Thread by @lawbarandbench

#SupremeCourt Constitution Bench led by Justice KM Joseph to hear matter regarding if disciplinary proceedings in adultery cases within armed forces still lie post the judgment decriminalising Section 497 of the Indian Penal Code.

#SupremeCourtOfIndia #adultery

Hearing starts.

ASG Madhavi Divan for the respondents explains structure of her arguments.

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Adv: We have objections on maintainability.

SC: You are seeking to intervene and raise an objection? Whom do you represent?

Adv: An ertswhile member of the armed forces who was proceeded against.

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ASG goes through Joseph Shine judgment that decriminalised adultery.

ASG: We were taking it as a civil offence. Now that it is no longer on the statute book, there are other omnibus provisos we rely on.

Justice Roy: is it correct to say that someone who gets cleared of the criminal action is cleared of disciplinary action, as per petitioners?

ASG: My instructions are there a huge number of cases that have come to the fore (after decriminalisation). When they are being met with these charges, they cite the judgment and now you cannot do indirectly what you cannot do directly. That is a routine defence.

ASG: Object was preserving the institution of marriage. Though the notion of preserving bloodline was found archaic, but we are not on that. armed forces are responsible for security of nation, but this is affecting our operational efficiency which has a direct nexus w security

Justice Ravikumar: You are arguing that though 497 was discriminatory towards women, these proceedings are not.

ASG: Absolutely. Decriminalisation is the new reality that we have accepted but ...

Justice Rastogi: Why to rely on Army/Navy Acts? It is anyways unbecoming...

Justice Rastogi: on moral grounds.

ASG: Yes, but i have to explain why we need to criminalise such conduct in armed forces.

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On another question, ASG replies saying not seeking punishment under 497.

ASG: Other exisiting Provisions are flexible to punish for unbecoming or immoral conduct in such cases.

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AS reads court martial procedures.

*ASG

ASG Divan now reads definition of unbecoming conduct.

SC: It is just a saving clause now, you seek that it should not apply to your organisations? Under Army Act take action, who is coming forward then?

ASG: That is the whole point, why we need a clarification from a five judge bench.

ASG: Joseph Shine takes it much farther then gender parity, but message has gone that such conduct is permissible. We have court martials instead so we can proceed quickly in matters of discipline.

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ASG: It is disturbing the cohesion of units. Breeding uncertainty and leaving us powerless as everytime there is a charge there is a quashing sought ot Chargesheet. This is not a good thing for the armed forces.

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SC: so someone in civil services is not expected to have that same level of morality?

ASG: I have not entered that. It is not about Victorian morality, mine is simple a case of military discipline, operational efficiency for the armed forces.

Justice Bose: the three judges could have said no clarification is needed. They have often done it.

Adv: We could not have clarified it then.

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Justice Ravikumar: Let them make their case then.

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ASG: Is the compelling State object the same over here? It impacts our security concerns, needs a clarification to ensure proper discharge of duties. This is a class apart, armed forces are different. Some restrictions on rights apply because of the nature of their duties.

SC: Please go through object and reasons of the Army Act.

ASG explains reasoning of Joseph Shine judgment.

ASG: Only in some situations court said it can be criminalised. Therefore issue arises, no fallout of marital affairs in any workplace has been taken into account at all. In universities you have to disclose if professor is in a relationship with a student.

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ASG: Even if it's not extramarital, but there can be bias. In any other work environment as well. Armed forces is a unique ecosystem.

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ASG: In matters of military discipline, you cannot always anticipate. Therefore unbecoming conduct ...

Justice Bose: So after Joseph Shine it is becoming conduct ... So in armed forces can we make it again unbecoming ?

ASG: Yes.

Justice Joseph asks question of if husband has no objection to wife's extramarital affair.

ASG: Under our rules it will be an offence if he is an officer. If heads a command, cohesion in important. If those under him instead of awe and respect and obedience find that he is ...

SC: So you will still be able to proceed?

ASG: Yes. It is a simple thing. Cohesiveness attached to armed forces unit. People have to be able to do or die at your command. Requires different kind of psyche mindset to get people to follow your every commands.

ASG: You have to set that example since they have to be ready to lose life and limb at your command. But the command structure gets disrupted if your boss behaves inappropriately.

ASG: It will likely lead to insubordination and affect our national security.

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ASG: It can trigger off something serious, but even a mutiny if people in your unit not following you because of your unbecoming conduct. I would not over emphasis the morality bit.

Justice Ravikumar: The crux is they have to work as a unit?

ASG: Yes, in armed forces...

ASG: there is a surender of your individual choices are times. Justice Chandrachud spoke of espirit de corps.

