Saturday, 23 March 2019

Whether departmental enquiry can started against government servant on ground that he has extra marital affairs?

Thus, this Court feels that a human dignity attaches to
itself also a right of concept of autonomy and also a right to
take ones own decisions for himself or herself relating to
his/her body and choices of his/per partner for whom he or
she wishes to live or have sexual intercourse. These choices
and selections cannot be a subject matter of departmental
proceedings and no employer can be allowed to do moral
policing on its employees which go beyond the domain of his
public life.
44. In view of the above discussions and observations, this
Court is of the opinion that an act of relationship entered by
an individual with another female or male as the case may be
while is/her spouse is alive would be an act of amounting to
adultery and would be considered as an immoral act so far as
the Indian society is concerned. It is not to be appreciated.
The same would, however, not be a ground for initiating
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departmental proceedings by the employer and it be left best
for the person who may be affected individually to take
remedy and proceed against him/her in civil law or for
initiating divorce proceedings as the case may be.
45. Thus, this Court concludes that the respondents had no
authority to issue letter dated 30/01/1999 directing the
petitioners to undergo DNA Test alongwith child of Dharma
Rani and the action of suspending the petitioners and issuing
subsequently memorandum dated 16/12/2000 under Rule 16
of the Rajasthan Civil Services (Classification, Control &
Appeal) Rules, 1958 is found to be illegal and unjustified and
the same is quashed and set aside and further, it is held that
the State Government shall not initiate departmental
proceedings on the basis of a complaint of any person against
a Government servant alleging therein of the said
Government servant having extra-marital relationship with
another man or woman whether married or unmarried.

Reportable
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S. B. Civil Writ Petition No. 2067/1999

Mahesh Chand Sharma  Vs  State of Rajasthan

MR. JUSTICE SANJEEV PRAKASH SHARMA

Pronounced on 07/03/2019



1. These two writ petitions raise common question of law
and are also in relation to same facts, hence are being
decided jointly.
2. The petitioner Mahesh Chand Sharma, who was working
as an Inspector in the Rajasthan Police, after having already
served for 18 years in Indian Air Force, was asked to get his
DNA Test conducted and was subsequently subjected to
initiation of departmental enquiry vide memorandum dated
16/12/2000 during pendency of the writ petition alleging of
having illicit relations with one Dharma Rani (petitioner in the
connected writ petition) who is a Constable working in the
Rajasthan Police; and also of having begotten a child from
their illicit relations on 24/05/1997.
3. The petitioner Dharma Rani in the connected writ
petition has been charge-sheeted vide memorandum dated
16/12/2000 of living with Mahesh Chand Sharma as husband
and wife in House No.151, Jeen Mata Ka Khurra, Galta Road,
Jaipur. She has been further charged of having stated during
preliminary enquiry conducted on 16/08/1997 of having got
married to one Mahesh Chand Sharma son of Bhagwati
Prasad Sharma on 10/07/1989 at Udaipur and the marriage
having taken place after performing Hindu rites and that she
has been going to and fro to her in-laws place after taking
leave and in the second statement, which she has submitted
to the authorities on 24/12/1998, she has mentioned of the
marriage having taken place at Udaipur in a temple which she
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does not know and also does not know where her in-laws are
staying in Udaipur and thus, has given misleading
statements. The third charge levelled is again of misleading
the authorities by giving wrong date of marriage as
10/07/1989 while in an application for taking casual leave
she has mentioned of sudden marriage having taken place
vide her application dated 13/07/1992 for leave from
08/07/1992 to 12/07/1992. The fourth charge levelled
against her is of her father’s statement contrary to her
version wherein her father has refused to have performed
“Kanya Dan” of his daughter Dharma Rani and has not
participated in her marriage and thus there was no marriage
performed by her with Mahesh Chand Sharma son of
Bhagwati Prasad who has also not been produced during the
course of preliminary enquiry. The further charge is that the
petitioner Dharma Rani has mentioned name of father of her
child Yogendra as Tikam Chand (Mahesh) Haldenia in the card
of ‘Janam Mahotsava” while in the nomination Form No. GA-
126 (RSR) dt.12/04/1993, she has mentioned name of
nominee as Mahesh Chand Sharma. The sixth charge levelled
against her is of having illicit relations with Mahesh Chand
Sharma, Police Inspector and of having begotten a child on
24/05/1997 and she alongwith Mahesh Chand Sharma, Police
Inspector have conducted “Havan” prayer as husband and
wife while performing birth ceremony of the child. Further
allegation is of the petitioner Dharma Rani living with Mahesh
Chand Sharma son of Shri Girraj Prasad, Police Inspector and
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maintaining illicit relations and having acted in contravention
of the Rajasthan Conduct Rules and tarnished police image in
public and thus has committed misconduct.
4. The petitioner Mahesh Chand Sharma had originally
filed writ petition only against the letter dated 30/01/1999
whereby he was directed to get his DNA Test conducted with
further prayer to quash the enquiry which may be conducted
against him.
5. During the pendency of writ, petitioner Mahesh Chand
Sharma had been suspended from service vide order dated
14/03/2001 and this Court vide order dated 23/03/2001
stayed the operation of order of suspension till disposal of the
writ petition and further proceedings of the departmental
enquiry were also stayed till disposal of the writ petition.
Petitioner Mahesh Chand Sharma has attained
superannuation during pendency of writ.
6. Similarly, in writ petition of the petitioner Dharma Rani
vide order dated 28/03/2001, the departmental proceedings
as well as the order of suspension passed against her were
also stayed. She is stated to be still in service while her son
has grown more than 18 years of age.
