Adultery, for ladies only

About a week ago, out of sheer boredom, I was looking up some sections of the Indian Penal Code (IPC) – for that is how pathetic my life, really, is – when I came across section 497 of the same – on adultery – which, until then, I did not even know was a crime. It 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.

If you were lost by its language like I was, let me put it in plain English: under the IPC, only a man – but, never a woman – can be charged with adultery, i.e. adultery is a crime only when a man commits it. So, if you are man – married or otherwise – and have had sexual intercourse with a married woman, knowing she is married, “without the consent or connivance” of her husband, you are a criminal and, if proven guilty of that crime, can spend up to five years in prison.

But, what if you are a woman? Then, you cannot commit this crime, so you can go ahead and cheat on your husband as much as you want. But, if you are the one being cheated on, i.e. if your husband is having an affair behind your back, then there is nothing you can do either, at least not under this law, for only the husband of an ‘adulterous’ wife – or someone on his behalf – can allege adultery under it and, that too, only against the man with whom his wife has allegedly had sexual intercourse, but not against his ‘adulterous’ wife. In the eyes of this law, a married woman cannot be the victim of adultery, just like she cannot be an adulteress either, for this law recognises only a married man as a victim of adultery, just like it recognises married, as also unmarried, men as adulterers.

As you can well imagine, I was curious to know how and why such a lopsided, and frankly unnecessary, law came into being. So, I looked up the Law Commission of India’s Forty-Second Report on the Indian Penal Code. Why? Because the IPC was drafted by its progenitor, the first Law Commission of British India under the chairmanship of Thomas Babington Macaulay. In four pages, from 323 to 327, lay the answer to my questions. Of course, it also confirmed that this law too had been enacted by the British, like most Indian laws, and that it was part of the original IPC as it was when it became law in 1860, i.e. it has remain unchanged for 154 years.

But, what prompted this criminalisation of adultery more than a century-and-a-half ago was to prevent, in Macaulay’s words, “injured husbands of the higher classes from taking the law into their own hands”. In simpler terms, it seems, some cases of husbands murdering the lovers of their wives in a fit of rage had come to the attention of the British and they hoped that criminalising their wives’ paramours would prevent these ‘wronged’ husbands from killing them. However, Macaulay was unconvinced, for argued he “that the existing laws for the punishment of adultery are altogether inefficacious for [this] purpose” and, accordingly, kept this section out of his, the first, draft of the Penal Code. But, the other Law Commissioners disagreed, arguing instead that “the offence of adultery ought not to be omitted from the Code,” with the caveat that “the male offender alone [be] liable to punishment” in deference to the “condition of women in this country.” So, basically, a colonial sense of chivalry, or, maybe, just pity for the sorry state of women in their colony saved them from being penalised for adultery.

The report in which I found all this was, however, drafted by Indians, in 1971, more than two decades after the constitutional right to equality had come into effect. Unburdened by the chivalry of our former colonial masters, these Law Commissioners, tasked with revising the IPC, felt “that the reasons which weighed with the Law Commissioners in the last century in exempting the wife from punishment [were] by and large no longer valid” and, thereby, recommended “that the exemption of the wife from punishment under section 497 should be removed”. Fair enough, but one would have thought that, in the name of the equality of sexes, they would also recommend that “the unfaithful husband who has a mistress or goes to a prostitute should also be punishable for committing adultery”, as had been suggested. But, they did not. Instead, they rejected it, saying that the suggestion “did not find a sympathetic response in any corner.” In other words, the Law Commission was saying that, like men, married women could now be adjudged perpetrators of criminal adultery, too, but, unlike men, they still would not be recognised as victims of criminal adultery, even if they happen to catch their husbands in the act. That privilege remained with the married men alone.

Thankfully, their recommendation went unheeded and, thus, the law remained as it was in 1860 and as it does to this day, unchanged. And it remains as ineffective today, in the 21st century, as it was in the 19th century in preventing husbands from harming their wives or their paramours. But, no post-colonial Law Commission has yet recommended its repeal and no Member of Parliament has, as far as I know, attempted it either. And here I thought more than fifteen decades of failure would have finally earned some support for its repeal.

Apparently not.

So, until it is, men beware! Sleep not with married women lest you be sent to prison.

Issued in male interest

Is the freedom of expression an absolute right?

