The bench then referred the matter to the Chief Justice of India for constituting a five-judge bench to examine the MoD’s application. It, however, issued a notice to the PIL petitioner in the case, Kerala-resident Joseph Shine, who was represented in the court through advocate Kaleeswaram Raj.(HT PHOTO)
The bench then referred the matter to the Chief Justice of India for constituting a five-judge bench to examine the MoD’s application. It, however, issued a notice to the PIL petitioner in the case, Kerala-resident Joseph Shine, who was represented in the court through advocate Kaleeswaram Raj.(HT PHOTO)

Decriminalising adultery could lead to ‘instability’ in armed forces: Govt to SC

Maintaining that “honour is the sine quo non of the services,” a plea by the ministry of defence (MoD) asserted that adultery must remain a valid ground to prosecute defence personnel under army laws.
By Abraham Thomas
UPDATED ON JAN 14, 2021 01:27 AM IST

The Centre has sought a clarification from the Supreme Court to the effect that the 2018 order decriminalising adultery would apply only to civilians and not defence personnel because not prosecuting soldiers for adultery could cause “instability” in the armed forces.

Maintaining that “honour is the sine quo non of the services,” a plea by the ministry of defence (MoD) asserted that adultery must remain a valid ground to prosecute defence personnel under army laws.

In September 2018, a five-judge constitution bench struck down Section 497 of the Indian Penal Code, declaring it to be unconstitutional and violative of right to equality of women in treating them as “chattel” (an item of property) and inferior to their husbands. Section 497 made adultery an offence only with respect to a man, who has a relationship with wife of someone else.

The wife was considered neither adulterous nor an abettor in law, while the man could be jailed for up to five years. In that case, the Centre defended the law, saying it protected sanctity of marriages.

On Wednesday, MoD’s clarification plea was argued by Attorney General KK Venugopal before a bench, headed by Justice Rohinton F Nariman, where the law officer submitted that the armed forces required a completely different standard of discipline and that, therefore, the army act and other pertinent laws must be treated as outside the scope of the 2018 judgment.

“Adultery can be defined as an ‘unbecoming act’ or punishable under “good order and discipline” rule under the army act. Such officers can be court martialed and cashiered. We thus want a clarification that the constitution bench judgment is not applicable to personnel of the armed forces,” Venugopal told the bench, which also included justices Navin Sinha and KM Joseph.

Venugopal added that this clarification was required to obviate any counter-argument by an officer sought to be prosecuted that the armed forces were acting contrary to the Supreme Court’s verdict.

Agreeing with the AG, the bench responded that it was also of the prima facie view that the IPC and the army act or other laws governing navy and air force stood on different footings and therefore, even as adultery was no more an offence under the IPC, it could constitute an ‘unbecoming conduct’ under the army act.

But the bench, at the same time, added that it was not competent to issue a clarification in this regard since the 2018 judgment was passed by a constitution bench of five judges. “This will have to be put up before the constitution bench,” the bench told the AG.

The bench then referred the matter to the Chief Justice of India for constituting a five-judge bench to examine the MoD’s application. It, however, issued a notice to the PIL petitioner in the case, Kerala-resident Joseph Shine, who was represented in the court through advocate Kaleeswaram Raj.

The plea by the MoD has stated: “The aforesaid judgment passed by this court may cause instability within the 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.”

It sought to highlight that since the Supreme Court has decriminalised adultery, “there will always be a concern in the minds of the army personnel who are operating far away from their families under challenging conditions about the family indulging in untoward activity.”

Drawing a distinction between Section 497 in the IPC and the relevant laws in the armed forces, the MoD stated that unlike Section 497, the army laws did not make a difference between a male or a female and that it was a gender-neutral provision prosecuting soldiers of both the sexes for such acts.

“In other words, the army would equally proceed against a female subject to the act, if she enters into an adulterous/illicit relationship,” said the application, adding the laws governing the defence personnel were not discriminatory in nature.

The Attorney General’s arguments in the top court are based on inputs obtained from the defence ministry and the armed forces, army officials familiar with the case said on the condition of anonymity. Adultery definitely amounts to conduct unbecoming of a soldier and those guilty have to be punished, the officials said.

The armed forces see adultery -- “stealing the affections of a brother officer’s wife” -- as an offence that is just a notch below the worst offence an enlisted person can be accused of, cowardice. The provision to deal with this, drawn from Section 497, exists in all three services, and the punishment is usually dismissal.

The MoD underlined the necessity of retention of adultery as an offence for the defence personnel: “That one has to remember that the Armed Forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service. Courage, and devotion to duty, even at the risk of one’s lives, is part of the unwritten contract governing the members of the armed forces.”

It also relied upon Article 33 of the Constitution to make a point that this provision allowed Parliament to restrict or modify operation of fundamental rights with regard to armed forces so as to ensure proper discharge of duties and maintenance of discipline.

Looking from this prism too, the MoD said, its laws to govern defence personnel could not be held bad only because they abridged some of their fundamental rights.

In 2018, months after the top court’s judgment, then finance minister Arun Jaitley had said that the Supreme Court had ventured into areas best left alone with its landmark verdicts against Section 377 of the Indian Penal Code (IPC) and adultery.

Speaking at the Hindustan Times Leadership Summit, Jaitley wondered if sexual activity was treated as part of free speech, then if it could be restrained in any form in a school hostel, prison or army frontier.

“While writing these historical judgments the judges get carried away and want to be part of history,” he had said. “You go a step further.”

With the adultery judgment, Jaitley felt the court overstepped when it said adultery was like other matrimonial offences and were personal wrongs and not public wrongs, therefore outside the criminal law.

“Now will it cover bigamy and polygamy also? Will it cover cruelty? Will it cover dowry offences – if this was the case, the judgment would be wholly anti women,” he had said.

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