The Rajasthan High Court has held that the Government shall not initiate departmental proceedings against a Government servant on the basis of a complaint alleging his/her extra-marital/ illicit relationship with another man or woman whether married or unmarried.
Justice Sanjeev Prakash Sharma observed that an employer cannot dictate the expression of sexuality between the consented adults, which is a private affair
The court made these observations while considering a writ petition filed by two persons against whom departmental proceedings were initiated pursuant to allegations of illicit relationships. Departmental inquiry was initiated against an inspector and lady constable of Rajasthan Police after allegations of their 'illicit relationships' surfaced. They were accused of having acted in contravention of the Rajasthan Conduct Rules and tarnished police image in public. The inspector was even directed to undergo DNA Test.
The issue that popped up in the writ petitions was whether Section 4 of the Rajasthan Conduct Rules of 1971, which binds a Government servant not to lead an immoral life, would include in its ambit a consensual relationship entered between an adult man and woman. Another incidental issue was whether for such an action, the employer, with whom the individuals are working as employees, would be authorized to initiate departmental action and whether such an action having been taken by the department would amount to breach of the right of privacy and right to live with dignity.
The court, referring to the Supreme Court constitution bench judgments on privacy, adultery and homosexuality, observed that norms of moralities of the society cannot supersede the right of privacy and right of choice of relationship of an individual and no person can be punished by his employer for such behaviour or relationship. It said:
"This Court feels that a human dignity attaches to itself also a right of concept of autonomy and also a right to take ones own decisions for himself or herself relating to his/her body and choices of his/per partner for whom he or she wishes to live or have sexual intercourse. These choices and selections cannot be a subject matter of departmental proceedings and no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life"
The court further observed that, though the act of relationship entered by an individual with another female or male as the case may be while is/her spouse is alive would be an act amounting to adultery and would be considered as an immoral act so far as the Indian society is concerned, it cannot be a ground for initiating departmental proceedings by the employer. It be left best for the person who may be affected individually to take remedy and proceed against him/her in civil law or for initiating divorce proceedings as the case may be, the court added while allowing the writ petitions.
Concept of morality has to be understood according to change of the society
Interesting submissions were made by Additional Advocate General GS Gill defending the departmental proceedings against the inspector and the constable. He submitted that that in country like India, there is no room for allowing an individual to enter into illicit relationship by having sexual relations with persons other than his own spouse. Thus according to him, once they have come in knowledge of the department of the employer, who are bound to follow the constitutional goals, have to take departmental action and also severely punish if proved.
To substantiate this, he produced before the court a replica of the calligraphist version of the Constitution of India wherein there is a photo lithography on each part of the Constitution giving illustrations of the culture of "Bharat". Explaining the depictions, he contended that each chapter depicts the rich cultural heritage of India which believed in a particular concept of life and method of living.
Responding to these submissions, Justice Sharma said:
"From Chapter-1 to Chapter-22, the illustrations depicted are from different periods starting from 'Mohan Jodro' period and ending upto the British period and the struggle for independence and the struggle of the Father of Nation for removal of casteism and to achieve an egalitarian society having equality as a concept permeating in all works of life of an individual. Thus, it depicts how a society continues to strive to achieve a better status and in the process, the concepts of the cultural norms of the society have to change. The pursuit is always towards the betterment and independent rights of an individual.. Having said so, it would also be appropriate to deal with the submissions of learned Additional Advocate General appearing for the respondent-State. While it is true that the Constitution of India depicts the history of India i.e. 'Bharat', however, as held by the Supreme Court, as noted above in foregoing paras, the evolution of a human mind is a continuous process. With the change of times, the concept of morality has to be understood according to change of the society and the concept which an individual citizen may be holding 100 years back, would not be the same with the progression of the human development. The law makers have to keep pace with the advancement of the society and the interpretation has to be done accordingly."