7. Learned counsel for the petitioners Shri Ajeet Bhandari
has submitted that the action of the respondents in asking
the petitioner Mahesh Chand Sharma to get his DNA Test
conducted was against all norms of service jurisprudence and
the State or its authorities have no authority under service
rules to ask for such test to be conducted and also it has no
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relation with the working or field of duties which the
petitioner has to perform. He submits that the respondents
have conducted an enquiry which was beyond their
jurisdiction. Merely on a complaint of neighbours of Dharma
Bai including one Prabhu Devi. A fishing enquiry into the
nature of personal relations of the petitioner could not have
been conducted by the State authorities. The action amounts
to maligning image of the petitioner and destroying his
outstanding service career as well as his private family life
and the purpose behind this was only to tarnish the image
and deprive him of his further promotions. The action
inherently suffers from malice in law and on facts.
8. The petitioner Dharma Rani has also given a statement
that the child born to her is not on account of illicit relations
with the petitioner Mahesh Chand Sharma and the family
members of the petitioner have already given their statement
in this regard pointing out that the petitioner does not have
any illicit relation. It is submitted that the petitioner was also
married to Pushpa Sharma in the year 1973 and had three
children out of the wedlock. While the petitioner was in
defence services, he also underwent vasectomy operation on
03/01/1978 which is already entered in his personal record
maintained by the Indian Air Force. He had an unblemished
career but the action of the respondents has resulted in
tarnishing his public image.
9. There are two aspects which need to be addressed
separately while deciding the present writ petitions.
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10. The first aspect is with regard to factual pleadings taken
up by the petitioners wherein, so far as the petitioner Mahesh
Chand Sharma is concerned, he has raised objections; firstly
to the letter by which he was asked to get his DNA Test
conducted and secondly to the aspect relating to chargesheet
issued to him for having illicit relations with petitioner
Dharma Rani and having procured a child from their
relationship and thus having acted unbecoming of an officer
and committed a misconduct within meaning of Rule 4 of the
Rajasthan Conduct Rules, 1971.
11. Similarly, the petitioner Dharma Rani has raised two
separate questions. Firstly, with regard to the factual aspect
of her having illicit relation with petitioner Mahesh Chand
Sharma and of having begotten a child from the said
relationship and secondly, the other aspect of the question
raised of parenthood of her son by her mentioning of a
particular person as her husband and the authority of the
State Government or its authorities to level allegations which
intrude upon her private life and also affects privacy of her
son.
12. The respondents have filed a reply and stated that
merely because the petitioner has undergone basic
vasectomy operation, it cannot be said that he has become
infertile and has supported their action of initiating
departmental enquiry.
13. Learned counsel for the petitioner has raised a larger
question before this Court during course of arguments with
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regard to the jurisdiction and the authority available with the
State Government to initiate departmental proceedings in
regard to the allegations of having illicit relationship. Learned
counsel submits that in the present scenario and with the
changes in the society and the laws as laid down by the Apex
Court from time to time, right to privacy inherently also
means right to live with a person of his own choice and such
a private right relating to having sexual relationship with
another adult female or male, as the case may be, would not
come within the ambit of misconduct for the purpose of
departmental proceedings under the Conduct Rules of 1971.
14. Learned counsel submits that Rule 4 of the Conduct
Rules, 1971, which provides that leading an immoral life
being an improper and unbecoming conduct, is to be
interpreted differently. If an adult person is having sexual
relations with another woman apart from his wife, it cannot
be a subject matter for departmental proceedings for leading
an immoral life. The Constitutional morality cannot be
sacrificed at the alter of civil morality. A right to live with
dignity inherently means a right to have a choice of ones own
life and the sovereign cannot be allowed to affect the day to
day personal life of an individual. An individual may have a
particular relation with another independent of her job
requirements. While she may not be allowed to get married
again, her right to choose a partner for whom she has
affection, cannot be denied or controlled by State or its
authorities. Any rule which is understood in a manner to
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deprive her of the said right would impinge upon her right to
privacy and sovereignty over her body would amount to
violence her fundamental right under Article 27 of the
Constitution. While a Government servant may be under the
control of the Conduct Rules but the Conduct Rules cannot be
espoused to treat and hold a relationship between a man and
a woman who may not be husband and wife as leading an
immoral life therefore, the relations between the two
petitioners could not be a subject matter of enquiry under the
CCA Rules, 1958 nor their relationship can be said to come
within the ambit of misconduct in terms of Rule 4(4) of the
Conduct Rules of 1971, even if it is stated that the allegation
is true although the petitioners have denied the same.
15. Learned counsel has taken this Court to various
judgments passed by the Supreme Court and the
observations made therein which shall be referred to at the
relevant place in this judgment.
16. Per-contra, Mr. GS Gill, learned Additional Advocate
General, appearing for the respondent-State has vehemently
supported the action and submits that so far as service laws
are concerned, the State has an exclusive authority and
control on its employees. It is open for the State Government
to put restrictions on the Government servants which may
relate to various aspects of living in the society. Certain
actions are settled norms of immorality like drinking and
smoking in office premises and similarly of having illicit
relationship. The word “illicit relationship” has to be construed
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to mean relationship of having sexual intercourse with
another person than her own spouse. Any action which
affects a civilized society norms laid down and known as
“Maryada”, mean leading an immoral life. He submits that
any conduct which creates conflict in society has to be
treated as immoral. India i.e. “Bharat” as a country, has a
long cultural background spreading over 5000 years. The
norms which an Indian society believes in are those which
have come to be accepted by experience of their forefathers
and ancestors. The Indians still believe in monogamy in the
society and when a person enters into second marriage, he
shall be treated to have committed a misconduct. Having
relationship, while his spouse is living, with another woman
cannot be treated as a illusory offence. While the courts have
declared Section 494 IPC as ultravires, the action of having
relations with another woman cannot be said to be proper
and has to be deprecated by the State. Once such an
information has been received relating to a Government
Servant of having illicit relationship, enquiry in this regard
can always be conducted so as to maintain clean environment
by the employer and there can be no exception to the same.
