Continuous Internal Assignment – 1

Philosophy of Law

‘Philosophical Viewpoint on case Joseph Shine Vs Union of India’

Submitted To

Dr Pukhraj Agarwal

Assistant professor
School of Law Christ University
Bangalore

Submitted By

Manav Agrawal
2050122
3 BA LLB A
 ‘Philosophical Viewpoint on case Joseph Shine Vs Union of India’

Introduction
Law can be defined as the rules or regulations which govern the behaviour of individuals in
society. Laws are being made by the legislation making bodies, and behind every law, there
ought to be valid reasoning which supports the idea of bringing that law into practice. Every
lawmaker is aware that there should be a valid reason behind the laws they are making;
otherwise, they could also have dire consequences for the same. This concept is termed as
Philosophy of Law, which states that it is a part of philosophy, which determines the nature of
law concerning human values, traditions, morals, attitudes. There are so many laws in India
that help all of us to govern our activities and make sure the whole process is plain- sailing, but
sometimes specific laws are made by the legislation making bodies that are not in the interests
of the people or, in other terms are violative of certain Fundamental Rights guaranteed to us
under part III of the Indian Constitution. When such a situation arises, then the save guarder of
democracy, i.e., Judiciary comes into power, where they take suitable action by obviously
giving valid reasoning behind their judgement or their viewpoint of the subject matter. One
such Case Law that we would look into is Joseph Shine Vs Union of India. A Public Interest
Writ Petition was filed to look at the validity/constitutionality of the laws dealing with adultery.
Underneath, we would have a look into the facts of the case, arguments of both the parties,
judgement and would also be looking at it with the eyes of Philosophy.

Facts
Joseph Shine filed a writ petition under Article 32 of the Indian Constitution to challenge the
constitutionality/validity of Section 497 of the Indian Penal Code read with section 198 of
Criminal Procedure Code, which in turn is violative of Article 14,15 and 21 of the Indian
Constitution. This can be regarded as the first Public Interest Writ Petition, which was filed
against adultery. The petitioner filed this petition because the rules/provisions regarding
adultery were discriminatory and unreasonable based on gender. The petitioner also asserted
that such provisions tear down the majesty of a woman. The Constitutional Bench of five
judges was set up to hear this petition.
Petitioner Arguments

The Petitioner, along with his counsels, represented, showed the court how the provisions were
biased and lacked valid reasoning. The counsel for the Petitioner said that the provision related
to adultery criminalizes it based on sex, which does not sound rational and thus violates article
14. Along with this, if the husband has no objection to the wife’s relationship with another
man, then it does not amount to adultery, which is a baseless provision, as here they are
objectifying women, and her permission is not taken into consideration. Also, it only allows
men to file a case for adultery, which again violates article 15; along with this, they are
snatching women sexual autonomy and determination, which further violates Article 21.

In this argument by the Petitioner, the concept of Positivism plays a keen role as the Indian
Constitution can be presumed to be as the sovereign command, which cannot be disrespected
or violated subjected to some restrictions. The main concept of Positivism propagates that
sovereign command prevails over anything else and asserts the rule to follow legislation. So in
the present case petitioner used the same concept where Indian Constitution (Sovereign
Command and Legislation) prohibits discrimination based on sex, caste, religion and promotes
equality.

Respondent Arguments
The respondents countered the arguments of the petitioner. According to the respondent's
counsel, adultery is considered an offence that breaks family relations. Thus, they feel some
inhibition should be there to protect the sacred relationship, i.e., marriage. They also feel it
affects society, spouse and children as a whole as it is a deliberate attempt to break the sacred
relationship by knowing all facts beforehand. They also contest that discrimination is defended
by clause three of Article 15, which provides the state to make special provisions for children
and women. They pleaded with the court to remove all unconstitutional parts but to retain the
law.

Now the reasoning behind the respondent arguments was supported by the principle of
Naturalism. The principle of Naturalism propounds that any rules or regulations must be
implemented after considering the aspects of morality, ethics and righteousness. Hence, the
respondent is this brought up ethics and traditional traditions where they limit the scope for any
reform, no matter that tradition or ethics may be outdated or be flawed, but in their eyes, its
religious duty to protect the same.
Courts Judgement
The 5 Judge Constitutional Bench declared Article 497 unconstitutional and struck it down as
it was violative of articles 14, 15 and 21. They stated that only men were looked at as aggrieved
and were allowed to file a case as per these provisions. In contrast, women were not allowed
to do the same, thus curbing the equality, along with that the women were being treated as a
property of men and adultery was seen as theft of that property as provision takes into
consideration the consent of husband in the case whether it would make as an offence or not.
Also, these provisions strip the women of their self-autonomy and individuality where they are
just treating her as a puppet in the hands of her husband. They also opined against the previous
judgements, in which adultery was criminalized. They feel it is a private matter between two
individuals and shall be treated as a point for divorce and classify it as a civil wrong, not
criminal wrong.

The principles of Realism, i.e., believing in whatever you can see or infer in reality and
Positivism, were upheld by the Court in comparison to Naturalism, as the bench made their
decision in the real-time scenario where privacy is something which matters the most, in
comparison to previous time; thus, they favoured privacy, individual autonomy over the old
traditions, ethics and cultures. Also, sovereign command and legislation were followed by
allowing section 198 of the Criminal procedure code to exist, only some part to be removed.
Hence, as per the principle of Realism, the Court used the literal meaning of the Constitution
and considered the real-world scenario post-judgment

My Perspective:

In my opinion court’s decision was correct, and just as adultery is totally a private matter
between individuals where the court has no say. They are also allowed to use it as a means for
divorce, ensuring justice to them by seeking separation if they are feeling safe with them or do
not want to continue the sacred bond of marriage. As far as my knowledge is concerned, this
judgement following Positivism and Realism was just and appropriate.

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