Explained: What Are The Rules On Homosexuality In Indian Military, How Is It Abroad?

Chief Justice DY Chandrachud, heading the five-judge bench, questioned the need for being of binary gender for marriage and asserted that same-sex relationships are "not just physical” but also had stable, “emotional” factors involved.?

The apex court also observed that the very notion of a man and a woman is not “an absolute based on genitals”, while Senior Advocate Abhishek Manu Singhvi, appearing for one of the petitioners, said that the court should grant marriage equality to gay couples not as “same-sex” but as a right for consenting adults across "bodily gender and sex spectrum".

Meanwhile, last week, four Army personnel were shot dead in their sleep at the Bathinda military station in Punjab by a fellow colleague, who initially concocted a story about seeing two men with guns to confuse investigators. The Punjab Police eventually arrested the man, an Indian Army soldier, identified as Gunner Desai Mohan. Later, reports surfaced that said Mohan shot his fellow soldiers after they harassed him and sodomised him.

What we know about the incident

On April 12, four Indian Army soldiers at the Bathinda military station were killed in the early hours in their sleep. Mohan claimed to be the “only eye witness” in the case. A stolen rifle and 19 bullet casings were recovered from the spot, reported The Tribune at the time, adding that the rifle was reported missing on April 9.

Mohan, who was on duty that night, was later arrested for the killing. He also confessed to his involvement in stealing of an INSAS rifle after a sustained interrogation, according to The Pioneer. His initial claim of two masked people with a rifle and axe shooting his colleagues and running away to the forest was an “attempt to divert attention of investigating agencies”, the Army said in a statement shared by media.

At the same time, reports said that he killed his colleagues because they abused him. In the official statement, however, the police have only said the action was rooted in “personal animosity”.?

According to a Hindustan Times report, Bathinda Senior Superintendent of Police Gulneet Singh Khurana said that his motive was personal. He refrained from speaking about any harassment Mohan was allegedly facing. A report by The Pioneer, on the other hand, claimed that police said his statement indicated sexual harassment and sodomisation by the four deceased soldiers.

While further clarity is awaited on the nature of harassment Mohan was reportedly subjected to, here’s how the Indian Army views homosexuality.

Is homosexuality legal in Indian Army?

Despite the Supreme Court’s judgment in 2018 striking down a part of Section 377 and decriminalising homosexual activity, homosexuality continues to be considered an offence in the Indian armed forces.

“LGBT issues are not acceptable in the army,” said former Army chief General Bipin Rawat during a press briefing in January 2019.?

Rawat’s remarks had stirred a controversy after he said the Indian Army was “neither modernised nor Westernised” but “conservative” when it came to matters like homosexuality. He had declared that gay sex offenders were to be dealt with under relevant sections of the Army Act.

Last year, the Ministry of Defence rejected a film directed by National Award winner Onir, inspired by the real-life story of an ex-Indian Army officer who had come out openly as gay. The filmmaker took to social media saying that the ministry had rejected his script for the movie as it showed the Army in a “bad light”.

What rules apply to gay sex in the military?

More than four years after the decriminalisation of gay sex, it is still not applicable to the three arms of the Indian military.

According to Section 45 of the Army Act, 1950, any act “with a manner unbecoming” of an officer’s position and the “character expected of him” can result in him being recalled from service.

Meanwhile, Section 46 (a) states any person guilty of forms of disgraceful conduct of “a cruel, indecent or unnatural kind” will face up to seven years in jail upon conviction by court-martial.

Section 63 of the Army Act, 1950, on the other hand, pertains to actions considered “prejudicial to good order and military discipline”, although it is not specified.

These are the legal provisions that can be used to prosecute gay sex in the military.

What do foreign laws say on this?

Similar to India, the fight for recognition of LGBTQ rights in the military has had a long history elsewhere in the world. The United States followed a “Don’t Ask Don’t Tell” policy till 2011 when President Barack Obama signed a repeal act to prevent the discharge of personnel who openly identified as being homosexual.

In the United Kingdom, a ban against LGBT persons serving in the armed forces was lifted in 2000. The Department of Defence had even issued an apology in 2007 to the personnel who faced persecution and discrimination based on their sexual orientation.

Other countries like Sweden, New Zealand and Israel have inclusive laws protecting LGBT individuals in the military.