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.
Issuing notice, the bench headed by Justice Rohinton Nariman observed that since clarification is sought of a constitution bench judgment, it is appropriate that the matter be placed before the CJI who may issue orders to post it before a five-judge bench.
"Why is a clarification needed?", asked Justice Nariman from AG K. K. Venugopal at the outset.
"The judgment does not take into account the Armed Forces Act. In the Army Act, there is a provision (of 'unbecoming conduct') where the officer can be court martialed", replied the AG.
"The Armed Forces Act is on a different footing because the expression used is 'unbecoming conduct'. Something which is not strictly adultery because the section (497, IPC) has been struck down will still be 'unbecoming conduct'. The person would be liable under that", noted Justice Nariman.
"We will issue notice. But we can't clarify as this was a constitution bench judgment. We will send it to 5 judges", said the judge.
Decriminalizing adultery may cause instability within armed forces
In the application, the Centre said that decriminalizing adultery may cause 'instability' within armed forces as defence personnel are expected to stay separated from their families for long durations.
"It is submitted that the aforesaid judgment passed by this Hon'ble Court may cause instability within the Applicants Services, as Defence Personnel are expected to function in peculiar conditions, during the course of which many a time they have to stay separated from their families for long durations, when they are posted on borders or other far-flung areas or in areas having inhospitable weather and terrain",the plea said.
"'In view of the judgment, there will always be a concern in the minds of the army personnel who are operating far away from their families under challenging conditions far away from their families about the family indulging in untoward activity", the application said.
Restricted application of fundamental rights to defence personnel
The Centre pointed out that the application of fundamental rights to members of armed forces is restricted as per Article 33 of the Constitution.
Sections 45 and 63 of the Army Act, Sections 45 & 65 of the Air Force Act and Sections 54 (2)and 74 of the Navy Act deal with "unbecoming conduct". There is no offence specified as 'Adultery" in the entire Army Act or the Rules made thereunder. The Defence Service Regulation touch upon the subject of 'plural marriage' but not upon the term 'adultery'. In the pre-constitutional Military Manual, codified by the British, obviously also prior to the enactment of the present Army Act, 1950, there appears to be a reference to 'stealing the affection of a brother officers' wife' in the Armed Forces.
A five-judge bench, also comprising Justice Nariman, had struck down section 497 IPC in September, 2018 in the case Joseph Shine v Union of India.
"Now here it appears that while deciding upon the constitutionality of Section 497 of IPC (Adultery), this Hon'ble Court apparently did not take into account or may not be apprised with the peculiar service conditions of the Defence Personnel as stated aforesaid and the fact that the framers of the Constitution had specifically authorized the Parliament for abrogation of their fundamental rights in terms of Article 33 of the Constitution", reads the Centre's plea.
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.
Click here to read/download the application
