

10 Socio-Legal Rev. 47 (2014) A

The Good, the Bad, and the Adulterous: Criminal Law and Adultery in India
by
Abhinav Sekhri*
Adultery is a crime in India, punishable with up to five years imprisonment under Section 497
of the Indian Penal Code, 1860. When you took this fact in, perhaps like me your first reaction
was outrage at the State's apparent intrusion into the seemingly private sexual realms of life. Such
prudes, those Legislators: imposing their moral compass on the unsuspecting citizenry. In truth, it is
a bit more complicated, though I argue that the initial assessment is not far off. The paper begins
considering principles guiding criminalisation of conduct, to determine whether some principled
justifications exist for criminalising adultery. I then move to the substantive section of the paper:
arguing that Section 497 must be repealed by the Legislature, for inter alia perpetrating invidious
discrimination between sexes.
I. INTRODUCTION
Adultery, the act of being sexually unfaithful to one's spouse, has been common in human
society for as long as one remembers. Why do we humans1 find it difficult to be faithful to our
spouses? The most interesting answer I found to that question came from an evolutionary approach
to adultery2, but thankfully such vexed questions of human unfaithfulness do not trouble us here.
What concerns us is how society treats adultery.

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The commonness of adulterous relationships is matched only by their condemnation by society.

The degree of this condemnation varies depending upon where one might be living. In the USA,
several State laws criminalise adultery although no federal statute creates such an offence. 3 Offences
can also be found in many Asian countries: Taiwan, Philippines, Saudi Arabia4, and of course, India.5
Jurisdictions vary in how they prosecute adultery: adultery charges may require more than a single
act of infidelity; definitions may exclude unmarried parties from the offence and only subject the
married party to criminal liability; the law may exempt female paramours restricting liability for the
male.6 Cutting across most jurisdictions is a requirement to seek prior consent from the aggrieved
spouse before launching prosecution.7 The targeting of women through these measures owing to
their generally more dependent social position has buttressed notions that adultery laws further a
starkly male objective of punishing the wife, considered little more than chattel, for creating doubts
of paternity and lineage.8
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There seems adequate historical support for such claims. In India, the laws of Manu did not
punish an adulterous husband and required a wife to always remain reverent to her “master”. 9 In the
West, adultery met Biblical condemnation10, and subsequently both the Barbarians11 and
Romans12 considered adultery as a private wrong suffered by the husband. Though adultery was only
briefly a secular offence in England13, the Common Law recognised the “obvious danger of foisting
spurious offspring upon her unsuspecting husband and bringing an illegitimate heir into his family.”14
Today, legislators in most of these jurisdictions do not attempt justifying adultery offences, or
any offences for that matter, by presenting the objective as one of securing paternal lineage. The
renaissance brought an influx of liberal thought into the process of criminalisation, which now
forms the basis of our understanding of the subject. Thus, it becomes important to reconsider on
what footing laws criminalising adultery stand. A caveat before we proceed: since this discussion is
not the crux of this paper, I provide only a bare-bones engagement with the nuances of criminal
theory.
II. WHAT MAKES A CRIME?
How do we decide certain conduct should be labelled criminal? Few principles have managed to
attain the widespread acceptance which the “Harm Principle”15 has ever since Mill postulated it as
being a core constituent of a libertarian society. I understand this principle to mean that only
conduct which results in causing verifiable harm to another should be the subject of State
sanction.16 The longevity of this principle must in part be attributed to its vagueness:

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the idea of harm is so subjective that different persons could populate the contents of this principle
in a manner they deemed fit.17
Can we justify adultery by placing it in the prism of the harm principle? The conduct in question
is marital infidelity of either spouse. What harm does it bring, and to whom? The near universal
restriction on prosecutions requiring private complaints seems to indicate the spouse is the
aggrieved party. Which still leaves one to consider, what harm is done to the other spouse by marital
infidelity? My potential wife may harm me by repeatedly reminding me of my failed academic career,
but curbing her nagging by labelling it a crime would be unreasonable by any yardstick of standards.
My private rights should logically proceed to the creation and enforcement of private remedies such
as divorce, not grounds for engaging the might of State sanction.
Perhaps recognising the difficulties in justifying an offence of adultery by projecting it as means
to enforce private rights, most States in fact present this as a means to safeguard the institution of
marriage.18 Marital infidelity is considered morally abhorrent by society and the moral rights of the
aggrieved spouse along with society's interest in marriage warrant protection, thereby requiring state
sanction. Is this a legitimate ground to criminalise conduct? Yes, for today it is widely accepted that
one among the several factors guiding criminalisation is morality.19 But this comes with obvious
concerns of overreach, reflected well by the debates between Professor Hart and Lord Devlin in the
aftermath of the Wolfenden Committee Report of 1958.20 Liberal theorists such as Professor Hart
today hold a position that “not everything in a person's morals should be the concern

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of the law, only his disposition to violate the rights of other parties.”21 But this still remains far from legal
moralists like Lord Devlin, who consider moral wrongfulness sufficient for criminalisation regardless
of other factors.22
Regardless of the theoretical justifications, must we resort to the criminal law to protect these
notions of the “sanctity of marriage” for society? The grave consequences attached to criminal
sanctions have led many to argue that these should be considered coercive means of the last resort.
When we have private remedies for the warring spouses — adultery is valid grounds for divorce —
why also create an offence? Persuasive though this logic may be, legislators across the globe have paid
scant attention to the last resort principle.23 The burgeoning list of socio-economic offences on
statute books reflects the converse principle may well be in operation.
Thus, although roots of adultery offences are ecclesiastical, they have some basis in modern
principles of criminalisation as well which recognise morality as part of the process. These are not
merely means for enforcing sexual monogamy in marriage, but recognise sexual fidelity as an integral
part of marriage. The freedom to enter private sexual relations is seen as subservient to the larger
social good of promoting and safeguarding the institution of marriage. By deterring individuals from
engaging in conduct potentially harming a marital relationship, these laws protect the sanctity of
marriage, considered a valuable social good.
III. CRIMINALISING ADULTERY IN INDIA
Is this the reason why the IPC criminalised adultery? Well, 19th century Britain considered
married women to be chattel of their husbands in law24, and a promiscuous wife was subjected to
ostracism far worse than that faced by the unfaithful man.25 But despite this, adultery was never a
crime either by statute or common law. In its heyday, adultery was a tort (labelled “criminal
conversation”),

