NEW DELHI: Two years after the Supreme Court ruling that scrapped Section 497 of the IPC that defined adultery as a criminal offence, the government approached the top court saying its judgment decriminalising adultery should not apply to the armed forces. The defence ministry made this submission while referring to the September 2018 judgment, where a five-judge Constitution bench led by the then CJI Dipak Misra scrapped Section 497 of the IPC as a criminal offence.
A bench headed by Justice R F Nariman, who was also part of the 2018 bench, took up the application and asked Attorney General KK Venugopal why a clarification was needed now. Venugopal contended that the 2018 judgment did not take into account the Army, the Navy, and the IAF Acts. “In the Army Act, there is a provision where the officer can be court-martialled.”
The Attorney General was referring to those sections under laws governing the Army, the Navy and the Air Force that provide for criminal and disciplinary action against officers found to have indulged in unbecoming conduct. Since the 2018 judgment was rendered by a five-judge bench, Justice Nariman said the clarification should come from a bench of the same strength.
The top court then went on to issue notice in the matter and referred it to a Constitution bench. The ministry described its plea as a clarification application and added that the judgment may cause instability within the applicant’s services. The application, which the ministry said was bonafide and filed in the interest of justice, sought to note that many a time officers are posted at borders or in far-flung areas, forced to stay away from their families.
If its plea is not allowed, then the petitioner will suffer irreparable loss and injury, the ministry added.
Under service rules, the government pointed out, security personnel can be cashiered from service on ground of unbecoming conduct for committing adultery with a colleague’s wife. It also asserted the need to retain adultery as a form of misconduct in the forces. “Discipline is the bedrock of the work culture in defence services and an essential ingredient for combat operations,” he said.