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The court admitted a petition to drop adultery as a criminal offence from the statute book

Section 497 of the IPC

Section 497 of the IPC mandates that “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 the offence of rape, is guilty of the offence of adultery and shall be punished.

Application of Section 497 (example)

1. X (Male) and Y (Female) have been married for nine years. They both are professionals and lead a seemingly happy life. In the 5th year of their marriage, Y falls in love with her colleague Z (Male). X finds out about this affair and collects evidence of this. When he has enough evidence, he files a case of adultery under the relevant IPC provision.
2. In India, under the existing provisions, women cannot be prosecuted for adultery. So in the case mentioned above, Y’s husband can press charges of adultery on Z, who can get jail time of up to 5 years, but the same is not applicable for Y. This could, however, change, with the Supreme Court agreeing to revisit the provision.
3. In this case, both Y and Z are culpable of committing adultery. However, the law does not look at both parties in an adulterous relationship in the same light

What would the court examine?

The court would examine two aspects of the penal provision

1. Why does Section 497 treat the man as the adulterer and the married woman as a victim
2. The offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the “property” of her husband or a passive object without a mind of her own?

Court’s initial observation

1. SC has noted that in a case of adultery, one person is liable for the offense but the other is absolved and that the concept of gender neutrality, on which criminal law normally proceeds, is absent
2. The court has also noted that once the consent or connivance of the husband is established, there is no offense of adultery at all
3. SC described this as subordination of a woman and something that “creates a dent on the independent identity of a woman”

Past judgments of SC

1. The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497
2. In the past, the Supreme Court has emphasized that a married woman is a “victim” and the man is “the author of the crime”
3. It has treated the exemption given to women as a special provision that has the protection of Article 15(3)
4. It has rejected the argument that it is discriminatory by pointing out that neither a man nor a woman can prosecute their disloyal spouses
5. It is only the ‘outsider’ to the matrimonial relationship who can be prosecuted, and that too by the aggrieved husband alone
6. This is made clear in Section 198(2) of the Code of Criminal Procedure, a provision also under challenge

Why section 497 needs to be scrapped?

1.International scenario:

1. Many countries across the world do not treat adultery as an offense any longer
2. In 2012, a United Nations Working Group on laws that discriminate against women wanted countries that treat adultery as a crime, to repeal such laws.
3. UK has abolished adultery laws

2.Violation of Constitutional principles

1. The Constitution confers equal status to a man and a woman
2. It amounts to a violation of a women’s fundamental right against discrimination under Article 15 when the law “assumes a patronising attitude to women.”

3.Not in consonance with changing Social Conditions

Today both women and men move shoulder to shoulder with each other. Also, today Polygamy is not prevalent in Indian society. So, any biasness in the law towards any gender is like not evolving the law with the ever-changing society.

4.Promotes subordination of women

The section encourages the notion of treating wife as a commodity under the subjugation of husband. It harms the individual independent identity of women whose prosecution depends on husband’s consent.

5.Law discriminates against men

When sexual intercourse takes place with the consent of both parties, there is no good reason to exclude the wife and prosecute only her adulterer. Thus, Section burdens man alone for the offence and grants immunity to wife by treating her as a victim according to prevalent social norms.

Conclusion

No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex; the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity. No doubt that the law, as it stands, is inadequate.

Context

According to RBI’s recent data The pile of bad loans, or stressed assets, is close to Rs10 lakh crore($154 billion) now, which is more than the GDP of at least 137 countries. And what’s more, it is only growing.

Stressed assets, which include non-performing assets (NPAs) and restructured loans, form some 12% of the total loans in Indian banking now.

What is NPA?

1. The assets of the banks which don’t perform (that is – don’t bring any return) are called Non Performing Assets (NPA) or bad loans. Bank’s assets are the loans and advances given to customers. If customers don’t pay either interest or part of principal or both, the loan turns into a bad loan.
2. According to RBI, terms loans on which interest or instalment of principal remain overdue for a period of more than 90 days from the end of a particular quarter is called a Non-performing Asset.
3. However, in terms of Agriculture / Farm Loans; the NPA is defined as under- For short duration crop agriculture loans such as paddy, Jowar, Bajra etc. if the loan (instalment/interest) is not paid for 2 crop seasons, it would be termed as an NPA. For Long Duration Crops, the above would be 1 Crop season from the due date

Impact of NPA on Economy

1. Depositors do not get rightful returns and many times may lose uninsured deposits. Banks may begin charging higher interest rates on some products to compensate for Non-performing loan losses
2. Bank shareholders are adversely affected
3. Bad loans imply redirecting of funds from good projects to bad ones. Hence, the economy suffers due to loss of good projects and failure of bad investments
4. When bank do not get loan repayment or interest payments, liquidity problems may ensue.