17. Mr. Gill, learned Additional Advocate General has also
taken this Court to the replica of the calligraphist version of
the Constitution of India wherein there is a photo lithography
on each part of the Constitution giving illustrations of the
culture of “Bharat”. The illustrations show the “Mohenjodaro”
period in Chapter-1, “Vedic” period showing scene from Vedic
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Asram (Gurukul) in Chapter-2, epic period in Chapters 3 & 4
showing scenes from “Ramayana” (conquest of Lanka and
recovery of Sita by Rama) and “Mahabharata” (Srikrishna
propounding Gita to Arjuna); “Mahajanpada” and “Nanda”
period in Chapter-5 & 6 showing scene from “Buddha’s” life
and “Mahaveer’s” life. Chapter-7 illustrates “Mauryan” period
depicting spread of “Buddhism” by emperor “Ashoka” in India
and abroad and “Gupta” period in Chapter-8 depicting scenes
from “Gupta” art and its development in different phases.
Chapters 9 & 10 also illustrate “Gupta” period showing
scheme from “Vikramaditya’s” Court and the scenes depicting
one of the ancient Universities (Nalanda)”. Chapters 11, 12
and 13 are relating to the Medieval period showing scenes
from “Orrisan” Sculptures, Image of “Nataraja” and scenes
from “Mahabalipuram” Sculptures showing “Bhagirath’s”
penance and the descent of “Ganga”. Chapters 14 and 15
speak of “Muslim” period mentioning of portraits of “Akbar”
and “Mugal” architecture and portraits of “Shivaji” and “Guru
Govind Singh” respectively. Chapter 16 depicts British period
by showing portraits of “Tipu Sultan” and “Lakshmi Bai” and
the rise against the British conquest. Chapter 17 and 18
depict India’s Freedom Movement showing portraits of the
Father of the Nation Mahatma Gandhi, his Dandi March and
Bapuji, the Peace-Maker and his tour in the riot affected
areas of “Naokhali”. Chapter 19 mentions revolutionary
movement for the freedom taken up by “Netaji Subhash
Chandra Bose” and the other portraits trying to liberate
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Mother India. Chapters 20, 21 and 22 depict the natural
features namely; scene of Himalaya, desert and ocean
respectively.
18. With the assistance of the above, learned Additional
Advocate General proceeds to argue that morality has
different connotation in different societies and different
countries. India as a nation follows the Constitutional will and
the aforesaid illustrations raised in each chapter depict the
rich cultural heritage of India which believed in a particular
concept of life and method of living. It is his submission that
in country like India, there is no room for allowing an
individual to enter into illicit relationship by having sexual
relations with persons other than his own spouse and
therefore, such actions, once they have come in knowledge of
the department of the employer, who are bound to follow the
constitutional goals, have to take departmental action and
also severely punish if proved. If no action is taken, it is
bound to create indiscipline and the image of the department
is also tarnished.
19. Learned Additional Advocate General further submits
that as per provisions of the Rajasthan Conduct Rules, 1971,
the petitioners can be said to be leading immoral life and
improper and unbecoming conduct of the petitioners was
sufficient for conducting departmental enquiry against them
in terms of the CCA Rules, 1958 and the charge-sheet issued
to the petitioners cannot be said to be in any manner illegal,
arbitrary or unjustified. Countering the contention of the
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petitioners that it is only an inter-se relation between two of
them and the State would have no reason to intrude in the
private life of the petitioners, he submits that it would
amount to allowing indiscipline amongst the forces and
encourage persons to lead immoral life.
20. I have considered the submissions and the judgments
relied upon.
21. Having noted aforesaid, this Court deems it appropriate
to deal with the first argument of both the petitioners jointly
and the second argument raising the larger question jointly in
two parts as under:
22. Part First:- A letter was issued to the petitioner
Mahesh Chand Sharma on 30/01/1999 whereby he was
informed that in view of the enquiry being conducted on the
basis of a complaint made against him and petitioner Dharma
Rani, it is necessary that he alongwith Dharma Rani and the
child remain present on 08/02/1999 before the Additional
Superintendent of Police, Jaipur City (North) at 10.00 am so
that their DNA Test may be conducted. This Court finds that
such demand could not have been made by the concerned
police officer for the purpose of conduct investigation at his
own level. Neither he has an authority to get the DNA Test
conducted nor it can be said that there was a criminal case
registered against the petitioner Mahesh Chand Sharma. The
petitioner Mahesh Chand Sharma has nowhere admitted of
having relationship with petitioner Dharma Rani and has also
submitted of having got vasectomy operation conducted
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upon him. It is also to be noticed that if DNA Test is
conducted relating to the child, it would amount to examining
the paternity of the child and in departmental proceedings
such a procedure cannot be allowed to be adopted as it would
be beyond the purview of the authorities since the child
cannot be said in any manner to be under the control of the
concerned departmental authorities.
