Summary
After the 2018 Constitution Bench judgment in Joseph Shine struck down Section 497 IPC on adultery, the Union of India sought clarification. It said armed forces personnel were resisting disciplinary action for adulterous conduct under Sections 45 and 63 of the Army Act and the corresponding provisions of the Navy and Air Force Acts. A Constitution Bench clarified that Joseph Shine decided only the validity of Section 497 IPC and Section 198(2) CrPC. It did not consider the scheme of the Service Acts under Article 33, and did not pronounce on Sections 45 and 63 or any other provision of those Acts. The Court added that Joseph Shine did not approve of adultery.
Issues
- Whether the judgment in Joseph Shine v. Union of India, striking down Section 497 IPC, bars disciplinary action against members of the armed forces for adulterous conduct under Sections 45 and 63 of the Army Act, 1950 and the corresponding provisions of the Air Force Act, 1950 and the Navy Act, 1957.
Provisions considered
- Sections 45, 63 and 69, Army Act, 1950Section 45 punishes conduct unbecoming an officer, Section 63 acts prejudicial to good order and military discipline, and Section 69 civil offences; the Union accepted that after Section 497 IPC was struck down Section 69 could not be invoked, but sought clarification that Sections 45 and 63 and their counterparts in the Air Force Act (Sections 45, 65) and Navy Act (Sections 54(2), 74) were untouched. (¶¶ 2, 7, 8, 9, 10, 24)
- Article 33, Constitution of IndiaParliament may by law restrict or abrogate the application of Part III rights to members of the armed forces to ensure discharge of duties and discipline; the scheme of the Service Acts in that context did not fall for consideration in Joseph Shine. (¶¶ 5, 24)
Held
- Joseph Shine was concerned only with the validity of Section 497 IPC and Section 198(2) CrPC, which were struck down as offending Articles 14, 15 and 21; it had no occasion to consider the Service Acts. The Court was neither called upon to, nor did it, pronounce on the effect of Sections 45 and 63 of the Army Act, the corresponding provisions of the other Acts or any other provision of those Acts. (¶¶ 21, 23, 24)
- Joseph Shine did not approve of adultery; it recognised that adultery may be a moral wrong, remains a ground for dissolution of marriage and has been described as a civil wrong. Counsel for the original petitioner fairly accepted that the striking down of Section 497 IPC may not prevent proceedings under Section 45, the outcome depending on the facts. (¶¶ 22, 23)
Result
Miscellaneous Application No. 2204 of 2020 in W.P. (Crl.) No. 194 of 2017 disposed of with the clarification that the judgment in Joseph Shine v. Union of India was not concerned with the effect and operation of the relevant provisions of the Army Act, Navy Act and Air Force Act; Miscellaneous Application No. 1702 of 2021 also disposed of; intervention and impleadment applications allowed.