The Supreme Court on Wednesday issued notice on Centre's application for clarification that its 2018 judgment decriminalising adultery under IPC should not apply to the Armed Forces where a personnel can be cashiered from service on grounds of "unbecoming conduct" for committing adultery with a colleague's wife.
The Centre pointed out that the application of fundamental rights to members of armed forces is restricted as per Article 33 of the Constitution.
It is submitted that in cases of Adultery, even if there is a charge against the accused in either of the Sections for unbecoming conduct or violation of good order and military discipline, then in that case, an argument may be raised that the army are circumventing the law and what could not be done directly in view of aforesaid judgment dated 27.09.2018, is being done indirectly.
Hence in view of the aforesaid, 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.