The Supreme Court (Source: PTI)

Adultery, Gay Sex: Supreme Court Steps In Where Politicians Fear To Tread 

The Supreme Court today struck down a second colonial-era law in a month, this time the one that only penalises men for adultery.

The top court ruled Section 497 of Indian Penal Code unconstitutional. It laid blame only on the man who indulged in sexual relations with a married woman if it was done without the “consent and collusion” of the husband. “This treats the woman as a chattel,” the Supreme Court said in its judgment.

Earlier this month, the court ruled that consensual sex among homosexuals is not a crime, reading down Section 377 that made all “unnatural sexual acts” a criminal offence. Political leaders have been reticent in taking strong positions on these sensitive social issues. In the adultery case, the government argued that decriminalisation would result in “weakening the sanctity of a marital bond”.

“Nobody wants to take a risk as it’s not popular enough,” said Supreme Court Advocate Karuna Nundy. The fear of a backlash keeps political parties from amending laws that may not go down well politically, she said.

If the government and political parties fail to act in accordance with constitutional principles and go for populist demands, the court has to act.
Karuna Nundy, Supreme Court Advocate

That’s the reason the court had to step in to read down Section 377 as well. Despite most political parties agreeing that gay sex should not be a criminal offence, there was little effort to amend the existing law in Parliament. “I think these are issues which are almost like dirty linen,” said Supreme Court advocate Aishwarya Bhati. They are not a “priority” for politicians focused on winning elections, leaving it to the courts to step in, she said.

Politicians may have a stand on many issues but they are not prioritising them since it’s vote-bank politics which governs democracy in this country.
Aishwarya Bhati, Supreme Court Advocate