In post-Section 377 world, military can still punish what it calls ‘unbecoming conduct’

More than 150 military veterans have written to the Indian President, asking him to check how parties are taking credit for military operations | Representational image | Daniel Berehulak/Getty Images

Armed forces can and must continue to enforce their higher moral standards to maintain discipline.

The Supreme Court in two recent landmark judgments decriminalised adultery (IPC Section 497) and homosexuality (IPC Section 377). There was a lively debate in the media regarding the effect these judgments would have on the military ethos and justice system.

The majority opined that this would result in a “free for all” sexual activity in the barracks and in military stations, which would affect discipline and efficiency.

Others felt that the military was too conservative and strict and must do away with its archaic laws. Charges like “stealing the affections of a brother officer’s wife” and “performing an unnatural act” have become meaningless after the Supreme Court judgments.

There is no doubt that the armed forces will have to strictly adhere to the law on adultery and homosexuality, as laid down by the Supreme Court. But it can still find ways to discourage or punish acts that it considers unbecoming.

Parallel system

Military organisations live and fight as a cohesive whole, and moral conduct of officers and soldiers remains a major factor for this cohesion. Any breach leads to mutual disrespect and affects the cohesion.

The armed forces have their own parallel criminal justice system in the form of Army Act 1950 and its equivalent acts for the Indian Air Force and the Indian Navy, which are largely in harmony with the law of the land. However, as far as military offences and military trial procedures are concerned, there are substantial differences to cater to the unique requirements of military discipline.

Traditionally, the armed forces have had a conservative approach towards both heterosexual and homosexual relations. Such relations are forbidden and a punishable offence while on duty or in barracks as they impinge on discipline and unit functioning. In a hierarchical system, these can lead to sexual exploitation. Extramarital relations in military stations/cantonments involving serving and family members have been considered a taboo and treated as an offence. Military rules, regulations and law have been framed to deal with such sexual offences.

The armed forces, in the past, have punished adultery and homosexuality under Section 69 of the Army Act read in conjunction with IPC Sections 497 and 377 respectively. This cannot be done in future following the Supreme Court’s judgments. Similarly, Army Act Section 46 (a) – “is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind” – will have to be modified to exclude homosexuality from the term “unnatural kind”.

Upholding discipline

However, the military can still deal with sexual relations in general, which impinge on the moral values and discipline of the armed forces, under the provision of Section 45 and Section 63 of the Army Act and their equivalents for the other two services.

Section 45 states, “Unbecoming conduct. 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.”

Thus, sexual offences committed by officers, junior commissioned officers and warrant officers can be dealt with under this Act.

Similarly, Section 63 has vast scope and can deal with all types of sexual offences. It states, “Violation of good order and discipline. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.”

Violation of regulations for the Army, and formation/unit orders are punished under this Act. Necessary amendments can be made to the regulations for the Army and unit/formation orders can be published to prohibit sexual relations that impinge on the moral code of conduct of the armed forces. This can be done directly or indirectly. For example, consensual sex with an adult civilian is not an offence per se, but violation of unit orders forbidding the entry into a civilian house or certain areas can be punished under this Act.

Needless to mention that non-consensual sex in various forms can continue to be punished under Section 69 read in conjunction with the relevant sections of the IPC.

The Supreme Court has not offered a moral judgment or condonation or deprecation of adultery or consensual sex between adults, but has merely stated that while these may have moral connotations, they cannot be a criminal offence. The armed forces can and must continue to enforce their higher moral standards and maintain discipline using the provisions of Section 45 and Section 63.

Lt Gen H S Panag PVSM, AVSM (R) served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post retirement, he was Member of Armed Forces Tribunal.