22.1 As regards the DNA Test of petitioner Dharma Rani and
petitioner Mahesh Chand Sharma is concerned, such a course
was not available for the departmental authorities for
investigation on a private complaint. The Officer concerned
has exceeded its jurisdiction and powers in issuing such a
letter and the letter impugned is liable to be quashed and set
aside.
22.2 So far as the charge-sheet issued to the petitioners is
concerned, the same has to be examined firstly with
reference to the question whether such an allegation could be
levelled on a person when there is no complaint by his wife or
children with regard to such an act. Admittedly, since the wife
and children of the petitioner Mahesh Chand Sharma have
not made any complaint nor there is any such statement of
his spouse or any other family member, merely on the basis
of some complaint made by the residents of a particular
colony, the department ought not have proceeded to initiate
departmental proceedings. The preliminary enquiry
conducted could not have been conducted on the basis of
such complaint and it cannot be ruled out that such
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complaints made by the individuals may be on account of
several other considerations as have been alleged by the
petitioner.
22.3 The departmental process cannot be started on the
basis of private complaint and the fishing enquiry conducted
on the said basis is held to be unjustified.
22.4 The aspect relating to illicit relationship or a relationship
of living of a man and woman like husband and wife, require
factual proof and on the basis of surmises and conjectures or
rumors, a presumption cannot be drawn that a lady is having
illicit relationship with a man. Witnesses tested on the
principle of strict poof alone can be looked into for arriving to
such conclusions. The departmental authorities on the basis
of the doctrine of factum valet cannot impugn a person for
such conduct and they should stay their hands to leave the
matters to be decided by appropriate court of law. The
conduct of the parties and the act that there is no allegation
from wife of petitioner Mahesh Chand Sharma and the fact
that he has already undergone vasectomy operation
conducted and had already put in complete period of service
with the Air Force and after having three children, making
allegations based on some private complaint of strangers
who had an axe to grind would be amounting to treading in
dark waters and trying to catch fish by hand.
22.5 So far as petitioner Dharma Rani is concerned, it is also
to be noted that the charge-sheet makes allegation of her not
giving the correct information about parentage of her son. It
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suffices to state that she has an exclusive right of choice of
reproduction. In Suchita Srivastava Vs. UT of Chandigarh:
(2009) 9 SCC 1, the Court recognized this right as right to
procreate as well as to abstain from procreating holding that
a woman has a right to privacy, dignity and bodily integrity.
22.6 In Bhabani Prasad Jena Vs. Orissa State
Commission for Women: 2010(8) SCC 633, while
examining the right of husband for a direction for DNA Test of
a child, the Apex Court held as under:-
“21. In a matter where paternity of a child is in
issue before the court, the use of DNA is an
extremely delicate and sensitive aspect. One
view is that when modern science gives means of
ascertaining the paternity of a child, there should
not be any hesitation to use those means
whenever the occasion requires. The other view
is that the court must be reluctant in the use of
such scientific advances and tools which result in
invasion of right to privacy of an individual and
may not only be prejudicial to the rights of the
parties but may have devastating effect on the
child. Sometimes the result of such scientific test
may bastardise an innocent child even though his
mother and her spouse were living together
during the time of conception.”
22.7 In ABC Vs. State (NCT of Delhi): (2015) 10 SCC 1,
the Supreme Court recognized the right of an unmarried
mother not to disclose the paternity of the child and it would
amount to violate her fundamental right to privacy, if she is
compelled to disclose name and particulars of father of her
child.
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22.8 Keeping in view thereof, the charges levelled against the
petitioner Dharma Rani, if enquired, would go contrary to the
aforesaid principles laid down by the Supreme Court and
would violate her fundamental rights.
23. Part Second:-The larger question raised in the present
writ petitions is as to whether Section 4 of the Rajasthan
Conduct Rules of 1971, which binds a Government servant
not to lead an immoral life, would include in its ambit a
consensual relationship entered between an adult man and
woman and whether for such an action, the employer, with
whom the individuals are working as employees, would be
authorized to initiate departmental action and whether such
an action having been taken by the department would
amount to breach of the right of privacy and right to live with
dignity.
23.1 What is an immoral life is a debatable question. The
standards of living in a society, as laid down by it for an
individual, is generally understood to be the concept of
morality. There are certain aspects of mankind which are
generally accepted as immoral and moral. For example,
helping others, keeping promises, living an honest life are
treated as virtues which are said to be moral while
committing acts of murder, rape, cheating, lying and
behaving in a manner different from others. Causing danger
or apprehension in mind of others, is generally considered as
acts of immorality. A person, who is upholding mutual
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relationships being trustworthy, local, respectful and
gratuitous, is said to be having high moral values by the
people who are surrounding him and in the society where he
is living. However, there may be circumstances where a
particular sect of people or a particular community or
residents of a particular area like tribals who may fix their
different norms of living and for them certain actions may not
be immoral.
23.2 Thus, polygamy is found to be ever common in Nepal.
Amongst tribals also, there is a concept of men having
several wives or even women living with single male. In
Rajasthan, there are certain communities who believe in
‘Nata’ marriage i.e. where a lady, after marriage, may leave
her husband and start living with another male with the
consent of her father. Similarly, there is also a concept of
keeping one’s ‘Bhabhi’ who has become a widow as a wife.
23.3 While generally, it is held that being faithful to one’s
spouse and not having relations with any other woman is one
of the concept of moral values, however, it has different
connotations in different societies. Thus, what is understood
to be leading a moral life in one particular society, may be
treated as leading an immoral life in another.
