SHOULD ADULTERY BE RE-INSTALLED AS A CRIME IN ARMED FORCES?

Introduction

According to the Supreme Court of India’s decision[1] in Joseph Shine v. Union of India[2] (hereafter referred to as “Joseph Shine”), the ruling in Joseph Shine should be reconsidered when it comes to the application of the ruling in Joseph Shine to the armed forces.[3] During the case of Joseph Shine, the Supreme Court declared adultery to be a civil offence and ruled that Section 497 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) violated the Indian Constitution’s Article 14 right to equality and Article 21 right to dignified treatment.

When filing its application, the Central Government requested clarification from the court on two primary issues. Whether or not individuals covered by the Army Act, 1950 (hereinafter referred to as the “Army Act”) are still subject to Section 497 of the Indian Penal Code (IPC) is something the Central Government would like to clarify. In the second instance, the government is interested in knowing whether adulterous or promiscuous acts committed by persons subject to the Army Act, the Navy Act, 1957 (hereinafter referred to as the “Navy Act”), or the Air Force Act, 1950 (hereinafter referred to as the “Air Force Act”) can be punished under the respective provisions of the abovementioned statutes concerning “unbecoming conduct” and “maintenance of good order and discipline.”

As evidence, the government referred to Article 33 of the Indian Constitution, which gives Parliament the authority to restrict or repeal (by law) any of the fundamental rights applicable to members of the armed forces in order to ensure proper discharge of their duties and the maintenance of discipline among members of the forces.[4] This application, as well as the arguments advanced in support of it, raises broader questions about the Indian government’s criminalization policy, as well as the context in which Article 33’s powers are viewed. It is qualitatively different from criminalising conduct that has already been decriminalised throughout the country to deny fundamental rights under Article 33 (of the Constitution). Aside from that, this application by the Central Government raised serious concerns about the extent to which members of the armed forces can be denied fundamental civil rights.

The Spectrum of Article 33

Article 33 of the Indian Constitution is a one-of-a-kind provision that distinguishes it from other constitutions. When it comes to fundamental rights, it allows Parliament to create a distinct constitutional reality for members of the armed forces in accordance with the Constitution. Parliament’s authority, on the other hand, is limited in this context by established judicial principles such as reasonable nexus and proportionality, which are applicable in this context. Consequently, Parliament must demonstrate that the proposed restrictions or abridgements of rights are necessary for “the proper discharge of duties and the maintenance of discipline” among members of the armed forces before they can be implemented.[5]

Additionally, the extent and nature of restrictions are justiciable issues that must pass a proportionality test based on the circumstances of a particular situation. In accordance with this unique provision, military personnel are denied a number of fundamental rights that are granted to civilians on an everyday basis. For example, Section 20 of the Army Rule, 1954, has an impact on Article 19 rights because it prohibits members of the armed forces from participating in political demonstrations and protests. Article 33 seeks to strike a reasonable balance between the requirement to maintain discipline in the armed forces so that the greater goal of national security can be achieved and the denial of certain fundamental rights to those tasked with ensuring national security, as outlined in the Constitution.

Unbecoming Conduct and Maintenance of Good Discipline

The government has specifically referred to provisions concerning “unbecoming conduct” and “the maintenance of good order and discipline,” and it is important to understand the meaning of these terms in order to avoid misunderstandings. Section 45 of the Army Act deals with the ramifications of ‘unbecoming conduct’ for those who are subject to the Act’s jurisdiction. Section 45 of the Air Force Act[6] and Section 54 (2) of the Navy Act[7] both contain provisions that are very similar to this one. The punishment for violating good order and military discipline is incorporated into Section 63 of the Army Act, and similar provisions can be found in Section 65 of the Air Force Act and Section 74 of the Navy Act, as well as other military statutes.

According to the Army Act and the Air Force Act, the most severe sanction that can be imposed for unbecoming conduct is dismissal from the military service altogether. Violating the rules of good order and discipline, on the other hand, may result in incarceration. According to the Navy Act, however, imprisonment is a prescribed punishment for both unbecoming conduct and violations of good order and discipline in the Navy. Both “unbecoming conduct” and “good order and discipline” are broad terms that do not have a specific definition in the legal sense. These provisions, on the other hand, are tailored to different contexts simply by the way they are phrased. The provisions relating to unbecoming conduct are typically invoked in the context of a member of the armed forces’ personal failures to live up to a shared code of conduct that has been established. Its broad range of amplitude makes it particularly useful for dealing with conduct that is not expressly prohibited by any other provisions of the applicable laws.

The primary focus is on the fact that the individual in question has failed to adhere to the standards of conduct that are generally expected of a member of the armed forces in general. The allegation of violating ‘good order and discipline,’ on the other hand, would necessitate consideration of how a person’s actions or omissions are likely to affect others. Instead, the primary concern expressed in the provisions governing “good order and discipline” revolves around the need to avoid setting a bad example for others in order to ensure that the force’s ability to maintain its order and discipline is not jeopardized.

