Editorials/Opinions Analysis For UPSC 01 October 2022
- Adultery decriminalization – The Centre seeks clarification
- Challenges ahead for the Post of CDS
Adultery decriminalization – The Centre seeks clarification
- A five-judge Supreme Court bench is hearing a petition filed by the Central Government seeking clarification of the Court’s earlier decision on adultery.
- In the case titled ‘Joseph Shine v/s Union of India,’ the Supreme Court ruled in 2018 that provisions punishing adultery were unconstitutional.
GS Paper 4: Ethical concerns and dilemmas in government and private institutions;
Adultery and divorce should have only civil consequences and should not be considered criminal offences. Comment. (150 Words)
- Adultery is defined as a willing sexual encounter between a married person and someone other than that person’s current spouse or partner.
The IPC’s Section 497
- It states that anyone who has sexual relations with the wife of another man without his consent or connivance is guilty of adultery and shall be punished if such relations do not amount to rape.
- The law does not punish his wife because it assumes that only a man can seduce a woman into a sexual act and that the husband has suffered as a result of his wife’s sexual relationship, which was carried out without his consent. At the same time, the wife is not protected from her husband’s similar behaviour.
BACKGROUND of Adultery Law:
The husband had the right to have his wife’s lover prosecuted under adultery law (Section 497) and CrPC 198(2). If convicted, the adulterer faces up to five years in prison. According to the law, the married woman could not have her husband prosecuted for adultery. Only the ‘outsider,’ the married woman’s lover, was supposed to be prosecuted. As a result, it had become a tool for controlling a woman’s sexuality by reducing her to a commodity owned and controlled by the husband.
Abdul Aziz vs. State of Bombay (1951):
- The adultery law under section 497 of the IPC was challenged in Abdul Aziz vs. State of Bombay shortly after independence in 1951. The petitioner argued that the law infringed on the right to equality guaranteed by Articles 14 and 15 of the constitution.
- The court’s dominant argument was that the law discriminated against men by not holding women equally culpable in an adulterous relationship. However, the Supreme Court upheld the constitutionality of Section 497 by stating that neither a man nor a woman can prosecute their disloyal spouses. Only the ‘outsider’ to the relationship can be prosecuted, and only by the aggrieved husband.
- Article 15(3) of the constitution exempts women who engage in extramarital relationships from punishment and provides them with protection. The argument that section 497 violates the right to equality enshrined in Articles 14 and 15 of the constitution is rejected by the constitution bench. The bench went on to say that the constitution makes special provisions for the protection of women and children. As a result, when read together, Articles 14 and 15 of the Indian Constitution validate Section 497 of the IPC. The crux of the Supreme Court decision in Abdul Aziz vs. State of Bombay was that the married woman (prey) is the victim and the man (outsider) is “the author of the crime.”
Sowmithri Vishnu vs. Union of India (1985):
- The case of Sowmithri Vishnu vs. Union of India in 1985 was the next significant decision concerning adultery law under Section 497. The Centre cited this decision in its 2018-affidavit to support Section 497 of the IPC. In the Sowmithri Vishnu case, the Supreme Court ruled that women should not be included as an aggrieved party in order to make the law more equitable. It also explained why women should not be prosecuted in cases involving adultery.
- In order to protect the sanctity of marriage, the Supreme Court ruled that men could not prosecute their wives for adultery. Women should not be allowed to prosecute their husbands for the same reason. The judgement upheld adultery as a crime committed by a man against another man. The Supreme Court also rejected the argument that unmarried women should be subject to the adultery statute. It was decided that bringing such an unmarried woman into the ambit of adultery law under Section 497 would amount to a woman’s crusade against another woman. The legal ambiguity surrounding adultery remained unresolved.
Revathy vs. Union of India (1988):
- The Supreme Court ruled that not prosecuting women in adultery cases promoted “social good.” It gave the couple the opportunity to “make up” and preserve the sanctity of marriage. According to the Supreme Court, adultery law is a “shield rather than a sword.” The court ruled that by limiting the scope of Section 497 to men, the existing adultery law did not violate any constitutional provisions.
- Aside from the three Supreme Court decisions, there were two other significant legal perspectives on adultery law.
