JOSEPH SHINE versus UNION OF INDIA on 31 January 2023

(1) Applications for intervention and impleadment are allowed.

(2) This miscellaneous application is filed by the Union of Indiaseeking the following clarification:

“(a) That persons subject to Army Act, Navy Act and Air ForceAct, by virtue of Article 33 of the Constitution of India, being adistinct class, any promiscuous or adulterous acts by such personsshould be allowed to be governed by the provisions of Sections 45or 63 of the Army Act, Sections 45 or 65 of the Air Force Act andSections 54(2) or 74 of the Navy Act being special legislation and G

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considering the requirements of discipline and proper dischargeof their duty.”

(3) The applicant is seeking clarification of the judgment of thisCourt reported in Joseph Shine v. Union of India (2019) 3 SCC 39. Itmust be noticed that the applicant was the sole respondent in the saidcase.

(4) The reasons which have driven the applicant to seek theclarification are as follows:

It is the case of the applicant that this Court has undoubtedlyproceeded to find Section 497 of the Indian Penal Code, 1860 (hereinafterreferred to as ‘IPC’ for brevity) as unconstitutional as it offended Articles14, 15 and 21 of the Constitution of India. However, it is the case of theapplicant that officers of the Armed forces are subject to statutoryprovisions, 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 Constitutionwhich reads as follows:

“33. Power of Parliament to modify the rights conferred by thisPart in their application to Forces, etc.— Parliament may, by law,determine to what extent any of the rights conferred by this Partshall, in their application to,—

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance ofpublic order; or

(c) persons employed in any bureau or other organisationestablished by the State for purposes of intelligence or counterintelligence; or (d)person employed in, or in connection with, thetelecommunication 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 oftheir duties and the maintenance of discipline among them.”

(6) It is the case of the applicant that the impression has beengenerated and is sought to be perpetuated that in the light of the judgment A

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Aof which the clarification is sought, nothing more would survive even if acase is made otherwise under relevant provisions of the Acts in question.

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

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

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

(8) She further draws our attention to Section 63:

“63. Violation of good order and discipline. Any person subject tothis Act who is guilty of any act or omission which, though notspecified in this Act, is prejudicial to good order and militaryEdiscipline shall, on conviction by court- martial, be liable to sufferimprisonment for a term which may extend to seven years orsuch 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 personsubject to this Act who at any place in or beyond India commitsany civil offence shall be deemed to be guilty of an offence againstthis Act and, if charged therewith under this section, shall be liableto be tried by a court-martial and, on conviction, be punishable asfollows, that is to say,- F

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(a) if the offence is one which would be punishable under any lawin force in India with death or with transportation, he shall beliable to suffer any punishment, other than whipping, assigned forthe offence, by the aforesaid law and such less punishment as isin this Act mentioned; and H

(b) in any other case, he shall be liable to suffer any punishment,other than whipping, assigned for the offence by the law in forcein India, or imprisonment for a term which may extend to sevenyears, or such less punishment as is in this Act mentioned.

(10) She would immediately point out that in the light of thejudgment of this Court in Joseph Shine (supra), since Section 497 IPChas been struck down as unconstitutional and it being a civil offencewithin the meaning of Section 69 of the 1950 Act, it may not be open tothe authorities to proceed against an officer under Section 69. However,it is the further case that it will not preclude the authorities from invokingSection 45 and/or Section 63 of the 1950 Act. There are similar provisionsalso in the Navy Act and in the Air Force Act.

It is her submission that the words adulterous acts would bear themeaning which is assigned to it in the dictionary. So also the wordpromiscuous. They need not be found integrally connected with Section497 IPC as such.

(11) The members of Armed Forces, according to her, are a classapart. She also drew our attention to the objects and reasons of the 1950Act. It is pointed out that the law was enacted to provide for an exhaustiveCode. It is a complete Code. It provides for self-regulation. Accordingto her, the decision of this Court in Joseph Shine (supra) must be viewedin the context of the institution of Marriage. It was not rendered in thecontext of a workplace. Expanding further, learned Additional SolicitorGeneral would point out that the setting in which the Armed Forcesoperate makes it a unique workplace. Discipline among the members ofthe Force is a matter which is indispensable. Discipline would indeed beimpaired, according to her, if the high moral ground to be occupied bythe officers is diluted. The obstacle for the authorities invoking Sections45 and 63 of the 1950 Act as also the corresponding provisions in theother two Acts will ultimately result in a situation where, in the sensitiveForces, which the Armed Forces are, it would engender and breed rankindiscipline. The Forces which act as one and proceed on the existenceof a sense of brotherhood would face breakdown of their morale. Thiswas not what was in contemplation of this Court when it pronouncedSection 497 IPC as unconstitutional. Section 497 IPC has been struckdown on the basis that it offended Articles 14, 15 and 21 of theConstitution. The Court it is contended was distressed by the resort tovalues of a bygone era [the Victorian era] and the considerations which A

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Apersuaded this Court to hold Section 497 IPC as unconstitutional are notgermane for the purposes of deciding on the validity or the legality ofactions taken under Sections 45 and 63 of the 1950 Act. She, in fact, didpoint out that there was an element of discord even in the matter of rightof privacy which has been advocated in the judgment of one of thelearned Judges whereas it has not been so evidenced in the judgment ofBanother Judge. There is a command structure in the Armed Forces whichit is indispensable to maintain. Such command structure would bedisturbed. She would, in this regard, ask us to focus attention on thewords ‘unbecoming conduct’ in Section 45 of the 1950 Act. She wouldsubmit that in a case where the officer is charged with what is unbecomingCconduct and it consists of an act of adultery, nothing can stand in theway of the authorities taking action.

