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What Does Army Law Say About Homosexuals?

Homosexuality is a matter of great discussion in our culture today. It is something that is being more heavily promoted in our society.

This article is important because homosexuality is affecting everybody to some degree or another. Over time, Science has discovered the genesis of a lot many things but the uncanniness of one thing is still on everybody’s mind: the origin of homosexuality?

In India, same-sex love is as old as Ramayana. If people back then didn’t hesitate in their natural conduct, should people now? Before any responsibility or duty, anyone is just a human, and humans deserve human rights. And one of those human rights is to freely serve your nation with dignity and confidence. 

What is the status of sexual orientation and gender identity in military services? 

Around the globe we see different countries having various different policies on military service by gays, bisexuals, and lesbians. Australia has allowed homosexuals to serve openly in the army since 1992. Similarly, there is no law that forbids homosexuals in the Brazilian Armed Forces to serve the nation. France also has liberal policies concerning this matter. Defense forces of Isreal don’t have any policy that forbids gay men and lesbians to serve openly and without discrimination or harassment due to actual or perceived sexual orientation. Japan does not have any rules applying to homosexuals serving in the military forces. As of July 1, 2003, homosexual people in Russia can serve in the military. China is a country that still has a stringent perspective towards same-sex lovers. In South Korea, gay soldiers can serve in the military but they can be punished for consensual sex. There are testimonies of gay servicemen from South Korea who were forcibly committed to a mental asylum because they continuously suffered from sexual assault from senior servicemen. After the stories of these men were outed the military abolished the practice of singling out gay soldiers and new training guidelines have been introduced to help protect the rights of sexual minorities in the military.

The law forbidding gay sex by soldiers is under review by the Constitutional Court. (BBC News) The United States introduced a very peculiar policy on February 28, 1994, called “Don’t ask, don’t tell”. In 1992, Bill Clinton made an election promise that he would end the ban on homosexuals in the military. On Being polled 75% of the population of America favored the open position of gays in the Army. But, we see that Sir Clinton instead brought the official US policy on military service by gays, bisexuals, and lesbians – Don’t ask, don’t tell, that lasted until September 20, 2011.

As of 2020, these people can freely serve their country. Don’t ask don’t tell policy was homophobic because sexuality had to be kept secret, you could be a man and have a wife but if you were gay you had to be closeted. As per this law, officially homosexuals were not allowed to enlist in the military and the absurd reasoning given by the senior Army men was that they wanted to protect the precious lives of homosexuals of America, but the fact that the Army cannot bar all the gay enthusiasts who wanted to serve in the Army was the real reason of its foundation.

Before don’t ask, don’t tell, there were no rules; after it, many specific rules came – the road rules were you can’t park your car anywhere near a gay bar if you wanted to go to a gay bar you had to drive far away so that no-one could you see you there. It was an LGBTQ activist and U.S. army veteran, Bleu Copas that brought down “Don’t ask, don’t tell”. The feeling of all the gay community in the U.S. Army after the repeal of the law was mutual, that was of joy and freedom. These people were glad that future generations don’t have to go through what they saw and experienced. 

What do we know? 

Indian Army Chief Gen. Bipin Rawat was asked to comment on the Supreme court decriminalizing homosexuality when he said that gays are not acceptable in the Indian Army. The Army is “conservative” and adultery and homosexuality will not be allowed to “perpetuate into the Army”, the Army chief said. His idea was that a soldier can not stress about his identity and he had to be “reasonably assured that his family is being cared for” (The Hindu) and that rules are different for army men.

Was it right to make such a statement after the decriminalization of homosexuality? 

One of the biggest controversial discussions that we come across in today’s world is regarding Adultery and Homosexuality. The Supreme Court of India struck down Section 377 of IPC, Homosexuality is no more a criminal offense but the stance of the Indian armed forces seems to be different in this aspect. The Army administration sees this issue as a challenge as they have to both abide by the law of land and ensure the performance of soldiers. Gen. Bipin Rawat in his statement added that the Army people are not above the country’s law and that some of the rights and privileges that the general public enjoys are not available to them. 

What do the rules say? 

The conduct of the Army is codified under Army Act, 1950. This act doesn’t specifically mention something in concern with homosexuals however the Section 45 of the military Act talks regarding the “unbecoming conduct” of officers while not particularizing it. In the military, stealing the affection of a co-officer is taken into account as a significant offense. The offense is just an indent underneath “weakness”. Section 46(a) says any person guilty of any disgraceful conduct of a “cruel, indecent or unnatural kind” will, on conviction by court-martial, face up to seven years in jail. Disgraceful conduct of an unnatural kind ordinarily implies the commission or at least the attempted commission of an offense under IPC.s. 377 (Indian Army). Therefore, in framing charges under this clause, there must be evidence to prove that the person has conducted any behavior which is considered to be an offense under section 377 (which has now been repealed as of 6 September, 2018) of IPC. 

