Adultery as misconduct and judicial musings

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.

What was the issue?

• The Supreme Court of India decriminalised adultery in its landmark judgement, Joseph Shine versus Union of India in 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.
• Aggrieved by the order concerning its implementation in the armed forces, the Union of India sought clarification from the Court.
• Union government said that any promiscuous or adulterous acts should be allowed to be governed by the relevant sections of the Army Act, the Air Force Act and the Navy Act being special legislations by the virtue of Article 33 of the Constitution.

Article 33 of the Indian Constitution: 

• It empowers the Parliament to restrict or abrogate the fundamental rights of the ‘Members of the Armed Forces’, paramilitary forces, police forces, intelligence agencies and analogous forces.
• The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.
• The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures.)
• The Court without going into the nuances of relevant sections of the special legislations (i.e., the Army Act and similar special Acts) said that in Joseph Shine it ‘was not at all concerned with the effect and operation of the relevant provisions’ and ‘it is not as if this Court approved of adultery’. 
• The Court further added that it found adultery as a moral (and civil) wrong and a ground for securing dissolution of marriage.

Relating adultery with discharge of official duties

Mahesh Chand Sharma versus State of Rajasthan and Others (2019):

• The Rajasthan High Court set aside the departmental proceedings against the petitioner who was serving as an inspector in the Rajasthan Police being alleged of adultery. 
• It 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 (2022):

• In this case, the Gujarat High Court quashed and set aside the dismissal order of an armed police constable arising from allegations of adultery which amounted to misconduct.
• It 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. 
• As the alleged act was a private affair, and not a result of any coercive pressure, the act of the petitioner at the most could be considered as an immoral act; however, to term it as misconduct as per Conduct Rules would be too far fetched.

Conclusion: 

• A common thread running through all relevant judgments 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. 
  • The legislative intent of Article 33 of the Constitution is also similar. 
• Therefore, 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