Observing that military discipline will be affected if there is an army with "completely loose morals", the Supreme Court on Tuesday ruled that the armed forces can take action against their officers for adulterous acts and decriminalisation of adultery would not stand in the way of initiating disciplinary proceedings.
Clarifying its landmark 2018 judgment which had struck down Section 497 of the IPC that criminalised adultery, a five-judge Constitution bench headed by Justice K M Joseph said the verdict was not concerned with the provisions of the armed forces acts.
The top court in 2018 had struck down the 158-year-old anti-adultery law, saying it was unconstitutional as it dented the individuality of women and treated them as "chattel of husbands".
The Tuesday order by the bench, also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C T Ravikumar, said it is not as if this court approved of adultery.
"This court was neither called upon nor has pronounced on Sections 45 and 63 of the Army Act and corresponding provisions of the other Acts. We only make this position clear and dispose of the application (filed by the Centre)," the bench said.
"If you are going to have an army with completely loose morals, then what will happen to the discipline? Military discipline will be affected."
At the outset, Additional Solicitor General Madhavi Divan, appearing for the Centre, submitted that a plea seeking clarification of the September 27, 2018 judgment has been filed by the ministry of defence for an exemption to armed forces, saying it may hinder action against officers who indulge in such actions and can cause 'instability' within the services.
"In view of the aforesaid (2018) judgment, 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 activities," the application filed by the ministry said.
Divan stated that she wanted to show how this can impact the operational efficiency and readiness of the armed forces.
"It is not about Victorian morality, mine is a simple case of military discipline, operational efficiency for the armed forces. What section 497 looked at was the offence of adultery in the context of preserving marriage as a social institution. The object was to control the sexuality of the wife to preserve the bloodline and so it was struck down.
"We are on a different note. We want to show how this can impact the operational efficiency and readiness of our armed forces...We are concerned with operational efficiency which has a direct nexus with security of the nation," she said.
The ASG said the message that seems to have gone down is that extra-marital affair by personnel in the armed forces is a permissible conduct.
"Why do we have court martial, independent criminal justice system in armed forces… because we need to act quickly... These are matters of discipline. When matters are pending all over the country, it is disturbing the cohesion of units... It breeds uncertainty."
The law officer argued that in the armed forces its personnel are ready to die at the command of officers.
"It requires a different kind of mindset to get people to follow your every command. You have to set that example since they have to be ready to lose life at your command. But the command structure gets disrupted if your boss behaves inappropriately," she said.
The Centre's submission was opposed by advocate Kaleeswaram Raj, appearing for Joseph Shine, who had filed the petition seeking the repeal of Section 497 IPC. Raj submitted that no omnibus order should be passed.
The counsel appearing for intervenors in the case contended that proceedings against army personnel need to be considered on a case-to-case basis.
"Suppose there is an ongoing marital disputes and a complaint is made, wouldn't it be required to look into the facts and circumstances of the case," one of the lawyers said.
The top court had earlier said that armed forces must have some kind of mechanism for disciplinary proceedings against their officers for adultery as "this is a conduct that can shake up the life of officers."
It had said adultery creates "pain" in a family and it should not be treated in a lighter manner.
