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Synopsis

A Constitution Bench of Justice KM Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar, was hearing a Union Government's clarification application where the subject matter was the acts of adultery by army personnel, whether would amount to indiscipline under the light of Joseph Shine judgment. The question raised was, what amounts to discipline and indiscipline in the army? And what is unbecoming of the conduct?.

To that the Court on several occasions specifically asked,

"Is there anything in the judgment that precludes you from calling a conduct a 'misconduct'?" and "What part of Joseph Shine is coming your way?". And hinting towards Joseph Shine, the court further asked, "the Constitution Bench is either right or wrong, you can see it in individual cases".

To that ASG Madhavi Devan stated, that the question in the present context has been left open. 

Court then further stated, "should they be treated as criminals or just a misconduct, that is the question".

In the pertinent matter under the light of the Joseph Shine's judgment, where it decriminalised 'Adultery', it was questioned whether army officers or personnel could be subjected to that for such acts. The matter was referred to a larger Bench by a three-judge Bench. The rationale was since the Joseph Shine's matter was decided by a Constitution Bench, therefore, the present matter should be decided in the same manner.

The Court noted that, "In uniform services where discipline is of utmost importance, this (conduct) is going to shake up the life and everything, there they have to take action. This is not a desirable conduct". And on that basis further asked the relevance of Joseph Shine in the present context. 

ASG, contended that the Armed Forces Tribunal quashed certain disciplinary proceedings in accordance with the judgment, decriminalising adultery. Therefore, vehemently objected to the stance and further stated, that the officers posted at field areas, while there families live in separate houses in peace stations, to have sense of security, adultery should subsist in matters of disciplinary proceedings.

Advocate Kaleeswaram (for the petitioner) submitted that the matter has to be seen from case to case basis. And a clarification application is not the manner, how the present matter should be dealt with.

The matter will be next heard on 6th December.

Case Title: Joseph Shine vs Union of India