Section 377: Brothers in Arms

Though Section 377 has been repealed, Section 46(c) of the Army Act is still valid and makes homosexual relations in the armed forces a crime as it could compromise national security

~By Maj Gen Nilendra Kumar 

The raw recruit with barely a few months in service at the training centre was dead-tired. Posted for night duty at the vehicle park, he could barely stay awake. He sat down under a tree and was about to doze off when the duty officer arrived on his routine check. Severely rebuking the sentry, the experienced Junior Commissioned Officer (JCO) threatened to have him court-martialled. Trembling with fear, the recruit begged for mercy. The JCO sensed a good opportunity. He appeared to relent: “Would you accept my punishment?” The fresher had little choice but to agree. Ordered to lower his pants, he was sodomised. Crying with humiliation, the recruit reported the incident next morning. A few months later, the JCO was court-martialled, dismissed from service, and made to undergo a few months’ imprisonment.

Persons subject to military law are governed by the Army Act, 1950 (or the Navy Act, Air Force Act or similar laws for the BSF, Coast Guard, etc). These laws are self-contained. This means they specify which acts constitute different offences and prescribe punishments for the same.

Sodomy, with or without consent, is punishable under military law. A JCO or warrant officer convicted for such an act is liable to be tried by a court-martial, and if found guilty, he may get stiff punishment. In such cases, the offenders are tried on charges relating to disgraceful conduct of an unnatural kind. The offence, on conviction, carries a maximum punishment of seven years’ impri­sonment. Of course, this would invariably be coupled with cashiering or dismissal. Cashiering, a more ignominious form of dismissal, is applicable only to officers.

A homosexual encounter under military law amounts to an offence under Section 46(a) of the Army Act, which pertains to any disgraceful conduct of a cruel, indecent or unnatural kind. It carries a maximum punishment of up to seven years’ imprisonment.

The Manual of Military Law, 1907, issued by the War Office in the UK, explained that the offence of sodomy is made out when a male has carnal know­ledge of an animal or of a human being “per anum”. Under the laws then prevailing, acts of indecency consisted of a male person, either in public or private, committing or being a party to the commission of any act of gross indecency with another male person. The relevant section read: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with penal servitude for ten years, and shall also be liable to fine.” Another word used to describe this offence was buggery, very close in meaning to sodomy. The term encompasses both sodomy and bestiality. Another offence common in those days was keeping of a common brothel, meaning keeping a disorderly house.

Homosexuality was traditionally viewed in the military as misconduct and as an offence of moral turpitude. Misconduct was implied because the alleged act bore a forbidden quality or character. Moral turpitude was imputed because the act constituted an offence which was dishonest or immoral and which rendered the person unfit to hold office.

Various wings of the armed forces and central police set-up at present exhibit the same policy on homosexuality. The Air Force Act, Section 46(a); Coast Guard Act, Section 23(a); Border Security Force Act, Section 24(a) and Indo-Tibetan Border Police Force Act, Section 27(a) take a stern view of homosexual activity by providing a maximum punishment of seven years’ imprisonment.

What is the position in other countries? Lesbian, gay, transgender and bisexual (LGTB) personnel are allowed to serve in some countries. This is so particularly in a majority of industrialised countries, apart from Brazil, South Africa, Israel and South Korea. The logic for excluding gays and lesbians from serving in the military is often based on cultural norms and values. However, it has undergone a change over time.

“Don’t ask, don’t tell” was the official US policy on inclusion of LGTBs in the military. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bi­sexual service members or applicants, while barring openly LGTB persons from military service. This relaxed legal restrictions on service by gays and lesbians in the US military. Introduced by the Clinton Administration, the policy remained in force from February 1994 to September 2011. The policy had been attacked on the ground that it violated the rights of gay military members to free speech, due process and open association.

In India, the September 6 judgment of a five-judge bench of the Supreme Court struck down Section 377 of the Indian Penal Code (IPC), thereby de­criminalising gay sex. The Court felt it violated the constitutional right to equality and dignity. The Court was, however, not concerned with the validity of Section 46(c) of the Army Act which comes into play when the offender is a military person. Hence, the Supreme Court decision is not applicable to men in uniform.

Section 46(a) is a substantive offence under the Army Act and is independent of Section 377 of the IPC. Hence, it would continue to remain in force till such time that Army Act provisions are amended by lawmakers or interfered upon by the judiciary.

The Army as an institution has consistently frowned upon homosexual relations. Cadets at training academies are forbidden to go to another’s cabin after lights out in the night. A serious view is taken of cases that come to the surface and court-martial proceedings are invariably initiated. About 15 years back, a decorated and upcoming officer posted in the North-East was brought to face disciplinary proceedings for having sexual relations with a subordinate.

Shouldn’t an act that is not a crime anymore for a civilian also cease to be unlawful for a soldier? Yes and no. Yes, because in the case of murder or theft, a military man is as much subject to the laws of the land as a non-military person. No, because military personnel are saddled with certain additional liabilities that do not affect civilians. To illustrate, those in the Army can be hauled up for forming a union (it may be viewed as a mutiny) or turning up late for parade (absent without leave or even desertion), or marrying a foreign national (neglecting to obey a general order that prohibits marriage with non-Indians).

What are the problems envisaged if same-sex relationships are permitted in the military? This could bring in complications. Generally, homosexuality with an outsider may not hinder military functioning. However, within the military, which is rank- and authority-based, it may result in serious problems due to sentimental and emotional ties involved. What if a commander looks favourably at a gay partner, inviting the criticism of bias or conflict of interest? If homosexual or lesbian relations are permitted with civilians, would a soldier harbouring such orientations be allowed to fulfil his sexual needs? Will the Army set up male brothels to provide equal opportunities for those habituated to it? Security implications clearly outweigh any notions to open “permissiveness”.

Despite social media and open society, Indian traditions and thinking are different from western thought and culture. For example, in some countries an invite for a party may read as “Colonel so-and-so and partner”, whereas in India, it will be “Colonel and Ms XXX”. It will be quite some time before military laws change to accept same-sex relationships. There may be problems also due to military-specific working conditions like service in remote areas and non-family stations or because of restrictions on fraternising with locals when deployed in areas declared as disturbed or dangerous.

—The writer was Judge Advocate General of the Indian Army (2001-08) and later Director, Amity Law School, Noida