Voice from the Rooftop

Blog of Vincent Augustine D'Souza

Adultery as crime

On 8/12/2017 Supreme Court dealt with Section 497 of Indian Penal Code which makes adultery punishable for man but not for married woman. The bench was headed by the Chief Justice of India Dipak Misra. Justice Dhananjaya Yeshwant Chandrachud and Justice Ajay Manikrao Khanwilkar were other members of the bench.
IPC 497 says, “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.”

Section 198(2) in The Code Of Criminal Procedure, 1973 says “(2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.”

The court was hearing a public interest litigation petition, challenging the constitutionality of Section 497 IPC read with Section 198(2) of the CrPC. Appearing for the petitioner, advocate for the petitioner said that Section 497 IPC was unconstitutional as it discriminates against men and violates Article 14, 15 and 21. “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability,” he said.

Justice Chandrachud said the provision which said that it would be an offence only if done without the consent of the husband “put the woman in a position of a commodity”. He added, “As if with his permission, there would not have been any problem.”

The bench, headed by the Chief Justice of India, said, “Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband… A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

The court issued a notice to the Centre on the constitutionality of the IPC provision dealing with adultery, saying it appeared to be “archaic” and did not appear to be gender-neutral.

Punishing a man for a crime and not punishing the woman for the same crime is sexual discrimination. Feminists have not argued against IPC 497. They have not demanded equality with men in punishment for adultery. They have not said this is commodification of woman, it reduced woman to husband’s property. There is no punishment for adultery when a married man has sex with an unmarried woman.

Adultery is a ground for divorce. Many married women when caught in adultery say they were raped. Law Commission of India in its 42nd report had recommended the retention of Section 497 with the modification that the wife, who commits adultery, should be made punishable for adultery. Parliament rejected the recommendation.

Either adultery should be a crime for both man and woman or it should not be a crime for any of them.

New Capital for India

Some days back in my article Pollution Solutions I had written “India’s capital can be shifted to Evershine City, Vasai, Maharashtra. It will reduce people, cars and pollution in Delhi.” Today, 2 December 2017, at 8 p.m. on NDTV 24×7 the topic on The Big Fight was Change of National Capital. For some time alternatives for Delhi were discussed. Then the discussion went off-track with AAP (Ashish Khetan), BJP (Vijay Jolly), and Congress (Sharmishta Mukherjee) representatives blaming each other for problems of Delhi. Mohan Guruswamy, Prahlad Kakkar, Sudhir Vohra and Vimlendu Jha were other panellists.
Some cities like Bangalore and Madras were ruled out. One suggestion was to have a new city between Bhopal and Nagpur. Change of national capital does not mean 22 million people of Delhi or 63 million people of National Capital Region have to move to the new capital. Around 40 square miles of area is enough for new capital.
It is enough to shift national Executive, Judiciary and Legislature to new capital. President, Vice President, MPs and Supreme Court judges have to be in new capital. Ministers have to be MPs. They can live in flats. Foreign countries will shift their embassies. New Parliament House should be big enough to accommodate 1,600 Lok Sabha members. India should have one Lok Sabha member for one million. India’s population was 121 crores in 2011. India’s population is not expected to go beyond 160 crores unless other countries or territories become part of India.
Agra was India’s or Mughal Empire’s capital for many years. Shah Jahan shifted the capital to Delhi. For much of British Rule, Calcutta was the capital and Simla was the summer capital. It is said the government used to function for seven months in a year from Simla. There were Fatehpur Sikri and Daulatabad which did not last long as capital. India had many kingdoms with their capitals. The kingdoms became princely states under British Rule.
The site for new capital has to be pollution-free. It has to be hilly area so it does not flood during monsoon. It is good if airport and railway station are in the vicinity or new ones can be built.
With a new capital for India, Delhi can become a state. That will put an end to friction between Delhi Government and Central Government.

CBFC irrelevance

When Pahlaj Nihalani became Chairperson of CBFC there was joy among film producers. They thought it will be good for them as he was one of them. Soon that joy turned into grief. Under him censorship was worse. He justified his actions saying he was acting as per rules and put an end to corruption. However, refusing certificate to Lip stick under my burkha was not as per rules because there is no rule that a lady-oriented film should not be given certificate. Some CBFC members openly spoke against him. Pahlaj Nihalani did not complete three years. Prasoon Joshi replaced him. For a time there was no problem.
Then came Tamil film Mersal. BJP members were unhappy about it. They wanted some dialogues muted. Other politicians spoke in favour of Mersal. When Telugu version of Mersal was submitted to CBFC and CBFC certified it some dialogues were muted. It was strange that what was allowed in one language was not allowed in another language.
Some people do not want any censorship. They want films to be graded. Some countries do not have censorship. Films are rated according to age group.
CBFC is the authority to certify films. Once CBFC certifies a film others should not have any say in it. Many times various individuals or groups demand ban on films or deletion of scenes from films. They threaten violence. State governments do not uphold law and order. Producers are made to yield to demands.
Worse is the case when state governments ban films. In case of a regional film the loss is huge. In case of Hindi films it depends on the number of states where the film is banned. Once CBFC certified a film no state should ban it. Law and order is an excuse. Films have short life in theatres. Piracy is rampant. DVDs are out within days. Some sites show pirated films.
Rarely a producer takes CBFC to court. It happened in case of Udta Punjab. CBFC ordered 90 cuts including muting of words. Bombay High Court allowed the release of film with one cut and A certificate.
Padmavati is in trouble. Sanjay Leela Bhansali had to shift the shooting of the film from Rajasthan to Maharashtra because some hooligans invaded and vandalised the set and slapped him. When the film is complete some Rajputs in Gujarat said they will not allow the release of Padmavati. It is election time in Gujarat. BJP wants to retain the state. BJP resorted to minority appeasement. Rajput minority is appeased by talk against the film. BJP states banned Padmavati one by one.
CBFC returned Padmavati saying paper work was not complete. Under Prasoon Joshi we hear of unknown rules. It is for the first time I heard CBFC returning a film without certifying it due to incomplete paper work. When the film comes again with complete paper work it will be taken up after other films in queue. Padmavati was to be released on 1st December. Viacaom 18, producing company of Padmavati, announced they have deferred the release of Padmavati “voluntarily”. Law gives CBFC 60 days to certify a film. It is a different matter that many films get certificates in three days as former CBFC member Pankaj Sharma revealed on CNN News18. He said CBFC had acted under political pressure. Now it is said that CBFC will consult historians. That is another delaying tactic. Prasoon Joshi is unhappy that producers had private screening of Padmavati to journalists and people against of Padmavati. He speaks of diluting the importance of CBFC and need of exemption certificate from CBFC for private screening. That is another unknown rule. He has not spoken against states banning certified films or announcing bans before certification and diluting the importance of CBFC.
Announcing bounty for murder or mutilation is a crime. BJP member who announced bounty for beheading of Sanjay Leela Bhansali and Deepika Padukone should have been in jail and expelled by BJP. Nothing has happened.
Many times films are banned by state governments for reasons nothing to do with film. Vishwaroopam was banned because Kamal Haasan has spoken P. Chidambaram as the next PM of India and Jayalalithaa was not happy with it. Offending Muslim sentiments was an excuse. Hurting sentiments and threat of violence should not be reasons or excuses for banning films.
In 1989 Tamil Nadu banned Ore Oru Gramathile. Some were against it because it was opposed to caste-based reservations. The ban was challenged. Supreme Court judgment said “If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem.”
Once CBFC certifies a film no government, central or state, should have the right to ban the film. Otherwise there is no need of CBFC. It should be disbanded.

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