The Problematic Possibility of Re-Criminalization of Adultery for the Armed Forces
In January 2021, the Supreme Court of India admitted an application by the Central Government to reconsider the applicability of the ruling in Joseph Shine v Union of India(hereinafter referred as “Joseph Shine”) in the context of the armed forces. In the case of Joseph Shine, the Supreme Court had decriminalized adultery and held Section 497 of the Indian Penal Code, 1860 (hereinafter referred as “the IPC”) to be violative of the right to equality under Article 14 and the right to dignity under Article 21 of the Indian Constitution. In its application, the Central Government has sought clarification from the court in relation to two primary questions. The first question the Central Government wants to be clarified is if individuals subject to the Army Act, 1950 (hereinafter referred as the “Army Act”) can still be subject to Section 497 of the IPC. Secondly, the government wants to know if adulterous or promiscuous acts by persons subject to the Army Act, the Navy Act, 1957((hereinafter referred as the “Navy Act”) or the Air Force Act, 1950 (hereinafter referred as the “Air Force Act”) can be punished with provisions concerning ‘unbecoming conduct’ and ‘maintenance of good order and discipline’ under the respective provisions of the abovementioned statutes. In order to support its contentions, the government has referred to Article 33 of the Indian Constitution which empowers the Parliament to restrict or abrogate (by law) any of the fundamental rights in terms of their applications to the members of the armed forces so as to ensure proper discharge of their duties and to maintain discipline amongst them.
This application and the arguments made therein raise larger questions on the criminalization policy of the Indian state and the context in which the powers under Article 33 are being perceived. The prospect of denying fundamental rights under Article 33 is critically different from the prospect of criminalizing a conduct which has been decriminalized for the rest of the country. This application by the Central Government also raised significant questions about the extent to which the members of the armed forces can be denied basic rights which are available to civilians in general.
The Spectrum of Article 33
Article 33 of the Indian Constitution is a special provision. It enables the Parliament to create a different constitutional reality for members of the armed forces in relation to the fundamental rights that they are entitled to. However, the Parliament’s power in this context is regulated by established judicial principles of reasonable nexus and proportionality. Thus, it is essential for the Parliament to show that the proposed restrictions or abridgement of rights have a nexus with “the proper discharge of duties and maintenance of discipline” amongst members of the armed forces. The extent and nature of restrictions are also justiciable issues and subject to a test of proportionality depending on the prevailing circumstances in a given situation.
As a result of this special provision, members of the armed forces do not have many rights enjoyed by the civilian population as a matter of routine. For example, Section 20 of the Army Rule, 1954 impacts the rights under Article 19 by prohibiting members of armed forces from participating in any demonstration held for a political purpose.
Thus, in itself, Article 33 seeks to facilitate a reasonable balance between the requirement of maintaining discipline in the armed forces for the greater goal of national security and the denial of certain fundamental rights to those who bear the responsibility of safeguarding national security.
Unbecoming Conduct and Maintenance of Good Discipline
As the government has specifically referred to provisions concerning ‘unbecoming conduct’ and ‘maintenance of good order and discipline’, it is important to have some clarity on the import of these terms. Section 45 of the Army Act deals with the consequences of ‘unbecoming conduct’ for individuals subject to the Act. Similar provisions can be found in Section 45 of the Air Force Act and Section 54 (2) of the Navy Act. The sanction for violating good order and military discipline is incorporated in Section 63 of the Army and similar provisions can be found in Section 65 of the Air Force Act and Section 74 of the Navy Act. Under the Army Act and the Air Force Act, the severest sanction contemplated for unbecoming conduct is dismissal from service. On the other hand, violation of good order and discipline can also lead to imprisonment. However, under the Navy Act, imprisonment is a prescribed punishment for both unbecoming conduct and for violation of good order and discipline.
Both ‘unbecoming conduct’ and ‘good order and discipline’ are expansive terms without any specific definition. However, by their very phraseology, these provisions cater to different contexts. The provisions regarding unbecoming conduct are usually invoked in relation to the personal failings of a member of the armed forces in not being able to live up to a shared code of conduct. Its wide amplitude is useful to deal with conduct that is not specifically prohibited under any other provisions of the applicable laws. The primary focus is on the fact that the concerned person has failed to abide by the conduct which is generally expected from a member of the armed forces.
On the other hand, the allegation of violating ‘good order and discipline’ would involve a consideration of how the actions/omissions of a person are likely to impact others. In other words, the primary concern under the provisions regarding ‘good order and discipline’ revolves around the need to avoid creating bad behavioural precedents for others so that the order and discipline of the forces are not compromised.
While both ‘unbecoming conduct’ and ‘good order and discipline’ operate as residual clauses encompassing a wide variety of conduct, the choice of the provision to be applied in a given case is critical due to the fact that the latter involves the sanction of imprisonment. A disciplinary sanction involving dismissal from service or any other lesser punishment is qualitatively different from the criminal sanction of imprisonment.
Thus, the choice of the provisions under which a conduct is being dealt with becomes critical. For example, in the case of Charanjit Lamba, the Supreme Court found that the failure to pay electricity bills constituted unbecoming conduct. If the officer, in this case, was charged under Section 63 instead of Section 45 of the Army Act, it would have been possible to imprison him for failure to pay electricity bills.
