Adultery in armed forces: Why it remains a disciplinary offence

In a recent judgement, the Chandigarh bench of the Armed Forces Tribunal has reduced the sentence of a Colonel, dismissed from service by a General Court-Martial (GCM) for having an improper relationship with a junior officer’s wife, to loss of two years’ past service for the purpose of pension and a severe reprimand.

In civilian parlance, the act is known as “adultery”, but in the vocabulary of the Indian armed forces, it is still referred to in quaint and antiquated terms, like “stealing the affections of a brother officer’s wife”.

Although “adultery” was removed from the statute books in 2018, following a Supreme Court order, which means it is no longer a crime, it continues to be a punishable offence in the armed forces, ostensibly because of the adverse effect it may have on discipline and morale.

AFT remits dismissal of Colonel for having affair to two years’ loss of seniority

The sentence of loss of service and reprimand was originally handed down to the Colonel, tried under Section 45 of the Army Act, but was later enhanced to dismissal after the GCM’s convening authority asked the court to revise its findings on review of the proceedings.

The bench observed that no reasons whatsoever have been given by the GCM on imposing a higher sentence and the GCM could have chosen to order dismissal by considering the revisional order to be a direction to pass such a sentence.

What is a General Court-Martial (GCM)?

In the Indian Armed Forces, a General Court-Martial is an ad hoc court assembled to try erring personnel for various offences under the Army, Air Force or Navy Act. The GCM has the powers and jurisdiction of a sessions court and can award any punishment, including the sentence to death. Any person subject to these acts can be tried by a GCM.

There are detailed legal provisions, rules and instructions on conducting trials by court martial. Besides a GCM, there are other types of court martial like Summary General Court-Martial (SGCM), District Court-Martial (DCM) and Summary Court-Martial (SCM). An SGCM is a GCM held under field conditions such as a war zone or operational areas like Kashmir. DCM and SCM are for trying personnel below officer rank for less serious charges.

A court martial is convened after a court of inquiry and subsequent procedures like hearing of charge and recording of summary of evidence are able to establish wrongdoing and prima facie a case is made out for disciplinary action against those deemed to be blameworthy.

A GCM consists of five or seven members and is headed by a presiding officer who is at least one rank senior to the accused. The other members are of equal to or senior in rank to the accused, but cannot be junior. The rationale behind the GCM is that a person accused of wrong doing is to be tried and adjudged by his peers.

Members of a court martial are nominated by senior commanders based on availability. The proceedings are conducted by the judge-advocate, an officer from the Judge Advocate General’s (JAG) Department, the forces’ legal branch, who may be the sole legally qualified person who advises the court on legal and administrative nuances and maintains a record of the proceedings.

Both the prosecution and the defence in a court martial are entitled to legal counsel for presenting their case. Examination and cross-examination of the accused and witnesses are conducted as in a civilian court. Once a court martial pronounces its sentence, it has to be confirmed by the court’s convening authority, which may accept it or seek a reconsideration depending on the review of the proceedings by JAG Department. It is only after confirmation by the convening authority that the sentence, which can be challenged in the AFT, high court and Supreme Court, is promulgated.

What is Section 45 of the Army Act?

This section deals with unbecoming conduct. It states, “Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”

Acts such as adultery, illicit relations ort moral turpitude come under the purview of this Section. Another provision, Section 63, which deals with violation of good order and military discipline can also be included with the charges.

Adultery in the armed forces

While adultery, per se, is no longer a crime under the Indian laws since 2018 following Supreme Court directives, it is treated differently in the armed forces because such acts can have a demoralising and detrimental effect on moral and discipline.

The armed forces have a peculiar hierarchy, ethos and working conditions, where strong moral character and camaraderie of a high order is expected from those in uniform. Activities not considered to be in sync with such requirements would lead to loss of confidence in comrades, a potentially damaging situation.

In the Acts of the three services, the term ‘adultery’ is not used and within the armed forces the offence is described as “stealing the affections of a fellow brother’s wife”. The armed forces view such acts of omission and commission very seriously and strict action is initiated where such cases come to light. There have been a number of cases in the past where personnel have been dismissed on this account.