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which also was abolished in 1857.26 Thus, the idea of making adultery criminal was in fact quite alien
to the framers of the IPC.
Lord Macaulay, instrumental in the early drafting process, gave due consideration to the
possibility of criminalising adultery in India. He concluded it would serve little purpose. For him, the
possible benefits from an adultery offence would be better achieved through pecuniary
compensation in most cases. He accepted that for the other cases the law could never provide a
satisfactory solution in dealing with marital infidelity given the sacramental nature of
marriage.27 Those involved with finalising the IPC disagreed and gave us Section 497. Although one
can trace their justification for exempting women from liability under the Section28, it is difficult to
find their reasons for criminalising adultery in the first place. Consequently, one must turn to the
experience of various committees and the courts in their dealing with Section 497 for assistance in
determining the intent behind criminalisation.
In one of its more ambitious projects, the Law Commission of India undertook a comprehensive
revision of the IPC, culminating in the 42nd Report

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by that Commission.29 The Report provided information about the legislative history of Section 497,
and offered a comparison with the position in France, England, and the United States of
America.30 The Commission posed itself questions not dissimilar to the ones we are focusing upon
here: doubting both the criminalisation of adultery per se and its particular manifestation in Section
497.31
After casting grave doubts over the purported benefit of criminal actions for adulterous conduct,
the Commission noted that “though some of us were personally inclined to recommend repeal of the section, we
think on the whole that the time has not yet come for making such a radical change in the existing position”.32 The
Commission did, however, recommend an amendment: removal of the exemption from liability for
women, and reduction of sentence from five to two years.33 The Report does not indicate what led
the Commission to think abolishing adultery as radical, nor does it furnish any justifications.
The Amendment never occurred, but the thought was followed up in the next attempt at revising
the IPC which culminated in the 156th Report of the Commission.34 Here, the observations made in
the 42nd Report were reiterated along with quoted excerpts from the decision of the Supreme Court
in Sowmithri Vishnu v. Union of India35, where the Court observed any changes to Section 497 must
originate from the Legislature and not the Court.36 In a proposal which it believed reflected the
“‘transformation’ which the society has undergone”37, the Commission suggested removing the exemption
from liability for women while retaining the five year imprisonment.38 Again, we are not beneficiaries
of any received wisdom from the Commission on why this change was considered reflective

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of the supposed transformation. These amendments warranted corresponding procedural

tweaks39 to remove the bar against women from initiating prosecutions. However such proposals
never appeared in either the 41st Report (which led to the 1973 CrPC)40 or the 154th Report which
reviewed the CrPC 197341, rendering the commitment to any change rather dubious.
Over time, there have been other Committees constituted to consider the issues of criminal
justice and law reforms. In 2003, the Committee on Reforms of the Criminal Justice System
(Malimath Committee) published its Report.42 It maintained support for the Law Commission
proposals to not repeal the offence, but to equate liability for the sexes43, for it observed: object of the
Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not
meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).44 A decade
has passed since this Report, but there has been no activity in the Legislature to incorporate its
proposals.
Thus, we find that India follows the dominant thought of considering adultery laws necessary to
safeguard the sanctity of marriage. “Society abhors marital infidelity” indirectly implies society approves
of monogamy and marital fidelity, thus justifying the employment of state sanction against those
who threaten these virtues. The peculiarity of the Indian offence is the exemption for women from
liability, which has been consistently sought to be removed. The exemption together with procedural
restrictions on who can initiate proceedings, has led to the view that only outsiders to the marriage
must be deterred though the criminal law. The spouses can be left to their own devices.

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IV. COURTS AND SECTION 497

Section 497 IPC together with Section 198 CrPC criminalises adultery seemingly to enforce a
particular moral position and preserve the institution of marriage by deterring outsiders from
destabilising it through wanton sexual feats. This is what the Legislature and Committees tell us, but
is this how the offence is viewed by the courts which decide prosecutions brought under Section
497 IPC? Here, I separately consider the decisions of the Supreme Court and the High Court.
1. Supreme Court
Since independence, three decisions of the Supreme Court have considered challenges to the
constitutional vires of the adultery provisions. Mr Yusuf Abdul Ajiz challenged the exemption from
liability made for women under Section 497 IPC, arguing the same was contrary to Article 14 of the
Constitution. Having lost at the Bombay High Court45, he moved the Supreme Court, and five
Judges gave the decision in Yusuf Abdul Ajiz v. State of Bombay.46 The Court unanimously held that
the exemption for women was protective discrimination safeguarded under Article 15(3) of the
Constitution. Importantly, Mr Aziz did not impugn the validity of the offence itself.47
The next landmark decision was Sowmithri Vishnu, delivered by a bench of three Judges in 1985.
Here, the Petitioner expanded the scope of arguments to impugn the validity of Section 497 as being
contrary to Articles 14 and 21 of the Constitution, furthering notions of women as mere
chattel.48 The Court remained unconvinced, and saw these arguments as falling in the realm of policy
rather than law.49
But this did not stop the bench from engaging with the arguments, providing us with a unique
insight into how three Judges of the Supreme Court viewed matters of marriage and sexuality.
Repelling the contention that exempting women

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from liability violated the equality guarantee, the Court observed that “it is commonly accepted that it is
the man who is the seducer and not the woman”.50 For the Judges, exempting women conveyed the message
that “the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the
crime”.51 The peculiar structure behind the offence was understandable, because it was an “offence
against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those
men who defile that sanctity are brought within the net of the law”.52 In consonance with this idea, the Court
quashed the adultery complaint since the complainant husband had obtained a divorce from his
allegedly adulterous wife.53
In V. Revathi v. Union of India54, the Petitioner expanded the scope of her arguments to assail the
validity of restrictions placed under Section 198(2) CrPC55, which allow only the husband to initiate a
prosecution for adultery committed by his wife and her paramour. In dismissing the Petition, the
Court considered Section 497 IPC together with Section 198(2) CrPC as a “legislative
packet”56 designed to “deal with the offence committed by an outsider to the matrimonial unit who invades the peace
and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial
unit.... It does not arm the two spouses to hit each other with the weapon of criminal law.”57 Ultimately, the Court
concluded that “even handed justice” was meted out to both parties.58
The Supreme Court thus largely supports the logic offered by Legislature and Committees,
putting forward the view that the offence seeks to safeguard the institution of marriage from
outsiders. The Court has also explained away the