23.4 If we look at the Indian mythology, we find that Indian
Gods have had single wife and there are some Gods who
have had more than one wife like Lord Ganesh who is said to
have Ridhi and Siddhi as his life partners. Lord Indra is said
to have several concubines known as “Aphsaras”. Lord
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Krishna is said to have had 16000 “Ranis” but these are all
mythological concepts having no concrete bases as such but
the only aspect which can be understood is that of being
faithful to the spouse alone and is a concept understood in
relation to the new laws and norms laid down in the society.
23.5 In opposition to the aforesaid concept of mythology,
there is another thought process and that is in relation to the
individual’s right of choice. Under Section 494 IPC, marrying
again during lifetime of husband or wife is an offence. It is
one of the offence relating to marriage and is a noncognizable
offence that is tried on the basis of a complaint
made by husband or wife as the case may be.
23.6 In an article by Amelie Rorty published in Journal Ethics
2012 on the subject of “Use and Abuse of Morality, she states
“Righteous and self-righteous people misappropriate the
claims and language of morality placing themselves in the
position of divinity, judging the world, praising and
condemning according to their lights. The second abuse of
morality is moral narcissism talking about purity of the heart.
The third abuse of morality is that of claiming the high
ground of justification or condemnation.”
23.7 The concept of illicit relation i.e. of a married man living
consensually with another woman or a woman living and
having sexual intercourse with a married man is taken from
the concept of adultery which was defined in Section 497 IPC.
While the Supreme Court has declared Section 497 as
ultravires in a case of Joseph Shine Vs. Union of India
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[Writ Petition (Criminal) No.194 of 2017] (supra), the
concept of illicit relationship with regard to leading of an
immoral life has to be understood taking into consideration
the right of an individual to privacy.
24. With regard to right of privacy, this Court finds that
privacy has a very long history, it has its origins already in
the ancient societies. Even the Bible has some passages
where the violation of privacy appeared in its early form,
where shame and anger followed the intrusion into someone’s
private sphere. It is enough to think of Adam and Eve, who
started to cover their bodies with leaves in order to preserve
their privacy. From a legal point of view, the Code of
Hammurabi contained a paragraph against the intrusion into
someone’s home. The Roman law also regulated the same
question. The idea of privacy traditionally comes from the
difference between “private” and “public”, which distinction
comes from the natural need – as old as mankind – of the
individual to make a distinction between himself/herself and
the outer world. Of course the limits between private and
public differ according to the given era and society, which will
cause the on-going change throughout history of what people
consider private. Plato illustrates this phenomenon in his
dialogue ‘the Laws’, where the complete life of the individual
was determined by the state and its aims, there was no place
for individual freedom and autonomy. Thus the book
describes a very extreme state (which in totality was never
realised), some elements of it came true in ancient societies,
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and the life of the individual was strongly influenced by the
public interests. In the Medieval Age ‘Privacy’ did not exist as
a societal value in today’s sense, the individual existed as a
member of a community, so his/her private life was affected
by the constant “monitoring” conducted by other members.
The appearance of “real” privacy relates to the transformation
of these small communities: the appearance of cities. During
the 19th century the new changes in the economy and in the
society led to the transformation of the way people lived and
these new changes had had consequences for privacy too, as
physical and mental privacy were separated and started to
evolve in two different ways. Due to urbanization, the
population of cities started to grow and it led to the physical
loss of privacy as people in cities had to live in crowded
places. On the other hand, citizens could experience a new
“type” of privacy, as they ceased to live under them. They
recognized two phenomena that posed a threat to privacy:
technological development (namely instantaneous
photographs) and gossip, which became a trade in
newspapers. Considering these changes, they were the first
to demand the recognition of the right to privacy (which they
defined as “the right to be let alone”) as a separate and
general right, as a right which ensured protection against not
the violation of property rights, but the mere emotional
suffering. Warren and Brandeis defined an already existing
common law right as a stepping stone to the right to be let
alone, such as the right to determine to what extents the
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thoughts, the sentiments and emotions of the individual shall
be communicated to others. The principle of this right was
the “inviolate personality”. The right to be let alone basically
ensured protection against the unwanted disclosure of private
facts, thoughts, emotions, etc.
25. The concept of privacy has to be looked into with
respect to two view points. Firstly, from the point of view of
an individual and secondly, from the point of view of the
society. In a given circumstance, the society might treat
privacy of an individual the way they allow him to remain
while the individual will have an idea of privacy in a manner
he feels society and its members must leave it for him. This
conflict continues.
26. There is another concept and that is of adultery. It is a
concept emerging from mutual faith which two partners living
in relationship with each other have. Here again, a female
may want to have relationship and have sexual enjoyment
with another person without having any personal shame or
mental constraint. However, another woman already in
relationship by way of marriage or otherwise may object her
partner of having sexual relationship of any kind with another
woman who wants him. Thus, for woman ‘a’, it is not an
adultery but for woman ‘b’ it is loss of faith if her partner has
also started having relationship with another woman and
woman may call it adultery and object. Thus, abiding
disapproval of infidelity by the wife or partner is an adultery
for that person.
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27. It is true that in the Indian society, promiscuous
relationship or adulterous relationship is understood to mean
in the present circumstances as a relation created between a
male and a female person contrary to the norms laid down by
the society. It may be live in relationship without getting
married or it may be a relationship between a married man
and a married woman or an unmarried man with a married
woman and a married man and a unmarried woman. The
Indian society does not accept such affairs to come within the
definition of morality.