Distinction between criminalization and loss of fundamental rights
It is important to appreciate that the criminalization of a particular conduct is a specific policy decision distinct from the decision to restrict the application of fundamental rights in a given situation. Not having fundamental rights in relation to a specific activity need not necessarily coincide with such activity being criminalized. Thus, it is one thing to say that a member of the armed forces cannot write in the press on certain specified topics without the prior permission of the Central Government and to take disciplinary action when this rule is violated. It is clear that the scheme of Article 33 allows for this kind of disciplinary action. It quite another thing to say that the violation of such a rule can lead to the imprisonment of the concerned person.
The Problematic Policy of Criminalization
To be clear, nothing in the judgement in Joseph Shine stops the armed forces from treating adultery as an unbecoming conduct and taking suitable steps under the relevant provisions. It is not unusual for perfectly legal conduct to be prohibited within a professional context and for disciplinary action to follow for engaging in such legal conduct. Thus, it is normal for companies to have non-fraternization policies and for universities to forbid sexual relationships between teachers and students. The important thing is that the consequences of engaging in such conduct are confined to disciplinary action within the professional context and do not involve a criminal sanction. In the case of Joseph Shine, the court has decriminalized the offence of adultery. That does not stop institutions from framing internal policies which discourage adulterous conduct. In such cases, it is not the adulterous act in itself which invites a disciplinary measure. Instead, it is the specific context in which the adulterous act is perceived as being damaging to institutional interests. For example, if a university takes disciplinary action against a teacher for having a sexual relationship with a student, the action is not because of the sexual relationship per se. The disciplinary measure becomes warranted as the university considers such a relationship to be damaging to the workplace environment that it seeks to create. The armed forces are not concerned about adultery as a moral wrong in itself and this is evident from the fact that the application filed before the court focuses on taking action only when a member of the armed forces commits adultery with the spouse of another member of the armed forces. There is no particular concern when a member of the armed forces commits adultery with someone who is not at all connected to the armed forces.
However, the issue becomes muddled with the insistence to treat adulterous conduct under the provisions of ‘good order and discipline’ which would result in such conduct inviting a criminal sanction in addition to a disciplinary one. The justifications cited in the application reveal the same patriarchal mindset which led to the criminalization of adultery in the first place. The application mentions the need for members of the armed forces to have psychological satisfaction about the fidelity of their partners. Such an approach looks at the issue of sexual choices of consenting adults as subject to the coercive province of the state. Such an idea ought to have become an anathema by now. The state has no business in criminalizing sexual relationships between two consenting adults. This is the principle that was applied in the case of Joseph Shine when the court endorsed the idea that choices regarding sexuality should not be subject to any criminal sanction.
The application by the Central Government is a betrayal of the ‘minimalist approach towards criminalization’ which was emphasized in the case of Joseph Shine. The court had held that where a civil remedy is available for a wrong, the state ought not to resort to the criminalization of such conduct. A minimalist approach warrants that there has to be a special reason to justify criminalization in a particular situation. The state should not opt for criminalization simply because it is convenient to do so or as a first choice. Criminalization should also not be merely in the form of a preferred option. There has to be sound logic behind the indispensability of criminalization in a given situation in substitution of or in addition to a civil remedy.
In this case, the provision of ‘unbecoming conduct’ under Section 45 of the Army Act provides a clear remedy against individuals indulging in adultery. In its application, the government has provided no specific reason why it is necessary to criminalize adultery for the armed forces when there exist other provisions of law where drastic action (dismissal from service) can be taken against a person. The remarks about the psychological satisfaction of members of the armed forces are not new reasons but a rephrasing of the old ground of penalizing sexual autonomy which formed the basis of Section 497 of the IPC. The application in its intent and substance is an assertion of the state’s coercive remit and should not be the choice of any government in a constitutional democracy that cherishes the dignity and autonomy of individuals.
 SC agrees to examine Centre’s request to keep adultery a crime in Armed forces, issues notice, Scroll.in, available at https://scroll.in/latest/983927/sc-agrees-to-examine-centres-request-to-keep-adultery-a-crime-in-armed-forces, (last accessed 25 June 2021).
 Joseph Shine v. Union of India, (2019) 3 SCC 39.
 A copy of the application can be accessed at https://www.livelaw.in/pdf_upload/joseph-shine-05-11-2020-387399.pdf
 Also see Rangin Pallav Tripathy and Suman Dash Bhattamishra, ‘India’s effort to criminalize adultery for the armed forces reflects a paternalistic mindset’, Scroll.in, available at < https://scroll.in/article/984628/indias-effort-to-criminalise-adultery-for-the-armed-forces-reflects-a-paternalistic-mindset> (last accessed 25th June 2021).
 Union of India v. Annie Nagaraja, (2020) 13 SCC 1.
 Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140.
 Charanjit Lamba v. Army Southern Command, (2010) 11 SCC 314.
This article has been authored by Dr. Rangin Pallav Tripathy, Assistant Professor of Law at National Law University, Odisha. He was assisted by Ms. Shristi Sharma, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.