Let Volcanic Eruption in the Supreme Court be a Blessing

Sometimes blessings come in disguise. The sanguine hope is that the volcano that has erupted in the Supreme Court of India on 12th of January in an unprecedented press conference of four seniormost puisne judges will bring good results for the catharsis of the judiciary. It was like a tremor in the Indian judicial history when four judges-Jasti Chelameswar, Ranjan Gogoi, Madan Bhimarao Lokur and Kurian Joseph took the unimaginable recourse of addressing the media to tell the nation that everything was not hunky dory in the Supreme Court of India. Hectic efforts are going on to paper over this crisis of monumental proportions, but it has already become a historic watershed in the higher judiciary.

The press conference has brought forth the rot that has been simmering the judiciary but never discussed openly. There has been a general opinion across the country that subordinate judges and its paraphernalia has been in the neck-deep corruption.  Even a common man will tell that a Peshkar in the courts openly takes bribes for providing the simple information of the dates to the litigants. Nevertheless, the judges of the High Courts and the Supreme Court have been enjoying the tremendous trust of the people of the country.

            The press conference has thrown an opportunity for the self- introspection. Till now the people and the media have been hauling over the coals about the conducts of the Legislature and the Executive but the Judiciary has largely been left untouched. The judicial functioning has not been subjected to public scrutiny as the other two organs of the State. Many times, allegations of forum shopping and bench hunting are levelled but they have been mostly in a veiled manner.

 During the press conference, the judges also circulated a seven-page letter in which they have raised mainly two points. First is about the Memorandum of Procedure (MoP) for the appointment of the judges in the High Courts and in the Supreme Court, which still remains undecided and the second is the assignment of cases by the Chief Justice of India to other judges and their benches. Both of them lack transparency. The Chief Justice of India, it is accepted by all, is the master of the roster, but he cannot use it arbitrarily for assigning the cases to the benches, which are pliable and favourable to him. The Chief Justice of India is ‘first among equals’ in the administrative side but in the judicial side, all judges are equal.

 Supreme Court Judges are considered to be wise persons by their learning, experience, and constant training. Barring a few, most of them have been the Chief Justices of one or many High Courts of the country before being elevated to the Supreme Court. The four judges who are being termed as the ‘rebel judges’ have also been the Chief Justices of different High Courts. Therefore, they are well aware of the duties, obligations, rights, and responsibilities of the Chief Justice of India. 

What has, however, happened on 12th January has stunned the nation. There is one incident which has some similarity with this one and that was on 1973 when Mrs Indira Gandhi had superseded three judges –H.R. Khanna, JM Shelat, and KS Hegde to appoint Justice A.N. Ray, a committed judge, as the Chief Justice of India. All three superseded judges had then resigned from their posts to express protest and resentment but this time there is not even a whisper of resignation from any judge. Instead, they openly expressed their consternation against the Chief Justice of India and sought the help of the country so that the posterity after 20 years may not accuse them of selling their souls. This was an oblique call for the impeachment of the Chief Justice. When Justice A.N. Ray was made the Chief Justice ignoring the seniority of others, it was solely in the hands of the Executive. However, after 1993, the Executive has practically no role in the appointments, transfers/promotions of the judges. All the present judges of the Supreme Court owe their appointments in the High Courts and their elevation in the Supreme Court to the Collegium System.

There has been a huge hue and cry against the Collegium System, which empowers a group of five judges to appoint other judges. This system does not find any mention in the Constitution of India but has been introduced through a judgment of the Supreme Court. By this system, the Supreme Court has taken over all the powers to itself by rendering the Executive ineffective. Just to clip the wings of the Collegium System, the government, with the support of all political parties, enacted the ‘National Judicial Appointments Commission’ (NJAC) for the appointment of the judges, which was challenged in the Supreme Court but then again, the Supreme Court struck down the NJAC Act and restored the Collegium System. Justice J. Chelameswar was the loner, which handed down the NJAC judgment. He said that the Collegium System is erroneous, opaque and therefore must be done away with. Incidentally, it is he who has led the rebellion this time.

