INTERVIEW

Meet the lawyer who successfully fought to decriminalise adultery in India

Date: 
October 11, 2018

Kaleeswaram Raj is a practising advocate in the Supreme Court of India and the High Court of Kerala.  He practises civil, criminal and constitutional law. There are more than 500 reported judgments reflecting his active appearance. He has appeared in several important cases before the Supreme Court, including the Kerala liquor policy case, the National Highway liquor ban case, the government advertisements case, the Interstate Motor Vehicle Tax case, among others. He has also appeared in cases of public importance and constitutional relevance before the High Court of Kerala.


Kaleeswaram Raj

 Mr. Raj was the lead counsel for the petitioner in Joseph Shine v Union of India (2018 SCC OnLine SC 2) in which the constitutional validity of the adultery provision in the Indian Penal Code (IPC) was challenged. The Constitution Bench of the top court has, in a seminal judgment, accepted his contentions and struck down Section 497 of the IPC and Section 198(2) of the Code of Criminal Procedure (CrPC) in relation to the offence of adultery. He is also appearing before the Constitution Bench in M.M. Mani’s case, in which the minister’s freedom of expression is the matter in issue.

Apart from being a busy lawyer, Mr. Raj is also a prolific writer. His book Rethinking Judicial Reforms:  Reflections on Indian   Legal System, published by LexisNexis, is widely regarded in the legal field. His published works also include The Spirit of Law (2012) and The Commentaries on Marumakkathayam Law (1995).  Before his entry into the legal field, Mr. Raj had an active public life in the realm of human rights and environmental protection.

In an exclusive interview with Sabrang India, Advocate Raj talked to Ujjawal Krishnam.
 

How do you define legal activism? Please tell us about your personal journey.

You cannot have revolutions through court.  But you can definitely attempt reformative agenda through the institutions of judiciary.  Legal activism has always a political facet. The point is to thrive for better level of constitutionalism so that certain immediate goals are really attained and the public, at large, gets the direct benefit of it.  This is not only possible, but extremely essential in the realm of conservation of environment, child rights, women’s rights and human rights in general. Legal activism is a constant process of constitutionalisation of our polity, and our courts are probably the best available platform for it.  We need to evolve praxis of fair advocacy that takes the people closer to the courts, including the Supreme Court. The top court, even while remaining the constitutional court, can thrive to alter the common man’s perceptions about the nation by advancing egalitarianism based on India’s fundamental document, namely, the Constitution.  We need to fight all traits of legal plutocracy. There is a need to restore the conventionally perceived equality in the legal profession. Stardom created in the legal profession can only serve feudalist/capitalist considerations. Legal activism is a people’s movement in the court for safeguarding the rights of the oppressed and the marginalised.  We probably need to revise the Krishna Iyer School, by updating it in tune with our time.

 

Please tell us about the legal team on the adultery case.

The adultery case provided a unique experience.  It was a long project that started somewhere in September 2017 and lasted for more than one year.  The petitioner, Joseph Shine, was moved by a news report, which carried the then-president’s call for repealing certain archaic provisions in the Indian Penal Code.  Section 497, on account of its ostensibly discriminatory content, was identified by Joseph Shine for the purpose of challenge based on legal inputs provided by us. Many journalists from the mainstream media wanted to know whether Mr. Shine had any bitter experience either as an accused or as a victim in any ‘adulterous’ incident.  He had, actually, none. He leads a happy married life with his wife and three children. He lives in Italy. Mr. Shine is not a known activist. Nor he is a legal scholar. He was, however, ready to stand for women’s issues and causes.  When a Minister in the Kerala State Cabinet made certain disparaging remarks about agitating women labourers in Munnar, he questioned it before the Kerala High Court, seeking to frame a code of conduct for Ministers in the Cabinet. The bench, though it agreed with his concerns, did not grant him relief. This matter too is now pending before the Supreme Court, and it stands referred to the Constitution Bench.

Thulasi K. Raj, my daughter, had a dominant role in drafting the writ petition. She had her masters in law from University College London. Her husband Bastian’s contributions also were remarkable. He persistently worked on the theoretical aspects of the topic and made a significant contribution. Apart from Thulasi, Maitreyi Hegde and Aruna also contributed to the research. We needed substantial conceptual clarity in the matter. Mere convictions alone were not sufficient. Therefore, along with the research, we had long debates and deliberations on the theoretical and academic part of the subject. There were often heated arguments in the office that led to regeneration of a kind of academic ambience.  The process was, of course, tiring, still I had a feeling of a great jurisprudential journey. My office, in its own way, has such empowered women who can take on multiple tasks simultaneously. My juniors Varun and Aruna managed the office work with other colleagues – Riya, Laya  and Aishwarya.

 

Why did it take seven decades in the post –Independence era to strike down a colonial law?

It was not as if there were no efforts.  Litigations were fought up to the top court to do away with the provisions.  Now one would also realise how superficial and callous the earlier judgments were.  In Yusuf Abdul Aziz (1954), it was a five-Judge bench, which said that the very same archaic provision (Section 497 IPC) was beneficial for women! That case arose from a verdict by the Bombay High Court on Section 497, which validated the law. In the judgment by the Bombay High Court, authored by Chief Justice Chagla, though there were true reflections on the anti-women character of the provision, ultimately no relief was granted.  Sowmithri (1985) and Revathi (1988) also were equally disappointing by their bad reasoning or the lack of reasoning.  Therefore, it is the judicial lassitude from the bench, rather than the lack of legal actions, that resulted in the inexcusable retention of the archaic provisions over a long period.