28. Interestingly, in one of the cases which came up before
the Supreme Court namely; Ministry of Finance and
another Vs. S.B. Ramesh: (1998) 3 SCC 227, wherein
allegation was of Mr. SB Ramesh, an Income Tax Officer
contracting second marriage with one K.R. Aruna while his
first wife Smt. Anusuya was alive an the first marriage was
subsisting and a charge-sheet was issued to him that he had
been living with K.R. Aruna and also had begotten children
from her and accordingly he had exhibited a conduct
unbecoming of a Government servant. He was compulsorily
retired in departmental proceedings. While setting aside the
findings and the departmental proceedings, the Tribunal
made certain observations which were quoted by the
Supreme Court as under:-
“Though it would be ideal if sexual relationship is
confined to legal wedlock, there is no law in our
country which makes sexual relationship of two
adult individuals of different sex, unlawful unless
the relationship is adulterous or promiscuous. If
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a man and a woman are residing under the same
roof and if there is no law prohibiting such a
residence, what transpires between them is not a
concern of their employer. Such a life, if accepted
by the society at large, without any displeasure
or grudge, then it cannot be said that there is
any moral turpitude involved in their living. In
this case, there is no case that on account of the
applicant living with Smt. K.R. Aruna, his
reputation among the general public has been
lowered or that, the public has been looking
down on his conduct as immoral one. Therefore,
even if factually, the allegation that the applicant
who is already married to another woman is
living with Smt. K.R. Aruna is proved to be true,
we are of the considered view that, that alone
will not justify a finding that the applicant is
guilty of misconduct deserving departmental
action and punishment."
29. In the aforesaid case of Ministry of Finance and
another Vs. S.B. Ramesh (supra), the Supreme Court,
while quoting as above, observed as under:-
“9. Immediately we prefer to record our total
disapproval of the above observations of the
Tribunal. We propose to deal with and rest our
decision on the merits with reference to the
findings of the Tribunal rendered on the basis of
the facts relating to the case.”
30. The law thereafter has progressed. In the case of
Joseph Shine Vs. Union of India [Writ Petition
(Criminal) No.194 of 2017], the Constitutional Bench of
the Supreme Court (Chandrachud, J.) vide its judgment dated
27/09/2018 held as under:-
“2. Law and society are intrinsically connected
and oppressive social values often find
expression in legal structures. The law influences
society as well but societal values are slow to
adapt to leads shown by the law. The law on
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adultery cannot be construed in isolation. To fully
comprehend its nature and impact, every
legislative provision must be understood as a
'discourse' about social structuring. However, the
discourse of law is not homogenous. In the
context particularly of Section 497, it regards
individuals as 'gendered citizens'. In doing so,
the law creates and ascribes gender roles based
on existing societal stereotypes. An
understanding of law as a 'discourse' would lead
to the recognition of the role of law in creating
'gendered identities'
34. The decision in Shayara Bano, holds that
legislation or state action which is manifestly
arbitrary would have elements of caprice and
irrationality and would be characterized by the
lack of an adequately determining principle. An
"adequately determining principle" is a principle
which is in consonance with constitutional values.
With respect to criminal legislation, the principle
which determines the "act" that is criminalized as
well as the persons who may be held criminally
culpable, must be tested on the anvil of
constitutionality. The principle must not be
determined by majoritarian notions of morality
which are at odds with constitutional morality.
In Navtej Singh Johar v. Union of India,
("Navtej")119 Justice Indu Malhotra emphasized
the need for a "sound" or "rational principle"
underlying a criminal provision:
“...Section 377 insofar as it
criminalises consensual sexual acts
between adults in private, is not based
on any sound or rational principle…
Further, the phrase "carnal intercourse
against the order of nature" in Section
377 as a determining principle in a
penal provision, is too open-ended,
giving way to the scope for misuse
against members of the LGBT
community.”
50. The right to privacy depends on the
exercise of autonomy and agency by individuals.
In situations where citizens are disabled from
(25 of 33) [CW-2067/1999]
exercising these essential attributes, Courts must
step in to ensure that dignity is realised in the
fullest sense. Familial structures cannot be
regarded as private spaces where constitutional
rights are violated. To grant immunity in
situations when rights of individuals are in siege,
is to obstruct the unfolding vision of the
Constitution.
The opinion delivered on behalf of four judges in
K.S. Puttaswamy v. Union of India has recognised
the dangers of the "use of privacy as a veneer for
patriarchal domination and abuse of women." On
the delicate balance between the competing
interests of protecting privacy as well dignity of
women in the domestic sphere, the Court held:
“The challenge in this area is to
enable the state to take the violation
of the dignity of women in the
domestic sphere seriously while at the
same time protecting the privacy
entitlements of women grounded in
the identity of gender and liberty.”
31. Further, in the case of Navtej Singh Johar & ors. Vs.
Union of India through Secretary Ministry of Law and
Justice [Writ Petition (Criminal) No.76 of 2016], the
then Chief Justice of India Mr. Dipak Misra held as under:-
253 (iii) Our Constitution is a living and
organic document capable of expansion with the
changing needs and demands of the society. The
Courts must commemorate that it is the
Constitution and its golden principles to which
they bear their foremost allegiance and they
must robe themselves with the armoury of
progressive and pragmatic interpretation to
combat the evils of inequality and injustice that
try to creep into the society. The role of the
Courts gains more importance when the rights
which are affected belong to a class of persons or
(26 of 33) [CW-2067/1999]
a minority group who have been deprived of even
their basic rights since time immemorial.
