Joseph Shine vs Union of India - 2023 Supreme(SC) 137

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 137

SUPREME COURT OF INDIA
K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE, HRISHIKESH ROY, C.T. RAVIKUMAR, JJ.
Joseph Shine – Petitioner
Versus
Union of India – Respondent
Miscellaneous Application No. 2204 of 2020, Miscellaneous Application No. 1702 of 2021, Writ Petition (Criminal) No. 194 of 2017
Decided On : 31-01-2023

Advocates appeared:
For the Petitioner(s): Mr. Sarvesh Singh, AOR Mrs. Madhavi Divan, A.S.G. Mr. Sanjay Jain, A.S.G. Mr. R Balasubramaniam, Sr. Adv. Mr. Sachin Sharma, Adv. Mr. Mohd Akhil, Adv. Mr. Balendu Shekhar, Adv. Mr. Kanu Agarwal, Adv. Mrs. Deepabali Dutta, Adv. Mr. Mayank Pandey, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Ms. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Arvind Kumar Sharma, AOR Ms. Nidhi Khanna, Adv. Ms. Aishwarya Nabh, Adv. Mr. Aanorita Deb, Adv. Mr. Shubham Saigal, Adv. Mr. Aishani Narain, Adv. Mr. Kaleeswaram Raj, Adv. Mr. Nishe Rajen Shonker, AOR Ms. Thulasi K Raj, Adv.
For the Respondent(s): Mr. K. Parameshwar, AOR Ms. Arti Gupta, Adv. Ms. Kanti, Adv. Ms. Anannya Ghosh, AOR Mr. Dushyant Manocha, Adv. Ms. Mrinalini Mishra, Adv. Ms. Chitra Vats, Adv. Ms. Doel Bose, Adv.

Headnote:ARMED FORCES - APPLICATION FOR CLARIFICATION - Army Act, 1950 (Sections 45, 63, 69), Navy Act, 1957 (Sections 54(2), 74), Air Force Act, 1950 (Sections 45, 65) - The court allowed the application for clarification regarding the applicability of Sections 45 and 63 of the Army Act, as well as similar provisions in the Navy and Air Force Acts to members of the Armed Forces. The court clarified that its previous judgment striking down Section 497 of the Indian Penal Code did not preclude authorities from invoking these sections to maintain discipline among members of the Armed Forces. FACT OF THE CASE The Union of India sought clarification on whether promiscuous or adulterous acts by members subject to the Army Act, Navy Act, and Air Force Act should be governed by specific provisions under these Acts. The applicant argued that despite Section 497 IPC being struck down as unconstitutional, disciplinary actions under relevant provisions of the Acts should still be permissible. FINDING OF THE COURT The court clarified that its previous judgment was not concerned with nor did it deal with the provisions in question under the Acts. It emphasized that its decision striking down Section 497 IPC did not preclude authorities from invoking Sections 45 and 63 of the Army Act and corresponding provisions in other Acts to maintain discipline within the Armed Forces. ISSUES The main issue was whether disciplinary actions under specific provisions of the Army Act, Navy Act, and Air Force Act were permissible following the court's judgment striking down Section 497 IPC. RATIO DECIDENDI The court held that its previous judgment did not address nor pronounce on the effect and operation of relevant provisions in the Acts governing members of the Armed Forces. It clarified that disciplinary actions under these provisions were not precluded by its earlier decision. FINAL DECISION The court allowed the application for clarification and disposed of it by clarifying that its previous judgment did not concern or pronounce on specific provisions in question under the Acts governing members of the Armed Forces.

ORDER :

MISCELLANEOUS APPLICATION NO. 2204 OF 2020 IN WRIT PETITION (CRIMINAL) NO. 194 OF 2017

1. Applications for intervention and impleadment are allowed.

2. This miscellaneous application is filed by the Union of India seeking the following clarification:

“(a) That persons subject to Army Act, Navy Act and Air Force Act, by virtue of Article 33 of the Constitution of India, being a distinct class, any promiscuous or adulterous acts by such persons should be allowed to be governed by the provisions of Sections 45 or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and Sections 54(2) or 74 of the Navy Act being special legislation and considering the requirements of discipline and proper discharge of their duty.”

3. The applicant is seeking clarification of the judgment of this Court reported in Joseph Shine vs. Union of India, (2019) 3 SCC 39. It must be noticed that the applicant was the sole respondent in the said case.

4. The reasons which have driven the applicant to seek the clarification are as follows:

It is the case of the applicant that this Court has undoubtedly proceeded to find Section 497 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for brevity) as unconstitutional as it offended Articles 14, 15 and 21 of the Constitution of India. However, it is the case of the applicant that officers of the Armed forces are subject to statutory provisions, viz. Army Act, 1950, Navy Act, 1957 and the Air Force Act, 1950 (hereinafter referred to as ‘Acts’).

5. Our attention is further drawn to Article 33 of the Constitution which reads as follows:

“33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. - Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to:

(a) the members of the Armed Forces.

(b) the members of the Forces charged with the maintenance of public order.

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence.

(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.”

6. It is the case of the applicant that the impression has been generated and is sought to be perpetuated that in the light of the judgment of which the clarification is sought, nothing more would survive even if a case is made otherwise under relevant provisions of the Acts in question.

7. Ms. Madhvi Divan, learned Additional Solicitor General, who appears on behalf of the applicant, drew our attention, as an illustration, to the following provisions of the Army Act, 1950 (hereinafter referred to as ‘1950 Act’ for brevity).

Chapter VI deals with offences thereunder. Our attention is drawn to Section 45:

“45. Unbecoming conduct - Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”

8. She further draws our attention to Section 63:

“63. Violation of good order and discipline - Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”

9. Finally, she drew our attention to Section 69:

69. Civil offences. Subject to the provisions of section 70, any pers