(12) Pertinently, the learned ASG would also point out that theprovisions are gender neutral and it does not suffer from the vice foundby this Court when it struck down Section 497 IPC. Whoever, it may be,Dman or woman, who acts in a manner which is found to be unbecomingcan be proceeded against, therefore, under Section 45 of the 1950 Act.Equally, she drew our attention to Section 63 and points out the importanceof the words ‘military discipline’, viz-a-viz, good order. In other words,any act or omission which is not specified in the Act and is found to beprejudicial to good order and military discipline would invite action underESection 63. She even went to the extent of pointing out that it can lead toa mutiny. She would submit that an unrestful breakdown has, in fact,occurred.

(13) She would further point out that Union of India is faced withthe following situation:F

If an action is taken under Sections 45 and 63 of the 1950 Act, itis being challenged. The bone of contention raised by the officer/personnelis that the action is tabooed by virtue of the judgment of this Court. Thishas led to a number of cases piling up. There is a certain amount ofchaos. This does not conduce to discipline being maintained in the ArmedGForces.

(14) Ms. Madhavi Divan, learned Additional Solicitor General,would submit that this Court may, at least, clarify that the judgment ofthis Court was not concerned with and does not deal with the provisionsin question under the Acts.H

(15) We also have had the benefit of hearing Ms.Anannya Ghoshand Mr. K. Parameshwar, learned counsel. They are counsel who appearfor intervenors. It is pointed out by them that the application forclarification may not be allowed.

(16) They would submit that no case is made out for orderingclarification. Proceedings would have to be decided on the facts as arerelevant to each case. The application for clarification may not be thesolution to the problem which is projected by the applicant. In the individualcases where this question may arise, it is for the applicant to work out itsremedies and this Court may not issue an omnibus clarification.

(17) Mr. Kaleeswaran Raj, learned counsel, appears for thepetitioner-Joseph Shine in the judgment sought to be clarified.

He would submit that the application for clarification may not beentertained. In this regard, he drew our attention to an Order of thisCourt in Supertech Limited v. Emerald Court Owner Resident WelfareAssociation and Others (Miscellaneous Application No. 1572 of 2021in Civil Appeal No. 5041 of 2021). The Court notices that the applicanttherein was seeking the following prayers:

“(a) Modify the judgment dated 31.08.2021...to the extent thatthe Applicant may demolish a part of tower T-17 as stipulated inparagraph 6 hereinabove; (b) Pass an order of status quo in respect of Towers 16 & 17 inEmerald Court, Plot No. 4, Sector 93A, NOIDA till final ordersare passed in the present application.”

(18) No doubt, this Court has proceeded to go into the question asto the maintainability of the application. In doing so, the Court has followedthe judgment by this Court in Delhi Administration v. Gurdip SinghUban and Others (2000) 7 SCC 296:

“In successive decisions, this Court has held that the filing ofapplications styled as “miscellaneous applications” or “applicationsfor clarification/modification” in the guise of a review cannot becountenanced. In Gurdip Singh Uban (supra), Justice MJagannadha Rao, speaking for a two-Judge Bench of this Courtobserved:

“17.We next come to applications described as applicationsfor “clarification”, “modification” or “recall” of judgments or A

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orders finally passed. We may point out that under the relevantRule XL of the Supreme Court Rules, 1966 a review applicationhas first to go before the learned Judges in circulation and itwill be for the Court to consider whether the application is tobe rejected without giving an oral hearing or whether notice isto be issued.

Order XL Rule 3 states as follows:

“3. Unless otherwise ordered by the Court, an application forreview shall be disposed of by circulation without any oralarguments, but the petitioner may supplement his petition byadditional written arguments. The Court may either dismiss thepetition or direct notice to the opposite party....”

In case notice is issued, the review petition will be listed for hearing,after notice is served. This procedure is meant to save the time ofthe Court and to preclude frivolous review petitions being filedand heard in open court. However, with a view to avoid thisprocedure of “no hearing”, we find that sometimes applicationsare filed for “clarification”, “modification” or “recall” etc. notbecause any such clarification, modification is indeed necessarybut because the applicant in reality wants a review and also wantsa hearing, thus avoiding listing of the same in chambers by way ofcirculation. Such applications, if they are in substance reviewapplications, deserve to be rejected straight away inasmuch asthe attempt is obviously to bypass Order XL Rule 3 relating tocirculation of the application in chambers for consideration withoutoral hearing. By describing an application as one for “clarification”or “modification”, — though it is really one of review — a partycannot be permitted to circumvent or bypass the circulationprocedure and indirectly obtain a hearing in the open court. Whatcannot be done directly cannot be permitted to be done indirectly.(See in this connection a detailed order of the then Registrar ofthis Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398]deprecating a similar practice.)

