The Supreme Court on Wednesday agreed to examine the Central Government's request to keep adultery a crime in the armed forces. In its plea, the government said the 2018 verdict should not apply to armed forces where personnel can be cashiered from service on the grounds of unbecoming conduct for committing adultery with a colleague's wife.
The Centre in its plea was referring to a September 2018 judgment, where a five-judge Constitution bench led by the then Chief Justice of India Dipak Misra scrapped Section 497 of the Indian Penal Code (IPC) that defined adultery as a criminal offence.
The court had ruled at the time that the 19th Century law "treats a husband as the master" and violated constitutional rights such as equality and privacy.
The application by the Department of Military Affairs, representing the Indian Army, Indian Navy and Indian Air Force, raises the "peculiar conditions" in which its personnel work, away from families for long, and adds, "¦ in view of the¦ judgment, there will always be a concern in the minds of the Army personnel¦ about the family indulging in untoward activity", and that this "may cause instability within the Applicants Services", reports Indian Express.
Since the 2018 judgment was rendered by a five-judge bench, Justice Nariman said the clarification should come from a bench of the same strength. Nariman referred the matter to Chief Justice SA Bobde for setting up of a five-judge Constitution Bench which can clarify the position.
During the hearing on Wednesday, Attorney-General KK Venugopal said that under the relevant rules of armed forces, adultery is a ground for court-martial for unbecoming conduct and therefore armed forces should be exempted from the purview of 2018 judgment of the Constitution Bench. He said that a clarification is needed in this regard from the top court on the applicability of the verdict in armed forces.
But despite the judgment, the Indian Army has continued to act against officers found to have engaged in adulterous relationships.
In August 2019, a bench headed by Justice Nariman had quashed the General Court Marshal (GCM) proceedings against a colonel who was charged with adultery. As per the case, a decorated colonel serving in Jammu and Kashmir was accused of having two adulterous encounters with the wife of a retired officer.
The army had initiated proceedings against the officer, but he was reinstated by the apex court.
What was the 2018 judgment?
The apex court in September 2018, had struck down Section 497 of the Indian Penal Code, a 150-year-old law, that criminalises adultery, calling it "unconstitutional" and "absolutely manifestly arbitrary".
The logic behind the 2018 judgment was taken after considering two points. One, the privacy in a marriage and the fact that the wording of the provision of adultery in IPC only made for a man to be able to charge a man with the crime. Section 497 of IPC made it an offence if a man had sex with the wife of another married man without his "connivance" or "consent".
But only men, and not women, could be prosecuted.
Second, there was no provision of the woman in the situation being able to place criminal charges on a man who commits adultery to her or on the woman with who he commits adultery with.
As per the Centre, the armed forces live under special circumstances where they remain away from their families for a long period of time, which in it would cause instability in their marriages and in situations where they stay away from their family for these long periods would result in apprehensions of their families "behaving untowardly".
Additionally, the Centre speaks of the restriction on fundamental rights of the army personnel under Article 33 of the Constitution.
Article 33 of the Constitution is an exception to the Fundamental Rights. It empowers the Parliament to restrict or abrogate the fundamental rights of uniformed personnel to maintain discipline and ensure the proper discharge of their duties.
The Indian Army wants the offence to be punishable under Section 45 of the Army Act that deals with ''Unbecoming Conduct''.
According to Section 45 of the Army Act: "Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned."
Offences of under adultery were punishable with a court-martial and five years' rigorous imprisonment under Section 69 of the Army Act.
Section 69 of the Army Act read with Section 354 (outraging modesty of a woman by criminal force or assault) of the Indian Penal Code (IPC) for conduct unbecoming of an officer.
In the Indian Army, for instance, adultery is described using the military euphemism "stealing the affection of a brother officer's wife". The situation is similar in the Indian Air Force and the Indian Navy too.
As per the ThePrint, the adultery as an offence is only a notch below "cowardice", which is punishable with even death. This is because officers and jawans get posted in field areas while their families remain in cantonments. Rules are strictly enforced to ensure that soldiers focus on the job and not on the welfare of his family.
"Discipline is the bedrock of the work culture in defence services and an essential ingredient for combat operations," the armed forces said. "Armed forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service," the Centre argued as per this ThePrint report.
The punishment for "stealing the affection of a brother officer's wife" derives its power from Section 497 and is not a standalone offence. Similar provisions exist in all three forces and prosecutions usually lead to the accused officer's dismissal from the force.
"Scrapping of [section] 497, therefore, has thrown up a situation," a senior military lawyer told Firstpost. "Officers and men stay away from families for months and are looked after by others, there has to be some deterrence to deal with this kind of improper behaviour," he added.
Another argument given by the army is that due to the special conditions of families staying away for a long time, families become more vulnerable and by criminalising adultery, servicemen are given the "mental satisfaction" that their families are looked after.
A senior army officer and lawyer told Firstpost, "There should be an apprehension among men to not look into such unbecoming behaviour. By bringing in this law, the moral and social fabric of the army is being held together. Men at borders need to be given this kind of mental satisfaction that their families are not being taken advantage of when they are away."
While most agree that criminalisation of adultery will set a precedent among servicemen to not indulge in "unbecoming" behaviour, it remains to be seen what stance the highest court in the land takes.
With inputs from agencies