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(10) She would immediately point out that in the light of the judgment of this Court in Joseph Shine MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc. (supra), since Section 497 IPC has been struck down as unconstitutional and it being a civil offence within the meaning of Section 69 of the 1950 Act, it may not be open to the authorities to proceed against an officer under Section 69. However, it is the further case that it will not preclude the authorities from invoking Section 45 and/or Section 63 of the 1950 Act. There are similar provisions also in the Navy Act and in the Air Force Act.

It is her submission that the words adulterous acts would bear the meaning which is assigned to it in the dictionary. So also the word promiscuous. They need not be found integrally connected with Section 497 IPC as such.

(11) The members of Armed Forces, according to her, are a class apart. She also drew our attention to the objects and reasons of the 1950 Act. It is pointed out that the law was enacted to provide for an exhaustive Code. It is a complete Code. It provides for self-regulation. According to her, the decision of this Court in Joseph Shine (supra) must be viewed in the context of the institution of MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc. Marriage. It was not rendered in the context of a workplace. Expanding further, learned Additional Solicitor General would point out that the setting in which the Armed Forces operate makes it a unique workplace. Discipline among the members of the Force is a matter which is indispensable. Discipline would indeed be impaired, according to her, if the high moral ground to be occupied by the officers is diluted. The obstacle for the authorities invoking Sections 45 and 63 of the 1950 Act as also the corresponding provisions in the other two Acts will ultimately result in a situation where, in the sensitive Forces, which the Armed Forces are, it would engender and breed rank indiscipline. The Forces which act as one and proceed on the existence of a sense of brotherhood would face breakdown of their morale. This was not what was in contemplation of this Court when it pronounced Section 497 IPC as unconstitutional. Section 497 IPC has been struck down on the basis that it offended Articles 14, 15 and 21 of the Constitution. The Court it is contended was MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc. distressed by the resort to values of a bygone era [the Victorian era] and the considerations which persuaded this Court to hold Section 497 IPC as unconstitutional are not germane for the purposes of deciding on the validity or the legality of actions taken under Sections 45 and 63 of the 1950 Act. She, in fact, did point out that there was an element of discord even in the matter of right of privacy which has been advocated in the judgment of one of the learned Judges whereas it has not been so evidenced in the judgment of another Judge. There is a command structure in the Armed Forces which it is indispensable to maintain. Such command structure would be disturbed. She would, in this regard, ask us to focus attention on the words ‘unbecoming conduct’ in Section 45 of the 1950 Act. She would submit that in a case where the officer is charged with what is unbecoming conduct and it consists of an act of adultery, nothing can stand in the way of the authorities taking action. (12) Pertinently, the learned ASG would also point out that the provisions are gender neutral and it MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc. does not suffer from the vice found by this Court when it struck down Section 497 IPC. Whoever, it may be, man or woman, who acts in a manner which is found to be unbecoming can be proceeded against, therefore, under Section 45 of the 1950 Act. Equally, she drew our attention to Section 63 and points out the importance of 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 be prejudicial to good order and military discipline would invite action under Section 63. She even went to the extent of pointing out that it can lead to a mutiny. She would submit that an unrestful breakdown has, in fact, occurred. (13) She would further point out that Union of India is faced with the following situation:

(22) He would submit that no occasion has arisen for this Court to clarify the order accordingly. In fact, this Court posed the following question. In a given case, the authority is presented with the following set of facts. An officer is proceeded against under Section 45 of the 1950 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 which has been struck down. Mr. Kaleeswaram Raj, learned counsel for the original petitioner, very fairly submits that, the fact that Section 497 IPC has been struck down may not stand in the way of the authorities proceeding MA No. 2204/2020 in W.P.(Crl.) No. 194/2017 etc. against the officer with the aid of the provisions contained in Section 45 of the 1950 Act. Of course, he adds that the decision must finally depend upon the play of facts.

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