Adultery as misconduct and judicial musings

March 13, 2023

Context:

Recently, the Supreme Court has ruled adultery in context of the Union government’s request for clarification about relevant sections of the Army Act, the Air Force Act and the Navy Act.

Decriminalization of adultery:

The Supreme Court of India decriminalised adultery in its landmark judgment in Joseph Shine versus Union of India (September 2018).
It held Section 497 of the Indian Penal Code (on adultery) along with Section 198 of the Criminal Procedure Code to be unconstitutional on the premise that these provisions were violative of Articles 14, 15 and 21 of the Constitution of India.

Issues of discharge of duties:

The question is whether the Court’s observations imply that the armed forces can take disciplinary action for adulterous acts, as understood in common parlance, under their special legislations.

Associated Issues:

Mahesh Chand Sharma versus State of Rajasthan and Others (2019): The Rajasthan Court held that no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life and personal choices and selections (to have sexual intercourse) cannot be a subject matter of departmental proceedings under the Service Conduct Rules.
Maheshbhai Bhurjibhai Damor versus State of Gujarat and 3 other(s) (2022): The Gujarat High Court held that in order to prove misconduct, allegations must have some nexus, direct or indirect, with the duties to be performed by the government servant.
Alcohol Consumption by army personnel: Unless the drinking habits or any such act of an officer affects the discharge of his duties or discipline of the force, no departmental action is initiated.

A caveat that cannot be overlooked:

Though Article 33 of the Constitution empowers Parliament to restrict the fundamental rights of the members of the armed forces, the caveat of ‘so as to ensure the proper discharge of their duties and the maintenance of discipline among them’ cannot be overlooked.
The same principle will also apply to members of the forces charged with the maintenance of public order.
A common thread is that if the conduct interferes directly or indirectly with the honest discharge of duties; such conduct may be considered as unbecoming of a government servant.

Conclusion:

The sacrosanct right to privacy available to the members of the armed forces (and the policemen engaged in the maintenance of public order) cannot be taken away under the guise of the special legislations unless it has some nexus with their duties.

News Source: The Hindu