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apparent discrimination practised by the provisions, holding that the particular mechanism is based
on the twin premise of (i) women being victims and not aggressors, and (ii) preventing the couple
from resorting to the criminal law for resolving the disputes.
There are some things that the Supreme Court fails to explain though. For instance, if the
offence is about the community protecting the matrimonial home, why restrict prosecutions to
private complaints only by the husband of the woman? Further, how can we explain the proviso to
Section 497, which deems that any sexual intercourse with the wife with consent or connivance of her
husband is not considered an offence? Ignore this, and the fact that the Court offers no evidence
whatsoever to support its rather sexist and generic statements, and you have a convincing alternate
argument constructed to repel the opposition which portrays the offence as a relic of romantic
paternalism.
2. High Courts
The High Courts of India preceded the establishment of the Supreme Court by around ninety
years. This, along with the obviously larger sample set of cases has meant a greater variety of issues
have been discussed at this level of the Indian constitutional courts. Upon searching databases for
decisions on adultery, one encounters a great deal of case law on the issue of adultery as grounds for
divorce. Courts have held consistently that the narrow definition under Section 497 IPC could not
be imported for these purposes.59
 Consider first the issue of consent and connivance alluded to above. Admittedly, if I had my
hypothetical wife's consent before I cheated on her, it would not be adultery. But her consent is
immaterial here; the section makes material my consent to another man for his sleeping with my
wife. Now, if we consider this in the backdrop of the consistent theme of women being the victims
in adulterous relationships, one would assume the court would insist upon some concrete proof of
consent. A slightly taut analogy may also be drawn here with

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the issue of consent in rape cases, where the court insists upon strict proof.60 In cases under Section
497 though, we find courts readily infer existence of consent from circumstances.61 In 2007, the
Gauhati High Court inferred consent on part of a husband who left his wife alone with her eventual
paramour who was a tenant in his house!62
Making consent of the husband material for prosecution lends greatly to an argument that the
offence is merely an enforcement of his rights over the wife, contrary to the views of the Supreme
Court. The Bombay High Court has on different occasions expressly approved the view that Section
497 only furthers the husband's private rights. In Shankar Tulsvairam Navle v. Kundlik Anyaba Yadaw63,
the Court held that “adultery is an infringement of the rights of the husband towards his wife, and when the
offender has once been convicted or acquitted of the offence of adultery, which consisted of one sexual intercourse, he
cannot with impunity commit another offence of adultery under Section 497”. More significantly, in Yusuf Abdul
Ajiz v. State of Bombay, Chief Justice Chagla observed:
Mr Peerbhoy is right when he says that the underlying idea of Section 497 is that
wives are properties of their husbands. The very fact that this offence is only
cognizable with the consent of the husband emphasises that point of view. It may be
argued that Section 497 should not find a place in any modern Code of law. Days are
past, we hope, when women were looked upon as property by their husbands.64
While such direct remarks are not ubiquitous, they significantly damage the assumptions which
the Supreme Court proceeded to lay bare in Sowmithri Vishnu. Those assumptions of Section 497
furthering community interests of protecting are further dented if we look at how the courts placed
great importance upon form over substance when faced with adultery cases. Convictions have been
quashed over the procedural defect of the complaint not having been filed by the

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aggrieved husband as required by Section 198(2) Cr.P.C.65 although such an irregularity does not
vitiate trial under the Code.66 It is possible to argue that the refusal to let a conviction stand for a
mere procedural defect belies how important the offence is considered by society. However, courts
have held such restrictions on initiating prosecutions as sufficient grounds to quash proceedings in
other contexts67, rendering such an argument open to criticism.
Although adultery has been an offence since 1860, the Law Commission in its 42nd Report
observed how prosecutions have been few and far between.68 The peculiarity of the “legislative packet”
for adultery has proved a tool for harassment at the hands of irked husbands. While the husband
files for divorce against the wife, Section 497 serves as a weapon against the paramour. Courts are
cognizant of this; the High Courts have quashed adultery prosecutions citing mala fides borne out
from the delay69, or from the clear lack of material evidence.70 Thus, even perversely the provisions
only serve to further the vested interests of the husband.
V. DISTILLING THE SOUND FROM THE NOISE
By now, it is clear that there is some dissonance between the purported objective behind Section
497 IPC and how it is being implemented. The purported objective of safeguarding the marriage
seems to have been lost in the implementation of what essentially appears to be a tool for husbands
to enforce their supposed rights. Here, I question both these objectives. I argue that there exists no
empirical data to support the former, and absent such data it cannot be made the basis for
criminalising conduct. Such data seems to support the latter disguised objective, which is strongly
questioned on grounds of being squarely unconstitutional as per Part III of the Indian Constitution.

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1. Where is the Proof?

The offence under Section 497 admittedly serves to further a particular moral position. But how
does one prove a position is moral? For Professor Dworkin, this conclusion requires reasons and
not mere feelings of disgust per Lord Devlin.71 Adultery must also be subjected to the same critical
test requiring reasons to deem private consensual sexual activity within adults immoral and not
condemn it because of long held prejudices. The reason offered is that it violates the “sanctity of the
matrimonial tie by developing an illicit relationship with one of the spouses.”72 Does this transgress the
“seamless web” of the common morality of society today?
The 42nd Law Commission Report considered abolition of the offence too radical a change and
called for a revision of Section. 497.73 The Malimath Committee Report of 2003 stated that “society
abhors marital infidelity”74and recommended the retention of adultery within the penal code with
revisions;75 and these suggested changes were branded “radical” by news items76, Echoing Hart and
Dworkin's response to legal moralists77, one must insist upon these detractors to provide the data
upon which their assertions of society “abhorring” adultery are made. Unfortunately, no material is
provided. Absent this data, how can we criminalise such conduct? This basic flaw in the arguments of
Lord Devlin is uncannily repeated. Adulterous relationships may certainly be considered immoral by
some, but different moralities coexist in our pluralistic society.78 This appears to be the position
today regarding adultery in India, and thus, the claim that adultery violates a common or
a public morality does not stand.
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In fact, there is sufficient data across jurisdictions to suggest the contrary. Numbers from 2005
reveal the importance of sexual fidelity in marriage is no longer a preset notion with almost 15 per
cent people believing so.79 In India, one may begin with the Delhi High Court which in 2007 cited
psychologists who believe that “there is no single person on earth who does not have an extra marital
relationship—be it sexually or mentally”.80 Further, the rarity of prosecutions under Section 49781 is
indicative of the way in which society looks at the idea of enforcing this morality.
Here a useful comparison may be drawn with South Korea. In 1953, South Korea joined the list
of countries criminalising adultery.82 The justifications were similar to India: the offence sought to
render particular acts of sexual self-determination subservient to societal interests.83 Prosecutions
were also limited by complaints from aggrieved spouses84, though no comparable exemption for
women existed. Contrary to the Indian experience though, enforcement remained highly active:
prosecutors had detained more than 35,000 people since 1985 on adultery charges.85 On 26-2-2015,
the Constitutional Court of South Korea struck down the provisions criminalising adultery.86 The
reasons behind this were twofold: (a) lack of any public consensus supporting criminalisation of
adultery, and (b) falling deterrence visible from the decline in actual prosecutions

