A Constitution Bench of the Supreme Court on 31 January 2023 clarified that its 2018 judgment which criminalised adultery and striking down Section 497 of the Indian Penal Code will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct.
Court was hearing the Defence Ministry’s plea seeking exemption from applicability to the Armed Forces, the decriminalisation of Adultery laws. In effect, the top court has agreed with the Centre’s position that persons subject to Army Act, Navy Act and Air Force Act, by virtue of Article 33 of the Constitution of India, being a distinct class, any promiscuous or adulterous acts by such persons should be allowed to be governed by the provisions of Sections 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54 (2) or 74 of the Navy Act.
In 2019, a 3-judge bench had referred the application to a Constitution Bench, as the Joseph Shine judgment was delivered by a 5-judge bench.
Important Question of Law raised by AOR
The application filed through AOR Sachin Sharma raises following two important question of law:
(a) Whether the persons subject to Army Act by virtue of Article 33 of Constitution of India being a distinct class should continue to be subject to the rigors of Section 497 of the Indian Penal Code by making an exception in regard to application of ibid Section 497 of the IRC vis a vis persons subject to Army Act
(b) Whether the promiscuous or adulterous acts by persons subject to Army Act should be allowed to be governed by the provisions of Army Act Section 45 or Army Act Section 63 and under corresponding provisions of Navy Act and Air Force Act being special legislation irrespective of the Hon’ble Supreme Court judgment in Joseph Shine’s case by treating it as an abrogation of Fundamental Rights provided by law in terms of Article 33 of the Constitution of India.
Additional Solicitor General Madhavi Divan, appearing for the Centre, had told the bench that the application was filed in view of the Armed Forces Tribunal quashing certain disciplinary proceedings initiated against personnel for inappropriate sexual conduct by citing the Joseph Shine judgment. The ASG pointed out that the Joseph Shine judgment was premised on the patriarchal connotations of Section 497 IPC; however, the actions taken in Army are gender neutral and female officers are also liable to disciplinary action.
Divan also said that action against adultery is necessary to ensure that the officers who are serving in far flung areas away from their families do not feel insecure or dispirited.
Advocate Kaleeswaram Raj, who appeared for the petitioner in the Joseph Shine case, submitted that the Union’s clarification application is not maintainable and that there is no observation in the Joseph Shine case regarding Army Officers. He submitted that a general clarificatory direction cannot be given and individual cases are to be examined on a case-to-case basis.
A 5-judge bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar passed the order in an application filed by the Union Government.
Order Dictated by Court
The order dictated by the Court is as follows :
“The judgment of this court was concerned only with validity of S. 497 IPC and S. 198(2) CrPC…In this case, this Court had no occasion to consider the effect of the provisions of the Armed Forces Acts. As we notice, it is not as if this court approved of adultery. This Court had found adultery may be a modern problem. This Court also held that will continue to be a ground for dissolution of marriage…In view of the fact that the scheme of the acts in the context of Article 33 did not fall for consideration before this court, we must observe and clarify that the judgement of this court was not at all concerned with the effect and provisions of the Armed Forced acts. This court was neither called upon nor has it ventured to pronounce on effect of S. 45 and S. 63 of the Army Act as also the corresponding provisions of the other Acts(Navy Act, Air Force Act)”.
The laws and regulations that outline the penalties for participating in adulterous or promiscuous behaviour help to keep discipline when jawans and officers are deployed to difficult locations. In addition, other officers take care of their families at base camp. Armed forces personnel who have an affair with the wife of a coworker may lose their careers for acting improperly.