Some say homosexuality is unlikely to be acceptable for soldiers, pointing to a years-old military culture, while others say the SC order will prevail.
New Delhi: The Indian Army is studying the Supreme Court order decriminalising homosexuality, hailed as a milestone moment for LGBTQ rights, to understand its possible implications for soldiers.
Military sources do not want to talk about the judgment right now because of the don’t-ask-don’t-tell nature of homosexuality in the service. However, several Indian Army veterans said they believed the order will help gay soldiers come out of the closet.
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Laws governing the conduct for Army, Navy and Air Force personnel bar homosexuality, and ThePrint had reported earlier that members of the legal community were split on the possible implications of the verdict on soldiers.
However, most of the veterans ThePrint spoke to appeared to be unanimous that the Supreme Court verdict will help undo this bar.
Forced vs consensual
Lieutenant General H.S. Panag (Retd) said the Supreme Court order will prevail over all the other acts currently in force.
“However, acts described as offences in the (Army) Act in the context of heterosexual relationships will continue to remain an offence when applied to homosexuality, including non-consensual sex,” he added.
An Army veteran who chose to remain anonymous echoed the general, but said several military rules will have to be studied before any changes are introduced.
Brigadier Sandeep Thapar (Retd) offered a similar view, saying the court order will bring in changes in military law as well.
“Now that the Supreme Court has decriminalised homosexual relationships, the relevant changes will be brought about in the military act, but they will have to be linked to other issues in the military,” he added.
“I won’t be able to comment on behalf of the Army, but as of today, if there are gay soldiers in the Army, they do not say so openly,” he said.
“Such instances come to light after years and, when reported, have been deemed punishable. That may change now,” Thapar added.
However, some veterans said homosexuality is unlikely to become acceptable for soldiers, saying it wasn’t so much about the law as a years-old military culture that frowns upon same-sex relationships.
“There may be a few cases of gay sex in the Army, but action is taken if that is found out,” the official said.
“The military acts rule homosexual acts, consensual or non-consensual, to be a punishable offence,” the official added.
He said any change can only be brought about by an amendment passed by Parliament by invoking Article 33 of the Constitution, but added, “It is unlikely that the Army will ever initiate any such amendment.”
Article 33 of the Constitution allows Parliament to modify how laws apply to defence personnel.
Any amendment to revoke the bar on homosexual sex is likely to be initiated by the ministry of defence in consultation with the military, and sources said the defence forces brass is unlikely to lend their support to such a move.
What lies ahead
Another retired officer said it was “difficult to say how things will pan out”. “For instance, sex while on duty or sex with colleagues in the barracks or at the posts is forbidden,” he said.
“There are many ways of barring unbecoming conduct. The confusion could increase, for instance, if there are gay marriages in the forces,” the former officer said.
He added that the majority of cases pertaining to gay sex reported from the military turn out to be coerced or non-consensual.
In 2014, an Army brigadier from the Gorkha regiment had to resign after he was accused of sodomising a junior.
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It is crucial to understand the implications of the Supreme Court order for the military because soldiers often stay away from their families on remote postings for months on end.
Fellow soldiers are often the only source of support for personnel, which is why legalised homosexuality is seen in most countries as a threat to military service. Over the past few years, some countries have begun to accept openly gay soldiers, such as the US, the UK and the Philippines.
A study conducted by the thinktank Hague Centre for Strategic Studies on more than 100 armed forces had found the Indian military to be among the least friendly to gays.