 

What were the prime restrictions when your team first thought to take up the case?

Definitely, all the above judgments were staring at us while [we were] planning to challenge the provisions.  We started our draft by addressing these verdicts. That really worked. The earlier judgments were too hollow and narrow, that the bench headed by Chief Justice Misra was apparently prepared for a revisit to the provisions. The court heard me for 45 minutes when the case came up for admission and the matter was admitted. That was the turning point. While admitting the matter, Justice Misra’s bench indicated that earlier verdicts might require reconsideration. The matter was then referred to a larger bench, which heard and allowed the writ petitions. Thus, ironically, the initial restrictions ultimately became the catalyst in the process.

From L to R Kaleeswaram Raj,Thulasi K. Raj, Bastian Steuwer and Maitreyi Hegde.
 

What research did your team conduct in this case?

The argument on behalf of the petitioner in the case was schematic. I argued the matter for about 2 ½ hours. We also submitted a total of five volumes of written submissions.  Firstly, we addressed how the provisions are discriminatory against both men and women. Secondly, the provisions directly infringe on the right to sexual privacy.  Thirdly, we argued that the state has no reason to criminalise an act like adultery. Fourthly, the earlier judgments on adultery are seriously flawed.

The argument on discrimination was a very plain and direct one. Thulasi worked on the discrimination and the privacy aspects. Maitreyi and Aruna focused on revisiting the earlier judgments. Bastian’s research focused on the aspect of criminalisation and countering the arguments of the state. In essence, the research team was unified and committed. This contributed to the quality of the discourse as well.

 

One of first incidents registered after the abolition of the adultery law was a case where a Chennai man justified cheating based on the SC verdict, and his wife committed suicide afterwards. Apparently, this case has no strong evidence of abetment of suicide but her death can’t be justified. What are your thoughts?

Her death is very unfortunate.  But even if Joseph Shine was not decided, she could not have filed a complaint against her allegedly adulterous husband, even as per the scheme of the impugned provisions (S.497 IPC read with S.198(2) of CrPC). She might not have been even aware of the peculiarity of the legal situation where she could not have even moved the court by alleging adultery. The Chennai incident is therefore illustrative in that it reflects our people’s poor understanding of law, in the pre-Shine and post-Shine era. Had the Chennai woman been apprised of the true legal situation, she would have probably resorted to legal recourses for divorce or maintenance or both.  We still do not know what was the real reason for her suicide. Her fate only puts up a case for legal education at the grass-root level on fundamental legal issues concerning the citizens.

 

Constitutional morality is different from social morality. Do you think people will accept the sexual choice of their partners?

Constitutional morality in the given case leads to a plea for minimal State action in private intimate decisions. Every individual aberration in a family cannot justify the State’s interference using its police force. A citizen is entitled to preserve a “lawless zone” around her for her true organic development. People can always reject infidelity and even fight against it. But its criminalisastion is a different matter altogether. One needs to fight against such illegitimate state action. That is a libertarian political struggle, which is based on constitutional morality, which is also a form of political morality. The state should be politically fenced out from the individual’s deviations and aberrations.

 

The SC verdict also outlines the dignity of women on this abolished primitive section.  How will that stand in long run? Please explain how it is a blow to the patriarchal and misogynist society.

Joseph Shine endorses a conceptual change.  It negates the philosophy of commoditisation of women. Women at large are empowered to carry out a kind of jurisprudential assertion of their individuality. Shine is a great equalising force. Now there is no difference between a man and a woman in  matrimony in the context of their mutual emotional or physical relation, at least legally. Marriage is an important institution, though its sanctity is a debatable concept. It needs to be built up and maintained based on mutual love, trust and understanding.

 

There were several speculations on the subject related to the legislative body. What were the blockades before Parliament regarding this law?

In a situation that required scrapping of the law altogether on the grounds of liberty, equality, dignity of individual, and privacy, the Parliament had its limitations. This is why even in Joseph Shine, the government had to submit about the need to make the offence gender neutral.  The only way to remove the unconstitutionality of the provisions was to do away with them.  And the court did so.

 

Your firm is based in Kerala too, and you might have closely observed many human rights issues of Kerala.  One of them is the Sabarimala verdict. What is your opinion on this case?

There is a concerted move by the far right and majoritarian fanatics in Kerala to communalise the Sabarimala  issue and to take electoral advantage out of it. It is a different brand of Karseva now going on in the State. The Left needs to have a clear vision in the matter that should democratically accommodate the political values of gender equality.   
 


What is your message to young lawyers?

I would say a core principle of being a litigation lawyer is perseverance.  There are no shortcuts to being a good lawyer. Commitment to the brief and professional involvement are the imperatives. Honesty really matters. Money is only a by-product of the profession. There are several young lawyers who have significant potential to contribute to the legal profession.  I would hope that the legal institutions offer a promising and supportive role for the younger generation.
 

What are your future plans?

We have a dream of few more collective reformative strategies based on the concept of fair advocacy. Those are slowly taking shape.