Decriminalisation of adultery does not affect disciplinary proceedings against armed force personnel: Supreme Court

The Supreme Court on Tuesday clarified that its judgment decriminalising adultery under Section 497 of the Indian Penal Code (IPC) would not come in the way of the armed forces initiating disciplinary proceedings against personnel indulging in extramarital affairs [Joseph Shine vs Union of India Secretary]..A constitution bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar made it clear that the Joseph Shine judgment, which decriminalised adultery, had not dealt with Sections 45 and 63 of the Army Act or allied provisions in the Navy and Airforce Acts."It is not as if this Court approved of adultery. It has found that it may be a civil wrong and will continue to be a ground for dissolution of marriage ... This Court was neither called upon nor has pronounced on Sections 45 and 63 of the Army Act and corresponding provisions of the other Acts. We only make this position clear and dispose of the application", the Court said..The said provisions, i.e., Sections 45 and 63 of the Army Act, deal with punishment for unbecoming conduct and acts impeding military discipline..The Supreme Court was deliberating on whether its 2018 judgment in Joseph Shine v. Union Of India, decriminalised adultery in India, would come in the way of reprimanding members of the Armed Forces who commit adultery.By the Joseph Shine judgment, a Constitution Bench had unanimously struck down Section 497 of the Indian Penal Code (IPC), which had penalised adultery until then..During the hearing today, Additional Solicitor General Madhavi Divan, appearing for the Central government, stressed that a huge number of cases have arisen where personnel facing disciplinary proceedings for adultery were citing the Joseph Shine judgment as an escape route."They are saying now you cannot do indirectly what you cannot do directly. That is a routine defence," Divan told the Court.Such impunity has been disturbing the cohesion of army units and the authorities are left helpless when such charges are sought to be quashed citing the Supreme Court's earlier ruling, she added."This is not a good thing for the armed forces. There is a sense of cohesiveness attached to armed forces units. People have to be able to do or die at your command. It requires a different kind of psyche mindset to get people to follow your every command. You have to set that example since they have to be ready to lose life and limb at your command. But the command structure gets disrupted if your boss behaves inappropriately," Divan argued.She also raised concerns that such breaches are likely to lead to insubordination and affect national security. The Joseph Shine judgment should not lead to military discipline being impeded, she submitted.The ASG also highlighted that the earlier judgment was only in the context of marriage and had not considered the fallouts in workplaces, especially in the armed forces.Advocates Anannya Ghosh and K Parameshwar, appearing for intervenors, argued that such proceedings need to be considered on a case-to-case basis."It could be that a husband an wife are separated for years. If adultery is read into these provisions, a barrage of applications would be allowed to be filed. The military officers would not get to consider it case by case," it was submitted.Advocate Kaleeswaram Raj, appearing for the original petitioner, supported this contention and said that no omnibus order, which is in effect a review of the judgment, should be passed..[Follow our coverage of the hearing and pronouncement of order].[Read order]