Four years ago, a brigadier with the Gorkha Rifles was asked to leave the Army for allegedly indulging in a homosexual act with his junior. Now, after the recent Supreme Court order decriminalising Section 377 of the Indian Penal Code, no Armyman may be forced to quit because of his sexual orientation. But, simultaneously, it also does not mean that Army personnel will be given a free pass to indulge in gay sex. It is a tricky situation.
Army Chief General Bipin Rawat's recent comments have once again opened a debate on the question of legality of gay sex and adultery in the armed forces. Responding to a question homosexuality and adultery, General Rawat, who is also part of Gorkha Rifles, said, " We (Indian Army) are conservative. We are neither modernised, nor westernised. We can still take action against people. But we will not allow this to perpetuate into the Army. This cannot be allowed to happen. It is a very serious thing. Soldiers sitting on the border cannot be worried. He has to be reasonably assured that his family is being cared for."
According to the Army official, the Army is governed by its own rules and regulations. They 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. Only the Parliament has the authority to amend the Armconservatismy Act.
"Sex on duty, sex in barracks, sex in family quarters by an outsider, are all subjects, which are kind of taboo anywhere (in all armed forces). So the Army has got its own rules and regulations. While you don't punish them for homosexuality or for heterosexuality, you can punish them for violating military orders," Lt. Gen H.S. Panag, former Northern Army Commander. General Panag, who also served as a member of Armed Forces Tribunal after retirement, also agreed with General Rawat. However, General Panag says the Army chief was failed to offer adequate explanation on the subject, which led to controversy.
Panag said until the Supreme Court order, the Army used to punish them because homosexuality and adultery were crimes. "Since the Supreme Court judgement, nobody has been charged for adultery or homosexuality in the Army. They are going to be charged for 'unbecoming conduct or for violation of military rules'," he added.
The Army official clarified that if the person indulges in act of homosexuality while on leave, the Army has no power to punish the person. In the case of adultery, if someone goes into the family quarters (when the husband is away on posting) to have sex, even it the act is consensual, it is against the military orders.
The Army can deal the issue of sexual misconduct under the provision of Section 45 and Section 63 of the Army Act.
According to Section 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.”
Similarly, Section 63 deals 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.”
General Panag explained that the Army have punished adultery and homosexuality under Section 69 of the Army Act read in conjunction with IPC Sections 497 and 377 respectively. 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”.
"The Army will eventually amend its laws approved by Parliament," General Panag told The WEEK.
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Major General Nilendra Kumar, former Judge Advocate General (JAG)—the highest law officer in the Army— also believes that it is upto the Parliament to change the Army Act. Army is governed by the Army laws. So far, there is no bill pending in the Parliament in this matter. He also argued that the Supreme Court only touched upon legality of the section 377 of the IPC and the chapter related to the offences of the Army Act was not before the apex court.
Though Major Kumar thinks that the use of the word "conservative" by Army chief was really not needed, he maintains that what General Rawat said is correct and conveys the genuine military view of it.
"In the Army, we do not charge for adultery. Right from the British days, it was viewed seriously as stealing affection of a brother officer's wife and that tradition is continuing....Use of unfair means during a military exam, we don’t call it a caught cheating, rather we call it a unbecoming conduct," Major Kumar said, while adding that "the Army is not a 10pm to 5 pm service and after that what I do is my business. The Army is a 24-hours job. The Army officers are not managers. They are leaders. If an officer is going around with someone else's wife, what message he is giving to the men separated from their families. While civilian can say sex with two consenting adults, the Army can never take that view. We use the word of stealing the love and affection of a bother officer's wife."
He added that military is bound by punctuality. "In military, if I am not there at the time fixed for duty, in military law, it is punishable as absent without leave. It is not the case in the civilian law. In some cases in the military, two minute delay could have invited death penalty. Like when the ships were sailing for world war and I come five minutes after the ships has left, I will be charged for desertion. This is a classic example of constructive desertion."
Comparing with western world, the Army officials say there is lot of cultural difference between western armies and the Indian Army. Like tattooing is banned in the Indian Army unlike other armies, including US or France. Similarly, when a person joins the Indian Army, some of the rights and privileges authorised to a civilian by the Constitution, are taken away from him.