By Vivek K Agnihotri
On March 19, 2021, upholding a Central Administrative Tribunal (CAT) decision to set aside the dismissal of Pankaj Choudhary, a Rajasthan cadre IPS officer of the 2009-batch, the Delhi High Court ruled that an act of bigamy cannot always lead to removal of a government servant from service. It said that many family affairs which were earlier a matter of public debate are now confined to the private domain.
The concept, definition and standards of morality have also been changing with changes in appearance, dressing, language, etc. The behaviour which shocked 50 years ago is now considered as normal and or at worst an aberration, a division bench of Justices Rajiv Sahai Endlaw and Amit Bansal said in its ruling. The Court also said that ethical standards have changed since the time the All India Services (Conduct) Rules, 1968 were framed more than 50 years ago. What may have been unethical in 1968 is not necessarily unethical today and at least, not necessarily as severely unethical as it was in 1968, it said.
In 2016, a memo was served under the Conduct Rules on the IPS officer for having started living with a woman, and having a son with her despite a subsisting marriage and without any legal separation from his wife. He was dismissed from service in February 2019 by the Disciplinary Authority in consultation with the Union Public Service Commission. He was dismissed on grounds of “grave personnel misconduct” because he had “behaved so irresponsibly and in an ungentlemanly like fashion”.
However, in December 2020, CAT revoked the order of the home ministry which had terminated the services of the officer. The High Court in its ruling said that undoubtedly, the act committed by the officer is punishable under Section 494 IPC (the provision prohibiting a person from marrying another person during the lifetime of a husband or wife). However, it added, the same is only on the complaint of some person aggrieved by the offence, which in this case would have been his wife. It is nowhere on record that there was any such complaint.
The ethical standard of an act of bigamy has to be viewed in this light and depending on the facts and circumstances of each case, the Court said. It also said that the matrimonial relationship between the officer and his first wife was strained prior to the date of his joining the IPS and they were staying separately, although a daughter was born to them in 2008.
The root cause of matrimonial disharmony between the officer and his wife was the caste to which the officer belonged and not his extramarital affair or his selection in the IPS, as was implied in the charge. It is thus not as if the officer, on making it to the elite IPS, severed his matrimonial links.
The Court also said it was not that after living separately from his wife, he immediately got into a relationship with another woman. He did so after applying for divorce. It also noted that he gave the other woman the stature of a wife and his name to the son begotten from this relationship. Though living with another woman while having a subsisting marriage may have been unacceptable till about 20 years back, in today’s time, it is viewed differently, the Court observed.
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The rulings of CAT and the Delhi High Court have to be comprehended against the backdrop of the judgment of the Supreme Court in Joseph Shine vs Union of India (2018). In October 2017, Joseph Shine, a non-resident Keralite, filed a PIL under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section198(2) of the CrPC. Section 497 IPC criminalised adultery by imposing culpability on a man who cohabits with another person’s wife. Adultery was punishable with a maximum imprisonment of five years. Women, including consenting parties, were exempted from prosecution. Further, a married woman could not bring forth a complaint under Section 497 IPC when her husband got into a relationship with an unmarried woman.
It was argued that Section 497 was unconstitutional as the very basis for criminalising adultery was the assumption that a woman is considered as the property of the husband and cannot have relations outside marriage. The same restrictions, however, did not apply in case of the husband. Section 497 violates the right to privacy as well as the liberty of women by discriminating against married women and perpetrating gender stereotypes.
On September 27, 2018, a five-judge bench of the Supreme Court struck down Section 497 of the IPC as being violative of Articles 14, 15 and 21 of the Constitution. The Court held that constitutional guarantee in Article 15 (3) cannot be employed in a manner that entrenches paternalistic notions of “protection”. Such a view only serves to place women in a cage. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15 (3) of the Constitution. The Court opined that the principle on which Section 497 rests is preservation of the sexual exclusivity of a married woman for the benefit of her husband, who is regarded as the owner of her sexuality and hence is manifestly arbitrary. It is a denial of substantive equality in so far as it reinforces the notion that women are unequal partners in a marriage.
Rule 19 of the Conduct Rules imposes restriction regarding marriage, stating that no member of the Service shall enter into or contract a marriage with a person having a spouse living; and no member of the Service having a spouse living, shall enter into or contract a marriage with any person. The government may, however, permit a member of the Service to enter into or contract any such marriage if it is satisfied that such a marriage is permissible under the personal law applicable to such member of the Service and the other party to the marriage or there are other grounds for so doing.
In the Indian armed forces also extramarital relations are a crime and adultery is described using the military euphemism “stealing the affection of a brother officer’s wife”. However, in view of the Supreme Court decision in the case of Joseph Shine, experts are of the opinion that the use of the term will also not be proper since the Supreme Court, in no uncertain terms, has stated that women cannot be treated as chattel, personal possession or property. Just like the outside society, the armed forces are also bound to change with the times and will have to yield to the judgment as far as criminality of adultery is concerned.
In the past, the Mumbai bench of the Armed Forces Tribunal had reinstated a naval officer dismissed from service on that ground and the reinstatement was upheld by the Supreme Court, stating that the punishment was disproportionate. On the other hand, members of the armed forces feel that extramarital affairs will continue to be a criminal offence within the military in view of Section 45 (unbecoming conduct) and Section 63 (violation of good order and discipline) of the Army Act, 1950. In case any such behaviour impacts service life or falls in the ambit of Sections 45 or 63 of the Army Act, then it continues to be an offence since military ethos remains paramount for maintaining discipline.
In the Conduct Rules too, there is an omnibus Rule 3 (General) which states that every member of the Service shall, at all times, maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service. It goes on to elaborate that every member of the Service shall maintain high ethical standards, integrity and honesty. It is one of the most detailed among all the rules, with prescriptions ranging from political neutrality to transparency, fairness, impartiality, maintaining discipline, courtesy, good behaviour, declaration of private interest and not employing children below 14 years of age. The rule book, after listing other dos and don’ts, ends with Rule 23, which is perhaps not inappropriately titled “Ceaser and saving”. As the saying goes, “Caesar’s wife must be above suspicion”, which says it all.
—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012