Adultery in Armed Forces Day #1: Court Clarifies Judgement does not Concern Armed Forces Enactments
Decriminalisation of AdulteryJudges: K.M. Joseph J, Ajay Rastogi J, Aniruddha Bose J, Hrishikesh Roy J, C.T. Ravikumar J
Today, a 5-Judge Constitution Bench led by Justice K.M. Joseph heard the Union’s application seeking clarity on how the Joseph Shine Judgment, which decriminalised adultery, applied to members of the Armed Forces.
Background
On September 27th, 2018, a 5-Judge Constitution Bench, in Joseph Shine v. Union of India, unanimously struck down Section 497 of the Indian Penal Code, 1860, which made adultery a criminal offence. The Bench stated that provision was an archaic law which infringed upon the autonomy and dignity of women, and violated their fundamental rights to life, equality, and non-discrimination.
In 2020, the Union Government filed a Miscellaneous Application seeking clarification on whether the Joseph Shine (2018) applied to members of the Armed Forces who were governed by the Army, Navy and Airforce Acts.
The Union claimed that members of the Armed Forces are a separate class under Article 33 of the Constitution and must be held to a higher standard of discipline and accountability for their actions.
Union argues that the judgment poses a threat to National Security
Today, A 5-Judge Constitution Bench led by Justice K.M. Joseph heard the Union’s application seeking clarity on how the Joseph Shine Judgment, which decriminalised adultery, applied to members of the Armed Forces.
Additional Solicitor General Madhavi Diwan argued that this Judgment precludes persons in the Armed forces from being held responsible for adultery which is a ‘conduct unbecoming’ under the Army, Navy and Air Force Acts.
Ms. Diwan stated that persons in the armed forces were increasingly using the Joseph Shine Judgment as a defence to escape responsibility after committing adultery. She went on to argue that if a member of the armed forces commits adultery and loses the respect of his subordinates, there is a risk of mutiny and insubordination which would pose a threat to national security.
The Bench asked the ASG why the Joseph Shine Judgment was being used as a defence in cases tried under military enactments when they deal with different and distinct situations. Ms. Diwan responded stating this was the clarification she sought. She urged the Court to make it clear that the Joseph Shine Judgment did not consider enactments that applied to members of the armed forces.
Adv. Ananya Ghosh, appearing for members of the Armed Forces, argued that the clarification sought by Ms. Divan was unnecessary as the Joseph Shine Judgment does not concern the Armed Forces laws. Further, she argued that persons in the Armed Forces who are under trial for ‘conduct unbecoming’ must be dealt with on a case-to-case basis.
The Bench delivered the final Order in the case, clarifying that the Joseph Shine Judgment did not apply members of the armed forces who are accused of ‘conduct unbecoming’ and dismissed the application.