Dignity and Privacy: The Twin Cannons for De-criminalising Adultery in South Asia

VATSAL PATEL

Image source: Indian Express, illustration is by C. R. Sasikumar.

In this latest article for Rights!, Vatsal Patel provides a country comparison of different interpretations of privacy and dignity in relation to constitutional law and the de-criminalisation of adultery in Taiwan, South Korea and India.

The Constitutional Court (CC) of Taiwan in its seminal ruling of Interpretation No. 791, decriminalised its previous provision on adultery. In doing so, the CC expressly over-ruled its ruling in Interpretation No. 554, wherein it upheld the constitutionality of the impugned provision back in 2002, citing the necessity to “safeguard marriage, the family system, and the social order”.   This judgement decriminalising adultery, comes a year after  the Taiwanese Legislature successfully passed its law recognising same-sex marriage, following the guidance of the CC in Interpretation No. 748 (“same-sex marriage case”) and became the first country in Asia to take such a transformative-step.

In its new-found interpretation of the law criminalising adultery, the court resorted to the transparent and structured proportionality test, and in its exposition, found the impugned provision to be violative of the least infringing stage. It is interesting that in reaching its conclusion, the CC relied on constitutional guarantees of the right to dignity and privacy, as explained in the same-sex marriage case, and shared a fair-degree of resemblance with its counter-part rulings in South Korea and India. This contribution aims to analyse the similarity and differences in the way arguments surrounding dignity and privacy were framed by the courts across these jurisdictions, in order to decriminalise their laws on adultery.

Background

Article 239 of the Criminal Code of Taiwan is the provision that prescribes for a maximum punishment of one-year imprisonment for the crime of adultery. Between 2016 to 2019 only around a thousand convictions were recorded. Although, the provision is framed to be gender-neutral, its impact on women at a prosecutorial level is disproportionate and women have a higher rate of conviction compared to men. Even the rate of withdrawal for complaints of adultery, is greater among women. This is primarily because women usually tend to have – firstly, lower levels of economic independence; and secondly, a significantly higher chance of facing domestic violence as a result of these complaints.

Prior to this ruling, the public consensus, as gauged by the government in a survey conducted in 2013, found that a striking 82.2 % wanted adultery to be a criminal offence. This figure was often used to resist a change to the status quo. However, social activist groups who have fought for women’s’ rights in Taiwan, advocated for decriminalising adultery, by framing their concerns in the language of rights to privacy and dignity, in opposition to “public morality” arguments. They continuously highlighted the disparate impact of this law upon Taiwanese women. Even at the international level, the International Commission of Jurists, echoed similar concerns for women’s rights, prior to the announcement of the ruling.

After the judgement was declared, it received criticism from groups who felt that the ruling would weaken the sanctity of the institution of marriage, and would increase adulterous incidents within Taiwan. However, the ruling was simultaneously well received in different corners of Taiwanese Society. The women’s rights group Awakening Foundation, which campaigned over the years to decriminalise adultery, said that “the interpretation would ensure sexual autonomy, privacy, and personal dignity”. Academically, this judgement has been hailed as a landmark opinion in Taiwanese constitutional law jurisprudence that “signifies the renaissance of judicial activism in Taiwan”. Consequently, it is in this context, that claims of dignity and privacy across different jurisdictions need to be analysed and understood.

Dignity

Article 10 of the Constitution of South Korea assures citizens’ human dignity and worth, along with the right to pursue happiness. In the case of 2009 Hun-Ba 17, the CC of South Korea, having decriminalised adultery in 2015, relied upon ‘sexual self-determination’ upon which to base claims of dignity. Accordingly, in the opinion of majority, the traditional system of families had substantially changed since the inception of the impugned provision in a way that “the private interest of sexual autonomy is [to be] put before the social interest of sexual morality and families from the perspective of dignity and happiness of individuals”.

Similarly, the CC of Taiwan located dignity in ‘sexual autonomy’. In the opinion of the court, sexual autonomy is closely related to “personality freedom and human dignity”, and any unjustified interference in the form of criminalising adultery would interfere with the core scope of sexual autonomy. Moreover, it raised the status of sexual autonomy (directly) and dignity (indirectly) to that of a constitutional guarantee by holding the freedom of sexual autonomy to be a right under Article 22 of the Constitution of Taiwan.

