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"Why am I Not an Equal Protector ?" : A Conundrum Of Agony For The LGBTQIA+ Community Vis-à-Vis The Defence Services In India

Pritthish Roy
22 July 2020 7:32 AM GMT
Why am I Not an Equal Protector ? : A Conundrum Of Agony For The LGBTQIA+ Community Vis-à-Vis The Defence Services In India
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At the beginning of the year 2020, the Supreme Court of India delivered a landmark judgment which instilled a lot of joy and encouragement into all the 1653 female officers of the Indian Army[1], wherein the case of Secretary, Ministry of Defence v. Babita Puniya & Ors.[2], the Apex Court bench led by Dr. Justice D.Y. Chandrachud ordered for permanent commission for all women officers in the Indian Army and to do away with the unequal and arbitrary service rules which were followed under section 12 of the Army Act, 1950[3]. The entire nation hailed it as another milestone in the journey of woman empowerment in the country, which has a long drawn history of patriarchy and crimes against women. But, with a population of over 1.38 billion people and amidst a whole array of diversities, even in the sexual preferences of the people, is a judicial pronouncement enough to really enforce the true meaning of "gender equality"? Even after the Supreme Court decriminalised homosexuality and paved the way into the mainstream for the LGBTQIA+ community in India through the Navtej Singh Johar v. Union of India[4], why is gender equality still considered as a challenge where striking a balance only between a male and a female is the end goal? Such a mindset has perhaps overshadowed the requests and the courageous spirit of the people of the third gender, who want to serve the nation by protecting its sovereignty; securing its borders and fighting the internal and external aggressions. It is indeed unfortunate that even after more than seventy years of Independence, rendering defence services to the nation is heavily based on gender preferences, rather than taking into account the pious spirit and the determination to serve the country.

The then Chief of Army Staff Gen. Bipin Rawat cleared the stance of the Armed Forces in a press conference and outrightly declared that the Indian Army will not adhere to the ruling held in Navtej Singh Johar case[5] in their recruitment processes and otherwise, owing to national security and highest standards of discipline[6]. Such a statement by the Army Chief surprised all but, legally speaking, such absolute and uninterrupted powers of the armed forces in certain matters is derived from the Constitution itself. Article 33 of the Indian Constitution[7] is the relevant law that needs to be referred here. The Article mandates that in the name of national security and utmost discipline, the members of the armed forces and other defence personnels are outrightly denied their Fundamental Rights which are otherwise available to every other civilian. Also, section 46(a) of the Army Act[8] dictates that anyone found behaving in an "unnatural kind" will be subjected to immediate court martial. Unfortunately, the term "unnatural kind" is nowhere explicitly defined in the Act and the act of homosexuality is harshly dealt with through this provision. The same is the situation with the other two branches of the defence forces i.e., the Navy and the Air Force. Sections 53, 54 and 74 of the Navy Act, 1957[9] and sections 45, 46 and 65 of the Air Force Act, 1950[10] reiterates the same harsh attitude towards homosexuality as they are followed under the Army Act. Somehow, all the organs of the government, including the judiciary are in consonance about this Constitutional provision and the said sections of the above mentioned Acts. On a closer examination, one finds that the Supreme Court itself has been inconsistent on the interpretation of Article 33. In the case of Lt. Col. Prithi Pal Singh Bedi & Ors. v. Union of India[11], the Supreme Court in the year 1982 held that the members of the armed forces are equal beneficiaries of the Fundamental Rights which are enshrined under Part III of the Constitution[12] and it is immoral to denude our officers and soldiers of the Constitutional privileges. Surely, there is no iota of doubt that our officers and soldiers portray an exceptional commitment towards their duties and they never think twice before offering their lives towards the fulfilment of such a commitment. So why is the ability to protect the nation segregated on the grounds of sexuality? Except for the Prithi Pal Singh Bedi judgement, the Supreme Court has over the years held that national security cannot be compromised against any personal enrichment; not even Fundamental Rights. To some extent, this ratio is valid but, is it not the fact that a complete denial of such Rights conferred by the Constitution defeats the whole ethos with which it was given to the people? Surprisingly, Dr. Justice D.Y. Chandrachud, who was the presiding judge in the Babita Puniya case and a part of the bench in the Navtej Singh Johar case, took a completely different stance in the case of Mohammed Zubair & Ors. v. Union of India[13], where an appeal against the Armed Forces Tribunal was quashed and it was held that national security can never be compromised and the Fundamental Rights take a back seat when such a question arises. What is needed to be understood, is that such diabolical stances of the legislature, the judiciary and the defence forces is detrimental vis-à-vis the confidence of the third gender. If the institutions are giving them only a partial acceptance and giving them opportunities in a limited sphere, then the confusion remains- whether a complete acceptance and assistance should be given to them or not? With such a confusion, the already serving personnels are also sceptical about openly coming out and taking pride in their sexuality.

