While the Supreme Court has decriminalised adultery and homsexuality, the army will not be allowing it any time soon, army chief Bipin Rawat said on Thursday. They were “conservative”, and the soldier serving at the front should not have to worry about his family. The army was not above the law, Rawat conceded, but soldiers did not enjoy all the rights and privileges granted to civilians under the Constitution. The impact of the Supreme Court ruling on society in general would have to be observed for 20 years before they could think of accepting such norms in the army. For now, Rawat said, “We will still be dealing with them under various sections of the Army Act.”
Two questions are at stake here. First, it is not clear why the armed forces should be governed by regressive moral codes when the rest of the country is learning to shake them off. Second, why should the rights and freedoms of soldiers be imagined differently from that of civilians? According to some estimates, the Indian armed forces have 1.36 million active and 2.8 million reserve personnel, which means these rules affect a significant section of the population.
The army was already worried in September 2018, when the Supreme Court declared Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex” and struck down Section 497, which made adultery a punishable offence. But sections of the Army Act and the Air Force Act codify same sex intercourse as an offence, though in rather euphemistic language. While Section 45 of the Army Act mentions the “unbecoming conduct” of officers, Section 46(A) says a soldier found guilty of “cruel, indecent or unnatural” conduct faces up to seven years in jail. In military parlance, adultery is defined as “stealing the affections of a brother officer’s wife” and may be punishable under Section 69 of the Army Act.
Army lawyers have averred that the Supreme Court rulings may not affect the military since Article 33 of the Constitution gave Parliament the power to determine which rights apply to the armed forces. As of now, Parliament amending the Army, Navy or Indian Air Force Acts to accommodate either the Section 377 or the Section 497 judgment seems to be a remote prospect.
Together, the rules make up a complex of dated values. The ideal soldier is imagined as a rigidly heterosexual male. The soldier’s wife is the ward of the armed forces, with little agency of her own. Sexual choices are seen in a spectrum of “moral turpitude”, along with offences such as “intoxication” and “insubordination”. While the soldier must follow these exacting norms, he is not recognised as a fully formed individual subject. Rights that should accrue to every citizen can be denied to him.
A progressive force
The army’s argument that the rules are tied up with disciplinary issues and meant to preserve the morale of the troops are not convincing. Armies across the world, from Europe to South America to East Asia, have enabled gay soldiers to serve in their ranks and to be open about their sexual orientation. In 2011, the United States lifted an 18-year ban on openly gay armed forces personnel. Last year, the British Army, anxious to revamp its image, launched a recruitment drive with advertisements say soldiers could be gay, practise their faith and “get emotional”.
Everywhere, armies are shedding old associations between valour and a certain brand of hyper-male machismo. It is as punishing for its subjects as it is damaging to the societies these forces are meant to serve. There is no evidence to show more progressive values have come in the way of military efficiency either.
In adultery cases, military courts in India seem to be making slow progress. In 2016, a military court overturned the dismissal of an Indian Air Force officer for having an affair with a fellow officer’s wife. The court criticised the strict punishment for adultery, saying it “smacks of patriarchy and a punctilious mindset” since it held only men responsible for affair. In a recent judgment, the Armed Forces Tribunal, the apex military court, is also reported to have said that the forces should act according to the changing times.
But more systemic reforms, regarding both homosexuality and adultery, are needed rather than decisions taken case by case. It is to be hoped that Rawat’s comments this week have not killed of the few green shoots of progress.