 Obviously, these four senior-most judges must have had their overwhelming reason(s) to defy the ingrained protocol of silence and anonymity. Their grievance, first made privately to the Chief Justice, had remained unaddressed. The letter they have made public draws a portrait of a wayward Chief Justice, unbothered and unwilling to give the four-senior brother judges the time of day. The only feasible conclusion is that there is an internal collapse of the highest judicial forum. Any person who gets elevated as Chief Justice of India is called upon to show wise leadership if the institution over which he presides has to retain its vitality and robustness. There is a very little place for- to recall what Sardar Patel had to tell Harilal Kania three days before he became the first Chief Justice of India -“petty-mindedness” in how a “Chief” deals with his brother judges. It is incumbent upon a Chief Justice of India- indeed for anyone who presides over an institution - to corral fellow-judges into the joys and pleasures of judicial brotherhood and its internal code of mutual respect and consideration.

 The possible solution to the crisis can be that a part-heard matter may not be divested from the co-justices who are seized with it. Second, the CJI may not deny a request for recusal on grounds of conflict of interest. Third, the chief justice may not ignore the requests by co-justices to form a larger Bench. Fourth, a chief justice may not selectively assign sensitive or important cases to the same judges. However, fifth, it is doubtful whether there is, or ought to be, a convention requiring such matters to be heard only by the senior-most justices. No, because the decision to elevate a citizen to judgeship must involve all relevant considerations; once elevated, a justice is co-equal to all other brethren. Sixth, it is true that co-equality occurs within a hierarchy: Not every justice becomes a chief justice, and the SC collegium must comprise the five senior-most justices. Outside this framework, the question about the rank-ordering may not arise; all justices speak for the constitutional court. Any discussion about benches headed by “junior” justices is therefore injudicious. Competitive party politics cannot but take sides in this debate, but justices must act on evidence and arguments before them. Political actors work with an interest in specific outcomes, but a judicial judgment must be devoid of any personal stake in the outcome.

 Therefore, it would be in the fitness of the time and the occasion that the Supreme Court Act must be framed for the restructuring of the Supreme Court itself. It is vital that a court of 31 judges if it is to function as an apex court, must develop some degree of institutional coherence. Such coherence is impossible when the court sits on benches of two judges each. And secondly, the existing structure allows the CJI to become the master of the roster, vested with the absolute discretion of allocating judges to particular cases, leading to crises like the present one. An antidote to both the aforementioned problems is a restructuring of the Supreme Court into three divisions: Admission, Appellate, and Constitutional. All Special Leave Petitions under Article 136 ought to be first considered by the Admission division. The division should comprise five randomly selected judges who for one quarter every year should deal only with admission cases.

Such restructuring will have three advantages. First, it will yield more coherent jurisprudence, particularly in constitutional matters, taking us closer to certainty and the rule of law. Second, it will allow for more careful contemplation of which matters actually deserve admission to India’s apex court. Third, it will reduce the discretion available to the CJI to select benches, since this will be limited to the appellate division alone. 

Rapid Reconstruction of Post-war North Eastern Sri Lanka

India is visible in country’s development

 Passikudah Beach is one of the best beaches in the world. One can enjoy in the shallow waters of the sea and get distressed. It is a very near to Dambulla, where the historic citadel of Sigiriya rests atop the gigantic rock. One can experience the traditional Sri Lankan way of life. We witnessed the striking similarity in the way of living in the rural areas of this side of Sri Lanka and the Indian countryside. One could see many women wearing sarees like those of the Indian women in the villages. While moving towards Passikudah from Colombo one is bound to get enamoured with the expanse of tea gardens, rubber plantations, and fruit-bearing trees. This is the time when mango fruits get ripen. Hindu temples all over Sri Lanka are always found to be squeaky clean. There is one Koneswaram temple of Trincomalee is worth mentioning for its antiquity and upkeep. It is one of the three major Hindu shrines on the promontory with a colossal gopuram tower, but it stands distinctly on the cape’s highest eminence. Worldwide interest was renewed following the discovery of its underwater and land ruins, sculptures and bronze idols of Chola period.

