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(This is a guest post by Hari Kartik Ramesh.)


The judgement of the Supreme Court in Navtej Singh Johar v Union of India, and recent comments by the Chief of Army Staff, Bipin Chandra Rawat regarding the army’s commitment to resist recruiting members of the LGBTIA+ community, has raised the question of the eligibility of members of the queer community to join the various armed forces operating in the country.

While countries all across the world have been showing evolution and change in their enrolment procedures and qualifications in order to remove historical restrictions on members of the queer community, from serving in the armed forces, Indian military leaders have constantly stated their intention to shield the army from these changes. As of today approximately 51 countries across the world allow for some queer representation in the armed forces, with varying degrees of restrictions being placed in respect to specific identities, such as gay, trans, etc.

This article wishes to show that the armed forces’ argument that they are under no obligation to change from their homophobic ways, is no longer tenable in the face of contemporary change in jurisprudence regarding gender, sexuality and the armed forces as well. This article shall address the gay community’s exclusion from the army in particular.

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Article 33 of the Constitution

The members of the armed forces do not enjoy fundamental rights in the same manner as any other member of the populace, due to the operation of Article 33 of the Constitution:

  1. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
    (a) the members of the Armed Forces; or
    (b) the members of the Forces charged with the maintenance of public order;…
    …(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
    be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Therefore, Article 33 empowers the government to restrict and reduce the rights that can be enjoyed by members of the armed forces, in pursuit of maintaining the efficiency of the army and discipline of the force. This Article is the basis on which military generals are defending their exclusionary practice. Their argument stems from the exclusion prescribed by the relevant armed forces statutes, which prevents members of armed forces from making the claim that their fundamental rights have been infringed by the ban on queer folk.

An example of this is the Supreme Court’s decision in Mohammed Zubair v Union of India (2017 2 SCC 115). The petitioner, a Muslim soldier wished to keep his beard, but his Air Force commanding officer rejected this request on the ground that it was Air Force policy for members of Air Force to shave their beards. The petitioner was given a show cause notice by the Air Force after he filed a writ petition in Punjab and Haryana High Court regarding illegality of the order, directing him to shave his beard. While the petition was pending he was released by the Air Force through Regulation 13 of the Air Force Rules. A three judge-bench in the Supreme Court held that the regulation was legal, on the basis of Article 33:

Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force. Every Armed Force raised in a civilised nation has its own ‘Dress and Deportment’ Policy … India is a secular nation in which every religion must be treated with equality. In the context of the Armed Forces, which comprise of men and women following a multitude of faiths the needs of secular India are accommodated by recognising right of worship and by respecting religious beliefs. Yet in a constitutional sense it cannot be overlooked that the overarching necessity of a Force which has been raised to protect the nation is to maintain discipline. That is why the Constitution in the provisions of Article 33stipulates that Parliament may by law determine to what extent the fundamental rights conferred by Part III shall stand restricted or abrogated in relation inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Additionally, the Supreme Court has repeatedly saved court-martial proceedings from unconstitutionality by utilizing Article 33. In Ram Swarup v Union of India (AIR 1965 SC 247), the Court held that the fact that counsel of one’s choice was not provided at the court-martial would not vitiate the court-martial’s ruling. The petitioners argued that in Suk Das & Anr v Union Territory of Arunachal Pradesh (1986 AIR 991) the Supreme Court had ruled that not providing counsel of one’s choice was violative of Article 22(1), but the court rejected this argument saying that Suk Das did not involve any armed forces personnel, and therefore was inapplicable. Indeed, the court held that even if the specific fundamental right is not mentioned and the extent to which it has been curbed has not been described in the statute, each provision will have to be assumed to affect the respective fundamental right:

We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right.

This position was further reiterated by the Supreme Court in Lt. Col. Prithi Pal Singh Bedhi v Union of India (1982) 3 SCC 140, where the court held that

Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin…. ….Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act.

Not a Blank Cheque 

However, this does not give the legislature a free license to completely deny all rights to members of the armed forces, nor does it render members of the armed forces as a right-less population. Article 33 itself is clear that such restriction and abrogation must be in order to allow them to discharge duties properly and maintain discipline. It should be noticed in judgements of Mohammad Zubair and Prithi Pal Singh Bedhi, in the cited paragraphs, the court has emphasized the importance of discipline and unity within the armed forces when discussing Article 33. Therefore, restrictions to the rights must be such that they are necessary for maintaining discipline and cohesion within the armed forces.

In fact, a Constitution Bench of the Supreme Court recognized this limitation to the power wielded under Article 33 in the case of R Viswan and Ors v Union of India (1983) 3 SCC 401:

The Constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them……. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them…

The court cited the above case with approval in its judgement in Union of India v LD Balam Singh (2002) 9 SCC 73: 

While it is true that army personnel ought to be subjected to strictest form of discipline and Article 33 of the Constitution has conferred powers on to Parliament to abridge the rights conferred under Part III of the Constitution in respect of the members of the armed forces, but does that mean and imply that the army personnel would be denuded of the constitutional privileges as guaranteed under the Constitution? Can it be said that the army personnel form a class of citizens not entitled to the Constitution’s benefits and are outside the purview of the Constitution? To answer the above in the affirmative would be a violent departure from the basic tenets of the Constitution. An army personnel is as much a citizen as any other individual citizen of this country. Incidentally, the provision as contained in Article 33 does not by itself abrogate any rights and its applicability is dependent on parliamentary legislation.

Hence it is clear on a reading of the constitutional provision, and the case law available, that Article 33 cannot be used as an all-purpose immunity shield for the armed forces to defend themselves in cases involving the infringement of fundamental rights by the statutes.

