Explainer: The implication of the ruling on decriminalization of homosexuality on the Indian Military

This is a cross post from my blog on the implication of the recent decision of the Supreme Court of India whereby a Section of the penal code which criminalized homosexuality, was read down.

Many have posed questions to me on the above subject and my views were also carried by publications and circulated on social media. However I thought I would clarify my opinion on the matter in a more detailed manner:

Since Section 377 of the Indian Penal Code (IPC) has been read down by the Supreme Court of India to the extent of consensual sexual activity, the same implications shall follow on the invocation of the said Section in the military if pressed into service in terms of Section 69 of the Army Act (AA) which entitles the military to try personnel for offences under the general law of the land.

The term “unnatural” as it exists in Section 46(a) AA would have to yield to the same interpretation as has been applied by the Supreme Court for Section 377 IPC. I do not agree with individuals who have commented that the terminology “unnatural” as it appears in Section 46(a) AA needs to be specifically stuck down by a Constitutional Court or repealed by the Parliament. It has already been held by the Supreme Court that homosexuality is not “unnatural” and hence it does not lie in the mouth of anyone to state that it is not “unnatural” for the purposes of Section 377 IPC or for civilians or other human beings but it continues to be “unnatural” for the purposes of Section 46(a) AA and for defence personnel. Let us also remember that the Supreme Court has not stuck down Section 377 IPC but has merely read it down and interpreted it. Bestiality etc would continue to be “unnatural” under Section 377 IPC as per the judgment and hence would remain an offence under Section 46(a) AA as well.

Disgraceful conduct of a cruel or indecent kind would continue to remain an offence under Section 46(a) AA.

Homosexual activity between two individuals would continue to remain an offence where similar heterosexual activity is falling under the realm of an offence. The decision may protect private consensual sexual activity between two individuals where it is not causing any implication on military service but any homosexual activity which is not consensual or any such homosexual activity which might be an offence in the military backdrop even if it had been heterosexual, would not be protected.

Moreover, no such reservations or worries have been expressed as yet by the official establishment and it won’t entirely be correct to state that the military is acutely concerned or worried. Like society at large, the military also self-adjusts to changes in law or interpretation of law and there is no lack of progressive thought in adapting to new situations within the military, and hence undue controversy need not be generated till any such issue arises, which would be addressed within the four corners of law when required. It may also be appreciated that multiple situations cannot be predicted in such scenarios with due certainty.