The Centre has sought clarification from the Apex Court regarding the application of the law of adultery on the armed forces. A three-judge Bench of the Supreme Court headed by Justice Rohinton Nariman considered the application filed by Ministry of Defense on Wednesday.
In a 2018 judgment (Joseph Shine v Union of India) the Supreme Court had decriminalised adultery under section 497 of the Indian Penal Code. Issuing notice on the Centre’s application, the Supreme Court said that since the 2018 judgment was passed by a Constitution Bench, it would be appropriate that a Constitution Bench considered the application.
Explaining why the clarification was sought, Attorney General KK Venugopal said that the 2018 judgment did not take into consideration the Armed Forces Act which penalises an ‘unbecoming act’. Under the act, a personnel can be court martialed on the ground of ‘unbecoming act’ for committing adultery with a colleague’s wife.
Deliberating on the ambit of the words ‘unbecoming conduct’ in the Armed Forces Act Justice Nariman noted that ‘unbecoming conduct’ would include things which do not strictly amount to adultery. “The Armed Forces Act is on a different footing because the expression used is ‘unbecoming conduct’. Something which is not strictly adultery because the section (497, IPC) has been struck down will strictly be ‘unbecoming conduct’. The person would be liable under that”, Justice Nariman observed.
Decriminalising adultery might cause instability: Centre
In its application, the Centre has contended that decriminalising adultery might cause instability as military personnel are separated from their families for long durations. “In view of the judgment, there will always be concern in the minds of the army personnel who are operating far away from their families under challenging conditions far away from their families about the families indulging in untoward activity”, the application read.
Sections 45 and 63 of the Army Act, sections 45 and 65 of the Air Force Act and sections 54 (2) and 74 of the Navy Act deal with unbecoming Act. However, the Army Act and the Rules thereunder do not specifically deal with ‘adultery’. The Defense Service Regulation refers to ‘plural marriage’ but does not mention adultery. In the Military Manual drafted by the British prior to the commencement of the Constitution and the enactment of the Army Act there was a reference to ‘stealing the affection of a brother officer’s wife’ in the Armed Forces.
Court not apprised of peculiar working conditions of defense personnel in Joseph Shine case: Centre
The application filed by the Centre said that the judgment passed by the Apex Court in Joseph Shine case did not consider the peculiar working conditions of defense personnel. It was further submitted in the application that in view of the judgment in Joseph Shine case, if a personnel is charged with adultery under the provisions of unbecoming act or for the violation of good order and military discipline then an argument may be raised that the army are bypassing the law and are trying to do indirectly what cannot be done directly.
Advocate on Record Sachin Sharma raised raised two important questions of law in the application:
- Whether the persons subject to the Army Act by virtue of Article 33 of the Constitution of India being a distinct class should continue to be subject to section 497 of the IPC by making an exception in regard to application of section 497 IPC vis-à-vis persons subject to Army Act?
- Whether promiscuous or adulterous acts by persons subject to Army Act should be allowed to be governed by the relevant provisions of Army Act, Navy Act and Air Force Act being special legislations irrespective of Joseph Shine judgment by treating as an abrogation of Fundamental Rights in terms of Article 33 of the Constitution?
The Joseph Shine judgment
A Constitution Bench of the Supreme Court that included Justice Nariman had unanimously decriminalised adultery under 497 of the IPC as violative of Article 14, 15(1) and 21 of the Constitution. The provision relating to adultery is a civil offence now forming a ground for divorce. The court held that the provision was an archaic and paternalistic law infringing upon a woman’s autonomy and dignity.