Case Briefing: JOSEPH SHINE vs UNION OF INDIA SECRETARY 2023
Case Title and Citation
JOSEPH SHINE vs UNION OF INDIA SECRETARY, MISCELLANEOUS APPLICATION NO. 2204 OF 2020 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017 (and connected cases).
Factual Background
This miscellaneous application was filed by the Union of India (who was the sole respondent in the original case) seeking clarification of the Supreme Court’s earlier judgment, Joseph Shine v. Union of India (2019) 3 SCC 39, which had found Section 497 of the Indian Penal Code, 1860 (IPC) unconstitutional. The original judgment struck down Section 497 IPC because it offended Articles 14, 15, and 21 of the Constitution. The Union of India contended that the impression was being created that nothing would survive even under the statutory provisions governing the Armed Forces, such as the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950 (Acts). The Union argued that military personnel are subject to Article 33 of the Constitution, which allows Parliament to restrict rights conferred by Part III (Fundamental Rights) to ensure proper discharge of duties and maintenance of discipline in the Forces. The Union faced challenges when taking action against officers/personnel under Sections 45 and 63 of the Army Act for “adulterous” or “promiscuous” acts, as the personnel were arguing the judgment had made such actions “tabooed”.
Issue(s)
The clarification sought by the Union of India was:
Whether persons subject to the Army Act, Navy Act, and Air Force Act, being a distinct class under Article 33 of the Constitution, should be allowed to be governed by the provisions of their respective Acts (like Section 45 or 63 of the Army Act) for “promiscuous or adulterous acts,” notwithstanding the unconstitutionality of Section 497 IPC.
Decision of the Supreme Court
The Supreme Court granted the clarification, holding that the judgment in Joseph Shine v. Union of India was not concerned with and does not deal with the provisions contained in the respective Service Acts. The Court clarified that the original judgment was not called upon, nor did it venture, to pronounce on the effect of Sections 45 and 63 of the Army Act, 1950, or corresponding provisions in other Acts.
Reason for the Decision
- Limited Scope of Original Judgment: The original judgment was concerned only with the validity of Section 497 IPC and Section 198(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.).
- Non-Consideration of Service Acts: The scheme of the Acts concerning the Armed Forces, particularly in the context of Article 33 of the Constitution, did not fall for consideration in the original case.
- Difference in Legal Frameworks: The reasons that persuaded the Court to strike down Section 497 IPC (offending Articles 14, 15, and 21) are not germane for deciding the legality of actions taken under the Service Acts. The military legislation is a complete Code that provides for self-regulation and is designed to maintain the indispensable high moral ground and command structure required for the Forces.
- Adultery as a Moral/Civil Wrong: The Court noted that even after striking down Section 497 IPC, it was recognized that adultery may be a moral wrong and continues to be a ground for securing dissolution of marriage.
- No Bar to Disciplinary Action: The learned counsel for the original petitioner (Joseph Shine) fairly submitted that the fact that Section 497 IPC was struck down may not stand in the way of the authorities proceeding against an officer under provisions like Section 45 (Unbecoming conduct) or Section 63 (Violation of good order and discipline) of the Army Act.
Conclusion
The Supreme Court clarified that its declaration of Section 497 IPC as unconstitutional does not impede the Armed Forces from taking disciplinary action against their officers/personnel for “adulterous or promiscuous acts” by invoking relevant provisions of the Service Acts (such as Sections 45 and 63 of the Army Act), as these provisions and the framework of Article 33 were never adjudicated in the original Joseph Shine judgment.
Case Materials:
Day 1 of Arguments: 31 January 2023 (Video Recording)
