This has been a year of glorious gifts from unelected middle-aged men. The Supreme Court of India is churning out enlightened judgements as if oppression is going out of fashion: Privacy, 377, and now Adultery.
On Thursday, the court struck down Section 497 of the Indian Penal Code. This section read: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offense of adultery, and shall be punished.”
As the part about the consent of the husband indicates, the law treated women as the property of their husbands, and adultery like a form of theft. Justice DY Chandrachud wrote in his judgement: “The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency.”
As Chandrachud elaborates in his judgement, this has been a ubiquitous attitude towards adultery throughout history. Babylon’s ancient Hammurabi Code prescribed that a married woman caught in adultery “be bound to her lover and thrown into the water so that they drown together.” (No such punishment for an unfaithful man, mind you.) Ancient Greco-Roman societies considered adultery to be “a violation of a husband’s exclusive sexual access to his wife,” and Judaic and Christian laws followed a similar logic.
This went beyond ancient times. In 1650, England introduced the death penalty for adultery with the Act for Suppressing the Detestable Sins of Incest, Adultery and Fornication. Section 497, which they later thrust upon this particular colony, was an adulterated version of this.
In the 21st century, no law should deny the autonomy and agency of a woman. But what if society itself is regressive, and denies women basic human dignity, as is the case in India? Chandrachud remarks, “Law and Society are intrinsically connected and oppressive social values often find expression in legal structures.” But he adds, “The Constitution, both in text and interpretation, has played a significant role in the evolution of law from being an instrument of oppression to becoming one of liberation.”
One bad law has gone, but we remain a nation in which women are second-class citizens. Firstly, similar laws remain in the books, such as Section 498, which deals with “enticing or taking away or detaining with criminal intent a married woman,” and also treats women as the property of men. Secondly, hell, look at Indian society around you.
Some of us Engish-speaking elite types imagine that things must be getting better because we see so many strong, articulate women around us. But that’s the Selection Bias at play. Outside these circles, women in India are having a tough time. Women still fill government forms that insist on Father’s/Husbands name, as if to establish ownership. One telling metric: female participation in the workforce has actually gone down in the last two decades.
Much of what we call ‘empowerment’ is on the terms of men. So many men signal how modern they are by boasting about how they ‘let’ their wife work, or how they ‘help out’ with domestic chores. They behave as if they deserve a pat of their backs for not beating their wives, and chaining them to the kitchen. We have set the bar so low that not being a monster is now a matter of congratulations.
Men tend to be oblivious of how women carry their gender as a burden. Something I realised recently – and shame on me for being so late to realise it, in my forties – is that my gender is not a factor in my everyday life. I can ignore and take for granted my maleness. But in every single thing a woman does, her gender comes into play. An empty compartment at a train station, the tone of voice in a job interview, the supercilious, sniggering men who always interrupt, whose eyes travel like you know their hands would if they had the license.
Every day, women have to confront and make peace with their own thingness. Every day they find new reasons to question themselves. The ever-present human anxiety about what others think of us is amplified for women, and restraint becomes a reflex.
I have a secondary rant here. Just as the adultery law saw women as the property of men, many of our laws, and parts of our constitution, treat citizens as the property of the state. We are subjects of a mai-baap master, which can regulate our speech and our behaviour. We take this for granted, just as many women take the oppression they face for granted.
We cannot be a free society until we address this. The Supreme Court cannot deliver us from ourselves. No matter how ugly the sight, we must look within.
Also check out:
‘Misogyny is the Oldest Indian Tradition’—Amit Varma
‘Misogyny and Our Legal System’—Episode 58 of The Seen and the Unseen
‘Consent Won a Battle This Week. The War Remains’—Amit Varma
‘I am a Feminist. You should be too’—Amit Varma
‘Claiming Your Space’—Episode 76 of The Seen and the Unseen