Suvam Kumar and Devesh Kumar
Inclusion of LGBT members in the military services is a burning issue in the contemporary world. While some countries take pride in the inclusion of LGBT members in the military services, on the other hand, there are countries who feel disgrace and humiliation to include LGBT members in the military forces. As per the recent report, 175 countries have allowed the transgender to serve the military forces.[i] In 2016, the USA also lifted the complete ban against LGBT people serving the military forces.[ii] On the other hand, India has legalized homosexuality but the armed forces are reluctant to allow homosexuals to serve in their offices. There exists a dichotomy between the rights and liberty of an individual and the institutional integrity and discipline. However, with the advancement in society and progressive change in the societal outlook, the countries prohibiting it should try to pace with the contemporary ideas and changes.
The Indian Scenario
For the past several decades, India had been against the legalization of homosexuality. It had made homosexuality a punishable crime under its penal code. However, last year, in the light of a need to adopt a progressive approach and move at par with the globe, the Hon’ble Supreme Court has decriminalized homosexuality.[iii] The judgment received wide appreciation from all across the globe. Besides this, the Supreme Court has delivered several landmark judgments marking a new era of progressive and broader thinking. Judgments like decriminalization of Adultery[iv], allowing entry of women in Sabarimala Temple[v] speaks of the Court penchant attitude towards a much broader and open society. However, at the same time, the Army Chief, Bipin Rawat made a firm statement against the inclusion of LGBT members in the Indian Army.[vi] This raises several legal and practical issues with regard to the equality and liberty of an LGBT community.
Arguments for the inclusion of LGBT members into Military forces
In countries where homosexuals are allowed in military services, there is research and anecdotal evidence that illustrates that there is neither any decrease in cohesion among units nor diminishing effectiveness of the troops.[vii] Furthermore, Belkin’s study, one of the renowned academic studies of homosexuality concluded that the change in policy had “not led to any change in military performance, unit cohesion, or discipline.”[viii] Thus, the grounds mentioned in Article 33 viz proper discharge of duties and maintenance of discipline cannot be said to be tenable on grounds of inclusion of homosexuals in the military.
Further, rarely any military law closely relates to the homosexuals. Sections 45 and 46 of the Army Act mention unbecoming conduct and ungraceful conduct as violative of military laws. Here, there is a need to differentiate between the conduct and the class. Homosexual is defined as sexual desire for a person of the same sex or related to sexual intercourse involving people of the same sex.[ix] Therefore, the military law should be applicable to the act of homosexuality and not on the homosexuals itself. The laws restrict the act of homosexuality, not the homosexual as there was no conduct involved in this interpretation rather they are being punished for their sexual orientation. Furthermore, after Navtej Singh Johar v. Union of India, [x] the homosexual are not unnatural, thus it makes the application of Sections 45 and 46 null and void even in case of the homosexual as a class as well.
Moreover, the homosexuals and heterosexuals are an equal human being at the same pedestal.[xi] And thus if homosexuals are barred from the military services than they are denied the equal protection of law under Article 14 as the same should be treated alike.[xii]Under this, only permissible classification is allowed. Permissible classification requires two conditions to be fulfilled namely (1) there should be intelligible differentia between two classes and (2) classification must have a rational relation to the object sought to achieve.[xiii] However, in the present matter, the first condition is fulfilled because on the basis of sexual orientation the homosexuals and heterosexuals can be differentiated. However, this differentiation is not achieving the object as the homosexuals are neither inefficient than other men nor their presence makes the indiscipline in the military and improper discharge of duties in itself.
The statement made by Bipin Rawat against the inclusion of homosexual in the armed forces is bereft of any concrete rationale. Under Article 33 of the Constitution[xiv], the Parliament can put some restrictions enjoyed by the Armed forces provided that it is important to ensure that the officers properly discharge their duties and maintenance of discipline among them. However, the very wording of Article 33 states that the parliament has to determine the permissible extent to which the fundamental rights can be restricted. There cannot be any strict statutory formulae for determining the extent of such restrictions.[xv] Moreover, the essence of Article 21 does not become redundant while applying Article 33. The basic requirement of just, fair and reasonable under Article 21 has to be satisfied even when there is any curtailment of the fundamental right.[xvi] Hence, the restrictions under Article 33 cannot be given a carte blanche. It should be in conformity with maintaining disciplines and unity in the forces. Hence, any irrational and arbitrary abrogation on the fundamental rights of an individual cannot be justified.
[iii]Navtej Singh Johar vs Union Of India, (2018) 1 SCC 791.
[iv] Joseph Shine v Union of India, (2018) 2 SCC 189.
[v] Indian Young Lawyers Association &Ors. v. The State of Kerala &Ors, Writ Petition (Civil) No. NO. 373 OF 2006.
[ix] Garner, Black’s Law Dictionary, 10th edition, p.853.
[x]Supra note 3.
[xi] McConnel v. Anderson, 316 F. Supp. 809, 814.
[xii] F. S. Royster Guano Co. v. Virginia., 253 U.S. 412, 415 (1920).
[xiii] State of Bihar v. Bihar State plus -2 lecturers’ Association, AIR 2007 SC 1948.
[xiv] Article 33, Constitution of India, 1950.
[xv] Union of India v. L.D Balam Singh, (2002) 9 SCC 73.
[xvi] Ram Sarup v. Union of India, AIR 1965 SC 247.
The authors are students of National Law University, Jodhpur