‘All citizens shall have the right to freedom of speech and expression’. So states Article 19(1)(a) of the Constitution of India. However, states the same Article, ‘reasonable restrictions’ can be imposed on the right in the interest of the ‘sovereignty and integrity of India’, ‘friendly relations with foreign States’, ‘public order’, ‘decency or morality’, ‘contempt of court’, ‘defamation’, or ‘incitement of an offence’. It, thus, follows that the freedom of speech and expression is not an absolute right, at least not according to the Constitution.

The ‘right to freedom of expression’ has also been enshrined, again in Article 19, of the International Covenant on Civil and Political Rights (ICCPR) – adopted by the General Assembly of the United Nations (UN) on December 16, 1966 – to which the Republic of India acceded on April 10, 1979. However, even in the ICCPR, echoing the Constitution, the same Article states that this right may be ‘subject to certain restrictions’, namely the ‘respect of the rights or reputations of others’, the ‘protection of national security’, ‘public order’, or ‘public health or morals’. It would thus follow, yet again, that the freedom of expression is not an absolute right, not even according to the ICCPR.

However, the Universal Declaration of Human Rights (UDHR) – adopted by the General Assembly of the UN on December 10, 1948 – appears to be different. Like the Constitution and the ICCPR, it has also enshrined the ‘right to freedom of expression’ – in Article 19 too, but unlike the earlier documents, it places no apparent restrictions on the exercise of that right. Does it, then, follow that the freedom of expression has finally been revealed as an absolute right and that too, by the UDHR, no less?

To answer this question and to illustrate that answer, this article would like to use the case study of an Op-Ed, entitled How to wipe out Islamic terror?, written by Dr. Subramanian Swamy and published in Daily News and Analysis on July 16, 2011. This case study has been chosen because it had once been in the news as the reason for the removal of two courses on Economics that Dr. Swamy teaches at the three-month Summer School session in Harvard University.

In it, he advocates, among others, the following ‘strategy’ ‘to negate the political goals of Islamic terrorism in India’: ‘remove the masjid in Kashi Vishwanath temple and the 300 masjids at other temple sites’ and ‘enact a national law prohibiting conversion from Hinduism to any other religion…declare India a Hindu Rashtra in which non-Hindus can vote only if they proudly acknowledge that their ancestors were Hindus’.

While the call to ‘remove’ masjids may be an exercise in the ‘right to freedom of expression’, it also violates Article 17(2) of the UDHR, i.e. ‘no one shall be arbitrarily deprived of his property’. The call to prohibit conversion from Hinduism and disenfranchisement of all non-Hindus who do not ‘proudly acknowledge’ their Hindu ancestry does one better, for it not only violates Article 18 – right to ‘freedom to change his religion’, but also violates Article 2 – right to equality – and Article 21 – right to ‘universal and equal suffrage’, at the very least. Finally, this ‘strategy’, in toto, violates Article 30 of the UDHR, which states that nothing in the Declaration may be interpreted ‘to perform any act aimed at the destruction of any of the rights and freedoms set forth herein’.

One is bound to conclude, therefore, that the right to freedom of expression is not and has never been absolute. In fact, it ceases to be free if exercised in violation of other fundamental human rights.

The exception that proves the rule

Of Ludwig Wittgenstein, wrote Bertrand Russell in his Autobiography, “He was perhaps the most perfect example I have ever known of genius as traditionally conceived, passionate, profound, intense, and dominating.” Whenever I read this line, I think not of Wittgenstein’s genius – of which there seems scarcely any doubt – but of Russell’s generosity, for Russell was his teacher and yet, considered him a friend and an intellectual equal, if not a superior.

Having spent most of my life as a student, I have seen how rare this is, especially in University. Barring a few, most of the teachers I have studied under would never even dream of treating a student as their equal, much less their superior or friend. Their attitude seems to be that a student, no matter how good, is an intellectual inferior and, therefore, must know her/his place, which is under their thumbs, in perpetual servitude.

To this charge, many of them might retort that we are not Wittgenstein. To which, I can only respond that neither are they Russell. My point, however, in citing this example is that generosity will not reveal itself even in the face of genius if it is not already inherent in an individual.

So, why does this trait elude most of my teachers? Because most of them are insecure, so insecure that they seem to suffer from an inferiority complex. And to compensate for it, they maintain an air of superiority among their students by suppressing any one, who dares to speak to them as an equal. If all this sounds a little vague, let me try giving an example. In University, we are taught to accept nothing at face value, to have doubts, to raise uncomfortable questions, to speak up. If, however, we are stupid enough to adopt this critical attitude against our teachers – and what and how they teach us – we soon discover that these lessons are meant only for the readings we receive, not for anything else. And if one of us were to make our dissent official, rest assured that not only will the problems raised not be addressed, but the student in question will probably be threatened with consequences for having the temerity to do so.

