With both the Punjab Police and the Indian Army refusing to flesh out details of the kind of “physical harassment” Desai Mohan—the alleged shooter in the April 12 shootout in the Bathinda military base—was forced to undergo, several media reports quoting unnamed sources have alluded to crimes of a sexual nature.
The reports indicated that it was the predatory sexual acts and the regularity of it over a period of time that resulted in an angst-ridden Mohan, gripped by shame and humiliation, to plan out the killing of his perpetrators.
Having slipped out an INSAS assault gun and ammunition rounds from the armoury on April 9, three days later Mohan confessed to the police of turning the gun at the four sleeping jawans in two rooms within the precincts of the Officers’ Mess killing all of them.
And then, in order to mislead investigations, Mohan weaved a web of lies concocting a story claiming to be the sole eye-witness of the gunning down of his colleagues. He lied about two white-kurta-clad and masked individuals armed with a rifle and an axe who fled towards a forested area after the shootout.
The incident brings into focus a longstanding issue that is not addressed by the Army Act of 1950, the main body of law governing the Army.
Surprising as it seems, there is no provision in the Act that addresses sexual harassment and assault specifically—which admittedly can be a grey area in many cases—although these crimes can also be tried in civilian courts.
At the same time, however, the Army establishment is known to view cases of sexual offences with utmost strictness.
Despite the Supreme Court’s decriminalization of Section 377—by virtue of which homosexuality is no longer a crime—gay sex is still a crime from the Army point of view. As the then Army chief General Bipin Rawat had stated on January 10, 2019, practice of homosexuality would still be punishable under relevant sections of the Army Act.
The main clauses under which offenses relating to sexual nature can be tried are Sections 45, 46 and 63.
Section 45 talks about “unbecoming conduct”, Section 46 talks of “certain forms of disgraceful conduct” including those of a cruel, indecent or unnatural kind, while Section 63 focuses on “violation of good order and discipline”.
While there have been no comprehensive studies of sexual crimes in the Indian military, the US Department of Defense concluded after a study in 2021 that about 8.4 per cent of active duty women and 1.5 per cent of active duty men, across all the services, indicated experiencing at least one Unwanted Sexual Contact (USC) in the year prior to being surveyed.
This legal lacuna in the Army Act will be glaring in the backdrop of a growing number of women joining not just the Indian Army, but also the Navy and the Indian Air force and other arms.