THE Defence Ministry has sought a clarification on the Supreme Court’s September 2018 judgment decriminalising adultery, saying “promiscuous” or “adulterous” acts by armed forces personnel amount to an actionable offence in the Forces and should be allowed to remain so.
A Bench headed by Justice R F Nariman issued a notice on the plea saying that since it relates to a judgment by a five-judge Constitution bench, it may be placed before the Chief Justice of India to be referred to a Bench of similar strength.
The application by the Department of Military Affairs, representing the Army, Navy and 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”.
In September 2018, a Constitution Bench of the Supreme Court headed by then CJI Dipak Misra had held Section 497 of the IPC which made adultery a punishable offence only for men as arbitrary, saying it treated the wife as chattel and deprived women of sexual autonomy and dignity. Adultery, the court said, will however continue to be a ground for any civil wrong, including a ground for divorce.
The Ministry’s plea says that “discipline is the bedrock of the work culture in Defence Services and an essential ingredient for combat operations. Accordingly, the framers of the Constitution had authorised Parliament to restrict or abrogate certain fundamental rights in their application to Armed Forces”. The plea goes on to refer to Section 45 of the Army and Air Force Acts and Section 54 (2) of the Navy Act which define “unbecoming conduct”, and Section 63 of the Army Act, Section 65 of the Air Force Act and Section 74 of the Navy Act, which deal with offences against “good order and… discipline”.
These provisions “cover a wide variety of conduct”, the Ministry says, adding that following the Supreme Court order, it might find it hard to proceed against “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”.
The Ministry also argues that “unlike Section 497 (which made only the man punishable), the Armed Forces do not make a difference between a male or a female, who is subject to the Army Act, if they are guilty of an offence. In other words, de hors Section 497, the Army would equally proceed against a female subject to the Act, if she enters into an adulterous/illicit relationship”.
Pointing out that “the Armed Forces exist in an environment wholly different and distinct from civilians”, the Ministry says, “‘promiscuous or adulterous act’ by persons subject to the Army Act, Navy Act and Air Force Act would still be offences for which either criminal or disciplinary action could be initiated”.
The National Federation of Indian Women (NFIW) called the Defence Ministry’s argument an “insult” to the Armed Forces personnel and their spouses. “Through this statement, the Ministry is questioning the personal integrity of those who are part of the Armed Forces and their spouses. By raising the argument of ‘concern of the personnel’ about their ‘family indulging in untoward activity’, the Ministry is blatantly questioning the personal integrity of women in particular. These aspersions reflect the sickening, feudal, Manuwadi attitude of decision-makers in the Ministry… NFIW hopes the Supreme Court will take note of the insensitive attitude of the Ministry,” NFIW general secretary Annie Raja said, demanding that “the highly insensitive arguments be withdrawn forthwith” and Defence Minister Rajnath Singh submit an “unconditional apology”.