It is too late in the day to ask this question. Exactly the same question was raised before the Supreme Court in the case of Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 : 1954 SCR 930, which was decided by a 5-judge Constitution bench of the Supreme Court.
In that case, the appellant was being prosecuted for adultery under Section 497 of the Indian Penal Code. He challenged it on the ground whether Section 497 of the Indian Penal Code contravenes Articles 14 and 15 of the Constitution.
The Supreme Court held that the portion of Article 15 on which the appellant relied is this:
“The State shall not discriminate against any citizen on grounds only of … sex.”
But, the Court noted that what he overlooked is that this was subject to clause (3) which runs—
“Nothing in this article shall prevent the State from making any special provision for women….”
The Supreme Court held that the provision complained of is a special provision and it is made for women, therefore it is saved by clause (3) of Article 15. It was argued on behalf of the appellant that clause (3) of Article 15 should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. However, the Supreme Court refused to read any such restriction into the clause; and it further held that it did not agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.
Supreme Court also observed that Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. It was held that the two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.
In view of this, it should be clear that Section 497 of IPC has been held to be NOT in violation of the right to equality.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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