New Delhi, Jan 31.
Adultery may well have been struck off the statute books as a crime, but armed forces personnel will continue to be held to a higher standard and any adulterous relationship will be treated as conduct “unbecoming” of an armed services personnel.
This follows a Supreme Court five-judge bench clarification on the issue. The top court clarified this at the insistence of the central government which said that army personnel cannot be allowed to behave in such an unbecoming manner.
“Any such behaviour will compromise discipline and professionalism of the forces,” Additional Solicitor General Madhavi Divan told the bench, headed by Justice K.M. Joseph. The other four judges on the bench were Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.
Divan said that the government wanted a clarification on this as it was holding back several pending disciplinary proceedings.
Armed forces personnel face court martial for adultery quaintly referred to as stealing the affection of a brother officer’s wife under certain exceptions to the general law embodied in the Army, Navy and Air Force Acts.
Under the Article 33 of the Constitution, armed forces personnel can be treated as a special category and even be denied fundamental rights guaranteed to other citizens. The top court had in a ruling delivered in 2018 decriminalised adultery although it is still be used as a ground for divorce.
Following this, armed forces personnel accused of the offence also argued that they were exempt from the offence. The government, however, maintained that the armed forces cannot be subjected to the same yardsticks as a common civilian.
The army demands a very level of professionalism and commitment, Divan said.
Divan said that armed forces personnel are expected to rally around their leader and even lay down their lives at his call. Armed forces personnel get at least 14 years in jail if they indulge in unbecoming conduct such as drinking on duty, she pointed out.
One cannot even begin to imagine that level of professionalism, she said. The government, she argued, that was not propagating Victoria morality which treated women as chattel and treated their virtue as inviolate in the interest of protecting the husband’s property.
The government was worried more about protecting families of armed forces while they were busy protecting the nation and discipline in the forces. The bench observed at this juncture that sleeping when acting as a sentry in the presence of the enemy is awarded with the death penalty.
Eventually, the bench clarified that the issue of applicability of the general adultery provisions to armed forces had not been dealt with in the Joseph Shine case which had struck down Section 497 of the Indian Penal Code.
That section made it a criminal offence punishable with a jail term up to five years or a fine or both. It remains a ground for divorce. But it is not clear whether it can be a cause of a tort action against the erring man.
The top court had struck down the provision as it only covered the erring males and not females and was hence gender discriminatory.