- The Law Commission of India Report of 1971 (42nd Report) and the Malimath Committee on Criminal Law Reforms of 2003 both recommended that the adultery law be amended. Both argued that Section 497 of the IPC should be gender neutral.
Joseph Shine v/s Union of India case:
- In 2017, Joseph Shine filed a writ petition under Article 32 challenging the constitutionality of Section 497 of the IPC.
- In 2018, the Supreme Court ruled that Section 497 of the IPC was unconstitutional because it violated Articles 14, 15, and 21.
- The Court ruled that Section 497 was antiquated and unconstitutional because it deprived a woman of her autonomy, dignity, and privacy.
- Violation of Article 14 of the Constitution – Article 14 guarantees equality before the law or equal protection under the law throughout India’s territory.
- The court ruled that Section 497 violated substantive equality by reinforcing the notion that women were not equal participants in marriage.
- As a result, this Section was determined to be in violation of Article 14.
- Violation of Article 15 of the Constitution – o Article 15 prohibited discrimination based solely on religion, race, caste, gender, or place of birth.
- The court ruled that Section 497 was based on gender stereotypes and thus violated Article 15’s non-discrimination provision.
- Violation of Article 21 of the Constitution – Article 21 states that no one shall be deprived of his or her life or personal liberty.
- The court ruled that Section 497 violated Article 21 because it denied women the constitutional rights to dignity, liberty, privacy, and sexual autonomy.
The Central Government’s request for clarification:
Despite the Joseph Shine case verdict, the Central Government filed a petition in 2019 seeking clarification on whether disciplinary action can be initiated against army personnel under the Army Act, 1950 for adulterous acts.
Argument of the Central Government –
- Certain army personnel faced disciplinary action for adultery.
- However, the Armed Forces Tribunal quashed such proceedings in a number of cases, citing the Joseph Shine decision.
- The government argued that action against adultery is required to ensure that officers serving in remote areas far from their families do not feel insecure or disheartened.
- The government also stated that Army actions are gender neutral, and female officers are subject to disciplinary action.
Observation of the Supreme Court:
- The Supreme Court ruled that the military should have a system in place to punish officers who commit adultery.
- The Supreme Court emphasised that adultery would cause pain and could disrupt the officers’ lives.
- The court also stated that “discipline is paramount” in the military and that adultery in the military should not be taken lightly.
- The court ruled that the Joseph Shine verdict cannot be used to halt disciplinary proceedings against military members who have committed adultery.
- The Supreme Court has scheduled a hearing on the matter for December 6, 2022.
Challenges ahead for the Post of CDS
The government recently appointed former Eastern Army Commander Lt. General Anil Chauhan as the next Chief of Defense Staff (CDS), filling a nine-month vacancy left by the death of the country’s first CDS Gen. Bipin Rawat in a helicopter crash in December 2021.
GS Paper 3: Various Security forces and agencies and their mandate.
A Chief of Defence Staff (CDS) position would solve many security issues and challenges in India.” Analyse. (250 Words)
Anil Chauhan: The new CDS
- Regiment: Lt Gen Chauhan (retd) is a member of Gen Rawat’s regiment, the 11 Gorkha Rifles.
- He is the first retired three-star officer to be promoted to four-star rank.
- Military advisor: Since his retirement as Eastern Army Commander in 2021, he has served as a military adviser in the National Security Council Secretariat.
Concerning the Chief of Defense Staff (CDS)
- Eligibility: The government recently amended the Army, Navy, and Air Force Service Rules, making retired Service Chiefs and three star rank officers eligible for consideration for the country’s top military post
- However, an age restriction was imposed, requiring that the retired officer be under the age of 62 on the date of appointment.
- He is no longer eligible to hold any government office after resigning as CDS.
- Recommendation: Following the conclusion of the Kargil War, the Kargil Review Committee recommended the establishment of the post of Chief of Defence Staff (CDS).
- The CDS post was also recommended by the Naresh Chandra task force (2012) and the Lieutenant General B. Shekatkar Committee (2016).
- Designations: The CDS is a four-star General/Officer who serves as the Defence Minister’s Principal Military Advisor on all tri-services (Army, Navy, and Indian Air Force) matters.