Reasons for the rise in NPA in recent years

1. GDP slowdown: Between early 2000’s and 2008 Indian economy were in the boom phase. During this period Banks especially Public sector banks lent extensively to corporates. However, the profits of most of the corporate dwindled due to slowdown in the global and domestic economy, bans in mining projects, delays in environmental related permits ,Land acquisition hurdles and volatility in prices of raw material. This has adversely affected their ability to pay back loans and is the most important reason behind increase in NPA of public sector banks.
2. Relaxed lending Norms: One of the main reasons of rising NPA was the relaxed lending norms especially for corporate honchos when their financial status and credit rating was not analyzed properly. Also, to face competition banks were hugely selling unsecured loans .
3. Priority Sector Lending: There is a myth that main reason for rise in NPA in Public sector banks was Priority sector lending as according to the findings of Standing Committee on Finance , NPAs in the corporate sector are far higher than those in the priority or agriculture sector. However, even if PSL is not the main cause but it is still a cause for rising NPA which can be seen from the fact that As per the latest estimates by the SBI, education loans constitute 20% of its NPAs.
4. The Lack of Bankruptcy code in India and the sluggish legal system makes it difficult for banks to recover these loans from both corporate and noncorporate.

Other factors

1. Banks did not conduct adequate contingency planning, especially for mitigating project risk. They did not factor eventualities like failure of gas projects to ensure supply of gas or failure of land acquisition process for highways.
2. Restructuring of loan facility was extended to companies that were facing larger problems of over-leverage & inadequate profitability. This problem was more in the Public sector banks.
3. Companies with dwindling debt repayment capacity were raising more & more debt from the system.

Why most NPA in the Public sector?

1. Five sectors Textile, aviation, mining, Infrastructure contributes to most of the NPA since most of the loan given in these sectors are by PSB, they account for most of the NPA.
2. Public Sector banks provide around 80% of the credit to industries and it is this part of the credit distribution that forms a great chunk of NPA. Last year, when Kingfisher was marred in a financial crisis, SBI provided it a huge amount of loan which it is not able to recover from it.
3. Less Professional management
4. Political Pressure and interference forces PSB to lend to not so commercially sounds project.

Steps taken by RBI and Government in last few years to curb NPA

1. The government has launched Mission Indradhanush to make the working of public sector bank more transparent and professional in order to curb the menace of NPA in future.
2. The government has also proposed to introduce Bankruptcy code which will make it easier for banks to Recover the loans from the debtors.
3. RBI introduced a number of measures in the last few years which include:

• Tightening the Corporate Debt Restructuring (CDR) mechanism,
• Setting up a Joint Lenders’ Forum, prodding banks to disclose the real picture of bad loans, asking them to increase provisioning for stressed assets,
• Introducing a 5:25 scheme where loans are to be amortized over 25 years with a refinancing option after every five years, and
• Empowering them to take majority control in defaulting companies under the Strategic Debt Restructuring (SDR) scheme.
• Amendment in banking law to give RBI more powers: The Banking Regulation Act may be amended to give RBI more powers to monitor bank accounts of big defaulters. The amendment in the banking law will enable setting up of a committee to oversee companies that have been the biggest defaulters of loans.
• Stringent NPA recovery rules: The government has over the years enacted and tweaked stringent rules to recover assets of defaulters. The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act or Sarfaesi Act of 2002 was amended in 2016 as it took banks years to recover the assets.

How to curb the menace of NPA?

#1. Short-Term measures

1. Review of NPA’S/Restructured advances- We need to assess the viability case by case. Viable accounts need to be given more finance for turnaround and unviable accounts should either be given to Asset Reconstruction Company or Management/ownership restructuring or permitting banks to take over the units.
2. Bankruptcy code should be passed as soon as possible. Bankruptcy code will make it easier for banks to recover loans from unviable enterprises.
3. The government should establish an ARC with the equity contribution from the government and the Reserve Bank of India (RBI). The established ARC should take the tumour (of non-performing assets or NPAs) out” of the banking system. An ARC acquires bad loans from banks and financial institutions, usually at a discount, and works to recover them through a variety of measures, including sale of assets or a turnaround steered by professional management. Relieved of their NPA burden, the banks can focus on their core activity of lending.

#2. Long-term Measures

1. Improving credit risk management– This includes credit appraisal, credit monitoring, and efficient system of fixing accountability and analyzing trends in group leverage to which the borrowing firm belongs to
2. Sources/structure of equity capital– Banks need to see that promoter’s contribution is funded through equity and not debt.
3. Banks should conduct necessary sensitivity analysis and contingency planning while appraising the projects and it should built adequate safeguards against such external factors.
4. Strengthen credit monitoring– Develop an early warning mechanism and comprehensive MIS(Management information system) can play an important role in it.MIS must enable timely detection of problem accounts, flag early signs of delinquencies and facilitate timely information to management on these aspects.
5. Enforce accountability- Till now lower ring officials considered accountable even though loaning decisions are taken at higher level. Thus sanction official should also share the burden of responsibility.
6. Restructured accounts should treated as non performing and technical write-offs where Banks remove NPA’S from their balance sheets Permanently should be dispensed with.
7. Address corporate governance issues in PSB- This includes explicit fit and proper criteria for appointment of top executives and instituting system of an open market wide search for Chairman

Questions

1. Non-performing assets, restructured loans and written-off assets — collectively called ‘stressed assets’ — have become a major challenge to the country’s banking system. To combat these, what has the government done? Will these measures be effective? Examine.
2. The problem of non-performing assets (NPAs) in the Indian banking system is said to be big and might affect economic growth of the country. What are the approaches that RBI and government are adopting to clean the banking system of NPAs? Examine.