By Ankit Gupta
Introduction
The Indian Supreme Court wrote a new chapter in the LGBTQ rights jurisprudence when it declared Section 377, I.P.C[1] unconstitutional, in so far as it criminalized homosexual acts between two consenting adults[2]. While delivering the verdict, the SC held that sexual orientation is an essential attribute of privacy and discrimination on this ground is deeply offensive to the Right to Equality under Article 14[3]. It also regarded sexual orientation of a person as a part of his Freedom of Expression under Article 19(1)(a). Lastly, the SC held that essential attributes of one’s individuality, be it an orientation or an optional expression of choice forms part of dignity recognised under Article 21[4].
However, all these guarantees hit a road block when recently, the then Indian army Chief declared that the Indian army was not yet ready for homosexual soldiers[5]. He termed the Indian army as ‘conventional’ and remarked “we will not allow this to happen in the army”.
This compels us to question whether such a policy can withstand the Indian Constitution? Can the Indian army deny the basic constitutional guarantees solely on the grounds of sexual orientation? In this piece, I endeavour to answer these questions.
Article 33: Indian Army’s Special Status
The Indian Constitution states that any law[6] which is inconsistent with Part III of the Indian Constitution shall be void. Therefore, prima facie, the Indian army’s exclusionary policy may be declared void since it offends various fundamental rights of homosexuals. However, as a unique feature of the Indian Constitution, Article 33 allows the Parliament to restrict and abrogate the fundamental rights in their application to members of armed forces to ensure proper discharge of their duties and maintenance of discipline among them (emphasis supplied). Therefore, exclusion of homosexuals may very well be justified if there are cogent reasons that their presence frustrates these twin objectives.
Scope of Inquiry
Our scope of inquiry will be limited to challenging the status quo on the conjoint reading of Article 33 and Article 14. Article 14 of the Indian Constitution ensures equality before the law and equal protection of the laws. It, nevertheless, permits discrimination if founded on (1) intelligible differentia which distinguishes those that are grouped together from other and that (2) differentia must have a rational relation to the object sought to be achieved[7]. Hence, to save an exclusion under Article 14, there should be objective justifications for the purpose which is sought to be achieved by such differential treatment. Article 33 similarly provides proper discharge of duties and maintenance of discipline as such justifications for the Indian army to restrict or abrogate fundamental rights in their application to their personnel. We shall therefore, attempt to examine all possible explanations which may be put forth the Indian army to justify such an exclusionary policy. For this, we shall rely on the various justifications[8] put forth by the U.S. Government Accountability Office, Department of Defence to explain their anti-homosexual policy.
1. Good order, Mutual Trust and Confidence of Soldiers: Esprit de Corps
It can be argued that an open homosexual policy may lead to homophobic tensions and affect the morale of the soldiers since the heterosexual soldiers will be forced to serve shoulder to shoulder with them. However, the same may also be true of tensions caused by racism and sexism[9]. Furthermore, a 1993 study conducted by U.S. Rand Corporation shows that it is unfair to presume that homosexuals behave inappropriately merely because they are homosexual[10]. In Watkins v. United States Army[11], the U.S. court noted that Sergeant Watkins’ homosexuality was well-known but caused no problems and generated no complaints. When Watkins was sought to be discharged, the board found him suitable for retention in the military service and recommended that he be retained because no evidence suggested that his behaviour had either a degrading effect upon unit performance, morale or discipline[12]. Moreover, in Pruitt v. Cheney[13], Pruitt challenged her discharge for her acknowledged homosexuality. The appellant’s opening brief record illustrated that Pruitt’s superiors and her peers respected her[14]. Also, in the Officer Evaluation Report, her superior noted that Pruitt’s cooperative and positive attitude have earned her the respect and admiration of the entire Recruiting Corps[15]. In light of such precedents, this justification seems improbable. It appears that the Indian army seeks to preserve the status quo to avoid inconvenience of implementing corrective measure. Hence, such a stand fosters prejudice rather than integration.
2. Integrity of Rank and Command
A situation may possibly arise where a soldier refuses to obey the command of his superior with homosexual orientation. Based on this fear, until 2014, women were denied combat roles in the Indian army believing that soldiers would be unwilling to take orders from a female[16]. Similarly, racial segregation in the U.S. military was also based in part on this same unfounded ‘rank and command’ argument[17]. However, experiences have taught us altogether a different lesson. For example, operation Desert Storm[18] was successfully headed by an African American without any problem in the system of rank and command.[19] We have also seen female soldiers in Indian forces who have broken these conventional notions and have risen to the top[20]. Therefore, such fears only deprive the Indian army of competent and qualified officers.
3. Assignment and Worldwide deployment
The exclusion may be justified on the ground that army requires foreign operations in countries which may not be so welcoming of homosexual soldiers. Therefore, it would create problems in global deployment and more so in joint operations. This fear of reaction from other countries would mean that we must exclude Jewish soldiers from army because they might be deployed in Saudi Arabia[21] or exclude dark skinned soldiers from deployment in countries hostile to people of colour. It is also pertinent to note that in 2014, there were 26 countries that allowed homosexuals to openly serve in their military[22]. Therefore, such a selective justification cannot stand the scrutiny of reasons.
