JOSEPH SHINE versus UNION OF INDIA

Citation: [2023] 4 S.C.R. 585 · Decided: 31-01-2023 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Disposed off
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Judgment (excerpt)

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   [2023] 4 S.C.R. 585
585
JOSEPH SHINE
v.
UNION OF INDIA
(Miscellaneous Application No. 2204 of 2020)
JANUARY 31, 2023
[K. M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE,
HRISHIKESH ROY AND C. T. RAVIKUMAR, JJ.]
Judgments/Orders – Clarification of – Army Act, 1950 – ss.
45, 63 – Air Force Act, 1950 – ss.45, 65 – Navy Act, 1957 – ss.54(2),
74 – Union of India (UOI) sought clarification of the judgment of
Supreme Court in Joseph Shine v. Union of India reported as [2018]
11 SCR 765 – Held: In Joseph Shine case, the scheme of the Acts in
the context of Article 33 of the Constitution did not fall for the
consideration – Said judgment was not concerned with the effect
and operation of the relevant provisions of the Acts in question –
Court was neither called upon nor it ventured to pronounce on the
effect of ss.45 and 63 of the 1950 Act or the corresponding
provisions in other Acts or any other provisions of the Acts – Further,
it is not as if this Court approved of adultery – It was found that
adultery may be a moral wrong (per Hon’ble Indu Malhotra, J.) –
It will continue to be a ground for securing dissolution of marriage
and has also been described as a civil wrong – Constitution of
India – Article 33 – Armed Forces.
Joseph Shine v. Union of India (2019) 3 SCC 39 :
[2018] 11 SCR 765 – clarified.
Supertech Limited v. Emerald Court Owner Resident
Welfare Association and Others Miscellaneous
Application No. 1572 of 2021 in Civil Appeal No. 5041
of 2021; Delhi Administration v. Gurdip Singh Uban
and Others (2000) 7 SCC 296 : [2000] 2 Suppl. SCR
496 – referred to.
Case Law Reference
[2018] 11 SCR 765
clarified
Para 3, 24
[2000] 2 Suppl. SCR 496
referred to
Para 18
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
Miscellaneous Application No.2204 of 2020 : In Writ Petition
(Criminal) No.194 of 2017.
From the Judgment and Order dated 27.09.2018 in W. P. (Crl.)
No.194 of 2017 of the Supreme Court of India.
With
Miscellaneous Application No.1702 of 2021 in Writ Petition
(Criminal) No.194 of 2017.
Mrs. Madhavi Divan, Sanjay Jain, A.S.Gs., Mr. R
Balasubramaniam, Sr. Adv., Sarvesh Singh,   Sachin Sharma, Mohd Akhil,
Balendu Shekhar, Kanu Agarwal, Mrs. Deepabali Dutta, Mayank
Pandey, Anandh Venkataramani, Mrs. Vijayalakshmi Venkataramani,
Vinayak Mehrotra, Ms. Mansi Sood, Chitvan Singhal, Ms. Sonali Jain,
Abhishek Kumar Pandey, Raman Yadav, Arvind Kumar Sharma, Ms.
Nidhi Khanna, Ms. Aishwarya Nabh, Aanorita Deb, Shubham Saigal,
Aishani Narain, Kaleeswaram Raj, Nishe Rajen Shonker, Ms. Thulasi
K Raj, Advs. for the Petitioner.
K. Parameshwar, Ms. Arti Gupta, Ms. Kanti, Ms. Anannya Ghosh,
Dushyant Manocha, Ms. Mrinalini Mishra, Ms. Chitra Vats, Ms. Doel
Bose, Advs. for the Respondent.
The Order of the Court was passed by
K. M. JOSEPH, J.
MISCELLANEOUS APPLICATION NO. 2204 OF 2020
IN
WRIT PETITION (CRIMINAL) NO. 194 OF 2017
(1) Applications for intervention and impleadment are allowed.
(2) This miscellaneous application is filed by the Union of India
seeking the following clarification:
“(a) That persons subject to Army Act, Navy Act and Air Force
Act, by virtue of Article 33 of the Constitution of India, being a
distinct class, any promiscuous or adulterous acts by such persons
should be allowed to be governed by the provisions of Sections 45
or 63 of the Army Act, Sections 45 or 65 of the Air Force Act and
Sections 54(2) or 74 of the Navy Act being special legislation and
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considering the requirements of discipline and proper discharge
of their duty.”
(3) The applicant is seeking clarification of the judgment of this
Court reported in Joseph Shine v. Union of India (2019) 3 SCC 39. It
must be noticed that the applicant was the sole respondent in the said
case.
(4) The reasons which have driven the applicant to seek the
clarification are as follows:
It is the case of the applicant that this Court has undoubtedly
proceeded to find Section 497 of the Indian Penal Code, 1860 (hereinafter
referred to as ‘IPC’ for brevity) as unconstitutional as it offended Articles
14, 15 and 21 of the Constitution of India. However, it is the case of the
applicant that officers of the Armed forces are subject to statutory
provisions, 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 Constitution
which reads as follows:
“33. Power of Parliament to modify the rights conferred by this
Part in their applicatio
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