ASG: You have to act when you are told to. Even kill of course. You have to have enormous respect and awe for officers commanding you. You have to act in complete synchronisation and coordination. Republic day marches are also symbolic, every limb together, it is not a routine...

Justice Rastogi asks if rights can be abrogated in light of the judgment.

ASG: Yes. My lords, even in the case of an ordinary civilian if there are security issues at stake you cannot claim 21 protections. There are restrictions.

ASG: Look at the level of sacrifice, we are willing to give up our lives. Civilians may not always appreciate this mindset. If a judgment allows this ... A sentry gets 14 years imprisonment if found sleeping or intoxicated on the job, it is a class apart. We cannot appreciate...

ASG: that level of rigour.

ASG: They have to leave their families and serve on the front. They go with that uncertainty of of they will come back and get to see family again. In such cases, if there are extramarital affairs, can the Union turn a blind eye? Your harmony matters to us as employers.

Justice Roy: So you are saying Constitution also recognises that difference and it has to be criminalised for those in battle scenario, not merely a domestic offence?

ASG: Yes. Article 33 says for discharge of duties.

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Justice Rastogi: You are calling upon us to do it?

ASG: No. Merely to clarify that I am not precluded.

Justice Joseph: You do not want this to come in your way.

ASG: Yes. Not on the morality or bloodline points.

SC: what about oral sex or what may be called unnatural?

ASG: Sodomy etc is under disgraceful conduct.

ASG: It can have an impact on military discipline.

SC: For the impact it has on common man, can you call for it to be made a distinct offence?

ASG: At the time lordships were not concerned with the fallouts at workplaces, it was about marriage. Our compelling State ...

ASG: interest is different.

SC: As long as you do not actually rely on 497, and you rely on other provisos of Army Act etc, what is stopping?

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SC: it is part of discipline.

ASG: That is what I want my lords to say.

SC: Which part stands in your way?

ASG: 58.

Justice Rastogi: If you say you are examining only conduct of a personnel and not as a citizen, if you do that this judgment is not coming in your way. The judgment never deals with the issue.

ASG: that is the clarification sought.

ASG: They will have right to defend themselves.

Justice Rastogi: You must be having it defined somwhere? In civil conduct rules ...

ASG: It (adultery) cannot be ...

Justice Roy: Even waking in a straight line can be an offence in terms of not following command.

*Correction: walking

ASG: We cannot put a dampener on disciplinary proceedings. We need to clarify to act, else the consequences can be very serious.

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Justice Bose: You just want a declaration?

ASG: That is does not apply to armed forces.

Justice Joseph: Who all are here before us?

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ASG: Only this court can clarify. Till Parliament acts, can we brook any delay and uncertainty? Joseph Shine intended something else. It should not impede military discipline.

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SC: We should just say Joseph Shine does not concern with two aspects, that is a fact.

ASG: Yes.

Note: two aspects being Sections 45 and 63 of the Army Act.

Adv Kaleeswaram Raj seeks to argue virtually

Justice Joseph: Let us hear those who are here in flesh and blood first. There is a lady before you. Does judgment speak about 45 and 63?
Adv: No.

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Justice Bose: If we record those two aspects, then you fight your own battles in own merits once unbecoming conduct cases come up.

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Adv Ananya Ghosh: Unbecoming conduct has to come back to their service.

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Justice Joseph: But for the purpose of maintaining discipline in the army ... He is not similarly circumstances with someone outside, it affects country itself.

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Ghosh: It not becoming conduct. All I ask is that Joseph Shine did not have cause to look at such cases, and they be looked at without reference to 497 and in the facts and circumstances of each case.

Ghosh: I come from a service personnel background myself.

Justice Joseph: Such conducts have a different bearing, you are a public figure. The word will go round so fast, that our man of the unit is doing it. I. Armed forces you have a particular discipline because you can go to war at any time. If you have a sab chalta hain mindset...

Justice Joseph: then what will happen.

Ghosh: that is not anyone's submission.

SC: We are just saying.

Ghosh: If my lords can only say it will not be invocation will not be a matter of course but rather on facts and circumstances of each case.

Ghosh: It should not be that this order has allowed us to invoke.

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Justice Rastogi: Now if your conduct of unbecoming to serve any institution, and the authority in its wisdom holds you guilty without reliance on 497, where is the restraint from the judgment?

Ghosh: It does not. No quarrel on that. Our apprehension is a clarification will...

Ghosh: let them override something that was decriminalised.

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Matter to continue at 2:15pm.

Hearing resumes.

Adv Ghosh explains genesis of matter.

Adv K Parameshwar: If they use 63, then seven years.

SC asks definition of cashiering.