        Amaya Resorts, known for its hospitality, elegance and enchanting beauty throughout the world are very comfortable with all modern facilities. We were informed that many rich and influential people from India chose this exotic place go for solemnizing the marriages of their sons and daughters. In the office of the Provincial Council of the Eastern Provence of the Trincomalee, it became clear that why this place has become one of the most sought-after places for the Naval exercises. It has become militarily very strategic. Recently, the Navy of India and Sri Lanka undertook a joint Naval exercise in the Bay of Bengal. And its main station was Trincomalee. Such Naval exercises were earlier done by Indian and U.S.A. Navy also. China is also eyeing for holding such exercise in the Bay of Bengal with the help of Sri Lanka. This is certainly a cause for concern for India.

Sri Lanka is a delightful place for non-vegetarian gourmets because delicious seafood is available everywhere, but vegetarians do not many choices. Therefore, one has to inform and instruct the hosts well in advance to make arrangements for the vegetarian foods. It may not be out of place to mention here that most of the Sri Lankans do not consider fish as a non-vegetarian food.

While returning from Passikudah we passed through Kandy, which is another scenic place in central Sri Lanka. It has the historical temple, which nestles tooth relic of Lord Buddha. This temple is UNESCO listed wonder. It is the spectacular architecture of Kandy and anybody cannot go away from here without admiring it. Another important place which is worth seeing is Sripada. It is also known as Sacred Mountain which is nearly 2,250-meter-tall and has the sacred footprint of the Lord Buddha at the summit. Hindus and Buddhists visit this place of pilgrimage. Hindus believe that Lord Shiva made his abode at Sripada for some time, but Buddhists believe it is the footprint of Lord Buddha. It is simply mesmerizing, soul lifting and soothing for the eyes to be at this place.

In Sri Lanka, Theravada and Mahayana sects of Buddhism are practiced. During the reign of King Mahasen of Anuradhapura, a Stupa was started to be built in Kandy, which was completed by his son Maghavanna-I. It is believed that some clothes were worn by Lord Buddha are also enshrined here. There is another significant temple which has been declared World Heritage Site by the UNESCO, which is known as Dambulla Cave Temple. It has more than 80 caves with 153 Buddha statues, three statues of Sri Lankan kings and four statues are of Gods and Goddesses. Inside the caves, one finds the murals depicting the stories (Jatak Kathas) of Lord Buddha. There is a bowl placed on the one side of the cave and the water drips from here day and night. It is said that water never dries even if it has been hit by the severe drought.

Sri Lanka is famous for spices, condiments, and rubber. The group of Indian journalists was taken to the National Spice Garden of Matale. Its present Director is an Agricultural Scientist, who has got his higher education in India’s Punjab University. It was really pleasing to learn that many of the scientists working in this Spice Garden have had their higher education from the Indian Universities. In this Garden not only, the spices of the best quality are produced but the research work is also done for improving and increasing the production. It may be interesting to know that 80 percent of cinnamon demand of the world is met by Sri Lanka. Cinnamon is used as a condiment for bringing good flavour in the vegetables and also for meditational purposes such as lowering of blood sugar and blood pressure.