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The Limits of Deference

The Supreme Court has tended to defer on questions of national security and public order to the legislature. However, deference does not indicate a blank cheque. For example, in Prithi Pal Singh Bedi the Supreme Court noted:

While investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Article 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the court should be vigilant to hold the balance between two conflicting public interests; namely necessity of discipline in armed personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are inseparable adjuncts of civilised life.

Now, for the Court to be able to accurately balance fundamental rights with the necessity of discipline, factual information is key. As will be shown there is no dearth of research when it comes to proving that the presence of gay men in the armed forces does not harm the discipline or efficiency of the army.

Further, in the Viswan judgement the Supreme Court also stated:

The guideline for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in Article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. …. The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under Section 21 though, it may be pointed out that once the Central Government has imposed restrictions in exercise of this power, the court will not ordinarily interfere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands.

Thus, the court has recognised that on occasions it shall have to differ from the Government’s interpretation of the needs of the situation. In the present case, it is necessary for the court to exercise this option because if the Central Government makes the argument that gay men do not fulfil the eligibility criteria for the armed forces, it may well be based on arguments whose foundations are based on prejudicial notions of the gay community.

This is borne out by experience. If we look abroad, the reason why so many countries opposed the integration of gay men into the armed forces were based on factually inaccurate ideas such as gay men are all suffering from mental illness and the notion that once gay men are in the military, they will have an unquenchable need to have sex with men in the unit thereby hampering the cohesion and unity of the unit. In Navtej Singh Johar the Supreme Court has gone to great lengths to explain that these prejudicial and false notions of a community cannot be the basis for denying rights to them. Therefore, these arguments cannot be justified by the invocation of Article 33. Article 33 does not authorise the armed forces and the government to ignore and deny the existence of facts – to which we we now turn.

Gay Men in the Armed Forces

It is important at the outset to state that there is no provision of any statute that explicitly debars homosexual men from joining the military. Neither the Army Act, 1950, the Army Rules, 1954, The Air Force Act, 1950, the Territorial Army Act, 1948, or any other Regulation, explicitly prohibits homosexual men from joining the armed forces. Neither is homosexual intercourse explicitly made an offence in any of these statutory instruments.

The closest we have are Sections 45 and 46 of the Army Act, which provide:

Section 45-Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court- martial…

Section 46- Certain forms of disgraceful conduct. Any person subject to this Act who commits any of the following offences, that is to say,- is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind;…

 

Section 46, in particular, is couched in similar terms to Section 377 of the Indian Penal Code, which prohibits “acts against the order of nature”.

Now, before Navtej Singh Johar v Union of India decriminalized homosexual relations and removed them from the ambit of Section 377, the armed forces could dismiss a member of the armed forces using Rule 14 of the Army Rules, 1954, and its equivalent in the rules of the navy and air force. Rule 14 of the Army Rules allowed for termination on the ground of misconduct and empowered the Central Government to terminate the service of a member of the armed forces after their conviction by a criminal court if they feel that it is no longer desirable for that member to continue their service. Hence the armed forces did not even have to initiate court-martial proceedings if they wished to remove a gay soldier of the armed forces.

Navtej Singh Johar completely changed the situation when it decriminalized consensual homosexual intercourse and ruled that acts of consensual homosexual intercourse cannot be criminalized by the government. No longer could the armed forces rely solely on the conviction of a criminal court, if they wished to remove a soldier for partaking in consensual homosexual conduct. Instead, they would have to resort to a court-martial and invoke section 45 or 46.

As noted above, however, the Navtej Singh Johar judgement did not merely decriminalize consensual homosexual intercourse. Three opinions (Misra CJ, Malhotra J, Chandrachud J) held that it was an erroneous belief to understand homosexual intercourse as unnatural and further, in the course of holding Section 377 to be manifestly arbitrary and violative of Article 14, the judges pointed out how sexual minorities are no longer considered to be suffering from mental disorders. Consequently, an interpretation of Section 45 and 46 so as to consider consensual homosexual intercourse as “conduct unbecoming of an officer” or “conduct…of an unnatural kind” would also be unconstitutional for the same reasons Section 377 was struck down.

As discussed earlier, for this interpretation to receive the immunity granted by Article 33, it must be shown that the admission of gay men to the armed forces shall cause a problem to the discipline of the armed forces and will be a hinderance in the daily operations of the armed forces. However, the idea that lifting the ban on gay men from entering the military has a negative effect on effectiveness and leads to drop in morale is a myth which has been disproved by several studies in different countries showing the lack of any drop-in effectiveness and combat-readiness due to the induction of gay men in the military. Studies from Israel, Canada, the United Kingdom and the United States on effectiveness of the military in the aftermath of the lifting of restrictions on gay men for recruitment show that there was no drop-in effectiveness. A study from Hague Centre for Strategic Studies on LGBT Military personnel showed that there was no proof that members of the LGBT community were inherently lacking in any of the eligibility criteria for recruitment to the armed forces.

Hence the armed forces cannot distinguish Navtej Singh Johar on the basis that it did not involve any personnel from the armed forces, as it can be shown that the new interpretation of the relevant sections of the Army Act, does not affect discipline morality or unity of the armed forces. The jurisprudence evolved by courts have shown there needs to be a link between the fundamental right which is being restricted and abrogated and the discipline and functioning of the armed forces.

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Conclusion

Army Generals may be correct when they say that the military is not a vehicle for social change, but they cannot be allowed to use this to resist societal change occurring around them. It is clear from the change in jurisprudence that an exclusionary attitude towards queer community members is no longer constitutionally tenable. The armed forces cannot try to avoid their obligations to include members of the community on the basis that they are a conservative institution. Ultimately, they form an arm of the government and must abide by the same principles of fundamental rights as everybody else.