253 (iv) Constitutional morality embraces
within its sphere several virtues, foremost of
them being the espousal of a pluralistic and
inclusive society. The concept of constitutional
morality urges the organs of the State, including
the Judiciary, to preserve the heterogeneous
nature of the society and to curb any attempt by
the majority to usurp the rights and freedoms of
a smaller or minuscule section of the populace.
Constitutional morality cannot be martyred at the
altar of social morality and it is only
constitutional morality that can be allowed to
permeate into the Rule of Law. The veil of social
morality cannot be used to violate fundamental
rights of even a single individual, for the
foundation of constitutional morality rests upon
the recognition of diversity that pervades the
society.
32. In the case of K.S. Puttaswamy and another Vs.
Union of India and others: (2017)10 SCC 1, Dr.
Chandrachud, J. has spoken as under:-
“118. Life is precious in itself. But life is worth
living because of the freedoms which enable each
individual to live life as it should be lived. The
best decisions on how life should be lived are
entrusted to the individual. They are continuously
shaped by the social milieu in which individuals
exist. The duty of the state is to safeguard the
ability to take decisions-the autonomy of the
individual-and not to dictate those decisions.
'Life' within the meaning of Article 21 is not
confined to the integrity of the physical body. The
right comprehends one's being in its fullest
sense. That which facilitates the fulfilment of life
is as much within the protection of the guarantee
of life.
119. Life is precious in itself. But life is worth
living because of the freedoms which enable each
individual to live life as it should be lived. The
best decisions on how life should be lived are
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entrusted to the individual. They are continuously
shaped by the social milieu in which individuals
exist. The duty of the state is to safeguard the
ability to take decisions-the autonomy of the
individual-and not to dictate those decisions.
'Life' within the meaning of Article 21 is not
confined to the integrity of the physical body. The
right comprehends one's being in its fullest
sense. That which facilitates the fulfilment of life
is as much within the protection of the guarantee
of life.”
33. Similar view has been also taken by nine Judges Bench
of the Supreme Court in the case of Navtej Singh Johar &
ors. Vs. Union of India through Secretary Ministry of
Law and Justice (supra) holding as under:-
127. The fundamental idea of dignity is regarded
as an inseparable facet of human personality.
Dignity has been duly recognized as an important
aspect of the right to life under Article 21 of the
Constitution. In the international sphere, the
right to live with dignity had been identified as a
human right way back in 1948 with the
introduction of the Universal Declaration of
Human Rights. The constitutional courts
54Human Rights Gay Rights by Michael Kirby,
Published in ‘Humane Rights’ in 2016 by Future
Leaders of our country have solemnly dealt with
the task of assuring and preserving the right to
dignity of each and every individual whenever
the occasion arises, for without the right to live
with dignity, all other fundamental rights may not
realise their complete meaning.
131. In Maneka Gandhi v. Union of India and
another56, Krishna Iyer, J. observed that life is a
terrestrial opportunity for unfolding personality
and when any aspect of Article 21 is viewed in a
truncated manner, several other freedoms fade
out automatically. It has to be borne in mind that
dignity of all is a sacrosanct human right and
sans dignity, human life loses its substantial
meaning.
(28 of 33) [CW-2067/1999]
134. It is not only the duty of the State and the
Judiciary to protect this basic right to dignity, but
the collective at large also owes a responsibility
to respect one another's dignity, for showing
respect for the dignity of another is a
constitutional duty. It is an expression of the
component of constitutional fraternity
34. Thus, keeping in view the observations of nine Judges
Bench of the Supreme Court in the case of K.S.
Puttaswamy and another Vs. Union of India and others
(supra) wherein it was stated that “The purpose of elevating
certain rights to the stature of guaranteed fundamental rights
is to insulate their exercise from the disdain of majorities,
whether legislative or popular. The guarantee of constitutional
rights does not depend upon their exercise being favourably
regarded by majoritarian opinion. The test of popular
acceptance does not furnish a valid basis to disregard rights
which are conferred with the sanctity of constitutional
protection. Discrete and insular minorities face grave dangers
of discrimination for the simple reason that their views,
beliefs or way of life does not accord with the 'mainstream'.
Yet in a democratic Constitution founded on the Rule of law,
their rights are as sacred as those conferred on other citizens
to protect their freedoms and liberties.”, the Constitutional
morality will impact upon any law which deprives an
individual to his entitlement to a full and equal citizenship and
the society or for that matter any employer cannot dictate
the expression of sexuality between the consented adults. A
relationship between a man and a woman is a private affair.
The employer has nothing to do with it.
(29 of 33) [CW-2067/1999]
35. In the words of the Supreme Court in the case of
Navtej Singh Johar & ors. Vs. Union of India through
Secretary Ministry of Law and Justice (supra),
“Constitutional morality will supersede any culture or
tradition”. The Apex Court while dealing with the case under
Section 377 IPC in the aforesaid matter, held “Section 377 is
founded on moral notions which are an anathema to a
constitutional order in which liberty must trump over
stereotypes and prevail over the mainstreaming of culture.
Our Constitution, above all, is an essay in the acceptance of
diversity. It is founded on a vision of an inclusive society
which accommodates plural ways of life.”
36. Having noted above, this Court finds that the
photolithography on each part of the Constitution as shown in
the calligraphist version of the Constitution of India conveys
another meaning and not what Mr. GS Gill, Additional
Advocate General has sought this Court to understand. From
Chapter-1 to Chapter-22, the illustrations depicted are from
different periods starting from ‘Mohan Jodro’ period and
ending upto the British period and the struggle for
independence and the struggle of the Father of Nation for
removal of casteism and to achieve an egalitarian society
having equality as a concept permeating in all works of life of
an individual. Thus, it depicts how a society continues to
strive to achieve a better status and in the process, the
concepts of the cultural norms of the society have to change.
