Thursday 3 December 2020
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Gen Rawat outrages politically correct gentry, but could he defy Army Act?

Homosexuality is still criminal by military law; the Defence Ministry is yet to revise the code. Gen Bipin Rawat had to face the question prematurely.

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Politics India Gen Rawat outrages politically correct gentry, but could he defy Army Act?

Army chief Gen Bipin Rawat on Thursday infuriated the politically correct gentry by saying, in effect, that gay sex and adultery would not be allowed in the Indian Army. “In the Army, it is not acceptable,” Gen Rawat said at a press conference while replying to a question on the impact of the court verdict. This, months after the Supreme Court decriminalised homosexuality and struck down the colonial-era law!

In what was hailed as a historic move, a five-judge Constitution bench of the Supreme Court had in September 2018 unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC, which criminalised ‘unnatural’ sex even when it is consensual and not rape, saying it violated the rights to equality.

Earlier, the Narendra Modi government had decided not to object to any decision taken by the apex court in this regard.

But the Army chief said on 10 January, although his force was not above the law, it would not be possible to implement the revocation of Section 377’s criminalisation of homosexuality. “The Army is conservative. The Army is a family. We cannot allow this to perpetrate (sic) into the Army,” he said on adultery, adding soldiers and officers deployed along the borders cannot be allowed to be worried about their family.

“In the Army, we never thought this could happen. Anything that was thought of was put in the Army Act. It was something which was unheard of when the Army Act was made. We never thought this is going to happen. We never allow it. Therefore it was not put in the Army Act,” Gen Rawat said, adding, “I think anything that is being said or talked about will not be allowed to happen in the Indian Army.”

The story begins here. Gen Rawat also said the Army was not above the law and that the Supreme Court is the highest judicial body of the country. Above all, the conduct of the Army personnel is governed by the Army Act. The Army has been grappling with cases of adultery and the accused often face general court-martial. In Army parlance, adultery is defined as “stealing the affection of a brother officer’s wife”.

“We are not above the country’s law, but when you join the Indian Army, some of the rights and privileges you enjoy are not what we have. Some things are different,” the Army Chief said, addressing the press conference ahead of the Army Day on 15 January.

The apex court last year had also struck down a 158-year-old colonial-era law which it said treated women as “chattel of husbands”. The law provided for punishing a man for an affair but not the woman.

Gen Rawat is right at this juncture

Since the Supreme Court read down the archaic law, decriminalising consensual homosexual acts, the three defence services have been discussing whether they must review the respective Acts that govern them, in all of which gay sex is a court martial offence. ‘Offenders’, by military law, must be dismissed from service or jailed!

“As per the respective Acts governing the three services, homosexuality is a court martial offence and offenders are dismissed from service. Now, the Supreme Court verdict has thrown a question whether the three services will have to review their respective Acts dealing with the issue of homosexuality,” government sources had told MyNation as per a report published by the said website in September 2018.

The law governing all the three services — Army, Navy, Air Force — provides for a jail term ranging from two years to seven years for homosexual acts by members of the force. As and when there was a formal complaint, the accused were tried by a court martial. If found guilty, the job of the convict would be terminated.

The three services have not yet decided whether a court martialled soldier could be reinstated who if he approaches a civilian court that goes on to reverse the military court’s judgment. A meeting of the forces’ representatives with the Ministry of Defence last year on the ways of dealing with the past cases and issues that may prop up in the future did not reach a conclusion.

At this juncture, when the Army chief was asked whether gay sex has been decriminalised by the force he heads, too, he could not have defied the military law.

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