Area 45 and 46(a) of the Air Force Act, 1950, express something very similar. The Navy Act, 1957, says officers blameworthy of any “indecent act” can be imprisoned for as long as two years. One arrangement illuminates a prison term of as long as two years for officials blameworthy of any “scandalous or fraudulent conduct or of any conduct unbecoming the character of an officer” (Indian Army).

Homosexuality is peered downward on in the Army, the reasoning is that the officials and jawans get posted in field regions, it is felt that such an act can lead to the absence of control when fighters stay, train and rest together in tents and shut spaces. Homosexuality is a thing that was never known about when the Army Act was made. Adjutant General of Indian Army, Lieutenant General Ashwani Kumar in his interview with NewsX commented on homosexuality, as an element in the Army to be unethical and against the morals of the Army. We need to give a serious thought, is it really an issue or is it just a homophobic view of our senior military officers? It will be no surprise if the Army approaches the court to demand a waiver from the law. The Army has approached the Ministry of defense raising concern over these ‘crimes’. Lieutenant General Kumar also added that the uniformed soldiers may be charge-sheeted for offenses under Army Act Section 45 for violation of ideal conduct which demands no idea of homosexuality and that since he took over in 2017 over six have been court-martialed and sent home for various offenses majorly moral violations. Delineating homosexuality as unethical and using the discipline as a smokescreen to hide the displeasure of Army culture against gay people is a grave matter that demands voices that people can trust. Legal and ethical aspects can not be allowed to collide. Ethics don’t explain the law of land, the Rights of the people is what law is, and law is what is observed by our legal community which must be followed by each and every person. 

What it’s like to be gay in the military? 

There are apparently many unheard stories in the Army, many unrecognized identities, many cases of discrimination and disdain, but here we know the brave story of Major J Suresh which he shared with NDTV. He decided to quit the Army when he felt it was time and it was important for him to be honest to himself and to confront his sexuality at a time when it was no longer tenable for him to remain a homosexual and be in the Indian Army. He says that this feeling of insecurity started when his colleagues started getting married and when they and their wives started to question his relations and to feel weird around him thinking of him as an abnormal person with deviant behavior. He tells the channel that in the Army nobody ever asked him so he didn’t tell anybody and that nothing has happened to him officially but in fact in the army, officially and within culture, it’s very stigmatized and punishments are significant which made him think that something is wrong about him and something is unacceptable about him to the Army and that it was gradually becoming impossible for his stay with his people with a hidden identity. He tells us that first and foremost the Army needs to understand that it is not an activity of deviance but an identity of the person and the fact that whether these people prefer men or women in their personal lives should not concern them. He comments upon the harsh provisions and questions the scientific basis of calling homosexuals unnatural and what is so unbecoming about their act.

Given the fact that Major J Suresh had extensive experience in the Northeast and in fighting terrorism in Kashmir, there is no doubt that he feels the loss of camaraderie and kinship but the important thing is that he no longer has to experience the loss of himself. The world has heard from military officers saying the part of a reason why they joined this hyper-masculine institution, the Military, is that they thought it would turn them straight, which is naive and immature but the thing to wonder here is that the people don’t consider the Army as the same platform as all other aspects of life and work. They consider it as some institution that is only for straight people. 

Conclusion 

The theme of homosexuality in the Indian Armed Forces has never really been spoken about to a great extent. There are very few individuals or soldiers who’ve actually spoken about their experience as homosexuals in India’s Army, Air Force, or Navy. But perhaps shattering that stereotype is necessary because we have to think that what would be our position as a country if gay people want to serve in the Army. This is a matter of governance and our status worldwide.

There is no authorized data for the LGBT demography in India because these people never had the courage before due to the strict laws that the constitution embedded earlier, but the government of India submitted figures to the Supreme court in 2012, according to which, there were approximately 2.5 million gay people recorded in India. This figure is of course not a true representation because there will be many who still hide their identity due to fear of society. The government has to think what if suppose just 1000 of them want to serve the nation holding onto themselves what will be the policy then, will they be allowed to do so?

Also read: Modernization: A Hegemonic Discourse to Development

Garima Wadhwa
Garima is a budding writer who likes to create awareness against social taboos through her works of passion. She is currently pursuing LL.B. from Panjab University, Chandigarh.

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