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ASG: It is a ignominous form of dismissal.

Justice Ravikumar asks counsel what disciplinary action can be initiated for acts of adultery falling under unbecoming conduct.

SC: Doing it in the premises, can they say they will do it with impunity since it is decriminalised. Why are you saying ...

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SC: they cannot take action against Employees for unbecoming conduct?

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Ghosh: That is not our stand.

Justice Bose: Reasoning of Constitution bench was for patriarchal elements in the Provision itself.

Justice Bose: It would be speculative for us to say that 45 and 63 would only apply for these kind of conduct? What do you say?

Ghosh: Judgment did not confine itself to these.

Justice Joseph: Supposing tomorrow an officer is charged for Adultery on grounds of unbecoming conduct? Can he say that he cannot be charged because in IPC it has become a dead letter after being struck down? Can you do that? Else we will clarify.

Justice Joseph: Another question, in private employment, where it is clearly stated that action can be taken for adultery. What will happen? Can the employees say ...

Ghosh goes through ratio of Joseph Shine judgment.

Justice Joseph: We have seen murder cases flow from Adultery. We have seen the kind of strife and disharmony it has brought in. What happens with children.

Ghosh: let me not be heard as saying I am taking the consequences and action of adultery lightly.

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Ghosh: In the appl, prayer is to allow them to prosecute armed forces personnel ...

SC: We are half inclined to grant it. Read it.

SC: Tell us what is wrong with the prayer.

Ghosh: Joseph Shine does not discuss the statutes. The relevant provisions we are talking about do not specify any conduct, but only what military considers Unbecoming conduct. It has to be considered on a case to case basis.

Ghosh: It could be that a husband an wife are separated for years. If adultery is read into these provisions, a barrage of appls would be allowed to be filed. The military officers would not get to consider it case by case.

Order: The Applicant seeks clarification of the Joseph Shine judgment. The applicant was the sole respondent in the said case. Reasons that drove the applicant to seek a clarification are as follows:

Order: It is the case of the applicant that officers of the armed forces are subject to statutory provisions, namely the Army Navy and Airforce Acts. Our attention is drawn to Article 33.

Order: Is the case of the applicant that an impression has been generated and is sought to be perpetuated that in light of the judgment nothing survives in such cases.
ASG Madhavi Divan brought our attention to Provisions of the Army Act.

ASG: There are similar Provisions (re: conduct) in the Navy and Airforce Acts. It is argued sufficiently that the word adulterous acts would bear the meaning assigned to it in dictionaries, so also the word promiscuous and need not be connected with Section 497 of the IPC as such

*SC: ASG says there are ...

SC Order: She submits that context of Joseph Shine is in institution of marriage and not workplaces. The setting of the armed forces is a unique workplace where discipline is indispensable. This would be eroded, she says, if the high respect...

Order: commanded by officers is diluted, and ultimately result in a situation where it it would breed gross indiscipline. Forces that are to always act as one and proceed on a sense of brotherhood. This was not in the contemplation of the Court when it struck down 497.

Order: The Court was then discussing the bygones of the Victorian era. She adds that the element of discord in light of the right to privacy judgment as well.
There is a command structure in the armed forces, and this would be impaired and disturbed. In this regard, she...

Order: asks us to focus on the word unbecoming conduct in Section 45. She would point out that the provisions are gender neutral.

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Order: Equally she draws our attention to 63, & points to military discipline and good order. In other words, any action would to be prejudicial to these would invite action. She even went to the extent of ponting out that it would lead to a breakdown of discipline
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Order: Counsel for the intervenors point out that appl for clarification cannot be allowed and proceedings would have to be decided on facts as are relevant to each case. The appl for clarification may not be a solution to the probelm which is being faced by the Union

Order: and so this court may not issue an omnibus order. Mr Kaleeswaram Raj appeared for Joseph Shine, says the attempt is to seek a substantive modification.

Order: He in fact agrees with the applicant that the questions raised were not considered in the judgment decriminalising 497.

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Order: He adds that the decision should depend on facts of that case.

Order: The judgment of this Court was concerned only with the validity of Section 497.

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Order: It is not as if this Court approved of adultery, it has found that it may be a civil wrong and will continue to be a ground for dissolution of marriage.

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Order: In view of the fact that the scheme of the Acts did not fall in the purview of the Court, we are of the clear view that we must observe and clarify that the judgment of this Court was not at all concerned with them.

Order: In other words, this court was neither called upon not has pronounced on Sections 45 and 63 of the Army Act and corresponding provisions of the other act. We only make this position clear and dispose of the application.

Justice Bose: Why the use of so many negative words? Unbecoming. Un ... (Smiles)