Section 497 Is Gone, But Forces Have Other Artillery To Combat Adultery

Adultery is no longer a criminal offence, since the Supreme Court recently struck down Section 497 of the Indian Penal Code, under which people were prosecuted for the offence since colonial times. Analysts are busy dissecting the judgment, its impact on women and how the draconian law should have been scrapped decades ago, as it has no place in liberal, 21st century India. However, within the secluded confines of the nation’s cantonments, the winds of change unleashed by the SC are unlikely to make any tangible difference to the long-held, tough stance of the armed forces against marital indiscretions.

The SC judgment comes at a time when the armed forces are grappling with a huge number of cases where officers are being prosecuted for “stealing the affections of a brother officer’s wife”—the common euphemism for adultery. After cowardice, for which the punishment is dismissal or death, moral turpitude is seen as the second most serious offence in the forces. Twice in the last one year, Army chief Gen. Bipin Rawat has warned officers that if there is a proven case of moral failing, the “guilty will not be spared, even if they or their family members go running to higher ups”. The usual plea of relations being ‘consensual’ will not hold water if a brother officer’s wife is involved, he stressed.

The armed forces regard themselves as a large family; consequently, leniency in matters like extra-marital relationships can impact its ethos and espirit de corps, the cornerstone of which is trust. Because of the peculiar environment in which the forces live and operate, it’s argued that some rules which apply to civilian society are not necessarily good for them. Cantonments are secluded, confined places where soldiers’ families live in separate accommodation when the men are away on field duty or serving in conflict zones. When colleagues go home on leave, they are expected to address the problems of wives of brother officers who are on duty. To exploit the loneliness and vulnerability of these women is seen as conduct unbecoming of a soldier and officer, something beyond the pale—not here, not in other armies of the world.

Col (retd) Bipin Kumar Pathak, an intelligence officer who has carried out surveillance on several straying officers, says, “Extra-marital affairs will continue to be a criminal offence within the military. Their negative impact on the organisation have to be taken into account, as it has a detrimental effect on unit, morale, team work and efficiency.”

Till now, officers facing court martial are charged under Section 69 of the Army Act 1950 read with Section 497 of the Indian Penal Code. Now that the SC had declared Section 497 unconstitutional, it will be dropped from the Army Act, and the term “stealing the affections...” will also go.

“But because adulterous relations are a big deal in the cantonments, and impact discipline and order, the forces will most certainly invoke other provisions in the Army Act, and its parallels in the Air Force and Navy, to deter its officers,” says Maj. Navdeep Singh, a military lawyer.

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The most likely of these is Section 45 of the Army Act, which addresses unbecoming conduct, and is usually applied to charges of adultery in addition to Section 69 in army court martials. Another suitably ambiguous provision which can cover a variety of wrongdoings is Section 63 of the Act that deals with actions “prejudicial to good order and discipline”. The difference now will be that instead of proving charges of adultery, military courts will focus on proving how the indiscretion of an officer created indiscipline and impacted cohesion and good order in service life, adds Navdeep.

But, in this age of live-in relationships and casual affairs, many young officers who are acquainted with liberal social and sexual mores when they join the forces chafe at the restrictions. The presence of women has added a new dimension to life in the forces and initiated a fresh view on traditional notions of ‘stealing the affections....’ The nudge to change has come from the Armed Forces Tribunals, which have in recent years taken the stand that perhaps the forces should move with the times.

In this connection, the 2016 judgment by the Calcutta bench of the AFT, in the case of Flt Lt Ishan Sharan, is a landmark. Sharan was “dismissed from service” by the air force in June 2013 after a court of inquiry found him guilty of having an affair with a fellow officer, a squadron leader and wife of a senior IAF pilot. The couple’s marriage was in trouble when Sharan stepped into the picture. The lady later committed suicide. The AFT, while directing that Sharan’s sentence should be softened from ‘dismissed’ to ‘released from service’, to relieve him from the stigma, also advised the air force not to be harsh on extra-marital affairs in the changing social scenario. “The time has come when aspects such as unfortunate break-ups of existing marital relations, consensual relations with others, and infidelity should not be viewed so seriously as to lead to dismissal or even graver punishment under the IPC and statutory Acts of the Army, Navy and Air Force...while not condoning extra-marital relationships, we must reflect on the changing mores of our society. With women joining the armed forces in large numbers, working closely and socialising with their male counterparts it is unreasonable to expect that the armed forces will be immune to social changes in relations between the two sexes,” said the AFT bench of Justice Amar Saran and Lt Gen Gautam Moorthy.

In 2014, the Mumbai bench of the AFT had similarly set aside the dismissal of a naval commander for adultery and unbecoming conduct, for exchanging lewd messages with the wife of a fellow officer. The government challenged the AFT verdict, but the SC in 2015 upheld the reinstatement of the officer, saying that while it is a ‘misdemeanour’ it does not merit harsh punishment such as dismissal.

As the Indian armed forces and courts grapple with the tricky issue of ensuring that personal liberties do not come into conflict with service ethos, it may be useful to see how the equally conservative American forces discourage such cases. The case of Lt Kelly Flinn, the first woman B-52 pilot in the US Air Force, who was forced to resign from service in 1997 for having an adulterous relationship with the husband of a subordinate woman officer, is a case in point. Flinn was charged with conduct unbecoming of an officer, disobeying a written order to stay away from the married man and lying about the affair in 1997. The matter was heard by the US Senate and the then chief of staff of the air force, Gen. Ronald Fogleman, testified at a congressional hearing, “In the end this is not an issue about adultery. This is an issue about an officer entrusted to fly nuclear weapons, who lied.” Clearly, adultery in the forces will continue to be an offence and newer interpretations of existing service rules may be pressed into use to discourage it.

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