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for adultery as well as the severity of social censure.87 Thus, the law was seen as harshly restricting
individual autonomy and privacy without furthering the objectives of safeguarding marriage.
Perhaps, it is time for a similar review in India?
2. Purporting Invidious Discrimination
Few deny that construing the adultery provisions as tools to further private rights of husbands at
the expense of their wives is contrary to the basic constitutional guarantees of equality. Absent the
alleged justification of protecting the “sanctity of marriage”, there is “no legitimate State interest which
can justify its (the State's) intrusion into the personal and private life of the individual”.88
The Supreme Court has constructed a rationale to explain what appears at first blush to be a set
of peculiar and discriminatory provisions, stating that it protects the sanctity of marriage from
outsider, but also from within. But there is an unexplained leap of logic in the rationale qua Article
14. How can the Court justify discrimination suffered by one class i.e. married women, by turning to
the discrimination meted out to another class i.e. their husbands/paramours? Not only this, the
private complaint required in India effectively empowers another individual based on his status to
restrict the decisions another individual makes pertaining to her private sexual life, constituting an
apparent violation of Article 21.
The notion that women are victims of adultery thus requiring the beneficial exemption under
Section 497 is an oft-repeated assertion which is scarcely critically examined. Do women require this
benefit? Feminists would argue such an
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interpretation of the position of women is demeaning and fails to consider them as equally
autonomous individuals in society.89 Further, upon chasing the argument we find that this idea
of benefit comes from comments made in 1837 by Lord Macaulay on the “the condition of women in this
country”.90 Thus, this conception of benefit is in fact the imposition upon women in independent
India of views held by British men from nearly two hundred years ago. Such enforcement of
antiquated social mores has met recent judicial criticism. In 2007, the Supreme Court declared a
Punjab law prohibiting women from serving alcohol in the State unconstitutional.91 Notably, it
observed that this criteria “having regard to the societal conditions as they prevailed in early 20th century, may not
be a rational criteria in the 21st century”.92
Criminalising adultery can perhaps be justified as an effort on behalf of the State to be in line
with an aspirational morality represented by sexual fidelity in marriage; however it has been proven to
be an ineffective means of achieving the same. Perhaps, as observed in the Report prepared by the
Madhava Menon Panel93, attention may be turned to other means to realise this aspirational morality
rather than resorting to the criminal law for this purpose. Thus, it appears Lord Macaulay is having
the last laugh, for more reasons than one.
VI. CONCLUSION
This essay questioned the criminalisation of adulterous behaviour, in theory and practice. I
questioned the argument that adultery disrupted a common morality. Criminalising conduct, solely on
this basis, was again rather improper. A questionable theoretical platform was found complemented
by statutory provisions which severely punished adulterous conduct of a particular kind. However,
these appear seemingly contrary to gender equality, and despite approval by the Supreme Court their
constitutional validity remains suspect. More importantly, data revealed

