The Supreme Court of India’s judgment legalising same-sex relations has the military worried over its underlying connotations and whether the judgment applies to Indian defence personnel and its impact, ThePrint reported.
The laws have ruled homosexuality as a punishable offence, although it does not say it in explicit terms. Indian Army chief General Bipin Rawat had earlier said, in a meeting with Colonels and their spouses to Manekshaw Centre in Delhi that “moral turpitude” was unpardonable.
The apex court’s order has brought 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.
One provision gives 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”.
The judgment will have to be read before seeing how the laws can impact the army, sources revealed. A few lawyers conveyed hope that order would legalise same-sex relations for the military too.
Chandigarh-based lawyer Major Navdeep Singh, specialising 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.
The main concerns are related to impact on operational issues. Since soldiers are posted away from home for months at end and have no avenues for sexual release, this order might prompt them to seek sexual release in their ‘buddy’.
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.