The Defence Ministry told the Supreme Court on Wednesday that the Indian Armed Forces do not discriminate between male and female personnel when it comes to dealing with acts of adultery. The ministry, has thereby, seeked exemption for Indian Army, Navy and Air Force from the Supreme Court’s 2018 verdict decriminalising the offence of adultery.
In 2018, the Supreme Court had struck down Section 497 of Indian Penal Code which criminalised adultery, ruling that the 19th century provision treated wife as a chattel of the husband. The top court had reasoned that why only a man committing adultery with another man’s wife was punishable under the law while the wife, who as per law had no distinct legal personality, could not be punished.
However, the armed forces were unhappy with the scrapping of criminalisation of Adultery law and approached court stating
Scrapping of IPC 497 therefore has thrown up a difficult situation. Officers and men stay away from families for months and are looked after by others, there has to be some deterrence to deal with deviant behaviour.
Central Government’s Take
The Central government in its application before the Supreme Court has now contended that unlike Section 497 of the IPC, the Armed Forces do not make a difference between a male or a female, and all personnel are subject to the Army Act, if they are guilty of the offence. Their application read as follows:
Section 497 has been struck down for the peculiar reasons mentioned in the judgment, namely violation of Article 14 because though the male perpetrator would be guilty, however, the wife is exempt from criminal prosecution.
The government further stated that the judgment “may cause instability within the Applicants 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 duration.
It is the case of the Centre that, in view of the aforesaid judgment,
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.
This is because there is a system of officers/ JCOs visiting families of personnel who are away on the front.
The Supreme Court “apparently” did not take into account or might not have been apprised of the peculiar service conditions of the Defence Personnel, when deciding the constitutionality of Section 497 of the IPC.
To emphasise this point further, Centre has stated that Constitution has specifically authorized the Parliament for abrogation of fundamental rights of armed forces personnel in terms of Article 33 of the Constitution. In this regard, the application has raised the following question:
Further, reliance has been placed on the provisions of Army Act, Navy Act and Air Force Act to argue that promiscuous or adulterous acts by persons subject to those Acts would amount to offences under Section 45 (unbecoming conduct) or Section 63 (good order and discipline) of Army Act and under corresponding provisions of Navy Act and Air Force Act.
Whether the promiscuous or adulterous acts by persons subject to Army Act shouid be allowed to be governed by the provisions of Army Act Section 45 or Army Act Section 63 and under corresponding provisions of Navy Act and Air Force Act being special legislation irrespective of the Hon’ble Supreme Court judgment in Joseph Shine’s case by treating it as an abrogation of Fundamental Rights provided by law in terms of Article 33 of Constitution of India?
As reported by Bar and Bench, Army fears that in cases of adultery, even if there is a charge against the accused in either of the Sections for unbecoming conduct or violation of good order and military discipline, then in that case, an argument may be raised that army was circumventing the law and what could not be done directly in view of aforesaid judgment was being done indirectly.
In the military, the offence of “stealing the affections of a brother officer’s wife” – a euphemism for adultery – is a serious offence that is a notch below “cowardice” , which is punishable with even death.
Hence, the Centre has prayed for a clarification that military personnel will continue to be governed by Sections 45 or 63 of Army Act, Sections 45 or 65 of Air Force Act and Sections 54(2) or 74 of Navy Act when it comes to adulterous acts.
A three-judge Bench, headed by Justice RF Nariman, issued a notice to the petitioner on whose plea Section 497 IPC was declared unconstitutional and referred the matter to a Constitution Bench.
Now, Chief Justice of India SA Bobde will constitute a five-judge Constitution Bench, which will hear the Centre and the original petitioner, and decide the issue.