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how the offence of adultery has been quite ineffective in achieving any social control in terms of
preserving the sanctity of marriage.
The Law Commission in its 42nd Report sought to remove the exemption for women and make
the law gender neutral.94 The Malimath Committee Report agreed as it failed to see the rationale in
retaining the “benefits” to women.95 These changes would rid the Supreme Court decisions of their
moorings though, as spouses would no longer be “disabled from striking each other with the weapon of
criminal law.”96 Perhaps after that, adultery would finally be reconsidered as an offence. Such private,
consensual actions are not within the domain of criminal law and criminalising such conduct
remains unwarranted.
———
*
The author is an Advocate in the Delhi High Court. He is thankful to the editorial board for their
comments and suggestions.
1
I stress upon the human, but adulterous practices have been found in other animals as well. The
adulterous relationships in birds have been well documented. See, [JARED DIAMOND, RISE AND FALL
OF THE THIRD CHIMPANZEE 77-78 (1992)].
2
I stress upon the human, but adulterous practices have been found in other animals as well. The
adulterous relationships in birds have been well documented. See, [JARED DIAMOND, RISE AND FALL
OF THE THIRD CHIMPANZEE 77-78 (1992)], 71-83.
3
The States of Idaho, Utah, Arizona, Kansas, Oklahoma, Minnesota, Wisconsin, Illinois, Michigan,
Mississippi, Alabama, North Carolina, South Carolina, New York, Florida, Georgia,
Virginia. See, New Hampshire votes to Repeal Anti-Adultery Law, USA TODAY, 17-4-
2014, http://www.usatoday.com/story/news/nation-now/2014/04/17/anti-adultery-laws-new-
hampshire/7780563/.
4
Adultery Laws: where is cheating still illegal?, in THE WEEK, 27-2-
2015, http://www.theweek.co.uk/62723/adultery-laws-where-is-cheating-still-illegal.
5
S. 497 of the Indian Penal Code 1860 (IPC) reads:
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.
6
Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal of Family Law 45,
51-52 (1991). Gabrielle Viator, The Validity of Criminal Adultery Prohibitions after Lawrence v. Texas, 39
Suffolk University Law Review 837, 838 (2005).
7
See, Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal of Family Law
45, 51-52 (1991) at 51 (providing a list of various State laws requiring consent to prosecute); Article
239, Criminal Code (Taiwan) (which again falls under a Chapter entitled “Offences against Family
and Marriage”); Article 334, Revised Penal Code (Philippines); S. 198(2), Code of Criminal
Procedure, 1973 (hereinafter “CrPC”).
8
Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 JOURNAL OF FAMILY LAW
45, 51-52 (1991)at 46; Gabrielle Viator, The Validity of Criminal Adultery Prohibitions after
Lawrence v. Texas, 39 Suffolk University Law Review 837, 838 (2005) at 840-43; JARED DIAMOND,
RISE AND FALL OF THE THIRD CHIMPANZEE 77-78 (1992), at 80-81.
9
CHARLES JEAN MARIE LETOURNEAU, THE EVOLUTION OF MARRIAGE, 220-222 (Havelock Ellis
Ed., 1911).
10
Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal of Family Law 45,
51-52 (1991), at 46.
11
Jeremy Weinstein, Adultery, Law, and the State: A History, 38 Hastings Law Journal 195, 197 (1986).
12
Jeremy Weinstein, Adultery, Law, and the State: A History, 38 Hastings Law Journal 195, 197 (1986),
at 200-1.
13
Gabrielle Viator, The Validity of Criminal Adultery Prohibitions after Lawrence v. Texas, 39 Suffolk
University Law Review 837, 838 (2005), at 840.
14
CHARLES TORCIA, WHARTON'S CRIMINAL LAW 210, at 528 (15th Ed., 1994). See also Gabrielle
Viator, The Validity of Criminal Adultery Prohibitions after Lawrence v. Texas, 39 SUFFOLK UNIVERSITY
LAW REVIEW 837, 838 (2005)], at 841.
15
JOHN STEWART MILL, ON LIBERTY 12 (1859).
16
See also, Joel Feinberg, Debris From the Hart-Devlin Debate, 72(2) KURT BAIER FESTSCHRIFT 249, 250
(1987); See JOEL FEINBERG, HARM TO OTHERS (1984).
17
This is well borne out by the reams of literature on the subject. Consider, for instance, JOEL
FEINBERG, HARM TO OTHERS, (1984); R.A. DUFF, ANSWERING FOR CRIME 141-42 (2007); Graham
Hughes, Morals and the Criminal Law, 71(4) YALE LAW JOURNAL 662 (1962); Sir Patrick Devlin, Morals
and the Criminal Law, in THE ENFORCEMENT OF MORALS 1, 17 (1959); H.L.A. HART, LAW, LIBERTY
AND MORALITY 51 (1963).
18
S. 497 in the IPC is placed within the Chapter titled “Offences against Marriage”.
19
NEIL MACCORMICK, LEGAL RIGHT AND SOCIAL DEMOCRACY 29 (1984); Joel Feinberg, Debris
From the Hart-Devlin Debate; Peter Cane, Taking Law Seriously: Starting Points of the Hart/Devlin Debate,
10(1/2) JOURNAL OF ETHICS 21 (2006).
20
Sir Patrick Devlin, Morals and the Criminal Law, in THE ENFORCEMENT OF MORALS 1, 17
(1959); H.L.A. HART, LAW, LIBERTY AND MORALITY 51 (1963).
21
See also, [Joel Feinberg, Debris From the Hart-Devlin Debate], 72(2) KURT BAIER FESTSCHRIFT 249,
250 (1987); See [JOEL FEINBERG, HARM TO OTHERS (1984)] at 259.
22
R.A. DUFF, ANSWERING FOR CRIME 141-42 (2007) at 84.
23
Douglas Husak, The Criminal Law as Last Resort, 24(2) OXFORD JOURNAL OF LEGAL STUDIES 207
(2004).
24
See e.g. Married Women's Property Act, 1882 (45 & 46 Vict., c. 30).
25
Ann Summer Holmes, The Double Standard in English Divorce Laws, 1857-1923, 20(2) LAW AND
SOCIAL ENQUIRY 601, 605 (1995). The author suggests another reason for the partiality, that adultery
of the wife would cause confusion in determination of the heirs to the property and thus deserves
stricter punishment.
26
Ann Summer Holmes, The Double Standard in English Divorce Laws, 1857-1923, 20(2) LAW AND
SOCIAL ENQUIRY 601, 605 (1995). The author suggests another reason for the partiality, that adultery
of the wife would cause confusion in determination of the heirs to the property and thus deserves
stricter punishment.
27
MACAULAY'S DRAFT PENAL CODE, NOTE Q (1837); as cited in The 42nd Report of the Law
Commission of India, INDIAN PENAL CODE, 324 (1971). The Law Commissioners did credit the
idea of exempting the wife under S. 497 IPC to Lord Macaulay, who stressed on the deplorable
condition of women in India. See, LAW COMMISSION OF INDIA, 42ND REPORT: INDIAN PENAL
CODE, 325 (1971). (hereinafter “LCI 42nd Report”).
28
“Though we well know that the dearest interests of the human race are closely connected with the
chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are
some peculiarities in the state of society in this country, which may well lead to a humane man to
pause, before he determines to punish the infidelity of wives. The condition of the women of this
country is unhappily very different from that of England and France. They are married while still
children. They are often neglected for other wives while still young. They share the attentions of a
husband with several rivals. To make laws for punishing the inconstancy of the wife, while the law
