Homosexuality in the military is frowned upon in much of the world. Is the tide about to change in India?
New Delhi: The Supreme Court judgment decriminalising homosexuality is said to have got the military brass worried over what it exactly means for Indian soldiers.
Also, there is confusion, or a lack of consensus, among military law experts whether the judgment applies to Indian defence personnel, and if it does how it could impact the forces.
Laws governing the three arms of the Indian military bar homosexuality — although through euphemisms and not explicitly — and rule it a punishable offence.
The law
Just last weekend, Army chief General Bipin Rawat had summoned all Colonels and their spouses to Manekshaw Centre in Delhi and said “moral turpitude” was unpardonable.
The Supreme Court order brings the very definition of “moral turpitude” into question.
Section 45 the Army Act, 1950, talks about the “unbecoming conduct” of officers without detailing it. Section 46 (a) says any person guilty of any disgraceful conduct of a “cruel, indecent or unnatural kind” will, on conviction by court-martial, face up to seven years in jail.
Sections 45 and 46(a) of the Air Force Act, 1950, state the same.
The Navy Act, 1957, says personnel guilty of any “indecent act” can be jailed for up to two years.
Also read: ‘Homosexuality not mental illness’: What the 5 judges said while striking down Section 377
One provision spells out a jail term of upto two years for officers guilty of any “scandalous or fraudulent conduct or of any conduct unbecoming the character of an officer”.
Army sources said they will have to read the judgment before seeing how it impacts the three laws, but some lawyers expressed hope that the Supreme Court order will decriminalise homosexuality for the Indian military too.
Chandigarh-based lawyer Major Navdeep Singh, who specialises in service and military matters, said the landmark judgment will “humanise military law to an extent”.
“The soldiers under military law will not be tried under Section 69 of the Army Act, read with Section 377 of the IPC, as far as a consensual relationship is concerned,” he told ThePrint.
Section 69 of the Army Act pertains to ‘civil offences’.
“The term ‘unnatural’, as used in Section 46 of the act, would yield to the interpretation given by the Supreme Court today for the same term appearing in Section 377,” he added.
The order stripped homosexual relationships of their “unnatural” tag.
“However, all forms of disgraceful conduct, which is cruel or indecent in nature, will continue to be an offence under Section 46,” he said.
Why the worry
An Army officer pointed out that extramarital relationships were considered an offence within the forces, saying it needed to be seen how the Supreme Court judgment tied in with this provision.
The main concerns among the brass, if this happens, pertain to the possible impact on operational issues.
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Soldiers are posted away from families to far-flung places for months on end. They have their ‘buddy’ for emotional companionship, but absolutely no avenue for sexual release during these postings.
An Army lawyer said the brass had nothing to worry about, since the judgment was unlikely to decriminalise gay sex in the military.
Gay sex in the defence forces will continue to remain an offence under Section 46 (b) of the Army Act. The Section pertains to any person who “malingers, or feigns, or produces disease or infirmity in himself, or intentionally delays his cure or aggravates his disease or infirmity”.
“The accused may also be tried under Section 63 (‘violation of good order and discipline’), but not under Section 69 of the Act,” the lawyer added.
The lawyer also cited Article 33 of the Constitution, which gives Parliament the power to decide which rights apply to the military. Parliament will have to pass a specific amendment or ordinance for the decriminalisation of homosexuality to apply to the military, the lawyer added.
Homosexuality in the military is still frowned upon in much of the world. The US and Britain have led the way in changing the status quo by welcoming gay personnel in their forces.
A study conducted by the thinktank Hague Centre for Strategic Studies on more than 100 armed forces found India’s to be among the least friendly to gays.