SC REFUSES TO REVIEW ITS JUDGMENT WHICH DECRIMINALISED ADULTERY

  • Category
    Polity & Governance
  • Published
    9th Jul, 2020

Context

In a recent development, the Supreme Court refused to review its 2018 judgment which decriminalised adultery.

About

What is ‘Review Petition’?

  • A judgment of the Supreme Court becomes the law of the land, according to the Constitution. It is final because it provides certainty for deciding future cases.
  • However, the Constitution itself gives, under Article 137, the Supreme Court the power to review any of its judgments or orders.
  • This departure from the Supreme Court’s final authority is entertained under specific, narrow grounds.
  • So, when a review takes place, the law is that it is allowed not to take fresh stock of the case but to correct grave errors that have resulted in the miscarriage of justice.
  • The court has the power to review its rulings to correct a “patent error” and not “minor mistakes of inconsequential import”.
  • In a 1975 ruling, Justice Krishna Iyer said a review can be accepted “only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”.

Grounds for seeking review of an SC verdict

  • In a 2013 ruling, the Supreme Court itself laid down three grounds for seeking a review of a verdict it has delivered —
    • the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him
    • mistake or error apparent on the face of the record
    • or any other sufficient reason
    • In subsequent rulings, the court specified that “any sufficient reason” means a reason that is analogous to the other two grounds.

SC’s 2018 Judgement

  • A five-judge Review Bench led by Chief Justice of India Sharad A. Bobde upheld a September 2018 Constitution Bench which had struck adultery out of the penal statute book.
  • The original judgment was by a Constitution Bench led by then chief justice Dipak Misra who found that Section 497 (adultery) of the Indian Penal Code cannot “command” married couples to remain loyal to each other for the fear of penal punishment.
  • Two individuals may part if one cheats, but to attach criminality to infidelity is going too far, Justice Misra had observed in his separate opinion.
  • The court had reasoned that there was no data whatsoever to support claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.
  • Section 497 treats a married woman as the commodity of her husband, the Bench had held. The provision is a reflection of the social dominance of men prevalent 150 years ago.
  • Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair.
  • The Bench had also held that Section 198 (2) of the CrPC, which gave the cuckolded husband the exclusive right to prosecute his wife’s lover, was manifestly arbitrary.
  • Adultery can however be a ground for civil remedy like dissolution of marriage

What if a review petition fails?

  • As the court of last resort, the Supreme Court’s verdict cannot result in a miscarriage of justice.
  • In Roopa Hurra v Ashok Hurra (2002), the concept of a curative petition was evolved
  • Curative petition can be heard after a review is dismissed to prevent abuse of its process.
  • A curative petition is also entertained on very narrow grounds like a review petition, and is generally not granted an oral hearing.
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