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Joseph Shine vs. Union of India (Clarification on Armed Forces)

Writ Petition (Criminal) · 2023 INSC 87Decided 31 Jan 2023
Writ Petition (Criminal) No. 194 of 2017
K.M. Joseph · Ajay Rastogi · Aniruddha Bose · Hrishikesh Roy · C.T. Ravikumar

Background

In Joseph Shine vs. Union of India (2019) 3 SCC 39, a Constitution Bench struck down Section 497 IPC (the offence of adultery) and Section 198(2) CrPC as violating Articles 14, 15 and 21. The Union of India then filed this application asking the Court to clarify that the judgment does not stop the armed forces from taking disciplinary action against personnel for adulterous or "promiscuous" conduct under their own laws, for example Sections 45 (unbecoming conduct) and 63 (violation of good order and military discipline) of the Army Act, 1950, and the corresponding provisions of the Navy and Air Force Acts. The Government said that officers facing such action were arguing that the Joseph Shine judgment barred it, leading to a pile-up of cases and confusion that was harming discipline. Intervenors and the original petitioner's counsel argued that no clarification was needed and that each case should be decided on its own facts; the petitioner's counsel nonetheless fairly conceded that the striking down of Section 497 did not prevent the authorities from proceeding under Section 45 of the Army Act.

Decision Breakdown

The Court noted the general rule (Delhi Administration vs. Gurdip Singh Uban; Supertech Ltd. vs. Emerald Court) that "miscellaneous applications" cannot be used as a disguised review to modify a final judgment. But here it found that the application did not seek any modification. It merely asked what the judgment did and did not cover. The Court clarified that Joseph Shine was concerned only with the constitutional validity of Section 497 IPC and Section 198(2) CrPC; it had no occasion to consider the armed forces legislation or Article 33 (which allows Parliament to restrict fundamental rights for members of the armed forces to maintain discipline). It also observed that the judgment did not approve of adultery. It had been described as a moral wrong and a civil wrong, and it remains a ground for divorce. The Court therefore clarified that the 2019 judgment "was not at all concerned with the effect and operation" of Sections 45 and 63 of the Army Act or the corresponding provisions of the other Acts, and disposed of the applications without pronouncing on how those provisions should apply in any given case.

Lesson Learnt

Decriminalising adultery for the general public did not make it consequence-free everywhere: members of the armed forces remain subject to their own service laws, which can treat adulterous conduct as "unbecoming" or prejudicial to discipline. More broadly, a Supreme Court judgment decides only the questions actually before it. It should not be read as settling issues it never examined.

Official source (sci.gov.in)View Judgment (PDF)

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