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OJAANK IAS ACADEMY

Adultry and the Constitutional Provisions

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In its landmark decision Joseph Shine v. Union of India, handed down more than four years ago, the Supreme Court of India decriminalised adultery (September 2018). Sections 198 of the Criminal Procedure Code and Section 497 of the Indian Penal Code, which deal with adultery, have been ruled to be unconstitutional on the grounds that they violate Articles 14, 15, and 21 of the Indian Constitution.

Because the Army Act, Air Force Act, and Navy Act are special laws created by virtue of Article 33 of the Constitution, any promiscuous or adulterous acts should be permitted to be governed by the relevant sections of those laws, the Union of India, which was outraged by the order regarding its implementation in the armed forces, requested clarification from the Court.In order to secure the correct performance of their tasks and the maintenance of discipline within the armed services, Parliament is authorised under Article 33 to restrict or abrogate the basic rights of certain groups of people, including personnel of the armed forces. The Court recently stated 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” without delving into the specifics of pertinent sections of the special legislations (i.e., the Army Act and similar special Acts). The Court went on to say that adultery was a moral (and legal) evil and a basis for getting a divorce. These findings led to the case being closed.

Whether these Court views imply that the armed services may pursue disciplinary punishment for adulterous activities (as defined in common language without reference to Section 497 of the IPC) in violation of their own laws is a moot point.

The departmental proceedings against the petitioner, who was working as an inspector in the Rajasthan Police (after spending 18 years in the Indian Air Force), were set aside by the Rajasthan High Court in Mahesh Chand Sharma versus State of Rajasthan and Others (2019) as a result of the Joseph Shine case. The petitioner was accused of having illicit relations with one woman constable and “begotten a child from illicit relations” while working as an inspector in the Rajasthan Police.The Supreme Court ruled that no employer can conduct moral inspections of its workers that go beyond the confines of his public life, and that the Service Conduct Standards do not permit personal decisions (such as engaging in sexual activity) to be the focus of departmental procedures.

In a more recent case, Maheshbhai Bhurjibhai Damor against the State of Gujarat and 3 other(s) (2022), the Gujarat High Court invalidated and overturned the decision to fire an armed police officer on claims that he had improper relationships with a widow, which constituted misconduct. The results of the departmental investigation showed that the lady was not exploited and that their relationship was voluntary and reciprocal. The Court ruled that claims of misbehaviour must have some connection, whether direct or indirect, to the responsibilities placed on the government employee in order to be proven.The petitioner’s claimed act could only be described as immoral because it was a private matter and not the result of any coercive compulsion; yet, it would be too far-fetched to call it misconduct under the Conduct Guidelines.

Although Article 33 of the Constitution gives Parliament the authority to limit the fundamental rights of members of the armed forces, the qualification that such restrictions must be made “so as to ensure the proper discharge of their duties and the maintenance of discipline among them” must be taken into consideration. The same rule will also apply to police officers from all States and Union Territories, as well as communication divisions of intelligence and counterintelligence organisations, as specified in Article 33 of the Constitution, and other members of the forces responsible for maintaining public order.

As a result, neither the Joseph Shine judgement from 2018 nor the requested clarification increased the scope of departmental actions. It is true that many actions and inactions, even those that aren’t strictly illegal, can nonetheless constitute conduct unbecoming of a public worker. All pertinent judgements share the tenet that conduct may be deemed unworthy of a government official if it interferes directly or indirectly with the honest performance of responsibilities Similarly, Article 33 of the Constitution’s legislative aim. Hence, unless there is some connection to their activities, the sacred right to privacy enjoyed by members of the armed services (and police officers involved in the preservation of public order) cannot be taken away under the pretense of special law.


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