When it comes to criminal law, both “unbecoming conduct” and “good order and discipline” serve as residual clauses that cover a wide range of behaviour. However, the choice of which provider to apply in a given case is critical because the latter carries the potential punishment of imprisonment. In comparison to the criminal sanction of imprisonment, a disciplinary sanction involving dismissal from service or any other lesser punishment is qualitatively different. As a result, the selection of the provisions under which particular conduct is dealt with becomes critical. Example: In the case of Charanjit Lamba[8], the Supreme Court determined that failure to pay electricity bills constituted unethical behaviour on his part. Alternatively, if the officer, in this case, had been charged under Section 63 of the Army Act rather than Section 45 of the Army Act, it would have been possible to imprison him for failure to pay electricity bills.

Distinction between criminalization and loss of fundamental rights

To understand the difference between criminalising a specific act and restricting the application of fundamental rights in a specific situation, it is necessary to understand the difference between criminalising a specific act and restricting the application of fundamental rights in a specific situation. Even when fundamental rights are violated in connection with a specific activity, this does not always result in the criminalization of that activity. The fact that members of the armed forces are not permitted to write in the press on certain specified topics without prior permission from the Central Government is one thing; taking disciplinary action against those who break this rule is quite another. The structure of Article 33[9] clearly allows for this type of disciplinary action to be taken. It is one thing to say that breaking a rule may result in an individual being imprisoned; it is quite another to actually say it.

The Problematic Policy of Criminalization

Please keep in mind that nothing in the decision in Joseph Shine prevents the armed forces from treating adultery as unfit conduct and taking appropriate measures in accordance with the laws that apply to their circumstances. A professional setting is commonplace for perfectly legal conduct to be prohibited, and it is not uncommon for disciplinary action to be taken against those who continue to engage in perfectly legal conduct after being prohibited. It is common for businesses to have anti-fraternization policies, and for educational institutions to prohibit sexual relationships between faculty and students as a result of this practice. Most importantly, engaging in such behaviour should be understood to have consequences that are limited to disciplinary action within the professional context and do not result in the imposition of a criminal sanction on the individual.

Conclusion

A betrayal of the “minimalist approach to criminalization” emphasized in the Joseph Shine case, the Central Government’s application is a violation of the Constitution. The court had previously ruled that where a civil remedy for a wrong exists, the state should refrain from criminalising the conduct that gives rise to the remedy. It is necessary to have a compelling reason to prosecute someone in a particular situation in order to follow the minimalist approach. Attempting criminalization solely for the sake of convenience or as a first resort should be avoided by the government. Furthermore, criminalization should not be regarded as a preferable alternative. In order for criminalization to be deemed necessary in lieu of or in addition to a civil remedy in a particular situation, there must be a compelling argument for doing so.

In this particular instance, Section 45 of the Army Act’s provision for ‘unbecoming conduct’ provides a clear sanction against those who engage in adultery. There is no explanation provided by the government in its application for why it is necessary to criminalize adultery for members of the armed forces when other provisions of law provide for more severe punishment (dismissal from service). Although the remarks about the psychological well-being of military personnel are new, they are a rephrasing of an old ground for penalizing sexual autonomy, which served as the basis for Section 497 of the IPC. Because the application is, at its core, an assertion of the state’s coercive authority, it should not be approved by any government in a constitutional democracy that respects the dignity and autonomy of individuals.

Author(s) Name: Akansha Arora (Amity University, Noida)

References:

[1] SC agrees to examine Centre’s request to keep adultery a crime in Armed forces, issues notice,  Scroll.in, available at https://scroll.in/latest/983927/sc-agrees-to-examine-centres-request-to-keep-adultery-a-crime-in-armed-forces, (last accessed i5 november 2021).

[2] Joseph Shine v. Union of India, (2019) 3 SCC 39.

[3] A copy of the application can be accessed at https://www.livelaw.in/pdf_upload/joseph-shine-05-11-2020-387399.pdf

[4] Also see Rangin Pallav Tripathy and Suman Dash Bhattamishra, ‘India’s effort to criminalize adultery for the armed forces reflects a paternalistic mindset’, Scroll.in, available at < https://scroll.in/article/984628/indias-effort-to-criminalise-adultery-for-the-armed-forces-reflects-a-paternalistic-mindset> (last accessed 15th november 2021).

[5] Union of India v. Annie Nagaraja, (2020) 13 SCC 1.

[6] Air force Act, 1950.

[7] Navy Act, 1957.

[8] Charanjit Lamba v. Army Southern Command, (2010) 11 SCC 314.

[9] The constitution of India, 1950.

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