Sanhita Bill, and Bharatiya Sakshya Bill.
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The committee’s inclination towards recriminalizing adultery has its roots in the Supreme Court’s 2018 decision. The apex court, in a landmark judgment, declared the 158-year-old adultery law as archaic and unconstitutional. The court’s rationale was that
“adultery cannot and should not be a crime,”
but rather, it could serve as a basis for civil offenses, such as divorce. Chief Justice at the time, Dipak Misra, commented on the colonial-era law, highlighting its outdated perspective where the
“husband is master of the wife.”
The law, as it stood, allowed for a man to be imprisoned for up to five years if found guilty of adultery. However, it did not permit women to lodge complaints against adulterous husbands.
The committee’s draft report offers a fresh perspective, suggesting that if the adultery provision is reintroduced, it should adopt a gender-neutral stance. The report explicitly states,
“For the sake of protecting the institution of marriage, this Section (497 of the IPC) should be retained in the Sanhita by making it gender-neutral.”
Section 377, another focal point of the committee’s discussions, was partially decriminalized by the Supreme Court in 2018. While this decision was hailed as a victory for LGBTQ+ rights, certain provisions of Section 377 remain in effect. The committee posits that these provisions
“remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.”
The panel has also put forth other recommendations, such as reducing the punishment for unauthorized protests from two years to a single year. Additionally, they propose an increase in the penalty for cases of death due to negligence, elevating it from six months to a substantial five years.
While the committee is gearing up for a meeting on November 6 to discuss these recommendations further, opposition members have voiced their concerns. Notably, Congress MP P Chidambaram and Trinamool Congress MP Derek O’Brien have requested additional time to review the draft reports.
These proposed changes to India’s criminal laws signify a broader effort to revamp the country’s criminal jurisprudence. As the nation awaits the committee’s final recommendations, the potential implications for India’s legal and social landscape remain a topic of intense discussion.