The Union Government, unhappy with the Armed Forces Tribunal's decisions quashing disciplinary proceedings against military personnel for adultery, sought clarification from the Supreme Court.
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THE Supreme Court, on Thursday, questioned the Union Government if there was anything in its judgment in Joseph Shine versus Union of India (2018) that barred disciplinary action against military personnel on grounds of committing adultery with the spouse of a military colleague.
A five judge Constitution bench comprising Justices K.M. Joseph, Ajay Rastogi, Anirudha Bose, Hrishikesh Roy, and C.T. Ravikumar was hearing a plea filed by the Union Government, referred to it by a three-judge bench of the court in January last year, seeking clarification whether Joseph Shine precludes such disciplinary proceedings within the armed forces.
In Joseph Shine, a five-judge Constitution bench had decriminalised the criminal offence of adultery, striking down Section 497 of the Indian Penal Code as unconstitutional.
Additional Solicitor General of India, Madhavi Garodia Divan, on behalf of the Union Government, submitted that the Armed Forces Tribunal had quashed several disciplinary proceedings initiated against military personnel for indulging in adultery with a spouse of another military personnel, on the basis of Joseph Shine. She pointed out that while Joseph Shine had invalided section 497 due to its patriarchal implication, disciplinary proceedings in the Army on grounds of adultery are gender-neutral, with women officers too liable to be proceeded against if they indulge in the same.
She emphasised that maintaining the provisions of disciplinary action for adultery in the armed forces is crucial to maintain the morale of the personnel of the forces, and ensure that officers serving in far flung areas, away from their families, don't feel insecure or dispirited.
The bench agreed with Divan that maintaining discipline and order within the armed forces is of paramount importance, but questioned her about how Joseph Shine prohibits disciplinary proceedings within the forces for adultery under Sections 45 (unbecoming conduct) and 63 (violation of good order and discipline) of the Army Act in any way.
Advocate Kaleeswaram Raj, who had represented the petitioner in Joseph Shine, averred that Joseph Shine doesn't say anything about the armed forces, which is why the government's clarification application is not maintainable. He further averred that a general clarificatory order of the nature sought by the government cannot be given, and individual matters of disciplinary proceedings on ground of adultery within the forces must be examined on a case-to-case basis to see the impact of Joseph Shine, if any, on them.
The bench again questioned how the court's 2018 judgment, which only decriminalised the offence of adultery, could hit disciplinary proceedings of any kind at either a public or private sector establishment.
An advocate representing the respondent took exception to the pleadings in the government's application stating that officers serving in border areas would feel insecure about their wives, on the ground that it is insulting to army wives. Divan responded by reiterating that disciplinary action for adultery can be taken against female officers, and the provision is gender neutral.
Divan, on being asked by the bench, stated that she hadn't yet gone through Joseph Shine in detail to see if there was anything in the judgment that excludes adultery within the armed forces from the application of disciplinary provisions of the Army Act.
The bench granted her the liberty to withdraw the application if there is nothing in the judgment necessitating the application, and challenge the individual order of the Armed Forces Tribunal that incorrectly interpreted Joseph Shine.
It listed the matter for hearing on December 6.