The other important spice is black pepper which is produced in Sri Lanka in abundance. Apart from it, clove, nutmeg, ginger, turmeric, coffee, cardamom is produced in Sri Lanka and they are exported throughout the world. Sri Lanka is fast emerging as the place of Ayurveda, Yoga, Shirodhara therapy. In Ayurveda, the mix of sweet, sour, salty, bitter, pungent and stringent food is prescribed to keep oneself healthy and that is why the importance of spices and condiments has been underlined in this therapy. There are many places, where Buddhists and Hindus get solace and peace of mind. Both religions have their roots and antiquity in Sri Lanka.  For Hindus, it is a holy place because Mother Sita lived in Ashoka Vatika after her abduction by the demon king Ravana. Buddhism was spread in Sri Lanka more than two thousand years ago by Indian prince Mahendra, the son of Emperor Ashoka and who was sent by his father for propagating the message of peace and nonviolence of Lord Buddha.

A joint seminar was organised by the SLPA and the IFWJ on the ‘role of the journalists for increasing the regional cooperation’. The Indian side was represented by the well-known T.V. commentator and journalist Hemant Tiwari, who is also the Vice-President of the IFWJ. Shri Tiwari was so impressed with the hospitality and the beauty of Sri Lanka that he announced that next year India would host a meeting in India where a big contingent of Sri Lankan journalists would be invited to participate, and they would be taken to important Buddhist places. The writer of this article emphasised that the regional cooperation can be increased only when there is regular contact between the people of the different regions. The journalists can certainly play a significant role in arousing the interests of the people for undertaking the visits to countries of the region. Others who spoke from India were Ish Madhu Talwar, Dinesh Pathak, Ram Kishor Trivedi, Kaushal Chaturvedi and Randeep Ghanghas. The keynote was delivered by Dr. Edward Ariyadasa, a nonagenarian journalist with a razor sharp intellect, who underlined for adopting the technology for the development of journalism for promoting regional cooperation.

 India is playing a significant role in the reconstruction of Sri Lanka after the conflict that ravaged and devastated the country for more than 25 years. During his last visit, the Prime Minister Narendra Modi had dedicated five thousand pucca houses in northern Sri Lanka to those who were displaced during the war. The Government of India is also providing the assistance of billions of rupees for the reconstruction of roads, railways and ports etc. Agriculture and Dairy Farming is being promoted and assisted by the Indian Government. Chinese are making heavy investments in Sri Lanka to have their hegemony. During the periods of war Chinese wanted to drive a wedge between India and Sri Lanka but they simply do not understand that Indians and Sri Lankans have age-old ties, which is inalienable. Many Indians are engaged in Sri Lanka in business and other commercial activities which are, without doubt, giving impetus to the good neighborly relationship between India and Sri Lanka.  

Sri Lanka Abounds With Breathtaking Beautiful Places

We know so little about our neighbouring countries was realised by me during my six days visit to Sri Lanka in the second week of December 2018. I was the part of the 23-member delegation of the Indian Federation of Working Journalists, which traveled to many places in Sri Lanka. While Indians have known it as Sri Lanka from time immemorial, it was called Ceylon when it was a British Colony and its original name was restored in 1972, after 24 years of her gaining independence in 1948. Sri Lanka is credited to have the first woman Prime Minister Sirimavo Bandaranaike in the entire world, way back in 1960. Most of us started our journey by Air India on 10^th of December in the afternoon from Terminal 3 of the Indira Gandhi international airport of New Delhi reached within three and half hours at Colombo’s Bandaranaike international airport. Colombo is one of the modern cities of the world with the all-natural gorgeousness of ocean, lagoons, gardens, and greeneries. Manmade high-rise buildings, modern airport, potholes free roads, all round cleanliness and abounding of comfortable hotels etc, make this city all the more attractive. Hospitality in Sri Lanka is, to say the least, par excellence.

