The Supreme Court has admitted an application from the Central government to decide if the members of the armed forces may be exempted from the ruling of the court in the case of Joseph Shine vs Union of India which decriminalised adultery.

In its application, the government has referred to article 33 of the Indian Constitution, which authorises 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 to ensure proper discharge of their duties and to maintain discipline amongst them. Pursuant to this mandate, there already exist many additional restrictions on the armed forces which civilians are not subject to.

Scope of the application

The two questions that the government has asked the court to clarify are the following: Firstly, whether persons subject to the Army Act can still be subject to section 497 of the Indian Penal Code? Secondly, whether adulterous or promiscuous acts by a person subject to Army, Navy and Air Force Act can be punished under the provisions of these statutes dealing with unbecoming conduct and maintenance of good order and discipline?

Even if the court rules in favour of the government, it will not create criminal liability for anybody who is not a member of the armed forces as the application focusses solely on members of the armed forces.

The spectrum of ‘unbecoming conduct’

“Unbecoming conduct” is an umbrella term which is generally used to deal with undefined and unspecified wrongful conduct. For example, section 47 of the Army Act prescribes imprisonment of up to seven years for ill-treating a subordinate. In the absence of this specific rule, one would imagine that ill-treatment of subordinates would be construed as “unbecoming conduct”.

To qualify as unbecoming conduct, an act or an omission does not have to be a crime under the general law of the land. The criteria of unbecoming conduct have to be ascertained from the perspective of the internal code and ethics of the armed forces. This contextualised understanding means that conduct which may be innocuous in civil life may invite sanctions in the armed forces.

The importance of moral context

Simply because something is not a crime does not mean that it cannot be prohibited within the context of different professional settings. It is not a crime for two consenting adults to engage in a sexual relationship. However, universities prohibit such relationships between teachers and students.

Similarly, many companies have non-fraternisation policies. When a person engages in such prohibited conduct, they are guilty of a wrong only in the context of their employment and not as per the general law of the land. If an employee is fired for having an adulterous relationship with a client’s wife, he not being fired for the adulterous act per se but because of the loss of clientele and the reputational damage the company might suffer.

Thus, there is nothing irregular if the armed forces continue to perceive the adulterous relationship with the spouses of colleagues as “unbecoming conduct”. In such a situation, adultery is being sanctioned not because it is considered a moral wrong in itself but because it has the potential to damage the internal discipline of the organisation.

This is evident from the application filed before the Supreme Court. In the application, the focus is on taking action against such personnel who have an adulterous relationship with the spouse of a colleague.

There does not seem to be any interest in a situation when its personnel are in an adulterous relationship with somebody who has no connection to the armed forces. Thus, it appears that an army officer’s affair with a colleague’s wife or husband is not on the same footing as an officer’s affair with the spouse of a civilian friend.

The problems in the application

The application filed before the Supreme Court is strange in the sense that it is mostly unnecessary. Nothing in law at present stops the armed forces from classifying adulterous or promiscuous conduct as unbecoming.

Decriminalisation of adultery means that while adultery itself cannot be a crime, there can be consequences for adulterous acts in the context of different employments. This is further clear from the words of retired Adjutant General Lt Gen Ashwani Kumar who clarified that though the armed forces take action because of adultery, they do not charge the person with adultery.

The problem with criminalisation

However, the proposal to deal with adultery and promiscuity as problems of “good order and discipline” is problematic. Unlike in the case of “unbecoming conduct”, a person can be imprisoned for disturbing “good order and discipline”. It criminalises adultery instead of focusing on a disciplinary measure.

The idea of deterrence inherent in the criminalisation of any conduct is dated, highly overestimated and its relevance is debatable even in the context of serious crimes like murder and rape. Additionally, the deterrence design is inapplicable to people who choose to commit crimes rationally despite being aware of the possible consequences.

A professional assassin is not deterred by the threat of being punished with death. Also, in crimes of passion, ie, crimes committed at the spur of the moment, deterrence as a model of punishment is irrelevant. It follows that when the deterrence model is ineffective against serious crimes, it is futile to use the same model to regulate private actions in marital relationships. To imagine that the fidelity of family members can be secured by criminalising sexual conduct outside of marriage is incredibly immature.

Patriarchal instincts

The government’s application is based on the assertion that the peculiar working conditions of armed forces put them on a footing different from that of civilians. While there are reasonable differences between civilians and the armed forces, these differences are irrelevant in the context of social relationships.

The application submitted by the Centre clearly mentions that the Armed Forces need the psychological satisfaction of their families not engaging in untoward activities and criminalising adultery and promiscuity would provide them with that. It takes us back to the same reasons that allowed section 497 to exist in the first place.

The belief that members of the family can and should be controlled instead of being allowed to operate with a free will is an outcome of a patriarchal mindset. By itself, it is not sufficient to justify the criminalisation of adultery for persons governed by the Army, Navy and Air Force Acts.

To conclude, it would be apt to say that while nothing stops the Armed Forces to draft laws for enforcing discipline within themselves, the reasons for doing so cannot be for exercising control over family members and consequent psychological satisfaction of our soldiers.

Both Suman Dash Bhattamishra and Rangin Pallav Tripathy teach at National Law University Odisha. Suman works in the area of gender law and criminal law and Rangin works in the area of constitutional law.