In India, the provision for adultery was peculiar as it considered adultery to be an offence only if it was committed “without the consent and connivance” of the husband whose wife was involved in the act of infidelity. Furthermore, it exempted the wife (who committed infidelity) from punishment. The Supreme Court (SC) of India in Joseph Shine v Union of India, while decriminalising adultery in 2018, located dignity in ‘sexual choices’. However, its prime focus was on the concept of ‘womanhood’ as propagated by the language of the impugned provision.

According to the court, inherent in the language of the provision was the idea of subordination of women, “creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women”. Furthermore, where this provision seemed beneficial to women because it prescribed no punishment for them, it arguably inflicted a much greater harm upon the individual dignity of women, who were considered as a mere chattel (or property) of men. Consequently, the court held that the characterisation of woman as a passive object, denude of any agency, is a denial of free exercise of sexual autonomy and ultimately, dignity.

Privacy

The right to privacy can be segmented into three broad categories – physical, informational and decisional autonomy. While physical privacy is concerned with the protection of human body and different physical zones, informational privacy allows for the complete control of an individual over one’s own personal information. The idea of decisional autonomy entails that all individuals are inherently free to carry out choices which will help them in achieving the goal of self-fulfilment, and to an extent, this conflates with the claim of dignity (which has already been explained above). This section deals with different courts’ understanding of physical and informational privacy.

Article 17 of the Constitution of South Korea guarantees citizens the right to privacy. In its defence of privacy, the court concluded that privacy “may be regulated by law when it is expressed, and it is against the good sexual culture and practice. [However,] it would infringe on the right to sexual self-determination and to privacy for a State to intervene and punish sexual life which should be subject to sexual morality and social orders.” Therefore, the court did not clearly distinguish between the different facets of privacy, and derived its reasoning only from the aspect sexual self-determination or decisional autonomy.

According to the CC of Taiwan, adultery occurs within the privacy of individuals, and the most profound impact of its criminalisation could be seen at the stage of prosecution, discovery and trial. It is therein, that the individual will not have autonomous control over personal information because of excessive intervention of the State. Furthermore, the court held that the violation of “obligation of marriage loyalty” may destroy the intimate relationship between spouses, but it cannot destroy the institution of marriage. Thus, in addition to decisional autonomy, the court gave emphasis to the informational aspect of privacy.

In India, the SC while decriminalising adultery, in a lengthy judgement relied upon both physical (para. 26) and informational privacy (para. 37). Additionally, the court focused on the need to harmonise individual and institutional rights. In the words of the SC, “If it [adultery] is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.” Therefore, only justified interference by the State was allowed within the institution of marriage. For example, anti-dowry legislations (which in effect seek to protect the dignity of women) were considered as justified interferences by the State within the institution of marriage. This was premised on the understanding that the real importance of sexuality to humans, lies in possibilities for self-realisation.

Conclusion

It is important to realise that claims of dignity and privacy in the context of adultery law have received very intense resistance. This is because these claims railed against the argument that the rights of dignity and privacy (as asserted by petitioners) were a threat to the institution of marriage, which was entered into by consent (implying that there was forfeiture of the individuals’ right to dignity and privacy). Considerable thought was given to this argument and after deliberation, all jurisdictions held dignity and privacy to be rights which cannot be forfeited, and always exist independently within an individual. Thus, placing it outside the reach of any kind of unreasonable or unjustified interference from the State.

In conclusion, the apex judicial bodies of South Korea, India and Taiwan, relied upon an understanding of their respective Constitutions, which only placed the ‘individual’, and not ‘groups’ or ‘society’ at its focus. This is because of their firm belief that only the realisation of individual rights will be able to maintain the well-being of a community. In doing so, they all acted as counter-majoritarian institutions who upheld the ‘rule of law’ by deeply embodying the moral fact that a person only belongs to oneself, and not to the others, as a whole.

Vatsal Patel is a final-year law student at the Institute of Law, Nirma University, India. His research interest lies in constitutional and human rights law. Follow his work through linkedin

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