This article is written by Simran Bhaskar, a 3rd year BA LLB specialization in Energy Law Student from UPES, Dehradun.
“Sewa Paramo Dharma” the motto of the Indian Army which means service is our duty.
After a historical verdict on 6th September 2018, in Navtej Singh Johar v. Union of India The Supreme Court order striking off parts of the archaic Section 377 of the Indian Penal Code had been hailed as a milestone moment for LGBTQ rights in the country, but it has failed to translate into any change for the soldiers. As the whole nation was celebrating the victory of the homosexual people the Indian Army was not part of the celebration. On October 31, 2019 the Indian Army has clearly declared that according to the army homosexuality is a punishable offense. Laws governing the three arms of the Indian military bar homosexuality and rule it a punishable offense.
As per the Ministry of Defense has specified that homosexuality is a punishable offense under Section 45 of the Army Act which deals with the ’unbecoming conduct’ of the officers or troops. The section reads “Any officer, junior commissioned officer or warrants officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.”
Any officer who faces charges of homosexuality will be tried under section 46 of the Army Act which deals with the punishment for any disgraceful conduct of a cruel, indecent or unnatural kind. As per a survey there have been instances where 5to 6 officers punished for the moral turpitude but there was no elaboration of the charges.
The Army Chief General claimed that the Indian Army will not allow gay sex but mentions that the Indian Army is neither modernized nor westernized. LGBT issues are not acceptable to us,” he said, adding that they would “still deal with the issues under the Army Act”.
Earlier this year the Indian Army has enforced a ban on gay soldiers and stated that the Indian Army will not allow homosexuality.
COUNTRIES WITH LGBT RIGHTS IN MILITARY:
Gays and lesbians have been allowed to serve in the Military of Albania since 2008.
As of 2009, the Argentine government has officially ended the ban on homosexuals in the Argentine Armed Forces. A new military justice system was put into effect which decriminalizes homosexuality among uniformed members, and moves crimes committed exclusively within the military to the public justice sphere [previously there had been a separate military court system.
Under the old system, homosexuals were not permitted to have access to a military career, at the same time as this sexual orientation was penalized. And, while there are no publicly known former sanctions against homosexuals under the old policy, this does not mean that men and women with that sexual orientation have not been disciplined, and perhaps separated from the armed forces under a mantle of silence. In fact, with this new system, homosexuals who wish to train in the forces should encounter no impediment, nor any military retaliation.
Australia has allowed homosexuals to serve openly since 1992.
Austria permits homosexuals to serve openly in the Austrian Armed Forces.
The Royal Bahamas Defence Force does not discriminate on the basis of sexual orientation. The government made the announcement in 1998.
Belgium permits homosexuals to serve openly in the Belgian Armed Forces. In Belgium, the military accepts gay men and lesbians into service. However, if the behavior of an individual who is gay or lesbian causes problems, that individual is subject to discipline or discharge. In some cases, homosexual personnel has been transferred from their unit if they have been too open with their sexuality. The Belgian military also continues to reserve the right to deny gay and lesbian personnel high-level security clearances, for fear they may be susceptible to blackmail.
The Military of Bermuda does not discriminate on grounds of sexual orientation, as it is formed by random lottery-style conscription. Officially, members of the Bermuda Regiment are prohibited from discriminating against or harassing soldiers on the basis of sexual orientation; such activities, however, are tolerated by officers, to the extent that one conscript described the Regiment as “the most homophobic environment that exists”
The Armed Forces of Bolivia announced in 2013 that LGBT citizens would be allowed to serve beginning in 2015.
There is no law forbidding lesbians, gays, bisexuals and transgender people from serving in the Brazilian Armed Forces. Sexual orientation and gender identity cannot be an obstacle for entry into the police force or the military in Brazil, and some trans women should make conscription, like some Brazilian male citizens. All sexual acts are disallowed between members of the forces, be they heterosexual or homosexual.
The Constitution of Brazil prohibits any form of discrimination in the country. The Brazilian Armed Forces does not permit desertion, sexual acts or congeners in the military, whether heterosexual or homosexual. They claim that it is not a homophobic rule, but a rule of discipline that also includes the opposite sex.
In 2008, during the disappearance of a military gay couple, the Ministry of Defence of Brazil spoke: “the sergeant is to be questioned about alleged desertion from the military and there is no question of discrimination.” The two soldiers said they had been in a stable relationship for ten years in the Brazilian military.
No information currently exists as to whether military personnel can have their same-sex relationships recognized by the military, despite the fact that federal government employees can receive benefits for their same-sex spouses. Following the Supreme Federal Tribunal decision in favor of civil unions, Defense Minister Nelson Jobim guaranteed the Ministry’s compliance with the decision and mentioned that spousal benefits can be accorded to same-sex spouses of military personnel.
According to a survey conducted by the Institute of Applied Economic Research (IPEA) in 2012, 63.7% of Brazilians support the entry of LGBTs in the Brazilian Armed Forces, and do not see it as a problem.
Bulgaria’s Protection Against Discrimination Act of 2006 protects individuals from discrimination on the grounds of sexual orientation in relation to recruitment to the military.
As of 1992, lesbians, gays, and bisexuals are allowed to serve openly in the military. A study of gays and lesbians in the Canadian military has found that after Canada’s 1992 decision to allow homosexuals to serve openly in its armed forces, military performance did not decline.
The study is the most comprehensive academic study by US researchers of homosexuality in a foreign military ever compiled and reflects an exhaustive inventory of relevant data and research. Its title is “Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces; Appraising the Evidence”.
 W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
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