Justice YV Chandrachud overrules father''s verdict yet again

Satya Prakash
Tribune News Service
New Delhi, September 27

Thirteen months after overruling Justice YV Chandrachud's infamous ADM Jabalpur case delivered during Emergency, Justice DY Chandrachud has overruled his father's verdict again.

While striking down Section 497 of the Indian Penal Code that penalised only men for adultery and treated women as chattels, Justice DY Chandrachud overruled his father's judgment in Sowmithri Vishnu versus Union of India that had upheld the constitutional validity of the British era provision.

In a separate but concurring verdict in Joseph Shine vs Union of India, Justice DY Chandrachud declared Section 497 of IPC unconstitutional, saying it conferred upon the husband the right to prosecute the adulterer but did not confer any such right upon the wife to prosecute the woman with whom her husband has committed adultery.

He said it did not confer any right on the wife to prosecute the husband who has committed adultery with another woman and did not take into account the cases where the husband has sexual relations with an unmarried woman.

Noting that husbands had a free licence under the law to have extra-marital relationship with unmarried women, he termed it a kind of 'Romantic Paternalism', which stemmed from the assumption that women, like chattels, were the property of men.

The verdict was in sharp contrast of the one delivered by his father in the 1985 case which upheld the validity of Section 497, IPC.

His father had dismissed these arguments in the 1985 case saying they had a strong emotive appeal but had no valid legal basis to rest upon. A penal provision cannot be held unconstitutional merely because it punishes man alone, Justice DY Chandrachud had said. "It is commonly accepted that it is the man who is the seducer and not the woman", he had said.

Earlier, as a part of a nine-judge Bench which declared right to privacy a fundamental right on August 24, 2017, Justice DY Chandrachud had overruled his father's verdict in ADM Jabalpur case.

Justice YV Chandrachud, who was part of a five-judge Constitution Bench had ruled by 4:1 majority on April 28, 1976, that all fundamental rights get suspended during Emergency and individuals did not have a right to approach constitutional courts for protection.

Forty-one years on, his son Justice DY Chandrachud overruled the verdict, saying, "The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed." Justice Chandrachud was supported by two other Judges - Justice RF Nariman and Justice Sanjay Kishan Kaul - who also over-ruled ADM Jabalpur verdict.

Much of the problems created by the ADM Jabalpur verdict was corrected by the 44th Constitutional Amendment but the formal over-ruling can be seen as an attempt by the Judiciary to counter criticism for its failure to protect citizens' fundamental rights during the Emergency.

Justice DY Chandrachud had Justified the minority verdict delivered by Justice Khanna in the ADM Jabalpur case, saying, "The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions."