Extramarital Affairs Disrupt Cohesion Of Armed Forces Units, Disturbs Command Structure : Centre Tells Supreme Court

The Supreme Court on Tuesday clarified that decriminalisation of adultery will not impact the power of armed forces to initiate disciplinary proceedings against its personnel for adulterous conduct. A Constitution Bench led by Justice KM Joseph clarified that the 2018 judgment in Joseph Shine vs Union of India, which struck down Section 497 of the Indian Penal Code, did not impact the laws applicable to armed forces -Army Act, Navy Act and the Air Force Act.The Court passed this order in an application filed by the Union Government seeking clarification regarding the 2018 judgment.To provide context to the Centre’s application for clarification, Additional Solicitor General Madhavi Divan submitted that when the Armed Forces authorities are chargesheeting personnels, the concerned personnels are misinterpreting the judgment in Joseph Shine v. Union of India, wherein adultery was decriminalised, to their benefit. “What has happened is that whenever we have chargesheeted them...what they are saying is that Joseph Shine strikes down Section 497; it is no longer on statute book; and now you cannot do indirectly what you cannot do directly.”To substantiate that the context in which the Apex Court had decriminalised adultery and the issue that has arisen with respect to maintaining discipline in Armed Forces are distinct, she argued - “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; that archaic approach and so it was struck down. We are on a different note. We want to show how this can impact the operational efficiency and readiness of our Armed Forces...We are concerned with operational efficiency which has a direct nexus with the security of the nation.”Referring to Article 33 of the Constitution of India, 1950 [Power of Parliament to modify the rights conferred by this part in their application to Forces etc.], she argued that the Armed Forces is a distinct class and Parliament can enact laws to determine 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. “Persons subject to Navy Act, Army Act and Airforce Act, by virtue of A. 33 of the Constitution of India, being of distinct class, any promiscuous or adulterous act by such person shall be allowed to be governed by relevant provisions of the above-mentioned statutes.”Justice Ravikumar noted that, “What you are trying to show is that S. 497 there is discriminatory towards women, but there is no such discrimination in these statutes?”In response, Ms. Divan submitted, “Absolutely...There are cases where we have gone against women officers as well.”Justice Rastogi was concerned that in order to enforce disciplinary proceedings for adulterous acts, Armed Forces authorities should not resurrect Section 497 which has been struck down by the Apex Court . Addressing his concern, Ms. Divan submitted, “We are not saying that...All I am trying to show is that it was a civil offence, but today there are other provisions which are flexible enough for conduct which is either unbecoming or conduct contrary to military order and discipline.”She added - “The message that seems to have gone down is that extra-marital affair by a personnel in Armed Forces is permissible conduct...Because it is permissible therefore Armed Forces cannot punish them for such misconduct. Why do we have a court martial, independent criminal justice system in the armed forces..because we need to act quickly...these are matters of discipline. When matters are pending all over the country, it is disturbing the cohesion of units...It breeds uncertainty.”She reassured the Bench that her case was not premised on morality, but on military readiness, operational efficiency which impacts national security. With respect to the Army Act, Navy Act and Airforce Act, she submitted that they are self contained codes. “It is a self-contained code. It is the form of self regulation where only Armed Forces can fully appreciate and understand what can lead to a trigger which can be a breach of military discipline and impact security."Ms. Divan referred to the judgment in Joseph Shine with respect to the right to privacy. She submitted that there was a discordant note in the judgment itself, wherein Justice Chandrachud had recognised privacy within marriage as well as privacy outside marriage, i.e., in the relationship with the third person. She indicated that the same is being misused by the personnels to assert their right to privacy when they are chargesheeted. Ms. Divan, pointed out from the judgment that with privacy, Justice Malhotra had stated that one cannot enjoy A. 21 protection for purposes of an adulterous relationship. Ms. Divan vehemently argued that work culture and nature of work of the Armed Forces is distinct from that of the civilians. Her...

Extramarital Affairs Disrupt Cohesion Of Armed Forces Units, Disturbs Command Structure : Centre Tells Supreme Court

Sohini Chowdhury

Since armed forces follow a gender neutral approach in taking disciplinary action for adulterous conduct, the principle in 'Joseph Shine' case is not applicable, Centre argued.

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