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Court Martials- "A distinct class" vis-a-vis adultery

Updated: Oct 9, 2023

Ria Garg


Introduction


The provision under S. 497 IPC had been scraped by a 2018 judgement in the Joseph Shine vs. Union of India case which decriminalised adultery as an offence in India. The 158-year-old anti-adultery law was struck down as it was held to be unconstitutional which dented the individuality of women and treated them as property of their husbands. What S. 497 looked at was the offence of adultery in the context of preserving marriage as a social institution; the object was to control the sexuality of the wife to preserve the bloodline; making it an archaic approach and so it was struck down. It was in straight violation of articles 14,15 and 21 of the constitution. Recently, an application was filed by the Department of Military Affairs seeking clarification about the position of defence personnel vis-a-vis adultery.


Accountability of defence personnel


The main contention raised in the application was that decriminalising adultery could create a hindrance in the defence personnel’s services considering that there will always be a concern in their minds because of the unique conditions under which they operate by staying away from their families for long periods about the family indulging in untoward activities. In order to set the stage for the Centre’s request for clarification, it was argued that when the Armed Forces authorities are charging personnel, the affected personnel are misinterpreting the Joseph Shine v. Union of India decision, which decriminalised adultery, to their advantage. Whenever the defence personnel are called for, their sole contention is that considering S. 497 has been struck down they could not be charged indirectly for something for which they cannot be charged directly. Another misuse by the defence personnel is that of their right to privacy whenever they are charge-sheeted. However, it has been clarified that the right to privacy does not extend to adulterous relationships.

It was further highlighted that the operational efficiency of the personnel was compromised considering the 2018 judgement was promoting indiscipline by legitimising extra-marital affairs. The petitioner argued a direct nexus between operational efficiency and national security which was alleged to be breached by legitimising promiscuous kind of behaviour. They believed that the message that was sent by scrapping of S. 497 IPC was that extra-marital affairs were permissible conduct among the officials. There was a reason why the system of court-martial was developed considering such acts need quick action otherwise it leads to uncertainty.


Adulterous Acts vis-s-vis National Security


The work culture and the nature of work of the defence personnel require absolute discipline and if the officers indulge in adulterous acts it could lead to a loss of trust in the unit which ultimately could lead to a national security breach. This argument holds no ground as far as a causal link is alleged to be there between engaging in adulterous acts and a breach of national security. Engaging in an extra-marital affair is a personal matter which has no bearing on the work of a unit as a whole. There can be no reasonable nexus between a promiscuous act and national security.

Adulterous acts don’t have any bearing on a person’s ability to discharge his duties. Personal and professional matters are two separate things and only a casual apprehension is not enough to require any clarification of the 2018 judgement.

The entire claim in the application was that this issue was not one of morality but of work efficiency. One of the contentions raised was that in lieu of article 33 of the Indian constitution which determines to what extent the rights conferred can be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them, defence personnel were a distinct class which should not be subjected to S. 497 IPC, but to S. 63 or S. 45 of the Army Act and under Sections 45 or 65 of the Air Force Act and Sections 54 (2) or 74 of the Navy Act being special legislations and considering the requirements of discipline and proper discharge of their respective duties. The issue of discrimination of women through the statutes was also raised considering S. 497 IPC was detrimental for women. On the contrary, the Arms Forces Act is gender-neutral when it comes to persecution for offences.


Extent of the 2018 Judgement


The 2018 judgement was limited only to the extent of the constitutional validity of S. 497 IPC and Section 198(2) of the CrPC dealing with adultery and did not analyse the legal validity of penalising adultery. The judgment has no bearing on disciplinary actions initiated against the employees for the offence of adultery. The only implication of the judgement was the decriminalisation of adultery. It did not impact the power of the armed forces to initiate proceedings against the defence personnel for their adulterous acts because it had no relation with respect to the Army, Navy and Air Force Acts.


Conclusion


The court has not passed any ruling on the effect of sections 45 and 63 of the Army Act as also the corresponding provisions in other Acts with regards to charging defence personnel under adultery because the court was not concerned with the implications of the special legislation as the application was for clarification of the 2018 judgement and not for the validity of the said acts. Observing that military discipline will be affected if there is an army with “completely loose morals”, the final outcome arrived at by the five-judge constitutional bench was that Armed forces would be at liberty to initiate disciplinary proceedings against officers and personnel for adultery notwithstanding that the Supreme Court had decriminalised the offence in 2018.


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