For any Indian visitor to Sri Lanka, what conjure up are the places associated with Ramayana. So, on reaching Colombo when we were told that this time the delegation would not be taken to the places of Ramayan trail, some of the journalists were disappointed a bit, but later after seeing other places, they felt happy that there visit proved to be more educative than what they had actually thought of. We were received at the airport by the office bearers of ‘Sri Lanka Press Association’ (SLPA). Its energetic and young Foreign Secretary Kurulu K. Kariyakarawana and his Indian wife, Gitika Talukdar, who herself is an accomplished journalist accompanied us from the beginning of our journey to the last day.  This duo took all pains to ensure our comfortable stay and elaborate arrangements for our reception at various places. All Indian journalists felt very happy when they were told that this time they would have the opportunity to see the post-conflict areas of North-East Sri Lanka, particularly from Batticaloa and Trincomalee.  Sri Lanka Press Association was given generous assistance by the Ministry of Tourism of Sri Lanka to take care of visiting Indian journalists

The climate of Sri Lanka remains hot and humid throughout the year mainly because it is situated near the equator and surrounded by the ocean from all side. The total area of Sri Lanka is nearly 67,000 square kilometres and the population is slightly more than two crores. It is a multi-religious and cultural society More than 75 percent population consists of Buddhists and Hindus are the second largest religion. Quite a large number of Muslims and Christian also inhabit the island. During the last two decades, the Muslim population has become assertive because economically they have become more prosperous mainly due to huge remittances from the Gulf countries. In all these years grand mosques have sprung up particularly in the North-Eastern part of Sri Lanka. Three language formula- Singhalese, English and Tamil- is observed Sri mainly in all Government programmes. Tamil has been given more importance possibly to assuage the feelings of the Tamilian population, who were on the warpath for very long period hampering the development of Sri Lanka. Singhalese, by all means, is the dominant language of the country but in the North-eastern part of Sri Lanka, Tamil is widely spoken and understood, where Tamil population is mainly concentrated. Tamilians are settled in considerable numbers in other parts of the country as well. Sinhala is a very sweet language and like any other Indian language, it is replete with Sanskrit words.

It was a delightful experience for all of us to see the love of Sri Lankans for National Song. While there is a controversy raging in India whether at the time of the singing of the National Song one should stand up in its honour or not, in Sri Lanka people pay their obeisance to their national song by standing in attention. Let me narrate an incident. While some of us, including a few Sri Lankans, were chatting, gossiping, watching television and reading newspapers in the lobby of the Sri Lanka Foundation, where we were put up for the first two days as we were waiting for others to board the bus, which was to take us to some other places but in the meantime the National Song of Sri Lanka begun playing. And to wonder to our wonders, everybody including sweepers, who were mopping the floors, receptionist and others stood up in attention and till the end of the playing of the song. Those who were entering the premises of the Sri Lanka Foundation, even they also stood like a statue and waited till the song was finished. In deference to the National Song of Sri Lanka, we also joined them and stood up at the places, where we were. When we inquired about it we were told that it has now become a habit of every Sri Lankan to stand up in the place as where he or she is at the time of the playing of the national song. This good habit is inculcated among Sri Lankans right from their school days or childhood. The pleasant surprise is that Sri Lanka, which is a multi-religious country, does not face any resistance from any quarters on this issue. Muslims and Christians, who oppose the standing at the time of playing the national song, do not make even a murmur of opposition in Sri Lanka. I wish the same spirit of respect for the National Song was found in India. It looks as if the politicians and bigots have largely been responsible for creating a rift in different religions in India. A feeling has been created in our country that standing up at the time of playing of the National Song is against one religion or community.

Another significant contrast which could be noticed between India and Sri Lanka is that in public functions everybody sits as an audience. Only those persons go up to the podium or stage whose names are called out by the moderator. He or she is supposed to immediately come down from the stage and then sit among the audience as before. In India, on the contrary, we find that there is always a pell-mell for grabbing a seat on the stage. Those who do not get the seat on the stage they feel frustrated and show their unconcealed indignation. It may sound strange but it is a fact that even the President of the country and the Ministers, Army Generals and top bureaucrats they all sit in the audience and move to the stage when their names are called out.

