Issue of adultery in Civil Services and Army

Synopsis: SC decriminalized the act of adultery in the Joseph Shine vs Union of India case. However, it is still not clear whether adultery is the right ground for departmental enquiries against Civil Servants or Army officials.

Background

• Members of All India Services (AIS) are governed by a moral code of conduct. It requires them to “maintain absolute integrity and devotion to duty” and do “nothing which is unbecoming of a member of the service”.
• Similarly, the Army Act also contains penal provisions for displaying “unbecoming conduct” or “disgraceful conduct”.
• However, the terms “unbecoming conduct” or “unbecoming of a member of a service” are not anywhere defined. It leaves the scope for employers or disciplinary authorities to define them as per their own understanding.
• It is the reason that there is doubt whether illicit or adulterous relations are covered under these definitions or not.
• This issue has become more prominent after SC decriminalised adultery in the Joseph Shine vs Union of India case. The Centre has filed an application for clarification with the SC that whether this judgment applies to armed forces or not.
• The matter has been referred to the constitutional bench. However, Justice Nariman made an observation while issuing the notice. He observed that even if the law is scrapped, the act of adultery will still be an ‘unbecoming conduct’.

Earlier High Court judgment on adultery and misconduct

1. The above observation of Justice Nariman is in contrast to earlier High Court judgments.
2. Calcutta High Court in Rabindra Nath Ghosh in a case of adultery held that the head constable who was living with another woman is not guilty of misconduct in the performance of his duties.
3. Allahabad HC in In State of U.P. vs BN Singh (1989) held that the act of adultery by a government servant cannot be covered by default within the definition of ‘personal immorality’. For that, there should be a relation between the act of adultery and the reduction of his utility as a public servant.
4. Rajasthan High Court in Mahesh Chand Sharma vs State of Rajasthan (2019) held that “no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life”.

Various HC has declared that adultery is not a sufficient ground to initiate departmental proceeding if it is not interfering with official functions.  Whereas Justice Nariman has provided a different interpretation. Thus it becomes utmost important to define the terms like “misconduct” and “immoral act”.