- The CDS serves as the permanent Chairman of the Chiefs of Staff Committee (CSC), which includes three service chiefs.
- He also leads the Ministry of Defense’s newly formed Department of Military Affairs (DMA).
- The CDS is also given the rank of Secretary of Defense within the DoD. (Department of Defense)
- Mandate: The CDS’s broad mandate includes promoting “jointness” in “operations, logistics, transportation, training, support services, communications, repairs, and maintenance of the three Services.”
- He is also tasked with improving cooperation between the Ministry of Defense bureaucracy and the armed forces.
- Functions: The CDS is vested with the following critical functions:
- Increasing operational synergy among the Indian military’s three service branches
- Reducing inter-service frictions as much as possible
- The CDS also has the authority to issue directives to the three chiefs.
- He will also serve as an advisor to the Nuclear Command Authority (NCA)
- Maintain synergy between the armed forces and the government to expedite decision-making.
A significant task lies ahead.
- Putting theatre commands into action: An integrated theatre command envisions a unified command of the three Services, led by a single commander, for geographical theatres (areas) of strategic and security concern.
- Previously, CDS General Rawat was pushing this ambitious plan to reorganise the armed forces and increase synergy and efficiency.
- It is now up to the new CDS to forge consensus, serve as a liaison between the three services, and move the reorganisation process forward.
- Courageous decision-making: The three services have expressed concerns about how theaterisation may dilute the role of service chiefs, and thus the integration has been stalled due to differences between them.
- However, in the event of disagreement and hesitancy during the smooth transition management of structural changes, new CDS should not be afraid to make firm decisions.
- Indigenization push: The war in Ukraine has increased the urgency of indigenizing critical military technologies and systems and reducing reliance on imports.
- It remains to be seen how Russia’s war in Ukraine affects Indian procurement, what diversification India may bring to its hardware purchases, and what role new CDS will play in all of this.
- New CDS would also attend this year’s defence expo, which will be held in Gandhinagar for the first time as an India-only event.
- Rationalize defence spending: A critical function of CDS will be “prioritising” individual service capital acquisition proposals and ensuring that the “defence rupee” is spent wisely on warfare-capabilities deemed critical for national military power.
- Getting Ready for NextGen Warfare: Cyber and information warfare will be omnipresent disruptors among adversaries. As a result, the new CDS will face a critical challenge in coordinating the efforts of three services and coordinating with agencies at the highest level dealing with cyber security management.
- Manpower reform: The new CDS role as Secretary, Department of Military Affairs, will necessitate attention to manpower reform issues.
- For example, the CDS previously proposed raising the retirement age for officers and jawans in technical branches in order to retain highly skilled manpower in technical branches.
- Dealing with multi-domain warfare: Multi-domain warfare entails countering an adversary capable of competing and fighting in all domains [air, land, maritime, space, and cyberspace].
- Because future wars will include many elements such as diplomacy, economy, intelligence, cyberspace, energy, environment, water, and so on, it is critical to synergize military power through CDS with other instruments of power.
- New world order strategy: Because of the reconfiguration of groupings and alliances as a result of the Ukraine war, a single point of contact for military advice will be critical in determining India’s position in each case.
The way forward
- In order to become a regional power, it is critical to reduce reliance on imports for security needs. It can be advanced by achieving Aatmanirbharta in Suraksha (Self-sufficiency in Security) by taking the following steps:
- Incentives for private sector participation in the defence industry, such as priority procurement of capital items from domestic sources under the Defence Acquisition Procedure (DAP)-2020.
- To encourage indigenous design and development of defence equipment, the ‘Buy Indian,’ i.e. IDDM (Indigenously Designed, Developed, and Manufactured) category has been given top priority for capital equipment procurement.
- Assisting the defence industry by developing indigenous weapons and equipment: for example, the launch of an indigenization portal, SRIJAN, to facilitate indigenization by Indian industry, including MSMEs.
- Improving infrastructure, such as the establishment of two Defence Industrial Corridors (one in Uttar Pradesh and one in Tamil Nadu), the opening of Defense R&D to industry, and so