Of course, there are a few noble exceptions, a few teachers, who are generous to a fault, but alas, they are “the exception that proves the rule.”

Who am I?

I was always under the impression that my name and nationality were enough to define my identity. Unfortunately, when I look around today, I find that these are not enough. My community, religion, caste, among others, seem more important than my nationality or even my name. Not only me, I feel, every one of us has gone through this or will go through this at some stage of his life. I wonder why? Is a name not good enough or a nationality not comprehensive enough? Or is it that we are just tired of our forefather’s principles of unity in diversity and decided that we need more segregation or more polarization to spice things up a bit?

You might ask why I am being an alarmist when our exalted Constitution, which was adopted and enacted on this very day sixty three years ago, and whose preamble still reads we, the people of India, live in a secular country, among other things, and when a so-called ‘secular’ political party is in power at the Centre. Well, maybe because few read the Constitution and fewer still believe in it. Or maybe, because a Sikh Prime Minister and a ‘foreign’ head just ain’t enough for secularism. Or maybe, because a bearded man with dyed hair and sunglasses sporting the saffron look found himself on a nice big pyre, but without his ideas about driving out ‘outsiders’ from his ‘home’, which continue to inspire pyres of another sort. Or maybe, because another dude to his north might just win yet another election when he should be winning a life sentence. Or maybe, just maybe, I have gone bonkers and couldn’t come up with anything else to write.

Let’s assume, at least for now, that I am not mad, that I am making some sense, and that this cocktail of identities is a problem, a huge problem for us. If it’s a problem, then who is to blame for it? Why not us, I say? Let’s face it. If these problems are present, they are present because we sponsor it. What say you? You might say that you have never indulged in any such discrimination of community, religion, and caste, but isn’t staying silent a crime, too? I once heard that if you allow a murder to take place in front of your eyes, you are liable for prosecution as an abetter to that crime. If that is true, isn’t this the same?

Let’s look at a few instances in our country to better know our roles in them. The recently departed saffron guy has this young nephew, who was supposed to, if I remember correctly, have broken off with him. But, the nephew, it seems, forgot to break up with his ideas, too, for recently, he decided to revive regionalism in the commercial capital of the country. Common sense says that it’s nothing but hogwash. Then, is he stupid? Not at all. He is smart and he knows that this gets him votes, enough of them to come to power after years in the shadow. How does he know this? Because these tricks helped his dead uncle win once, and he knows that they will help them win as well. But, who votes for them? We do, who else, or at least, a large majority among us. So, who is to blame for their behaviour? We are.

Just north of the border, the other one with the glasses might actually win for the third time in a row. And, here I was thinking he would be sent to jail. Well, maybe next time. So, how did he win? The press people talked about something called ‘polarization politics’. The little I could understand of this big word is that ‘leaders’, here, play one group off another on the basis of a dividing line, which was religion, in this case. And, if ‘leaders’ are on the right side of this line, which is normally the majority one, then they will romp home to victory. But, who is divided here? Again, it is we who are herded together, made to kill, and then, finally, made to vote for our herders. So, I think you would agree that here, too, we are to blame for their behaviour.

Another instance, the final one, okay. I heard another term from the newsmen, ‘minority vote bank politics’. This, I think, involves the same playing one group off another, the difference here being that it is ‘the oppressed minority’ vs. ‘the oppressive majority’. Also, the ‘leader’ prefers the minority in this case. Some lady up north, if I recall correctly, won an election because of this. One final time, then, who is to blame? Right you are, Sir, we are.

You must have fallen asleep by now. Well, if you haven’t, kudos to you. Anyways, I am bored of typing. So, I will end it, here and now. I know what I have written is not academic enough, not formal enough, not scholarly enough. But, that’s the point. It’s straight talk, straight from the heart. I feel it, I believe in it, and I mean it. I know that this essay will not make a difference, either way. It will be relegated to the blogosphere somewhere, read by a few, and forgotten by all. No problem. I don’t want too many people to read my crap, either. But, I will still say this. The identity problem of this country, as all the other problems, is my problem, your problem, our problem. We are responsible for it and we have to solve it. If you like multiple identities, like fighting over it, shedding blood for it, this one’s not for you. But, if you are forgetful like me and prefer a single identity, say no to regionalism, say no to communalism, say no to casteism, say no to polarization, say no to segregation, and say it loud and clear.

Who am I? I am an Indian and I am bloody proud of it.