Joseph Shine v. Union of India Secretary

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Joseph Shine v. Union of India Secretary

This is a Miscellaneous Application seeking clarification on the application of the Joseph Shine judgment to the armed forces.

Petitioners Arguments

The Union's clarification application is not maintainable because the Joseph Shine judgment never considered the scope of adultery in armed forces. A general clarificatory direction cannot be given and individual cases are to be examined on a case-to-case basis.

Responders Arguments

Disciplinary actions had been taken against certain army personnel for adultery, however, the Armed Forces Tribunal (AFT) passed an order relying on the Joseph Shine judgment to close proceedings against the officers charged with such an act. The Army Act punishes acts of adultery by uniformed personnel under Section 45 (unbecoming conduct) and Section 63 (violation of good order and discipline) that leads to initiation of disciplinary proceedings ending up even in dismissal. The Joseph Shine judgment was premised on the patriarchal connotations of Section 497 IPC , however, the actions taken in Army Act are gender-neutral wherein female officers are also subject to disciplinary action. The action against adultery is necessary to ensure that the officers who are serving in far-flung areas away from their families do not feel insecure or dispirited. The 'promiscuous or adulterous act' by individuals subject to the Army Act , Navy Act and Air Force Act would still be offences for which either criminal or disciplinary action could be initiated under Army Act, and under corresponding provisions of the Navy Act and Air Force Act.

Last Listed On

2023-01-31

Start Date

2020-11-05

End Date

2023-01-31

Card Stage Date

2023-01-31

Review Petition No

MA NO. 2204/2020

Case Status

Archive

Bench Status

Constituted

Subject Matter

Constitution

Disposal Time

2 years, 2 months, 27 days

5 Judge Bench

Judgment delivered

Consider As Stage Of Pendency

false

Date of institution of case

Date of reference to 5 Judge Bench

Judgement pronounced

In 2017, Joseph Shine, a non-resident of Kerala filed a PIL under Article 32 of the Constitution of India, challenging the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. Section 497 of the IPC criminalised adultery and imposed culpability on a man who engages in sexual intercourse with another man’s wife; with a maximum imprisonment of five years. However, it exempted women, including consenting parties from prosecution. The three-judge bench of the Supreme Court reviewed the precedents i.e., Yusuf Abdul Aziz v. State of Bombay (1954) , Sowmithri Vishnu v. Union of India (1985) and V. Revathi v. Union of India (1988) , wherein the Supreme Court upheld the constitutionality of Section 497 of the IPC. On 5-01-2018, Hon’ble Justice Deepak Misra heading the three-judge bench referred the matter to a five-judge Constitution Bench. On 27-07-2018, the Constitution Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14 , 15 & 21 of the Constitution. The bench overruled the judgements of Yusuf Abdul , Sowmithri Vishnnu and V. Revathi . On 05-11-2020, the Department of Military Affairs, Ministry of Defence filed a Miscellaneous Application before the Supreme Court of India seeking clarification on the Joseph Shine (2018) judgement’s application to the Armed Forces where a person can be cashiered from service on grounds of "unbecoming conduct" for committing adultery with a colleague's wife. On 13-01-2021, Hon’ble Justice Rohinton Fariman heading the three-judge bench directed the application to a five-judge Constitution Bench because the clarification sought concerns a Constitution Bench decision.

Should the persons subject to the Army Act under Article 33 of the Constitution, being a distinct class, continue to be subject to the rigours of Section 497 of the IPC? Should the decision in Joseph Shine v. Union of India [(2019) 3 SCC 39] prevent the Armed Forces from proceeding against a person subject to the Army Act, who is guilty of what would in effect be an adulterous act? Should the promiscuous/adulterous acts or illicit relationship by a male or a female subject to the Army Act still be a matter for action under Section 63 or Section 45 of the Army Act and under corresponding provisions of the Navy Act and Air Force Act ?

Section 497, Indian Penal Code, 1860

Sections 45 and 63 of the Army Act, 1950

Sections 45 & 65 of the Air Force Act, 1950

Sections 54 (2)and 74 of the Navy Act, 1957

After hearing arguments, the Supreme Court was of the view that the Miscellaneous Application seeks clarification on the Constitution Bench judgment, therefore, the matter ought to be authoritatively pronounced upon by a Constitution Bench and hence referred the matter.

Joseph Shine v. Union of India [(2019) 3 SCC 39]

Joseph Shine v. Union of India Secretary

Date Of Institution Start

2021-10-07

Case No

MA NO- 1702/2021

The Adultery Case: Balancing Individual Dignity and Holy Matrimony

Source Of Info

International Association of Constitutional Law

Date Of Fr

2019-02-05

How Does Joseph Shine Judgment Prevent Disciplinary Actions Against Armed Forces Officers For Adultery? Supreme Court Asks Centre

Source Of Info

LiveLaw

Date Of Fr

2022-09-29