Forces weigh impact of Supreme Court verdict on Section 377

NEW DELHI: The armed forces are examining the implications of the Supreme Court's landmark judgment to legalise consensual same sex acts among adults, but see little possibility of either Parliament specifically amending the Army, Navy and

IAF

Acts or the government coming out with a policy to decriminalise

homosexuality in military ranks

.


Article 33 of the Constitution empowers Parliament to restrict or abrogate the fundamental rights of uniformed personnel to maintain discipline and ensure proper discharge of duties. "Freedom of speech and expression, right to form associations and the like are curtailed in the armed forces, which is essential to maintain good order and discipline," said a senior officer.

"We are years away from even a 'Don't Ask, Don't Tell' policy in the Indian armed forces, leave alone allowing gay personnel to serve openly in our ranks like a few western countries do," he added.

The judge advocate general branches of the three Services will have to thoroughly examine all legal issues emanating from the Supreme Court judgment with regard to their respective Acts before any decision is taken on the way ahead. "It's a very complicated issue and will take time," said an officer.

A question requiring an official response may arise if a personnel declares his or her sexual orientation or a relationship. It will be possible for action on grounds of "discipline" and "conduct" going by current regulation. The over 14 lakh personnel in the armed forces are governed by respective Army, Navy and IAF Acts, which come down heavily on "unbecoming conduct and actions" that may not strictly be criminal acts under the IPC.

An extra-marital affair or "stealing the affections of a brother officer's wife" in military parlance, for instance, is considered a serious offence in the armed forces. Usually, officers indicted for such acts are summarily sacked, sometimes without pension and other benefits.

The SC's judgment will, however, now ensure that military personnel can no longer be tried under Section 69 (civil offences) of the Army Act (or similar sections in the Navy and IAF Acts), read with Section 377. But the Army Act also has Sections 45 and 46, which deal with "unbecoming conduct" and "certain forms of disgraceful conduct". Section 46 (a), for instance, can be used to punish personnel found guilty after a court martial of "any disgraceful conduct of a cruel, indecent or unnatural kind" with imprisonment that can even extend to seven years.

"The 'unnatural kind' bit may also no longer be valid but a gay couple, if they are found or come out openly, can still be tried and punished for disgraceful conduct. Section 63 also deals with violation of good order and discipline. All these sections can still be used," said another officer.