Why is it in the news?

• The Parliamentary Standing Committee on Home Affairs proposes amending the Bharatiya Nyaya Sanhita Bill, 2023, to criminalize adultery with a gender-neutral approach.

Background

• In 2018, the Supreme Court, in Joseph Shine vs Union of India, struck down Section 497 of the IPC, which criminalized adultery, citing discrimination.
• The court clarified that adultery would remain a civil wrong and a valid ground for divorce.

Arguments in Favor of Criminalization

• Parliamentary Committee: Recommends reinstating adultery as a criminal offense to protect the institution of marriage.
• Malimath Committee (2003): Proposed retaining adultery as an offense but on gender-neutral terms.

Arguments Against Criminalization

• Moral Wrong: While adultery is a moral wrong, it may not constitute a wrong against society at large to be within the scope of criminal law.
• Discrimination Towards Unmarried Couples: Gender-neutral laws may still differentiate between married and unmarried couples, creating legal distinctions.
• Law Commission (1971): Some members raised concerns and were inclined to repeal Section 497.

Conclusion

• The Supreme Court’s judgment found Section 497 violative of Articles 14, 15, and 21 of the Constitution, protecting the fundamental rights to equality, non-discrimination, and life.
• The court emphasized that treating adultery as a crime would intrude significantly into the privacy of the matrimonial sphere, suggesting it is better left as a ground for divorce.