Extramarital Affairs Disrupt Cohesion Of Armed Forces Units, Disturbs Command Structure : Centre Tells Supreme Court

To provide context to the Centre’s application for clarification, Additional Solicitor General Madhavi Divan submitted that when the Armed Forces authorities are chargesheeting personnels, the concerned personnels are misinterpreting the judgment in Joseph Shine v. Union of India, wherein adultery was decriminalised, to their benefit.

“What has happened is that whenever we have chargesheeted them...what they are saying is that Joseph Shine strikes down Section 497; it is no longer on statute book; and now you cannot do indirectly what you cannot do directly.”

To substantiate that the context in which the Apex Court had decriminalised adultery and the issue that has arisen with respect to maintaining discipline in Armed Forces are distinct, she argued -

“What S. 497 looked at was the offence of adultery in the context of preserving marriage as a social institution; the object was to control the sexuality of the wife to preserve the bloodline; that archaic approach and so it was struck down. We are on a different note. We want to show how this can impact the operational efficiency and readiness of our Armed Forces...We are concerned with operational efficiency which has a direct nexus with the security of the nation.”

Referring to Article 33 of the Constitution of India, 1950 [Power of Parliament to modify the rights conferred by this part in their application to Forces etc.], she argued that the Armed Forces is a distinct class and Parliament can enact laws to determine to what extent the rights conferred can be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

“Persons subject to Navy Act, Army Act and Airforce Act, by virtue of A. 33 of the Constitution of India, being of distinct class, any promiscuous or adulterous act by such person shall be allowed to be governed by relevant provisions of the above-mentioned statutes.”

Justice Ravikumar noted that, “What you are trying to show is that S. 497 there is discriminatory towards women, but there is no such discrimination in these statutes?”

In response, Ms. Divan submitted, “Absolutely...There are cases where we have gone against women officers as well.”

Justice Rastogi was concerned that in order to enforce disciplinary proceedings for adulterous acts, Armed Forces authorities should not resurrect Section 497 which has been struck down by the Apex Court .

Addressing his concern, Ms. Divan submitted, “We are not saying that...All I am trying to show is that it was a civil offence, but today there are other provisions which are flexible enough for conduct which is either unbecoming or conduct contrary to military order and discipline.”

She added -

“The message that seems to have gone down is that extra-marital affair by a personnel in Armed Forces is permissible conduct...Because it is permissible therefore Armed Forces cannot punish them for such misconduct. Why do we have a court martial, independent criminal justice system in the armed forces..because we need to act quickly...these are matters of discipline. When matters are pending all over the country, it is disturbing the cohesion of units...It breeds uncertainty.”

She reassured the Bench that her case was not premised on morality, but on military readiness, operational efficiency which impacts national security.

With respect to the Army Act, Navy Act and Airforce Act, she submitted that they are self contained codes.

“It is a self-contained code. It is the form of self regulation where only Armed Forces can fully appreciate and understand what can lead to a trigger which can be a breach of military discipline and impact security."

Ms. Divan referred to the judgment in Joseph Shine with respect to the right to privacy. She submitted that there was a discordant note in the judgment itself, wherein Justice Chandrachud had recognised privacy within marriage as well as privacy outside marriage, i.e., in the relationship with the third person. She indicated that the same is being misused by the personnels to assert their right to privacy when they are chargesheeted. Ms. Divan, pointed out from the judgment that with privacy, Justice Malhotra had stated that one cannot enjoy A. 21 protection for purposes of an adulterous relationship.

Ms. Divan vehemently argued that work culture and nature of work of the Armed Forces is distinct from that of the civilians. Her primary concern was that if an officer indulges in adulterous acts they would lose the trust of their unit and in turn would have an impact on national security.

“There are people under his command.The important factor is the cohesiveness of the unit, bonhomie and fraternity of the unit has to be kept together.These are people who under your command are to do or die. What is that character that is expected of you? It has to be more rigorous, more exacting than any ordinary person. You have to set that example...In that context, the command structure gets disrupted…Suppose, there is a person in a commanding position and they are in an extra-marital affair/affair with their subordinate. If your unit feels that you are going to favour this person, it can trigger nothing less than a mutiny. It has happened…”

She added -

“You are members of a unit. You are supposed to act on command in a flash;you do not question those orders. In civilian society we question everything;we show individual identity;we wear our diversity on our sleeve…There is an American article which says that if a person does not have control over his individual instincts what will he do in a combat situation, when the time of reckoning comes…Then there is a breach of command structure. Here are people who have to leave families and serve on a front...In such a situation, a member of the family or a spouse is in a relationship, can as an employer the Union of India turn a blind eye to it.”

Justice Roy enquired, “You are saying that the Constitution itself sets out a higher standard for discipline…”

Ms. Divan responded that adulterous acts can have a real or a potential impact on the ability to perform duties. However, the Armed Forces authorities cannot wait till the time the actual impact is made. That would be detrimental for the security of the nation.

Ms. Ghosh, appearing for the intervenors, submitted that there is no need for a clarification as the judgment in Joseph Shine does not deal with Armed Forces’ statutes.

In the alternative she argued that if the clarification sought is provided by the Court, then it can also clarify that the provision of the Armed Forces’ statutes are to be invoked in the facts and circumstances of particular cases without referring to S. 497 IPC. She submitted that the authorities have to establish that the action complained of must necessarily have a relationship with the duties they are to discharge and discipline they are to maintain.

Justice Joseph enquired, “Suppose an officer is charged under S. 45 of Army Act. His act amounts to adultery as understood under S. 497 and this amounts to unbecoming conduct. Can the officer say because S. 497 is struck down therefore S. 45 has become a dead letter, unbecoming conduct is something else.”

Ms. Ghosh submitted that so long Section 45 is invoked by the authorities in a circumstance that the action of the personnel is ‘unbecoming conduct’, they have to establish the same. In order to elaborate on her concern, she submitted -

“It has to be determined on a case to case basis if a conduct goes against military’s ethos...Suppose there is an ongoing marital dispute and a complaint is made, wouldn’t it be required to look into the facts and circumstances of the case.”

Advocate, Mr. Kaleeswaram Raj, who appeared for Joseph Shine in the main petition, argued that a clarification application cannot amount to review. In his views, when the judgment in Joseph Shine does not deal with the concerned statues of the Armed Force, at this stage, it does not merit a clarification. He added -

“Pupils across the country will use Shine to rely on it, distinguish it...but in all those cases will it lead to a cause of action for a clarification.”