Adultery as misconduct and judicial musings

Source- The post is based on the article “Adultery as misconduct and judicial musings” published in “The Hindu” on 13th March 2023.

Syllabus: GS-2, Indian Constitution – Fundamental RIghts

Relevance– Issues related to fundamental rights in India

News– Recently, the Union government sought clarification from the Court saying that any adulterous acts should be governed by the relevant sections of the Army Act, the Air Force Act and the Navy Act. They are special legislations by virtue of Article 33 of the Constitution.

What are the provisions of Article 33?

Parliament has powers to restrict or abrogate the fundamental rights of certain categories of persons, including members of the armed forces to ensure the proper discharge oftheir duties and the maintenance of discipline among them.

What was the stand of SC on the clarifications sought by the government?

The Court said that it was not concerned with the effect and operation of therelevant provisions of special acts of armed forces.

Court did not approve of adultery. It found adultery as a moral and civil wrong and a ground for securing dissolution of marriage.

What is the stand of SC on adultery?

The Supreme Court of India decriminalised adultery in Joseph Shine versus Union of India.

It held Section 497 of the Indian Penal Code along with Section 198 of the Criminal Procedure Code to be unconstitutional. These provisions were violative of Articles 14, 15 and 21 of the Constitution of India.

What are various judgments related to adultery by government employees?

The Rajasthan High Court, in Mahesh Chand Sharma versus State of Rajasthan and Others (2019) set aside the departmental proceedings against the inspector in the Rajasthan Police. He had illicit relations with one woman constable.

The High Court held that no employer can be allowed to do moral policing on its employee’s personal choices and selections cannot be a subject matter of departmental proceedings under the Service Conduct Rules.

Gujarat High Court in Maheshbhai Bhurjibhai Damor versus State of Gujarat and 3 others case of 2022, set aside the dismissal order of an armed police constable. There were allegations that he had developed illicit relations with a widow, and it amounted to misconduct.

The Court held that in order to prove misconduct, allegations must have some correlation with the duties to be performed by the government servant.

What is the way forward to deal with the issue of adultery by personnel of the armed forces?

An example may be drawn with the conduct of an army personnel who consumes alcohol. Unless the drinking habits affect the discharge of his duties or discipline of the force, no departmental action is initiated.

Article 33 of the Constitution empowers Parliament to restrict the fundamental rights of the members of the armed forces. But there is a caveat. This can be used to ensure the proper discharge of their duties and the maintenance of discipline among them.

The same principle will also apply to members of the forces charged with the maintenance of public order, i.e., the police personnel of all States and Union Territories

It can be inferred in all relevant judgments related to adultery that if the conduct interferes with the honest discharge of duties; then it may be considered as unbecoming of a government servant. The legislative intent of Article 33 of the Constitution is also similar.

Therefore, the right to privacy available to the members of the armed forces cannot be taken away under the guise of special legislation. It should have some correlation with their duties.