How Does Joseph Shine Judgment Prevent Disciplinary Actions Against Armed Forces Officers For Adultery? Supreme Court Asks Centre

A Constitution Bench of the Supreme Court on Thursday asked the Union Government if there is anything specifically in the 2018 judgment in the Joseph Shine case which precludes disciplinary proceedings on the ground of misconduct against army officers for adultery.

The Joseph Shine case had decriminalised the offence of adultery by striking down Section 497 of the Indian Penal Code as unconstitutional.

A 5-judge bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar was considering an application filed by the Union Government seeking a clarification that army personnel can be proceeded under the Army Act for adulterous acts, despite the Joseph Shine case verdict. 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.

Additional Solicitor General Madhavi Divan, appearing for the Union, submitted that disciplinary actions were taken against certain army personnel for adultery. But, the Armed Forces Tribunal quashed such proceedings in many cases, 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 subjected 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.

While agreeing that adultery can shake up families and discipline in armed forces is of paramount importance, the bench asked how does the Joseph Shine judgment preclude disciplinary action.

"Is there anything in the judgment which precludes you from taking action for misconduct?", Justice Joseph asked.

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.

Justice Joseph asked how can Joseph Shine case be cited to stall disciplinary proceedings.

"In armed forces where discipline is of paramount importance, this is a conduct that can shake up the life of officers...and the armed forced must be able to take some kind of action. How can you cite Joseph Shine here?", Justice Joseph asked.

Justice CT Ravikumar added that Joseph Shine case only decriminalized adultery but that does not bar disciplinary action.

"The question is he cannot be penalised but can he not be subjected to disciplinary proceedings", Justice Ravikumar said

Advocate Neela Gokhale, appearing for an intervenor, took objection to the averments in the Centre's application on the ground that they were against the dignity of army wives. To generally say that officers serving at border areas are feeling insecure about their wives is insulting, the counsel said.

ASG Divan said that action is taken irrespective of gender and if a female officer is found to be indulging in adulterous activities, she will also face action for misconduct.

Justice Joseph again asked Divan if there is anything in the judgment which stands in the way of treating this type of conduct as "misconduct" and precludes disciplinary action. The ASG replied that she did not get the time to read the judgment in the detail, as the causelist was published yesterday late night.

"Our view is that if there is nothing in the judgment precluding you, you will be advised to withdraw this application and you can challenge the individual orders of the AFT. We will reserve your liberty for that", Justice Joseph told the ASG. The ASG sought time to read the judgment in detail.

Accordingly, the matter was adjourned to December 6.

After adjourning the matter, Justice Joseph said that adultery is something which cannot be taken lightly.

"Adultery causes pain..it can break families...we have seen in High Courts while dealing with matrimonial cases, how adultery can break families...don't treat it in a light handed matter. There was a case in High Court, where the mother had committed adultery and the children refused to speak to her, despite our best efforts. That is the sort of pain, anger and hatred this can create", Justice Joseph said.

Advocate Raj replied that the Joseph Shine case judgment has retained adultery as a ground for divorce.

Case Title : Joseph Shine vs Union of India MA 2204/2020 in W.P.(Crl.) No. 194/2017, MA 1702/2021 inW.P.(Crl.) No. 194/2017 PIL-W PIL-W

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