Being gay still a crime in the military

While the Delhi High Court’s unprecedented judgment, striking down the applicability of Section 377 of the Indian Penal Code (IPC) in the case of consenting adults, essentially decriminalizes homosexuality, the Indian armed forces will still consider it a punishable offense.

“The Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957 all have their own provisions under which homosexuality is considered illegal and prosecuted by the armed forces,” says one army lawyer, adding, “So even though Section 377 (IPC) might have been rendered inapplicable in the case of consenting adults by the Delhi High Court, there are still provisions of these other acts which will continue to apply to homosexuals in the military, under which it will remain a punishable offense.”

“Section 45 and 46(a) of the Army Act, 1950 are the operative sections. While the former is read to consider homosexuality to be unbecoming conduct and make it punishable, the latter prescribes a maximum punishment of seven years imprisonment for ‘disgraceful conduct of a cruel, indecent or unnatural kind’, wherein homosexuality is considered unnatural conduct,” he explains.

Section 45 and 46(a) of the Army Act, 1950 read:

45.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.

46.Certain forms of disgraceful conduct.
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; or

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.

Section 45 and 46(a) of the Air Force Act, 1950 also read similarly:

45. Unbecoming conduct.
Any 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 warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.

46. Certain forms of disgraceful conduct.
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; or

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 Navy Act, 1957 reads somewhat differently, but has the same effect, with different prescribed punishment:

53. Every person subject to naval law who is guilty of,-

1. uncleanness; or
2. any indecent act;

shall be punished with imprisonment for a term which may be extend to two years or such other punishment as is hereinafter mentioned.

54. (1) Every officer subject to naval law who is guilty of cruelty shall be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter mentioned.

(2) Every officer subject to naval law who is guilty of any scandalous or fraudulent conduct or of any conduct unbecoming the character of an officer shall be punished with imprisonment for a term, which may extend to two years or such other punishment as is hereinafter mentioned.

74. every person subject to naval law who is guilty of an act, disorder, or neglect to the prejudice of good order and naval discipline, not hereinbefore specified, shall be punished with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned.

While the Delhi High Court has called the criminalization of homosexual sex between consenting adults, a violation of Fundamental Rights laid down under Articles, 14, 15 and 21 of the Constitution, the army lawyer clarified to StratPost. “Article 33 of the Constitution allows the state to make laws abridging the Fundamental Rights of members of the armed forces. So while the Delhi High Court has ruled on the basis of Fundamental Rights, those are not necessarily available to members of the armed forces.

Article 33. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or
(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Section 4 of the Navy Act, 1957 says:

The rights conferred by part III of the Constitution in their application to persons subject to Naval law shall be restricted or abrogated to the extent provided in this Act.

It is unclear how many members of the armed forces stand to be affected by this. “There are no studies, statistics or estimates about the number of homosexuals in the armed forces,” said the senior officer, who also added, “Unless the relevant provisions in the Army, Navy and Air Force Acts are struck down or repealed, the armed forces will continue to consider it (homosexuality) punishable and will prosecute. This is because, in any case, sex outside marriage in the armed forces, even if consensual, is considered unbecoming under law. And homosexual relations are never within a marriage. Sex outside marriage, and especially homosexuality, is considered a breach of discipline and could result in ineffective command and control. That is why we will continue to consider it punishable.”

In the US military too there has been continuing controversy over the last few decades with homosexuals in the military being asked not to reveal their status or be openly homosexual under the existing policy of Don’t ask don’t tell to avoid the risk of being dismissed from service.

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Indian Penal Code

Section 377. Unnatural offenses

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

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