Is there a workaround?

Lt Gen (Ret) H S Panag

Lt Gen (Ret) H S Panag, a former member of the Armed Forces Tribunal, argues here that the armed forces can readily adjust to the Supreme Court of India's recent rulings decriminalizing adultery and homosexual acts. Writing in The Print, he reports that--

the military can still deal with sexual relations in general, which impinge on the moral values and discipline of the armed forces, under the provision of Section 45 and Section 63 of the Army Act and their equivalents for the other two services.

Section 45 states, “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.”

Thus, sexual offences committed by officers, junior commissioned officers and warrant officers can be dealt with under this Act.

Similarly, Section 63 has vast scope and can deal 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.”

Violation of regulations for the Army, and formation/unit orders are punished under this Act. Necessary amendments can be made to the regulations for the Army and unit/formation orders can be published to prohibit sexual relations that impinge on the moral code of conduct of the armed forces. This can be done directly or indirectly. For example, consensual sex with an adult civilian is not an offence per se, but violation of unit orders forbidding the entry into a civilian house or certain areas can be punished under this Act.