Though Section 377 Is Gone For Consenting Adults, Its Ghost Still Haunts Armed Forces

There are only 26 countries around the world that allow people from the LGBT+ community to serve in the military

By: Kanishk Singh |
September 9, 2018 7:04 pm

With the Supreme Court declaring Section 377 of the Indian Penal Code “unconstitutional” and “arbitrary”, many breathed a sigh of relief from being considered criminals. However, the relief may not be extended to personnel serving in the Armed Forces as the Army, the Navy and the Air Force have their respective laws that specify how its officers need to behave.

The Army Act of 1950, the Air Force Act of 1950 and the Navy Act of 1957 prohibit people who are openly gay to serve in the armed forces.

Under Section 45 of the Army Act of 1950, an officer can be imprisoned for up to 7 years if he “behaves in a manner unbecoming his position and the character expected of him”. Section 46 can charge a person for “disgraceful conduct of an unnatural kind”, pertaining to offences committed under the unamended Section 377. A gay couple can still be tried under Section 63 which states that any person can be court-martialled if they’re found acting against “good order and military discipline”.

On the other hand, Ajay Kumar, a Supreme Court lawyer, told One India,

“There is a section 69 in the Army Act so whatever is not covered anywhere is dealt under this section as per civil act which is read with Section 377 of the IPC. When Section 377 is no more a crime punishing any armed forces personnel will be difficult by invoking section 377. So consensual relation in Armed forces punishable under section 69 will no more apply. It stands demolished for armed forces as well.”

However, things may not be as straightforward as the right to form associations are curtailed in the Armed Forces under Article 33 of the Constitution. Thus, the armed forces may not be affected by the ruling and the Army Act would require some type of amendment for it to be implemented. The Ministry of Defence is currently examining whether any changes need to be made in the Army Act after consulting all three defence services.

There are only 26 countries around the world that allow people from the LGBT+ community to serve in the military and 10 other countries do not have a law prohibiting them to serve.

Other than in the Armed Forces, the Supreme Court verdict is also not applicable to the entire state of Jammu & Kashmir as it is governed by its own Constitution as well as its own set of criminal law called the Ranbir Penal Code. However, Dr Aijaz Ahmad Bund—author of the first ethnographic study of the Valley’s transgender people—emphasises that the judgment is still historic as he can file a petition seeking its extension to J&K as well.