NEW DELHI: More than two years after adultery was struck off the list of offences in Indian Penal Code (IPC), the ministry of defence on Monday requested the Supreme Court to allow its retention for personnel in the armed forces, where the crime is referred to as ‘stealing the affection of brother officer’s wife’, which can lead to those found guilty being cashiered from service.
Attorney General K K Venugopal and Additional Solicitor General Madhavi Goradia Divan told a bench of Justices R F Nariman, Navin Sinha and K M Joseph that armed forces operate in peculiar circumstances where jawans and officers are posted in forward inhospitable terrain, while their wives are taken care of by their units at the family accommodation, which are frequently visited by officers and JCOs to look after their well-being.
Venugopal said when jawans and officers are at forward locations, they must be free from the worry of the well-being of their families and should not be perturbed by the thought that in the absence of adultery as an offence, as has been ruled by the SC in its September 27, 2018 judgment, someone may enter into an adulterous relationship with their family members. That is the reason why adultery should continue to be an offence categorised as “unbecoming conduct” under the Army, Navy and Air Force Acts, he said. The AG, however, also said the rules will apply to both men and women in uniform found guilty of adultery.
Justice Nariman-led bench agreed with Venugopal and said Article 33 of the Constitution enables Parliament to enact laws for armed forces restricting fundamental rights of the personnel and that adultery could still continue as an offence under the ‘unbecoming act’ provision in the laws governing armed forces. However, the bench sent the MoD’s plea to the CJI for placing it before a five-judge bench as the judgment declaring ‘adultery’ provision in the IPC unconstitutional was rendered by a bench of the same strength.
The MoD said, “Persons subject to Army Act, Navy Act and Air Force Act, by virtue of Article 33 of the Constitution of India, being a distinct class, any promiscuous or adulterous acts by such persons should be allowed to be governed by the provisions of Sections 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54 (2) or 74 of the Navy Act being special legislation and considering the requirements of discipline and proper discharge of their duty.”
Venugopal said, “In view of Article 33, whether the judgment in Joseph Shine would prevent the Armed Forces from proceeding against a person subject to the Army Act, who is guilty of what would in effect be an adulterous act? For this purpose, it may be pointed out that unlike Section 497 of IPC (adultery), the Armed Forces do not make a difference between a male or a female, who is subject to the Army Act, if they are guilty of an offence. In other words, dehors Section 497, the Army would equally proceed against a female subject to the Act, if she enters into an adulterous/illicit relationship.”
“Applying the 2018 SC judgment, one would find that the first ground for invalidating Section 497, namely, that it was manifestly arbitrary, would be traceable to Article 14 of the Constitution. The second aspect mentioned that Section 497 was discriminatory towards women and treated them as chattel and thus violated Article 14 and the third aspect of the violation of privacy under Article 21, are all matters which would be covered by Article 33 of the Constitution, where the provisions of the Army Act would prevail, notwithstanding their being inconsistent with fundamental rights,” the ministry said.
“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 said.
“Therefore, ‘promiscuous or adulterous act’ by persons subject to the Army Act, Navy Act and Air Force Act would still be offences for which either criminal or disciplinary action could be initiated under Army Act Section 63 or Section 45 and under corresponding provisions of Navy Act and Air Force Act respectively, proceeding on the basis that these are acts of misconduct that would be covered by these two provisions,” it said.