18. We, therefore, agree with the learned Solicitor General thatthe Court should not permit hearing of such an application for“clarification”, “modification” or “recall” if the application is insubstance one for review. In that event, the Court could eitherreject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initiallyin chambers.”

(19) This view apparently has found acceptance in the subsequentjudgments. It was found undoubtedly in the facts of the said case thatthe application sought substantive modification of the judgment.Thereafter, undoubtedly, this Court also held as follows:

“12 The hallmark of a judicial pronouncement is its stability andfinality. Judicial verdicts are not like sand dunes which are subjectto the vagaries of wind and weather (See Meghmala v GNarasimha Reddy, (2010) 8 SCC 383). A disturbing trend hasemerged in this court of repeated applications, styled asMiscellaneous Applications, being filed after a final judgment hasbeen pronounced. Such a practice has no legal foundation andmust be firmly discouraged. It reduces litigation to a gambit.Miscellaneous Applications are becoming a preferred course tothose with resources to pursue strategies to avoid compliancewith judicial decisions. A judicial pronouncement cannot be subjectto modification once the judgment has been pronounced, by filinga miscellaneous application. Filing of a miscellaneous applicationseeking modification/clarification of a judgment is not envisagedin law. Further, it is a settled legal principle that one cannot doindirectly what one cannot do directly [“Quando aliquidprohibetur ex directo, prohibetur et per obliquum”].

(20) He would submit that there is no occasion for the applicantto file the present application.

(21) Learned counsel for the petitioner in the main case would, infact, agree with the applicant that the questions which have been raisedin the application seeking clarification were not those which arose forconsideration in the judgment sought to be clarified. This Court wasconcerned with the validity of Section 497 IPC. It pronounced on thesame. It had nothing to do with the provisions under the Acts.

(22) He would submit that no occasion has arisen for this Court toclarify the order accordingly. In fact, this Court posed the followingquestion. In a given case, the authority is presented with the followingset of facts. An officer is proceeded against under Section 45 of the1950 Act; the charge against him is adultery; it is alleged, in other words,that he has committed adultery within the meaning of Section 497 IPC

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Awhich has been struck down. Mr. Kaleeswaram Raj, learned counselfor the original petitioner, very fairly submits that, the fact that Section497 IPC has been struck down may not stand in the way of the authoritiesproceeding against the officer with the aid of the provisions contained inSection 45 of the 1950 Act. Of course, he adds that the decision mustfinally depend upon the play of facts.B

(23) This Court in the case in question was concerned only withthe validity of Section 497 IPC and Section 198 (2) of the Code of CriminalProcedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity). ThisCourt spoke through separate but concurrent judgments. Apart from thelead judgment of Hon’ble Mr. Justice Dipak Misra, former Chief JusticeCof this Court, and with whom, Hon’ble Mr. Justice A. M. Khanwilkarconcurred, the other learned Judges wrote separate opinions. However,they agreed that Section 497 IPC and Section 198 Cr.P.C. wereunconstitutional. The premise on which the provision was struck downwas that it offended Articles 14, 15 and 21 of the Constitution.D

In this case, this Court had no occasion, whatsoever, to considerthe effect of the provisions of the Acts in question. In fact, we maynotice that it is not as if this Court approved of adultery. This Court hasfound that adultery may be a moral wrong (per Hon’ble Ms. JusticeIndu Malhotra). This Court has also held that it will continue to be aEground for securing dissolution of marriage. It has also been describedas a civil wrong.

(24) In view of the fact that the scheme of the Acts in the context,in particular, of Article 33 of the Constitution did not fall for theconsideration of this Court, we must necessarily observe and clarify thatFthe judgment of this Court in Joseph Shine v. Union of India (2019) 3SCC 39 was not at all concerned with the effect and operation of therelevant provisions in the Acts which have been placed before us by theapplicant. In other words, this Court was neither called upon nor has itventured to pronounce on the effect of Sections 45 and 63 of the 1950Act as also the corresponding provisions in other Acts or any otherGprovisions of the Acts.

(25) We only make this position clear and dispose of themiscellaneous application.

Pending applications stand disposed of.

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MISCELLANEOUS APPLICATION NO. 1702 OF 2021

INWRIT PETITION (CRIMINAL) NO. 194 OF 2017

(26) Application for impleadment is allowed.

(27) The miscellaneous application stands disposed of. Pendingapplications stand disposed of.

Divya Pandey

Applications disposed of.

(Assisted by : Roopanshi Virang, LCRA)

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