The historic Supreme Court verdict over Section 377, which decriminalized homosexuality in India, has been hailed across the nation by most, but at the same time, has brought along many loopholes. Though the verdict pronounced by five judge bench accepted homosexuality as no crime, the Armed Forces Act governing our Indian military bars homosexuality and rule it a punishable offence with upto seven years in jail.
The verdict has raised a serious cause of concern for the military personals as there is confusion, or a lack of consensus, among military law experts whether the judgment applies to Indian defence personnel, and if it does how it could impact the forces.
Responding over the rising confusion, Ajay Kumar, a Supreme Court lawyer told to One India that, “Section 45 of the Army Act of 1950 talks about it being an unbecoming conduct of officers and it is punishable with seven years of imprisonment. And Section 46 A calls homosexuality a cruel, indecent and unnatural act and conviction is done through the court martial up to seven years imprisonment.”
However, Kumar added that, “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 personal 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.”
Army sources said they will have to read the judgment before seeing how it impacts the laws, but some lawyers expressed hope that the Supreme Court order will decriminalise homosexuality for the Indian military too.
Lawyers suggested that Parliament will have to pass a specific amendment or ordinance for the decriminalisation of homosexuality to apply to the military.