A five-judge bench was told that the provision allowing disciplinary action against armed force personnel for adulterous acts is gender-neutral. The bench clarified that the Joseph Shine judgment does not act as a hindrance to initiating disciplinary action for unbecoming conduct against armed forces personnel for adulterous acts.
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ON January 31, a Supreme Court five-judge Constitution bench comprising Justices K.M. Joseph, Ajay Rastogi, Anirudha Bose, Hrishikesh Roy and C.T Ravikumar observed that despite the Supreme Court's judgment declaring criminalisation of adultery as unconstitutional, disciplinary action can still be initiated against armed force personnel for adulterous acts under Sections 45 (unbecoming conduct) and 63 (violation of good order and discipline) of the Army Act, 1950.
The criminalisation of adultery, prescribed under Section 497 of the Indian Penal Code, 1860, (IPC), was held unconstitutional by another five-judge Constitution bench of the court in Joseph Shine versus UOI (2018)
In 2020, a miscellaneous application was filed by the Union Government seeking clarification on how the judgment will impact the provisions of the Army Act.
The application requested the court to clarify that any promiscuous or adulterous act by armed force personnel will be governed under Sections 45 (unbecoming conduct) and 63 (violation of good order and discipline) of the Army Act, Sections 45 (unbecoming conduct) and 65 (violation of good order and air force discipline) of the Air Force Act, 1950, and Sections 54 (cruelty and conduct unbecoming the character of an officer) and 74 (offences against good order and naval discipline) of the Navy Act, 1957, by virtue of these being special legislation, and considering the requirements of discipline among armed forces personnel and for proper discharge of their duty.
Initially, a three-judge bench was hearing the plea, but it referred the question to a five-judge Constitution bench in 2021 because criminalisation of adultery had been declared unconstitutional by a five-judge Constitution bench.
Earlier, when Section 497 had not been struck down, armed force personnel were prosecuted for adulterous acts by way of Section 69 of the Army Act. Section 69 relates to civil offences, which are penal offences under ordinary criminal law. However, post-Joseph Shine, the issue arose when armed force personnel would be chargesheeted under Sections 45 and 63 of the Army Act, and they took the defence that adultery has been decriminalised and cannot be criminalised for the purpose of the Army Act. As a consequence, there was confusion over whether adulterous acts continue to be punishable under the Army Act.
The Union Government, led by Additional Solicitor General of India Madhavi Goradia Divan, told the court that there is a substantial difference between Section 497 of IPC and Section 69 of the Army Act. While the former had an archaic approach to preserving marriage as a social institution and controlling the sexuality of the wife, the latter provision is gender-neutral.
At the outset, Justice Roy asked Divan to clarify the limitation of the 2018 judgment and whether the provisions of the Army Act and other corresponding legislation were under challenge before the court. Divan informed the court that Joseph Shine was limited to penal provisions only.
The bench clarified that the judgment does not create a hindrance to initiating disciplinary proceedings against armed force personnel for 'unbecoming conduct' under their respective legislation. However, Justice Rastogi suggested that a definite meaning should be given to the term 'unbecoming conduct'. Divan replied that no definite meaning can be given to the term.
Therefore, the court disposed of the application by clarifying that Joseph Shine was not concerned with Sections 45 and 63 of the Army Act and other corresponding statutes.