New Delhi, January 13: The Supreme Court on Wednesday admitted a plea by the Centre seeking exemption for armed forces personnel to be prosecuted for adulterous acts. The Supreme Court had, in September 2018, declared the offence of adultery under Section 497 of the Indian Penal Code (IPC) unconstitutional.
An application filed by the Ministry of Defence (MoD) seeking clarification to this effect was taken up by a three-judge bench headed by Justice RF Nariman on Wednesday.
Attorney General KK Venugopal, appearing for MoD, told the court that the September 27, 2018 judgment of the court in the Joseph Shine v Union of India case, striking down adultery as an offence could come in the way of armed forces personnel being convicted for adulterous acts under the Army Act, Navy Act and Air Force Act, the Hindustan Times reported.
Venugopal said, “The Army, Navy and Air Force have provisions under which those caught in adulterous acts are liable to be punished for unbecoming conduct by which they can be court-martialed.”
The application by Centre said, “The aforesaid judgment passed by this court 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 durations, when they are posted on borders or other far-flung areas or in areas with inhospitable weather and terrain.”
The plea also stated, “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.”
The bench issued notice on the application and said, “This stands on a different footing as it amounts to unbecoming conduct.”
AG Venugopal said that the same needs to be clarified as in view of the Supreme Court judgment, an argument may be raised that what could not be done directly in view of aforesaid judgment is being done indirectly.
The bench, also comprising justices Navin Sinha and KM Joseph, said, ‘We cannot clarify since it’s a decision by Constitution Bench.” The court issued notice and sent the matter to Chief Justice of India for constituting a five-judge bench to consider the Centre’s application.
The application stated that unlike IPC Section 497, the Armed Forces do not differentiate between a man and a woman, who is subject to the Army Act, if they are guilty of an offence. In other words, the Army would equally proceed against a woman as per the Act, if she enters into an adulterous/illicit relationship. Also, Constitution’s Article 33 specifically allows Parliament to restrict or modify operation of fundamental rights with regard to armed forces.
The 2018 judgment had been passed on the premise that it discriminated against women as it considered them as chattel or property of a man and only the husband of a married woman could bring a complaint against the third person involved in adulterous act. The law did not likewise punish women involved in similar relationships. However, Supreme Court held that though adultery may not be an offence, it will continue to be a ground for seeking divorce.