Judgment Writing is an art. It needs vast knowledge and considerable experience to be master in this art. When a person reaches to supreme court judgeship, s/he probably attains such mastery in writing. That’s why, this mastery reflects in Supreme Court Judgements.
In Joseph Shine’s Judgement, which is considered as one of the most important and landmark judgment in legal history, Supreme court painted some beautiful words of wisdom on the canvass of Individual dignity.
In this case, a writ petition was filed under Article 32 of the constitution against Section 497 of Indian Penal Code which defined the offence of ‘Adultery’. As per this section, the victim in this section is not woman per se but the husband of that woman. Woman was considered as the property of her husband and she did not right to sue, only husband had the right to prosecute adulterer who did sec with his wife.
While starting the judgement, Supreme court wrote-
Magnificent, compassionate and monumental Document
“The beauty of the Indian Constitution is that it includes I you and we. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights.
Expression of judicial sensibility
If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society.
Wrath of constitution
The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man.
Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution.
Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception.
A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written.
It is advisable to remember what John Stuart Mill had observed: –
“The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.”[1]
We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).
Transformative constitutionalism
At this juncture, it is necessary to state that though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the Court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern.
The progression in law and the perceptual shift compels the present to have a penetrating look to the past.
When the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach.
The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts.
To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable….”
In this judgment, Supreme court struck down the section of adultery as against the fundamental right of constitution.
REFERNCE
Joseph Shine v. Union Of India, 2018 SC 1676
[1] Subjection of Women, Chapter 1 (John Stuart Mill, 1869)