4. Sexual Desire Justification: Stares in Showers Argument
In Pruitt’s Case[23], the army argued that heterosexual soldiers may be disturbed by the knowledge that the homosexual soldier ‘desires’ and ‘intends’ to obtain sexual gratification from a person of the same gender. Moreover, there may be insecurity in sharing common showers with homosexual soldiers. This challenge was categorically negated by the U.S. Court in Able v U.S.A[24] wherein, it held
“13. to accommodate the privacy of heterosexuals presumably means, for example to keep their naked bodies safe in the showers from the stares of homosexuals who wish to peek at naked bodies, but they might do so quite as readily when their orientation is a secret as when it is open. The only difference will be that heterosexuals will not know which of their service-mates are homosexuals and heterosexuals will have reason to have a generalized suspicion of everyone in the showers, hardly a circumstance likely to increase ‘cohesion’”.
5. Breach of Security
It may be argued that homosexuals are likely targets for blackmail by enemy agents who might threaten to expose their sexual orientation. An open policy on the other hand will subvert such fears. However, a study conducted by U.S. Navy in 1957 concluded that homosexuals do not pose a greater security risk than heterosexuals[25]. Therefore, by preventing lesbian and gay soldiers from being forthright about their homosexual orientation, the military fosters the very prejudice it relies on to justify its policy[26].
Conclusion
We have seen how the aforesaid justifications fail to withstand the scrutiny of reason and experience. The prejudice with which we have viewed this community has manifested in all walks of life. Nevertheless, the Indian Constitution is guided by its own text rather than the perceptions of society, even it be a majority view. An orientation which was once treated as a curse was recognised as an indispensable part of our society by the SC. The Indian army may regard itself conventional, however, conventional outlook can never mean unfounded prejudice. The demand is for a fair chance and equality of opportunity. The Indian army has a robust mechanism to enlist recruits and an equally strict code to regulate their in-service conduct. There is no problem in subjecting homosexual soldiers to the same rigors. The problem, however, lies in altogether denying the chance. The change, therefore, should come from within. The Indian army’s aim of modernization should not only be restricted to weapons but should also extend to its outlook and perceptions.
The author, Ankit Gupta, is currently a final year law student at the National Law Institute University (NLIU), Bhopal.
[1] The Indian Penal Code, 1860, §377.
[2] Navtej Singh Johar and Ors. v. Union of India and Ors., (2018) 10 SCC 1. [Hereinafter Navtej Case]
[3] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., [Puttaswamy Case], at 160.
[4] Navtej Case, supra note 2, 159.
[5] https://www.indiatimes.com/news/india/indian-army-won-t-allow-homosexual-soldiers-in-the-force-asserts-general-bipin-rawat-360185.html (Last visited on May 05, 2020).
[6] The Constitution of India, 1950, Art. 13.
[7] R.K. Garg v. Union of India, (1981) 4 SCC 675.
[8] https://biotech.law.lsu.edu/blaw/dodd/corres/html2/d130426x.htm (Last visited on May 05, 2020).
[9] Kurt D. Hermansen, Analyzing the Military’s Justifications for Its Exclusionary Policy: Fifty Years without a Rational Basis, 26 Loy. L. A. L. Rev. 151 (1992), at 198.
[10] RAND Corporation, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, (1993), available at https://www.rand.org/pubs/monograph_reports/MR323.html ( Last visited on 05.05.2020)
[11] Sergeant Perry J. Watkins, Plaintiff-appellant, v. United States Army, et al., Defendants- Appellees, 847 F.2d 1329 (9th Cir. 1988), available at https://law.justia.com/cases/federal/appellate-courts/F2/847/1329/193526/ (Last visited on May 05, 2020)
[12] Id.
[13] Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1992) [Pruitt’s Case], available at https://law.justia.com/cases/federal/appellate-courts/F2/963/1160/243842/ (Last visited on May 05, 2020).
[14] Id.
[15] Id.
[16] India Times, Indian Army Chief Sparks Outrage, Says Women Are Not Fit For Combat Roles In The Army, December 16, 2018, available at https://www.indiatimes.com/trending/wtf/indian-army-chief-sparks-outrage-says-women-are-not-fit-for-combat-roles-in-the-army-358722.html (Last visited on May 05, 2020).
[17] Supra note 9, 199.
[18] https://www.theatlantic.com/photo/2016/01/operation-desert-storm-25-years-since-the-first-gulf-war/424191/ (Last accessed May 05, 2020).
[19] Sam Fulwood III, To Blacks, Powell Is a Hero and Source of Controversy, L.A. Times Feb. 17, 1991, available at https://www.latimes.com/archives/la-xpm-1991-02-17-mn-2179-story.html (Last visited on May 05, 2020).
[20] The Better India, Marching Ahead: 13 Incredibly Brave Women in Indian Armed Forces Who Broke the Glass Ceiling, January 24, 2017, available at https://www.thebetterindia.com/83280/brave-women-soldiers-indian-armed-forces/ (Last visited on May 05, 2020).
[21] Supra note 16, 201.
[22] Times of India, Countries that allow gay people to serve in army, January 15, 2029, available at https://timesofindia.indiatimes.com/india/countries-that-allow-gay-people-to-serve-in army/articleshow/67499321.cms (Last visited on May 05, 2020)
[23] Pruitt’s Case, supra note 20.
[24] Lieutenant Colonel Jane Able, et al. v. United States of America, et al., 155 F.3d 628.
[25] Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuals, (March 15, 1957), relevant excerpts available at https://www.gao.gov/assets/160/151963.pdf, (Last visited on May 05, 2020).
[26] Jantz v. Muci, 759 F. Supp. 1543.
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