Army & Gay Sex: Need to De-Link Deviant Acts & Sexual Orientation

Maj Navdeep Singh decodes military law and explains the links between civil society and the army.

Indian Army Chief General Bipin Rawat’s comments on homosexuality and adultery have created quite a furore.

Being a soldier and not a legally trained person, and perhaps speaking from the heart, I think what he wanted to convey was that any kind of homosexual (or heterosexual) behaviour which falls under the category of “unbecoming conduct” or is considered indecent, thereby reflecting “violation of good order and discipline”, will not be allowed, and will continue to remain punishable under military law, notwithstanding the law applicable on the civil side.

However, there are still a few things that may require clarity.

What the Army Act Says

Firstly, Section 377 of the Indian Penal Code has been ‘read down’ by the Supreme Court to the extent of consensual sexual relationships, and the same implications regarding the said section apply to the military, since Section 69 of the Army Act entitles the military to try personnel for offences under the general law of the land. And when the general law on homosexuality has been read down, the military can claim no exception.

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Secondly, Section 46(a) of the Army Act runs as under:

Any person subject to this Act who commits any of the following offences, that is to say-

(a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind;

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

The above makes ‘cruel, indecent or unnatural behaviour’ an offence.

While homosexuality can no longer be termed ‘unnatural’ in view of the decision of the Constitution Bench of the Supreme Court, indecent and cruel conduct continues to remain an offence, and this is not specific to homosexuality, rather, it is overarching.

Sexual Offences & Sexual Orientation Shouldn’t Be Linked

Thirdly, unlike the US Army of the past, there is no explicit prohibition on homosexuals joining the services, and neither is a disclosure required to be made regarding one’s sexual orientation while joining the military in India.

With homosexuality no longer being a criminal offence, and the Supreme Court having touched upon the issue of other rights also in its decision, including those related to employment, it is difficult to say that homosexuality could be treated as an embargo.

However, taking an overall analysis of the situation, a prudent view needs to be taken. And that view has to be sexual orientation-neutral, in the sense that sexual offences or sexual abuse need to be viewed seriously in the military, but by de-linking them from sexual orientation.

In fact, the military need not think too hard on these issues and needs to treat them purely as such, that is, as sexual offences, irrespective of the orientation of the person committing them.

Therefore, homosexual activity between two individuals must continue to remain an offence, where similar heterosexual activity would also fall under the realm of a misdemeanour. Any homosexual or heterosexual activity which is not consensual, or any such activity which might be considered an offence against the military backdrop, would not be amenable to any protection.

All Acts Acceptable in Civil Society May Not Be Accepted Within Military

In this sense, a parallel can also be drawn with the law dealing with adultery, as explained in an earlier opinion piece for The Quint, wherein it was explained that it must be kept in mind, that complications in a military set-up may not just arise out of adultery per se, but due to a variety of other situations which might have an impact on military life and discipline.

Hence, the defence services can still initiate action against its personnel for unbecoming conduct or violation of good order and discipline, not for adultery, but for other complexities arising out of it, if resulting in any disruption or difficulties in the aspect of employment of the individual.

While the military cannot remain insulated from changes in the society or law and must move with the times, and is not an extra-constitutional entity and can also not bar the recruitment of persons on condition of their sexual orientation, all acts acceptable in society at large may not be within the realm of approval in uniformed services.

And while there is no bar on homosexuality as far as employment in the armed forces is concerned, any sexual behaviour – homosexual or heterosexual – which is deemed a criminal offence under general law of the land, or may impact service life or discipline – will continue to be considered an offence under military law.

(The author is a practicing lawyer at the Punjab & Haryana High Court and writes on law, public policy and military related issues. He is the founding President of the Armed Forces Tribunal Bar Association at Chandigarh and also Member of the International Society of Military Law and the Law of War, Brussels. He tweets @SinghNavdeep. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)