- Prelims:, Adultery, Article 14, 15. 21, Article 33, Section 497 of IPC, Directive Principles of State Policy etc
- Mains GS Paper II & IV: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc
ARTICLE HIGHLIGHTS
- More than four years ago, the Supreme Court decriminalized adultery in its landmark judgment, Joseph Shine versus Union of India (2018).
INSIGHTS ON THE ISSUE
Context
Adultery:
- It is a voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner.
Section 497 of the IPC:
- It mandates that whoever has sexual intercourse with the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape is guilty of the offence of adultery and shall be punished.
- The law does not punish his wife, since it presumes that only a man can seduce a woman into a sexual act, and that it is the husband who has suffered due to the sexual relationship of his wife, carried out without his consent.
- The wife is not protected from similar behavior committed by her husband.
Joseph Shine versus Union of India(2018):
- It held Section 497 of the Indian Penal Code (on adultery) along with Section 198 of the Criminal Procedure Code to be unconstitutional on the premise that these provisions were violative of Articles 14, 15 and 21 of the Constitution of India.
Order concerning its implementation in the armed forces:
- The government sought clarification from the Court: Any promiscuous or adulterous acts should be allowed to be governed by the relevant sections of the Army Act, the Air Force Act and the Navy Act being special legislations by the virtue of Article 33 of the Constitution.
- 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 of their duties and the maintenance of discipline among them.
- The Court said 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’.
- The Court added that it found adultery as a moral (and civil) wrong and a ground for securing dissolution of marriage.
Other Judgements:
- Mahesh Chand Sharma versus State of Rajasthan and Others (2019): Court set aside the departmental proceedings against the petitioner who was serving as an inspector in the Rajasthan Police (after having served for 18 years in the Indian Air Force) and allegedly had illicit relations with one woman constable.
- The High Court held that no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life and personal choices.
- Selections (to have sexual intercourse) cannot be a subject matter of departmental proceedings under the Service Conduct Rules.
- Maheshbhai Bhurjibhai Damor versus State of Gujarat and 3 other(s) (2022):
- Gujarat High Court quashed and set aside the dismissal order of an armed police constable(allegations that he had developed illicit relations with a widow) which amounted to misconduct.
- The departmental inquiry revealed that the relations between the two were voluntary and mutual, and there was no exploitation of the woman.
- The Court held that in order to prove misconduct, allegations must have some nexus, direct or indirect, with the duties to be performed by the government servant.
- The alleged act was a private affair, and not a result of any coercive pressure
- The act of the petitioner at the most could be considered as an immoral act not as misconduct as per Conduct Rules.
Case study:
- Conduct of an army personnel who consumes alcohol:
- Unless the drinking habits or any such act of an officer affects the discharge of his duties or discipline of the force, no departmental action is initiated.
- Army canteens officially provide alcohol to their men and officers at subsidized rates at all locations.
- Drinking alcohol may be considered as an immoral act, but this does not authorize the employer to initiate disciplinary action.
Way Forward
- Article 33 of the Constitution empowers Parliament to restrict the fundamental rights of the members of the armed forces, the caveat of ‘so as to ensure the proper discharge of their duties and the maintenance of discipline among them’ cannot be overlooked.
- Neither did the Joseph Shine verdict of 2018 inhibit the parameters of departmental proceedings nor has the clarification A common thread running through all relevant judgments is that if the conduct interferes directly or indirectly with the honest discharge of duties; such conduct may be considered as unbecoming of a government servant.
- The legislative intent of Article 33 of the Constitution is also similar.
- The sacrosanct right to privacy available to the members of the armed forces (and the policemen engaged in the maintenance of public order) cannot be taken away under the guise of the special legislations unless it has some nexus with their duties.
QUESTION FOR PRACTICE
Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)