(30 of 33) [CW-2067/1999]
The pursuit is always towards the betterment and
independent rights of an individual.
37. Having said so, it would also be appropriate to deal with
the submissions of learned Additional Advocate General
appearing for the respondent-State. While it is true that the
Constitution of India depicts the history of India i.e. ‘Bharat’,
however, as held by the Supreme Court, as noted above in
foregoing paras, the evolution of a human mind is a
continuous process. With the change of times, the concept of
morality has to be understood according to change of the
society and the concept which an individual citizen may be
holding 100 years back, would not be the same with the
progression of he human development. The law makers have
to keep pace with the advancement of the society and the
interpretation has to be done accordingly.
38. The view expressed by the Apex Court would equally be
applicable where the question of relationship, between a man
and a woman is to be examined. The norms of moralities of
the society cannot supersede the right of privacy and right of
choice of relationship of an individual and no person can be
punished by his employer for such behaviour or relationship.
39. The Apex Court in the case of Navtej Singh Johar &
ors. Vs. Union of India through Secretary Ministry of
Law and Justice (supra), has further held as under:-
“151.The choice of a partner, the desire for
personal intimacy and the yearning to find love
and fulfilment in human relationships have a
universal appeal, straddling age and time. In
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protecting consensual intimacies, the
Constitution adopts a simple principle: the state
has no business to intrude into these personal
matters. Nor can societal notions of
heteronormativity regulate constitutional liberties
based on sexual orientation.”
40. Thus, this Court cannot deny an individual to have
sovereignty over his/her body and in view of the observations
made by Justice Krishna Iyer in the case of Maneka Gandhi
Vs. Union of India and another: 1978(1) SCC 248 that
“life is a terrestrial opportunity for upholding personality”, an
individual employee, only because of having accepted to work
under the State Government, cannot be deprived of his
dignity.
41. The right to live under Article 21 of the Constitution of
India also means a right to live with dignity which also means
right of choice and right of privacy.
42. In Navtej Singh Johar & ors. Vs. Union of India
through Secretary Ministry of Law and Justice (supra),
the then Chief Justice of India Dipak Misra and Justice A.M.
Khanwilkar have held as under:-
“132.Dignity is that component of one‘s being
without which sustenance of his/her being to the
fullest or completest is inconceivable. In the
theatre of life, without possession of the attribute
of identity with dignity, the entity may be allowed
entry to the centre stage but would be
characterized as a spineless entity or, for that
matter, projected as a ruling king without the
sceptre. The purpose of saying so is that the
identity of every individual attains the quality of
an ―individual being only ‖ if he/she has the
dignity. Dignity while expressive of choice is
averse to creation of any dent. When biological
(32 of 33) [CW-2067/1999]
expression, be it an orientation or optional
expression of choice, is faced with impediment,
albeit through any imposition of law, the
individual‘s natural and constitutional right is
dented. Such a situation urges the conscience of
the final constitutional arbiter to 56 (1978) 1 SCC
248 demolish the obstruction and remove the
impediment so as to allow the full blossoming of
the natural and constitutional rights of
individuals. This is the essence of dignity and we
say, without any inhibition, that it is our
constitutional duty to allow the individual to
behave and conduct himself/herself as he/she
desires and allow him/her to express
himself/herself, of course, with the consent of the
other. That is the right to choose without fear. It
has to be ingrained as a necessary pre-requisite
that consent is the real fulcrum of any sexual
relationship.”
43. Thus, this Court feels that a human dignity attaches to
itself also a right of concept of autonomy and also a right to
take ones own decisions for himself or herself relating to
his/her body and choices of his/per partner for whom he or
she wishes to live or have sexual intercourse. These choices
and selections cannot be a subject matter of departmental
proceedings and no employer can be allowed to do moral
policing on its employees which go beyond the domain of his
public life.
44. In view of the above discussions and observations, this
Court is of the opinion that an act of relationship entered by
an individual with another female or male as the case may be
while is/her spouse is alive would be an act of amounting to
adultery and would be considered as an immoral act so far as
the Indian society is concerned. It is not to be appreciated.
The same would, however, not be a ground for initiating
(33 of 33) [CW-2067/1999]
departmental proceedings by the employer and it be left best
for the person who may be affected individually to take
remedy and proceed against him/her in civil law or for
initiating divorce proceedings as the case may be.
45. Thus, this Court concludes that the respondents had no
authority to issue letter dated 30/01/1999 directing the
petitioners to undergo DNA Test alongwith child of Dharma
Rani and the action of suspending the petitioners and issuing
subsequently memorandum dated 16/12/2000 under Rule 16
of the Rajasthan Civil Services (Classification, Control &
Appeal) Rules, 1958 is found to be illegal and unjustified and
the same is quashed and set aside and further, it is held that
the State Government shall not initiate departmental
proceedings on the basis of a complaint of any person against
a Government servant alleging therein of the said
Government servant having extra-marital relationship with
another man or woman whether married or unmarried.
46. Consequently, both the writ petitions are allowed with
all consequential benefits and it is held that the petitioner
Mahesh Chand Sharma, who has attained superannuation
during pendency of the writ petition shall be entitled to all
retiral and post retiral benefits and similarly, the petitioner
Dharma Rani shall also be entitled for all the consequential
benefits.
(SANJEEV PRAKASH SHARMA),J
Raghu
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