Ghost of 497 ipc neither govt authorities nor all courts seem to understand adultery is private business

Ghost of 497 ipc neither govt authorities nor all courts seem to understand adultery is private business

A Gujarat high court order reinstating a police constable who lost his job over adultery draws the line firmly between personal choice and professional career. The court noted that the constable’s superiors or society may view the relationship from the prism of immorality but there was no ground to invoke disciplinary provisions related to “misconduct” under the relevant statutory rules. In short, the court is telling everyone else, especially public authorities, to keep their moral outrage to themselves. But unless service rules across India are updated to restrict the scope for loosely applying “misconduct” provisions, the situation may not change.

Even before the Supreme Court judgments striking down adultery as a penal offence (Section 497 IPC) in 2018 and recognising fundamental right to privacy in 2017, HCs have ruled against authorities pursuing disciplinary proceedings for adultery, noting that misconduct requires proof of adverse effect on an officer’s public duties. Despite the 2018 judgment, moral policing continues to manifest, most visible in the coercion that couples in extramarital relationships face.

However, courts themselves are prone to social morality. 2021 witnessed a few orders by various HCs not just denying such couples protection, but also levying monetary penalties or passing harsh observations on their conduct. Glaring inconsistencies between orders of the various courts – some defending the rights of those in extramarital relationships and some frowning on them – should stop, now that SC’s ruling reiterates the equality before law of all consenting adults. The Centre’s submission, during SC’s hearing on the adultery provision, that armed forces service conduct rules, which allow personnel to be penalised for adultery with partners of fellow soldiers, was also critiqued. The counterargument was in terms of maintaining morale in a job that may require facing extreme danger together. But authorities elsewhere must grow up – and let grown-ups be.