admits the privilege of the husband to fill his zenana with women, is a course which we are most
reluctant to adopt.”
Sir Walter Morgan & Arthur George Macpherson, THE INDIAN PENAL CODE (ACT XLV
OF 1860): WITH NOTES, 438 (1863).
29
LAW COMMISSION OF INDIA, 42ND REPORT: INDIAN PENAL CODE, 325 (1971). (hereinafter “LCI
42nd Report”).
30
LAW COMMISSION OF INDIA, 42ND REPORT: INDIAN PENAL CODE, 325 (1971). (hereinafter “LCI
42nd Report”) at 325-26
31
LAW COMMISSION OF INDIA, 42ND REPORT: INDIAN PENAL CODE, 325 (1971). (hereinafter “LCI
42nd Report”) at 326.
32
LAW COMMISSION OF INDIA, 42ND REPORT: INDIAN PENAL CODE, 325 (1971). (hereinafter “LCI
42nd Report”) at 326.
33
LAW COMMISSION OF INDIA, 42ND REPORT: INDIAN PENAL CODE, 325 (1971). (hereinafter “LCI
42nd Report”) at 327.
34
LAW COMMISSION OF INDIA, 156TH REPORT: INDIAN PENAL CODE (1997). (hereinafter “LCI 156th
Report”)
35
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 (hereinafter “Sowmithri Vishnu”).
36
Sowmithri Vishnu, at para 7.
37
LAW COMMISSION OF INDIA, 156TH REPORT: INDIAN PENAL CODE (1997). (hereinafter “LCI 156th
Report”), at 172.
38
LAW COMMISSION OF INDIA, 156TH REPORT: INDIAN PENAL CODE (1997). (hereinafter “LCI 156th
Report”), at 171-2.
39
LAW COMMISSION OF INDIA, 156TH REPORT: INDIAN PENAL CODE (1997). (hereinafter “LCI 156th
Report”), at 172
40
LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).
(hereinafter “LCI 41st Report”)
41
LAW COMMISSION OF INDIA, 154TH REPORT: CODE OF CRIMINAL PROCEDURE, 1973 (1996).
42
REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM (2003).
43
REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM (2003)
44
REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM (2003)
45
Yusuf Abdul Ajiz v. State, 1951 SCC Online Bom 59 : (1951) 53 Bom LR 736.
46
Yusuf Abdul Ajiz v. State of Bombay, AIR 1954 SC 32 : 1954 SCR 930 [Supreme Court of India].
47
Yusuf Abdul Ajiz v. State of Bombay, AIR 1954 SC 321 : 1954 SCR 930.
48
Sowmithri Vishnu, at para 5-6.
49
Sowmithri Vishnu, at para 7.
50
Sowmithri Vishnu, at para 7.
51
Sowmithri Vishnu, at para 8.
52
Sowmithri Vishnu, at para 8.
53
Sowmithri Vishnu, at para 13.
54
(1988) 2 SCC 72 [hereinafter “V. Revathi”].
55
V. Revathi, at para 2-3.
56
V. Revathi, at para 5.
57
V. Revathi, at para 5.
58
V. Revathi, at para 5.
59
M.T. Carunya v. S. Joseph Chellappa, 1995 SCC Online Mad 412 : (1996) 1 MLJ 409; Olga Thelma
Gomes v. Mark Gomes, 1959 SCC Online Cal 167 : AIR 1959 Cal 451; Samraj Nadar v. Abraham
Nadachi, 1969 SCC Online Mad 31 : AIR 1970 Mad 434.
60
Kaini Rajan v. State of Kerala, (2013) 9 SCC 113, at para 12.
61
Krishna Chandra Patra v. Tanu Patra, (1992) 2 DMC 20.
62
Rajesh Choudhary v. State of Assam, (2007) 2 DMC 735.
63
1928 SCC Online Guj 58 : (1928) 30 Bom LR 1435.
64
Yusuf Abdul Ajiz v. State, 1951 SCC Online Bom 59 : (1951) 53 Bom LR 736.
65
Sureshchandra Vadilal Shah v. Shantilal Shankarlal, 1966 SCC Online Guj 57 : 1968 Cri LJ
117; Mahesh Patel v. State of Chhattisgarh, Crl App No. 01 of 2005 dated 11-1-2011.
66
Ss. 460-461, CrPC, 1973.
67
Aniruddha Bahal v. CBI, 2014 SCC Online Del 3263 : (2014) 210 DLT 292.
68
LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).
(hereinafter “LCI 41st Report”), at 326.
69
Krishna Chandra Patra v. Tanu Patra, (1992) 2 DMC 20.
70
Sandwip Roy v. Sudarshan Chakraborty, 2007 SCC Online Del 894 : (2007) 98 DRJ 109.
71
Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75(6) Yale Law Journal 986, 995-1001
(1966).
72
V. Revathi, at para 6.
73
LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).
(hereinafter “LCI 41st Report”), at 326.
74
COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM REPORT Vol. 1, 190 (2003).
75
COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM REPORT Vol. 1, 190 (2003)
76
Shoma A. Chatterji, The Price of Adultery, THE TRIBUNE (20-1-
2007), http://www.tribuneindia.com/2007/20070120/saturday/main1.htm.
77
Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75(6) Yale Law Journal 986, 995-1001
(1966); H.L.A. Hart, Social Solidarity and the Enforcement of Morality, 35(1) University of Chicago Law
Review 1-13 (1967).
78
Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75(6) Yale Law Journal 986, 995-1001
(1966); H.L.A. Hart, Social Solidarity and the Enforcement of Morality, 35(1) University of Chicago Law
Review 1-13 (1967), at 12-13.
79
Durex Global Sex Survey 2005, as sourced
from http://web.archive.org/web/20080430082451/http://www.durex.com/cm/gss2005Content.a
sp?intQid=943& int Menu Open= (last accessed on 6-3-2015).
80
Sandwip Roy v. Sudarshan Chakraborty, 2007 SCC Online Del 894 : (2007) 98 DRJ 109, at para 18
(hereinafter“Sandwip Roy”).
81
LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).
(hereinafter “LCI 41st Report”), at 326.
82
Article 241, Criminal Act, 1953, available at http://www.law.go.kr/lsSc.do?menuId=0&sub
Menu=1&query=%ED%98%95%EB%B2%95#liBgcolor4.
83
[Sayuri Umeda, South Korea: Criminal Provision on Adultery held Unconstitutional, LAW LIBRARY OF
CONGRESS: GLOBAL LEGAL MONITOR, 24-3-
2015, http://www.loc.gov/lawweb/servlet/lloc_news?disp3_1205404353_text.]
84
South Korean Court to Rule on Making Adultery Legal, THE GUARDIAN, 26-2-
2015, http://www.theguardian.com/world/2015/feb/26/south-korean-court-to-rule-on-making-
adultery-legal.
85
Jeyup Kwaak “South Korea Legalises Adultery”, WALL STREET JOURNAL, 26-2-
2015, http://www.wsj.com/articles/south-korea-legalizes-adultery-1424935118.
86
2009 Hun-Ba 17, (26-2-2015) [Constitutional Court of South
Korea], http://www.ccourt.go.kr/cckhome/comn/event/eventSearchTotalInfo.do?change
EventNo=2009%ED%97%8C%EB%B0%9417&viewType=3&searchType=1.
87
[Sayuri Umeda, South Korea: Criminal Provision on Adultery held Unconstitutional, LAW LIBRARY OF
CONGRESS: GLOBAL LEGAL MONITOR, 24-3-
2015, http://www.loc.gov/lawweb/servlet/lloc_news?disp3_1205404353_text.]
88
Lawrence v. Texas, 156 L Ed 2d 508 : 539 US 558 (2003). This decision ushered in scholarship
considering whether the various State laws criminalising adultery in the USA would consequently be
rendered unconstitutional. See, e.g. Gabrielle Viator, The Validity of Criminal Adultery Prohibitions after
Lawrence v. Texas, 39 Suffolk University Law Review 837, 838 (2005); Cass Sunstein, What
did Lawrence hold? Of Autonomy, Desuetude, Sexuality and Marriage, UNIVERSITY OF CHICAGO JOHN M.
OLIN LAW & ECONOMICS WORKING PAPER NO. 196 (2003).
89
See generally, S. Mayeri, Reconstructing the Race Sex Analogy, 49 WILLIAM & MARY LAW REVIEW 1789
(2008).
90
LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).
(hereinafter “LCI 41st Report”), at 326. See also, Yusuf Aziz.
91
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.
92
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1
93
Sandwip Roy, at para 20.
94
LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).
(hereinafter “LCI 41st Report”), at 327.
95
COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM, at 191.
96
V. Revathi, at para 4.