The Participation of the members of the LGBTQIA+ community in the armed forces is a matter of sheer justice, notion of equality, and upholding the human rights. If an individual is willing to serve the country, then that person deserves to be recognised for the courage and utmost dedication towards the nation, rather than getting judged on the sexual preference. Military officials and the government agencies are not willing to understand that diversity plays an important role as it helps the defence bodies to survive and thrive in the twenty-first century military setup. Most importantly, morale is higher among the soldiers when people feel recognised and respected at work for their services. Amidst high standards of morale, trust as a virtue is enhanced when there is no suspicion that colleagues have something to hide. Also, there exists no scientific evidences which suggests that homosexual, bisexual, and transgender individuals are necessarily less capable of providing the skills and attributes that militaries require[14]. Article 21 of the Constitution[15] guarantees the Right to life and liberty, and Article 14[16] calls for equality before law. It is meaningless if it cannot confer individual dignity to all, including the LGBTQIA+ community, and the meaningful expression of human self[17]. Gender identity is intrinsic to one's personality and denying the same would be violative of one's dignity[18]. An adult's right to "choose a life partner of his/her choice" is an aspect of individual liberty. When two individuals belonging to the LGBTQIA+ community decide to do anything within their private space in no manner harms the "public decency or morality". "Intimacy between consenting adults of the same sex is beyond the legitimate interests of the state"[19]. Rather, the concern of the State should be to check whether the officers and the soldiers are adhering to their job profiles or not. Also, the higher authorities should work towards motivating all the members of the defence forces to whole heartedly accept everyone, irrespective of their gender orientations or preferences. Thus, apart from the judicial pronouncements, what is required to be done, is the necessary amendments into the Constitution and in the respective Acts of the defence services which will give the members of the LGBTQIA+ community a constitutional guarantee to respectfully serve in the armed forces and a peace of mind, which, if and when broken or violated, could be reinstated by the courts of law.

Therefore, it is high time and perhaps the need of the hour to make sure that the members of the LGBTQIA+ community are encouraged to serve in the defence services with full pride and honour, come out in the world and accept who they are and the services, the government and the other civilians in return, should respect their values and commitment towards the nation.

Views are personal only.

[1] Samanwaya Rautray, SC rules in favour of permanent commission to women officers, Economic Times, Feb. 18, 2020 at Page 8

[2] Secretary, Ministry of Defence v. Babita Puniya & Ors., (2020) SCC OnLine SC 200 (India)

[3] The Army Act, 1950, No. 46, Acts of Parliament, 1950 (India)

[4] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India)

[5] ibid.

[6] Manjeet Singh Negi, Will not allow gay sex in Indian Army, says Bipin Rawat, INDIA TODAY NETWORK (Jan 10, 2019, 03:35 IST), https://www.indiatoday.in/india/story/indian-army-homosexuality-adultery-bipin-rawat-1427787-2019-01-10

[7] INDIA CONST. art. 33

[8] Supra Note 3

[9] The Navy Act, 1957, No. 62, Acts of Parliament, 1957 (India)

[10] The Air Force Act, 1950, No. 45, Acts of Parliament, 1950 (India)

[11] Lt. Col. Prithi Pal Singh Bedi & Ors. v. Union of India, (1982) 3 SCC 140 (India)

[12] INDIA CONST., Part III, arts. 14-35

[13] Mohammed Zubair Corporal No. 781467-G v. Union of India, (2017) 2 SCC 115 (India)

[14] Gregory M. Herek, Sexual Orientation and Military Service: A Social Science Perspective, American Psychologist, 48, no. 5 (1993): 538–549

[15] INDIA CONST. art. 21

[16] INDIA CONST. art. 14

[17] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 (India)

[18] National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India)

[19] Shakti Vahini v. Union of India, (2018) 7 SCC 192 (India)

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