A Constitution Bench of the Supreme Court, on 31 January, ruled that its 2018 judgment, quashing section 497 of the Indian Penal Code—which criminalised adultery—does not stand in the way of initiating disciplinary proceedings against service personnel guilty of adulterous conduct. This decision comes after the Centre approached the supreme court on 13 January 2021, seeking the exemption of armed forces personnel from the purview of its judgment, also known as the Joseph Shine verdict. This plea was not rooted in logic, and in my view was infructuous.
The case of the armed forces
In its order, the bench observed that the 2018 judgment did not adjudicate on the provisions of the Armed Forces Acts related to adultery—section 45 (unbecoming conduct) and section 63 (an act prejudicial to good order and military discipline), to be precise. Under Article 33 of the Constitution, legislation governing the armed forces provides exemptions from the application of certain fundamental rights, as determined by Parliament, with respect to military personnel.
The order clarified: “The judgment of this court [in 2018] was concerned only with validity of S. 497 IPC and S. 198(2) CrPC….In view of the fact that the scheme of the Acts in the context of Article 33 did not fall for consideration before this court, we must observe and clarify that the judgment of this court was not at all concerned with the effect and provisions of the Armed Forces Acts. This court was neither called upon nor has it ventured to pronounce on effect of S. 45 and S. 63 of the Army Act as also the corresponding provisions of the other Acts (Navy Act, Air Force Act).”
The arguments of the armed forces focused on the impact of adulterous conduct on military cohesion, ethos and discipline and, by implication, its effect on national security. It was further emphasised that because of prolonged separation from their families while on duty: “There will always be a concern in the minds of the Army personnel who are operating far away from their families under challenging conditions about the family indulging in untoward activity [with other armed forces personnel].”
It was also argued that disciplinary actions taken against certain Army personnel for adultery were quashed by the Armed Forces Tribunal (AFT) because of the Joseph Shine verdict. This was a fallacious argument as service personnel have the right to appeal against orders of Court Martial, and AFT or higher courts decide the cases on merit, which in turn reflects on military legal procedures and possible chinks in sections 45 and 63. In any case, the armed forces rarely charged personnel under Section 69 (committing a civil offence), read in conjunction with Section 497 of the IPC, due to the challenges involved in proving the occurrence of a consensual sexual act.
The Supreme Court had no reason to disagree with the armed forces on the implications of adulterous conduct on cohesion, ethos, discipline and, impliedly, national security. In its judgment, the supreme court indirectly upheld the armed forces’ authority to prosecute personnel for adulterous conduct under Sections 45 and 63 of the Army Act. It refrained from making any observations on the issue that these sections do not specifically mention adulterous conduct or other sexual offences.
To sum up, there was no need for the government/armed forces to seek clarification from the Supreme Court on the issue of adultery continuing to be a military offence while it is no longer a criminal offence for the civil society.
Review military law to tackle sexual offences
Cohesion, or the emotional bond between soldiers, is the primary motivating factor in combat. Military organisations live and fight as a close-knit family. Mutual respect, trust, discipline, and moral conduct of officers and soldiers are fundamentals for nurturing cohesion.
Consensual heterosexual or homosexual relations between service personnel living and fighting together can have severe consequences for cohesion and, consequently, for fighting potential. In a hierarchical organisation, these can lead to exploitation. Adulterous sexual relations breach mutual faith and trust and psychologically impact service personnel.
For the above reasons, sexual relations are forbidden and punishable while on duty or in the barracks. Adulterous relations in military stations/cantonments involving serving and family members have been considered taboo and are also treated as an offence. Military rules, regulations and laws have been framed to deal with such sexual offences effectively.
The law is clear on non-consensual heterosexual or homosexual relations in terms of rape, sexual assault or sexual harassment, and military law is no different. Consensual sexual relations are a grey area, especially in light of the decriminalisation of adultery and homosexuality by the Supreme Court. The induction of women into the armed forces has further compounded the problem.
The armed forces run a parallel justice system enshrined in the Army/Navy/Air Force Acts. These Acts of Parliament are largely in harmony with the law of the land. However, as far as military offences and trial procedures are concerned, there are substantial differences to cater to the unique requirements of military discipline.
Currently, the armed forces law has no specific provisions to deal with consensual sexual relations. These have been forbidden under administrative orders or in the regulations of the three services. While officers are charged for such offences under sections 45 and 63, neither specifically mention sexual offences.
Take section 45: “Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming of his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”
Thus, sexual misconduct of officers, junior commissioned officers and warrant officers is currently dealt with under this Act.
Section 63 covers a broad canvas and deals with all sexual offences: “Violation of good order and discipline. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.” Violation of regulations for the Army and Army/formation/unit administrative orders are punished under this Act. These regulations and administrative orders forbid consensual sexual relations and adulterous relations.
Sections 45 and 63 are too ambiguous and inadequate to deal with sexual misconduct. These sections, along with poor legal procedures followed at Court Martial, are why cases fail when scrutinised by the AFT or the higher courts.
Military laws have failed to keep pace with the times, particularly concerning sexual misconduct. In any case, these are century-old legislation deemed to have become Acts of Parliament with little or no change. It is time for the Chief of Defence Staff/Department of Military Affairs to create a common Armed Forces Act, incorporating specific provisions to deal with sexual misconduct as it impinges on military ethos, discipline and cohesion.
Lt Gen H S Panag PVSM, AVSM (R), served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post-retirement, he was Member of Armed Forces Tribunal. He tweets @rwac48. Views are personal.
(Edited by Zoya Bhatti)