To my utter surprise, I found that number of people speaking/understanding Hindi has gone up many times during the last two-three decades. Indian High Commission in Sri Lanka is also doing its own bit for the promotion of Hindi in Sri Lanka. However, to our surprise, we found that many Sri Lankans have picked up Hindi from Gulf countries, where they have been going as the migrant workers. When we enquired it from many young persons, who were eager to converse in Hindi with us, they told us that more than 90 percent migrant workers in Qatar a country in other Gulf countries, speak in Hindi or Urdu and therefore, everybody has to learn Hindi/Urdu, out of compulsion, so as to communicate with other fellow workers.

Last time when I visited Sri Lanka in 1995 as a member of Press Council of India and I had found that there an atmosphere of fear of the indiscriminate bombings and terrorist attacks was lurking all-around even in the shops, offices and other public places in Colombo but now there is no such fear.

The natural beauty of Sri Lanka is seen to be believed. It is simply breath-taking. The vast expanse of the land from south-west Sri Lanka to northeast in Batticaloa, Trincomalee is largely virgin and unexplored. This is mainly due to nearly three decades long drawn civil war. The unfortunate war waged by the ‘Liberation of Tamil Tigers Eelam’ (LTTE) must have caused heavy causality of men and materials in Sri Lanka. Thousands must have been killed by the police, army, administration and the general public. According to an estimate, hundreds of Indian Jawans of the ‘Indian Peace Keeping Force’ (IPKF), sent by the government of India for restoring peace, were killed in Jaffna and Trincomalee.  Those gallant Jawans were killed unsung and unwept. We spoke to an officer at Gunners’ Club in the Central Province of Dambulla on way to Batticaloa, who told us that no Army man wants to die without fighting a battle, that too, when he is working for the restoration of peace. It is true indeed because if an army man dies in the battlefield then his family members and the society and the country remembers him as a martyr but if he dies without fighting then it is the saddest thing for him. He was very happy to have arranged a sumptuous and delicious lunch for us.

Triple Talaq Must Go

The conduct of the Congress Party- the principal opposition party in the Rajya Sabha, which, by the way, still has the largest number of members, is beyond any body’s comprehension. If it was against the triple talaq bill, then why did it support it in the Lok Sabha? What is the point of stalling the bill in the Rajya Sabha on the most frivolous ground of referring it to the Parliamentary Committee to reconsider it and suggest the changes- when the bill has no ambiguity at all? Does it not show that a historical party has lost its moorings and is moving on the tragic path of hara-kiri?

The most reactionary Lord Curzon had once said ‘commissions there are that shelves and commissions there are that solve’. He was right no doubt. Referring the bill to the Parliamentary Committee certainly is not to solve but to shelve the issue.

Going against the Bill means antediluvian thinking of the Congress Party. It has clearly failed to see that groundswell of opposition to the instant talaq in the Muslim community itself. The opposition parties are not only swimming against the tide of sentiments of the people, but they are committing egregious injustice to the Muslim women. Such occasions rarely come for any party or even an individual to play the momentous role in the history. Unfortunately, the Congress party is missing the bus. The posterity will never forgive and forget the opposition parties, particularly the Congress Party for its blunder of monumental proportions.

 Nevertheless, if the government is really serious, and there appears to be no doubt, then it must call the joint session of Parliament to get this Bill passed. I am sure this step of the government will have the unprecedented support of the public. And any democratic government should be wary of the public opinion and not of the petty politicians.

 Let us keep our fingers crossed.

Man Alone is not the Author of Adultery

Is adultery law in India not offensive to the dignity of the women? Does it not treat women as the chattel of her husband? Is it not discriminatory against men and therefore repugnant to the equality of men and women? These are the questions which have been agitating the men and women both from the time of the adoption of the Constitution of India. Adultery is a voluntary sexual activity by a married woman with another married or unmarried man. Although it is a voluntary sexual activity between man and woman but the provision for the punishment is only for the men and not the woman. This is the reason that there has been a consistent demand for scrapping of Section 497 IPC to make it sync with the times. It says  that ‘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 offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

A sexual link between a married or unmarried man and an unmarried woman or a divorcee or a widow, therefore, does not come within the ambit of adultery. It also holds the man and not the (adulteress) wife of another man, who has been unfaithful to her husband, solely responsible for the sexual liaison. IPC thus views adultery as an invasion of the right of the husband over his wife.Recently this question again came up before the Supreme Court in ‘Joseph Shine vs Union of India and as a result of it the Court issued the notice to the government to know its opinion so that, a finality could be given to it.