On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy
vs Union of India passed a historic judgment affirming the constitutional right to privacy. It
declared privacy to be an integral component of Part III of the Constitution of India, which lays
down our fundamental rights, ranging from rights relating to equality (Articles 14 to 18); freedom of
speech and expression (Article 19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life
and personal liberty (Article 21) and others. These fundamental rights cannot be given or taken away
by law, and all laws and executive actions must abide by them.

The Supreme Court has, however, clarified that like most other fundamental rights, the right to
privacy is not an "absolute right". Subject to the satisfaction of certain tests and benchmarks, a
person's privacy interests can be overridden by competing state and individual interests. This post
discusses the tests that have been laid down by the Supreme Court in the Puttaswamy case, against
which privacy infringements will be evaluated going forward. Based on this analysis, the post argues
that a majority of the judges in this decision have agreed that the European standard of
proportionality shall be applied to test privacy infringements in the future. However, the rigor and
technicality with which this doctrine is applied will depend on the nature of the competing interests
in question and will evolve on a case by case basis. At the very least, any impugned action will
continue to be tested on the "just, fair and reasonable" standard evolved under Article 21 of the
Constitution. However, before we delve into the standards laid down by the Court, it is important to
understand why the Supreme Court was called upon to decide if we have a fundamental right to
privacy and how to read the decision it finally delivered.

Why was a nine-judge bench constituted to decide upon the right to privacy?

The question of whether or not privacy is a fundamental right first arose in 2015 before a three-
judge bench of the Supreme Court considering the constitutional challenge to the Aadhaar
framework. The Attorney General had then argued that although a number of Supreme Court
decisions had recognised the right to privacy, Part III of the Constitution does not guarantee such a
fundamental right since larger benches of the Court in M.P Sharma (8 judge bench) and Kharak
Singh (6 judge bench), had refused to accept that the right to privacy was constitutionally protected.
Consequently, this bench referred the matter to a five-judge bench to ensure "institutional integrity and
judicial discipline". Thereafter, the five-judge bench referred the constitutional question to an even
larger bench of nine judges to pronounce authoritatively on the status of the right to privacy.

How do we read the Puttaswamy judgment?

The judgment, spanning 547 pages, contains six opinions and a lot of interesting observations. At
the outset, however, it is important to note that only the majority opinion in a judgment is binding
on future cases. In this case, Chandrachud J. wrote the plurality opinion, on behalf of four judges
(Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J.,
Bobde J., Sapre J., and Chelameswar J.) wrote concurring opinions. Thus, while Justice
Chandrachud's opinion is the "plurality" opinion, it does not constitute the majority, since it has not
been signed by a total of five or more judges. Similarly, the concurring opinions too, are not binding
and do not constitute 'precedent' for future cases. Thus, the operative part of the judgment, i.e. the
binding part, is only the order that has been signed by all nine judges, which holds:

The eight-judge bench decision in M P Sharma (1954), which held that the right to privacy is not
protected by the Constitution stands over-ruled;

The Court's subsequent decision in Kharak Singh (1962) also stands over-ruled to the extent that it
holds that the right to privacy is not protected under the Constitution;
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under
Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution; and

The body of case law that developed subsequent to Kharak Singh, recognizing the right to privacy,
enunciated the correct position of law.

It is a well-settled legal principle that a case is only an authority for what it actually decides, not
any observations made in the course of the judgment or any propositions that may logically follow
from it. Hence, to determine what aspects of the judgment are binding, it is important to examine
each opinion and see the point of agreement amongst a majority of the nine judges. So, if any judge
agrees with a view taken by Chandrachud J. on any proposition, that would result in a majority of
five out of nine, and hence, be binding on smaller benches and other courts. For instance, since a
majority of the judges agree that privacy is an inalienable, natural right, that forms part of the
binding element of the case.

With this in mind, let us now examine each of the opinions in Puttaswamy to see what they hold,
how they construe the right to privacy, and what standard of judicial review they apply.

The Court's (multiple) views on privacy

Writing the plurality opinion, Chandrachud J., holds that the right to privacy is not independent of
the other freedoms guaranteed by Part III of the Constitution. It is an element of human dignity and
is an inalienable natural right. He focuses on the informational aspect of privacy, its connection with
human dignity and autonomy, and rejects the argument that privacy is an elitist construct. During
the course of his opinion, Chandrachud J. makes several observations about privacy in the digital
economy, dangers of data mining, positive obligations on the State, and the need for a data
protection law. He also raises an important point about the negative and positive elements of
privacy. The former restricts the State from unfairly interfering in the privacy of individuals, while
the latter obliges it to put in place a legislative framework to restrict others from doing so.

Chelameswar J. on the other hand, grounds the right to privacy, as comprising of three facets,
namely repose (freedom from unwarranted stimuli), sanctuary (protection from intrusive
observation) and intimate decision (autonomy to make personal life decisions). Nariman J. too
endorses Gary Bostwick's conceptual understanding of privacy as encompassing "repose, sanctuary, and
intimate decision". He gives further content to the right by classifying it into three categories: (1) that
which involves invasion by the State into a person's physical body, (2) information privacy which
captures unauthorised uses of personal information, and (3) privacy of choice, or "individual
autonomy over fundamental personal choices".

For Bobde J., fundamental rights have two aspects - first, to restrict legislative powers and second,
to provide the conditions for the development and dignity of individuals. Thus, similar to
Chandrachud J., he recognizes both the positive and negative aspects of enforcing fundamental
rights, although he is clear that fundamental rights claims (as opposed to other laws) fall squarely on
the State.

Kaul J., on the other hand, recognizes the claims of privacy against the State and non-State actors. In
respect of the State, he identifies concerns of surveillance and profiling, whereas, in respect of non-
State actors, he emphasizes on the impact of technology, in the form of pervasive data generation,
collection, and use in a digital economy. Kaul J. also elaborates on the influence of big data, in
particular, its impact on the actions of an individual and the resultant chilling effect it may have on
free speech and expression. He thus observes the need to protect certain information from both the
State as well as private actors. Finally, Sapre J. focuses his opinion on the importance of the
Preamble to the Constitution, and the principles of liberty, dignity, and fraternity enshrined therein.

Given the Court's varying conceptions of privacy, it is easy to understand why the suggested
standards for evaluating an infringement of the right also varied so widely. We turn to this in the
next section.

