Armed Forces Personnel Liable To Face Disciplinary Action For Adultery Despite Striking Down Of Section 497 IPC : Supreme Court

A Constitution Bench of the Supreme Court on Tuesday clarified that its 2018 judgment striking down Section 497 of the Indian Penal Code(which criminalised adultery) will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct.

The bench observed in the order that the 2018 judgment in the case Joseph Shine vs Union of India was not at all concerned with the provisions of the armed forced Acts. The bench further noted that as per Article 33 of the Constitution, the legislations governing armed forces can provide exemptions from the applicability of fundamental rights.

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. 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.

The order dictated by the Court today 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)".

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 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.