To start with, the Centre has in a measured, commendable and calibrated move very rightly sought a clarification from the Supreme Court to the effect that the 2018 order decriminalizing adultery would apply only to civilians and not defence personnel because not prosecuting soldiers for adultery could cause instability in the armed force. Soldiers are expected to maintain utmost discipline always and if they lose their moral character then certainly this will lead to erosion of faith among the soldiers on their seniors who indulge in adultery and this can never be in the long term interest of armed forces as they will stop respecting them and will instead themselves also try to emulate the same which will certainly have potentially dangerous consequences for our nation as it is the armed forces who save guard our country from not just external aggression but also internal disturbances! How can this be allowed to happen under any circumstances?

While maintaining that honour is the sine qua non of the services, a plea by the Ministry of Defence (MoD) asserted that adultery must remain a valid ground to prosecute defence personnel under army laws? How can adultery be ever tolerated in the armed forces? What message will go among the soldiers if it is decriminalized in armed forces also? Will it not encourage adultery? The answer is quite ostensible!

It must be recollected that in September 2018, a five Judge Constitution Bench had struck down Section 497 of the IPC pertaining to adultery in the notable case titled Joseph Shine vs Union of India declaring it to be unconstitutional and violative of the right to equality of women in treating them as chattel (an item of property) and inferior to their husbands. As most of us know that Section 497 made adultery an offence only with respect to a man who has a relationship with the wife of someone else. The wife was considered neither an adulterous nor an abettor while the man instead could be jailed for up to a term of five years.

Truth be told, the MoD's clarification plea was argued by Attorney General KK Venugopal before a Bench headed by Justice Rohinton Fali Nariman where the law officer submitted that the Army Act and other pertinent laws must be treated as outside the scope of the 2018 judgment. KK Venugopal who is one of the most senior and eminent lawyer of the Apex Court is absolutely right in pleading so. He rightly told the Bench that:
We thus want a clarification that the...judgment is not applicable to personnel of the armed forces. Agreeing with the Attorney General, the Bench also mercifully responded that it was also of the prima facie view that the IPC and the Army Act or other laws governing navy and air force stood on a different footing and therefore even as adultery was no more an offence, it could constitute an unbecoming conduct under the Act.

To put things in perspective, the plea by the MoD has very rightly stated that:
The aforesaid judgment passed by this court may cause instability within the 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 having inhospitable weather and terrain.

As it turned out, KK Venugopal also on January 13, 2021 submitted before the Apex Court Bench headed by Justice Rohinton Fali Nariman that the armed forces required a completely different standard of discipline and that, therefore, the Army Act and other pertinent laws must be treated as outside the scope of the 2018 judgment. Venugopal also told the Bench which also apart from Nariman included Justice Navin Sinha and Justice KM Joseph that, Adultery can be defined as an 'unbecoming act' or punishable under good order and discipline rule under the Army Act. Such officers can be court martialled and cashiered. We thus want a clarification that the Constitution Bench judgment is not applicable to personnel of the armed forces.

Needless to say, Venugopal also added that this clarification was required to obviate any counter-argument by an officer sought to be prosecuted that the armed forces were acting contrary to the Supreme Court's verdict. Agreeing with the Attorney General, the Bench then responded that it was also of the prima facie view that the Indian Penal Code (IPC) and the Army Act or other laws governing navy and air force stood on different footings and therefore, even as adultery was no more an offence under the IPC, it could constitute an unbecoming conduct under the Army Act.

While adding a rider, the Bench then in the same vein also added that it was not competent to issue a clarification in this regard since the 2018 judgment was passed by a Constitution Bench of five Judges. The Bench also added further that:
This will have to be put up before the Constitution Bench. Very rightly so!

Going ahead, the Bench then referred the matter to the Chief Justice of India for constituting a five-Judge Bench to examine the MoD's application. It, however, issued a notice to the PIL petitioner in the case – Kerala-resident Joseph Shine who was represented in the court through advocate Kaleeswaran Raj. This was rightly considered necessary by the Apex Court.

To be sure, the MoD sought to highlight apart from what has been stated above that since the Supreme Court has decriminalized adultery, 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.

Quite remarkably, what cannot be just glossed over is that while drawing a distinction between Section 497 in the IPC and the relevant laws in the armed forces, the MoD stated that unlike Section 497, the army laws did not make a difference between a male or a female and that it was a gender-neutral provision prosecuting soldiers of both the sexes for such acts. Furthermore, the application stated that:
In other words, the army would equally proceed against a female subject to the Act, if she enters into an adulterous/illicit relationship. It was also added that the laws governing the defence personnel were not discriminatory in nature.

Of course, it must be stated here that the Attorney General's arguments in the Apex Court are based on inputs obtained from the defence ministry and the armed forces, army officials familiar with the case on the condition of anonymity. The officials very rightly added that adultery definitely amounts to conduct unbecoming of a soldier and those guilty have to be punished. There can be no denying or disputing it!

It goes without saying that the armed forces are hundred percent right in seeing adultery which implies stealing the affections of a brother officer's wife as an offence that is just a notch below the worst offence an enlisted person can be accused of, cowardice. The provision to deal with this, drawn from Section 497, exists in all three services and the punishment is usually dismissal.

No doubt, the MoD very rightly underscored the necessity of retention of adultery as an offence for the defence personnel. It rightly maintained in simple and straight language: That one has to remember that the Armed Forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service. Courage, and devotion to duty, even at the risk of one's lives, is part of the unwritten contract governing the members of the armed forces.

As anticipated, it also relied rightly upon Article 33 of the Constitution to make a point that this provision allowed Parliament to restrict or modify operation of fundamental rights with regard to armed forces so as to ensure proper discharge of duties and maintenance of discipline. Looking from this prism too, the MoD said that its laws to govern defence personnel could not be held bad only because they abridged some of their fundamental rights.

While adding more to it, Additional Solicitor General Madhavi Divan who argued the Defence Ministry's case in the top court very rightly remarked that, I can only say that the armed forces require their own code of conduct in order to maintain discipline in the forces. The judgment striking down adultery is being applied to quash disciplinary proceedings in some cases. The provisions of the statutes which govern the armed forces permit disciplinary action in a manner different from the civilian population. That should be left intact and untouched. Who can deny this?

It also certainly cannot be overlooked that another lawyer Chitrangada Rastravara pointed out that they were several actions which did not constitute an offence under the penal laws of India, but are punishable offences under the Army Act. She further rightly waxed eloquent to state that, For example, desertion has no consequences under penal law; however it is a very serious offence, punishable by death under military law.

It also cannot be denied that even woman officers want adultery law in the army and have pressed for retaining the criminality of adultery in the armed forces. Armed forces are always rightly expected to be most disciplined and it is imperative also as the security itself of our country depends on them! So let us fervently hope from now that a five Judge Bench of the Apex Court would soon be constituted and it would endorse the upright stand taken by the MoD on this key and sensitive issue! The ball is for now clearly in the court of the Apex Court. We have to keep our fingers crossed till the final verdict comes on this as it is for the Judges who have to finally decide on this as to what should be done finally!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh