NEW DELHI: Never in judicial history has a Supreme Court judge had to repeatedly cross swords with his father’s judgments.

Nearly a year after overruling the infamous Emergency-era ADM Jabalpur judgment, to which Justice Y V Chandrachud was a partner, Justice D Y Chandrachud now stares at the prospect of overruling his father’s judgment upholding the validity of Section 497 which makes adultery a criminal offence.

One of the main reasons why CJI Dipak Misra constituted a five-judge bench, including Justice Chandrachud, was the May 27, 1985, judgment of the SC by then CJI Y V Chandrachud and Justices R S Pathak and A N Sen upholding the validity of Section 497 and rejecting a petition seeking to make men and women equally liable for the offence of adultery.

Writing the Sowmithri Vishnu judgment, then CJI Chandrachud had said, “It is commonly accepted that it is the man who is the seducer and not the woman. This position my have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which society has undergone.”

The Law Commission in 1971 had recommended that both men and women should face punishment under Section 497 for adultery but Parliament did not agree to amend the provision. Some law panel members, including India’s first woman judge Anna Chandi, had sought its deletion saying it was not in tune with the societal situation. But CJI Chandrachud said, “We cannot strike down that section on the ground that it is desirable to delete it.”

On Thursday, CJI Misra and Justices R F Nariman and D Y Chandrachud were more vocal against retention of Section 497, terming it an affront to women and their dignity since the provision treated them like chattels of their husbands.

Justice Chandrachud took a dig at the 1985 judgment and said, “We must make our judgments relevant to the present day. It is common to find instances of working women, who take care of the home, get beaten up by their husbands, who don’t earn. She wants divorce. But the matter remains pending in court for years. If she looks for love, affection and solace in another man, can she be deprived of it. It is sadly the true picture of many places in India.”

However, he was quick to add that decriminalising adultery did not mean approving licentious behaviour. “Very often, adultery happens when the marriage has already broken down and the couple is living separately. If either of them indulge in sex with another person, should it be punished under Section 497?” he asked.

On August 24 last year, Justice Chandrachud had authored the main judgment for the nine-judge bench declaring right to privacy as a fundamental right and part of right to life. In the judgment, Justice Chandrachud dealt with the ADM Jabalpur verdict, which was authored by Justice M H Beg and with whom then CJI A N Ray and Justices Y V Chandrachud and P N Bhagwati had agreed. Justice H R Khanna had penned the lone dissent saying right to life could not be suspended even during Emergency.

Driven passionately to correct a constitutional blunder to which his father was a party 41 years ago, son Chandrachud had displayed steely resolve and declared, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed... ADM Jabalpur must be and is accordingly overruled.

“Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution, the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.”