Tests for infringement of privacy

After a bumpy start in the MP Singh and Kharak Singh cases referred to above, the Supreme Court's
jurisprudence on privacy evolved to accept that privacy forms an integral part of "personal
liberty" under Article 21 of the Constitution, which cannot be denied except through a "procedure
established by law". The Supreme Court has clarified this to mean that the procedure prescribed by law
must necessarily be "just, fair and reasonable". How this, and other standards of judicial review, will
apply in the case of intrusion by the State into the right privacy, was the subject matter of much
discussion in the various opinions in Puttaswamy. This section discusses some of the key
observations.
The judgment written by Chelameswar J. provides a good overview by highlighting that the
requirement of reasonableness pervades throughout Part III, albeit operating slightly differently for
different fundamental rights. Accordingly, he suggests a "menu" of tests that can be used in privacy
cases, depending on the underlying rights that are affected. Thus, a violation of privacy in the
context of an arbitrary State action would attract a "reasonableness" enquiry under Article 14; similarly,
privacy invasions that implicate Article 19 freedoms would have to fall under the specified
restrictions under this constitutional provision like public order, obscenity etc; and finally, intrusion
into life or personal liberty under Article 21, which forms the "bedrock of the privacy guarantee",
would have to be just, fair and reasonable. For instance, over-broad telephone-tapping regulations
would implicate both a citizen's freedom of speech (Article 19(1)(a)) as well as her personal liberty
(Article 21). Under the Court's analysis, such a law would have to be justifiable under one of the
specific restrictions in Article 19(2), in addition to being "fair, just and reasonable" as required by
Article 21, as was held in the PUCL case.

Notably, Justice Chelameswar also includes a fourth test for privacy claims which deserve the "highest
standard of scrutiny" and can be justified only in case of a "compelling state interest". Borrowing the strict
scrutiny standard, typically reserved for discrimination cases in the U.S., he notes that there exists a
category of privacy claims which must satisfy not just the tests of being "just, fair and reasonable"
under Article 21, but also a higher level of importance in terms of the government's interest in the
privacy intrusion. While laying down this higher standard of scrutiny, Chelameswar J., however,
stops short of illustrating what sort of actions could fall under this category, and what would be the
trigger for the application of this test. These issues have been left open for future Courts to deal
with.

Nariman J. adds to this analysis by giving several examples to emphasize that the restrictions on
privacy will need to be tested based on the combination of rights being infringed. For example, if
the violation is of Article 21 read with Article 14 (right to equality), then tests of arbitrariness and
unreasonableness will apply; or under Article 21 read with Article 19(1) (a) (freedom of speech), then
the impugned law/policy will have to relate to the reasonable restrictions specified in Article 19(2),
as described in the wiretapping example above. Thus, Nariman J., rather than elucidating a test, only
clarifies that the analysis will be case by case - based on existing jurisprudence under the relevant
fundamental right that is invoked. In a similar vein, Bobde J. states that privacy infringements will
have to answer the tests under those particular freedoms "in addition to the one applicable to Article 21".

Borrowing vaguely from the restrictions on the right to privacy as specified under the European
Convention on Human Rights (Article 8), Sapre J. brings in a slightly different perspective. He notes
that the State can impose reasonable restrictions on the right to privacy "on the basis of social, moral and
compelling public interest in accordance with law". If Sapre J. is indeed articulating a new test, it is unclear
where its textual basis lies in the Indian Constitution, given that many fundamental rights, such as
the freedom of speech and expression, do not recognize public interest as a valid restriction.
Moreover, such an articulation lacks clarity on what standards will apply to judge the "social, moral,
and compelling public interest" or how this would interact with Chelameshwar J's "compelling state
interest" test. It may thus be better understood as a general articulation of the Article 19 standard for
reasonable restrictions, which will apply differently based on the specific right that has been
infringed.

Interestingly, two of the judgments (representing the views of five judges) provide more teeth in
terms of how existing tests under Article 21 should be interpreted. Drawing from the concept of
proportionality that is used to balance rights and competing interests under European law,
Chandrachud J., notes that any invasion of life or personal liberty must meet the three requirements
of (a) legality, i.e. there must be a law in existence; (b) legitimate aim, which he illustrates as including
goals like national security, proper deployment of national resources, and protection of revenue; and
(c) proportionality of the legitimate aims with the object sought to be achieved. Although
Chandrachud J. has used the term "proportionality", he stops short of actually adopting the very
technical European proportionality standard, with its focus on narrow tailoring and least restrictive
means.

Kaul J.'s "proportionality" test differs slightly from Chandrachud J. It requires (a) legality, (b) necessity
(narrow tailoring) and (c) proportionality, which is closer to the European standard. He adds to this
the fourth element of (d) procedural safeguards against abuse of interference with rights, which
echoes Article 21's central requirement of having a "procedure established by law".

How then do we read the majority opinion on the judicial review standard adopted in Puttaswamy?
One way of reading the judgment could be through the proportionality standard espoused by
Chandrachud J. and elaborated by Kaul J. According to this, the four elements of the judicial review
standard are as follows, although it is relevant to note that the additional observations made by Kaul
J. do not constitute part of the "majority view":

Legality: The existence of a law.

Legitimate Goal: The law should seek to achieve a legitimate state aim (Chandrachud J.). The
proposed action must be necessary for a democratic society for a legitimate aim (Kaul J.). Justice
Kaul's opinion can be read to espouse the EU narrow tailoring test.
Proportionality: There should be a rational nexus between the objects and the means adopted to
achieve them (Chandrachud J.). The extent of interference must be proportionate to its need (Kaul
J.).

Procedural Guarantees: To check against the abuse of State interference (Kaul J.)

There was unanimity amongst the nine judges that privacy is not an absolute right, although the
basis for assessing violations is less clear. While the content and applicability of the aforesaid
proportionality test will be determined by subsequent decisions, what is certain is that privacy claims
will be tested against the existing standards applicable under the Constitution or developed by
Courts for different categories of fundamental rights. At the very least, the impugned action should
satisfy the test of "just, fair and reasonable" procedure under Article 21 of the Constitution.

Conclusion

The Court's broad interpretation of the right to privacy has paved the way for a wide range of
claims. While the exact boundaries of the right will continue to develop on a case by case basis, it is
clear that privacy claims will often have to be weighed against other competing interests. In the
absence of a defined hierarchy among the various rights guaranteed under Part III of the
Constitution, the decision in each case will vary based on facts at hand and the judicial
interpretation. For instance, can the dignity of a married woman, which is central to her privacy and
liberty, be infringed by a law on marital rape so as to shield the "private affairs" of the family? Does
the efficiency of having a meta-database of information on all citizens trump the autonomy of those
who resist its adoption? Can an individual's "right to be forgotten" on the Internet override the open
information needs of many others? In fact, just last week, a PIL was filed before the Delhi High
Court that the restitution of conjugal rights provision in the Hindu Marriage Act and Special
Marriage Act is violative of the right to privacy. The real test of privacy will lie in how subsequent
Courts apply the Puttaswamy decision to determine these varied questions.