In its previous judgment in ‘Sowmitri Vishnu vs Union of India’, the Supreme Court had ruled that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offense of adultery is considered as an offense against the sanctity of the matrimonial home and it is committed by a man, not a woman. Therefore, those men who defile that sanctity are brought within the net of the law. Who can prosecute who for which offense depends firstly, on the definition of the offense and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute? Section 198 (2) of the Criminal Procedure Code provides the right to prosecute only to the adulterer by the aggrieved husband of the adulteress.

The argument is that the husband should have the right to prosecute the infidel wife in the same way as the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right to prosecute his wife, in as much as by the very definition of the offense, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill is promoted by permitting them to 'makeup' or 'break up' the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offense in a spirit of 'forgive and forget' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing the divorce. They are not enabled to send each other to jail. Perhaps the idea behind it is that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence.

 The Courts have kept their hands off by saying that they are not the arbiter of the wisdom of the law. They are merely the arbiter of the constitutionality of the law. Section 497 and section 198(2) of the CrPC go hand in hand and constitute a legislative packet to deal with the offense committed by an outsider to the matrimonial unit, who invades the peace and privacy of the unit. The 'outsider' breaks into the matrimonial home and occasions the violation of the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses, subject to the rider that the erring 'man' alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to nor the wife can prosecute the husband and send him to jail. There is thus reverse discrimination in 'favour' of the woman rather than 'against' her. The law does not envisage the punishment of any of the spouses at the instance of each other. A husband is not permitted to prosecute the wife because she is not treated an offender in the eye of law. Thus, the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.

Section 497 IPC read with Section 198 CrPC, thus signifies the unequal status of "husband" and "wife" in the institution of marriage in India. It declares that: (i) man is a seducer and the married woman is merely his hapless and passive victim, (ii) he trespasses upon another man's marital property i.e. his wife by establishing a sexual liaison with the married woman with her consent but without the consent or connivance of her husband, (iii) husband of the adulteress wife is an aggrieved party and he (in some cases a person who had to care the married woman when the adultery was committed), therefore, he is authorised to make a formal complaint, (iv) wife of the man, who had consensual sexual intercourse with another woman, married or unmarried, is not deemed to be an aggrieved party and thereby is precluded from making a formal complaint against either her husband or the adulteress woman, and (v) a married man, with impunity, may seduce and establish sexual liaison with an unmarried woman, a widow, or a divorcee even though such a sexual link is equally potential to wreck the marriage between him and his wife.

Immediately after the commencement of the Constitution, Section 497 IPC was assailed inYusuf Abdul case on the ground that it militates against the spirit of equality as embodied in the Constitution. The Apex Court responded: ‘We are not able to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence It was contended that Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men as it: (i) confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery, (ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and (iii) does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free licence under the law to have extramarital relationship with unmarried women.

Assuming that the right to be heard is concomitant with the principles of natural justice and believing that a trial court allows the married woman to depose her say before it records adverse findings against her, the Apex Court held that the absence of a provision mandating hearing the adulteress wife in Section 497 does not make the section unconstitutional. Such judicial reasoning, in the ultimate analysis, unfortunately, endorses the patriarchal, property-oriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and access to, his wife's sexuality, and a woman is not eligible to have such an exclusive right and claim over her husband. She is, therefore, not entitled to prosecute either her promiscuous husband or the "outsider woman" who has poisoned her matrimonial home.