SC: Armed Forces can take disciplinary action against Officers indulged in Adultery

 

The Supreme Court bench, which also comprised Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, added that a private person having an adulterous relationship may not have repercussions outside of his personal life.

Clearing the decks for the armed forces to proceed against soldiers committing adultery, a Supreme Court constitution bench on Tuesday ruled that its 2018 judgment striking down adultery as a punishable offence under the Indian Penal Code will not forbid action against military officers for unbecoming conduct.

The five-judge bench, led by justice KM Joseph, drew a distinction between an ordinary citizen and a member of armed forces, saying the latter’s conduct has ramifications for the entire country.

“You are a member of a disciplined force with huge ramifications on the rest of the country. You are supposed to guard the country. If you are busy doing something else, then the waves that you send down the ranks... can we say its okay? You can merrily go around having adulterous relationship? The cohesion of the unit, oneness that we talk about, what happens to all of that?” observed the bench.

The bench, which also comprised justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, added that a private person having an adulterous relationship may not have repercussions outside of his personal life. “But an officer of the armed forces is not similarly circumstanced. What he does and what he does not do will have impact not only on his entire unit but on the entire country itself,” it commented.

 

In its order, the bench stated: “This court had no occasion whatsoever to consider the effect of the provisions of the armed forces acts in question...We must observe and clarify that the judgment of this court was not all concerned with the effect and provisions of the relevant Acts placed by the applicant.”

The order added that the court was in 2018 neither called upon nor did it venture to pronounce on the effect of sections 45 and 63 of the Army Act and the corresponding provisions in other laws regulating officers of the navy and air force.

Section 45 prescribes court martial of officers for unbecoming conduct, whereas section 63 provides for punishment for violation of order and discipline. There are similar provisions in the Air Force Act and Navy Act.

The court order also underscored that the 2018 judgment by another five-judge bench did not approve of adultery but only ruled that this act cannot remain as an offence under the penal code because the provision was discriminatory and against the dignity of women.

“We may notice that it is not as if this court approved of adultery. This court has found that adultery may be a moral wrong. This court also held that it will continue as a ground of dissolution of marriage and has also been described as a civil wrong in the judgment,” it added.

In September 2018, a five-judge constitution bench struck down Section 497 of the penal code, declaring it to be unconstitutional and violative of right to equality of women in treating them as chattel (personal possession) 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.

 

 Two years later, the defence ministry approached the top court for a clarification that the 2018 judgment will not negate adultery as an offence under the Army Act and similar laws regulating officers of navy and air force where promiscuous relationship was construed as an “unbecoming act” punishable under the “good order and discipline” rule.

According to additional solicitor general Madhvi Divan, not prosecuting soldiers for adultery was causing “instability” in the armed forces and that the top court should issue a clarification that its 2018 judgment decriminalising adultery would apply only to civilians and not to defence personnel in the context of military laws.

Representing the defence ministry, she argued on Tuesday that the armed forces required a completely different standard of discipline and that unlike the concern of gender equality, which was the edifice of the 2018 judgment quashing section 497, the Centre’s concerns surround military discipline and operational efficiency for the armed forces.Divan further said that there was a state of “chaos and uncertainty” in so far as court martial proceedings for adultery were concerned because of several pending cases before disciplinary authorities for want of a clarification from the apex court.

Advocates Kaleeswaram Raj and Ananya Ghosh, however, said that there was no need for the bench to issue a clarification since the exercise was completely academic and there were no live issues before it. Raj emphasised that a misplaced or misunderstood understanding of the 2018 judgment cannot call upon a constitution bench to clarify an issue which was not argued at all in the previous judgment.

To this, the bench responded that the Centre has not asked for a modification of the judgment but the court can go to the extent of saying that the 2018 judgment did not take into account the military laws and that parties can resort to appropriate remedies independent of the previous judgment which was confined to Section 497 of the penal code.

At one point, the bench said that somebody who was not with the armed forces did not need to follow the same discipline. “What should a disciplinary authority do when an officer bound by the Army Act commits adultery? What message gets percolated down the ranks when an officer goes on merrily committing adultery? Can it be said that since this court struck down adultery as existing in another statute, the offence stands eclipsed completely?” asked the bench, adding there has to be a distinction between a private person and a member of a disciplined force.

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