It actually pleases me that the Indian army does not approve homosexuality and I say this as a queer person myself, writes Sayan Bhattacharya.

“Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming of 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.”

Thus, reads Section 45 of the Army Act. However, what constitutes “unbecoming” is not strictly defined. Section 46(a) of the Act states that any person guilty of any conduct that is of a “cruel, indecent or unnatural kind” will on conviction, face up to seven years in jail. Section 377 of the Indian Penal Code defines non peno-vaginal sex as “carnal intercourse against the order of nature.” Hence, Sections 45 and Sections 46 (a) of the Army Act when juxtaposed with Section 377, one could infer that what is unbecoming is what is unnatural is what is against the order of nature is what is sex not for procreation! But here is the problem. The Supreme Court of India decriminalized Section 377 of the Indian Penal Code in September, 2018 which means that consensual non peno-vaginal sex (that the mainstream media reports as “gay sex”) is no longer a punishable offence in India in the Navtej Singh Johar v/s Union of India judgment (henceforth, the Johar judgment).¹ With legal recognition, thus the question is, is homosexuality still an unbecoming act in the Indian army? The army has given a representation to the Ministry of Defence urging it to keep homosexuality as a punishable offence in the army. While the document submitted to the ministry has not been made public, media reports state that the army has claimed that decriminalization of homosexuality will create command and control problems in its ranks.²

Let me state at the very outset that it actually pleases me that the Indian army does not approve homosexuality and I say this as a queer person myself. I will attempt to explain why but before that it is important to lay some ground work.

There is a sense of disappointment in sections of India’s queer communities because of the army’s position. What is interesting to note is how this disappointment cuts across both right leaning as well as liberal folks within the community. Let us tackle the disappointment of the ideologically right leaning first. This section of the community brandished the Section 377 judgment as a sign of how the Right wing is not conservative when it comes to gender and sexuality. In fact, they evoked a mythical golden past of Hindutva to argue that homophobia is an invention of Judeo-Islamic belief systems. In short, homosexuality is totally compatible with Hindutva and hence it is not a surprise that the ruling BJP did not oppose the Johar judgment.³  So following this logic, the central government should turn down the army’s diktat on homosexuality and allow the sexual minority in its fray. Yet, we have not heard a single word from the Ministry of Defence or from the government in general or from BJP on this matter. Could we just say that right wing queers have landed an egg on their faces? Hence,  the disappointment. Now, moving on to the liberals.

Queer activists who have struggled for and espouse a liberal politics of inclusion through rights from the Indian state are disappointed at this discrimination by the army. How can the army exceed the strictures of the highest court of law? It is important to understand from where this disappointment is coming. If we are to go by the letter and the spirit of the Johar judgment, the judges have interpreted the choice of one’s sexual partner as a right guaranteed by the Indian Constitution under fundamental rights of equality, non-discrimination, dignity and privacy. They have also drawn a distinction between constitutional morality and societal morality. A society may have its own belief systems, values and moral codes but such dominant codes might also be violative of the right to a life of dignity for certain individuals. More specifically, homophobia or transphobia may be a pervasive social reality based on a societal morality that perceives non-normative genders and sexuality as immoral. However, constitutional morality is that code which abides by the word of the Constitution and the Constitution states that every person is equal irrespective of gender, faith and caste and hence society must ceaselessly work to safeguard that equality, transcending societal morals. Justice Chandrachud stated in the Johar judgment:

Constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance. It builds and protects the foundations of a democracy, without which any nation will crack under its fissures. For this reason, constitutional morality has to be imbibed by the citizens consistently and continuously.

So, the issue is very simple here. If constitutional morality safeguards the rights of sexual minorities in India, can the Indian army transcend the ambits of the Constitution and deem homosexuality “unbecoming”? Queer liberals are angry at this army exceptionalism that exceeds our legal right to sexuality. However, inclusion is a slippery terrain. For instance, feminist movements have demonstrated how marriage is an oppressive institution where women’s labours are structurally devalued. Marriage can also be a site of violence – ranging from dowry, marital rape to domestic violence. Yet feminists also keep seeking rights to make marriages more equitable – from alimony rights to rights against violence. They even seek legal recognition for live-in relationships in interest of the female partner. So long as the institution of marriage cannot be dismantled, efforts are made to reform it from within. One could say that extending marriage rights to queer individuals is an attempt at such reforms. If marriage means securing not only social recognition but also legal recognition and a host of benefits that come with it from inheritance to insurance, then queers should also have such rights. Indeed, in the US, a lot of working-class queer couples of color are availing of marriage to secure their futures in a deeply racist society. Hence, in such matters, the question of inclusion becomes complex and an anti-marriage stance, as radical as it might be, could also betray elitism and a politics of purity. In the same vein, the liberals are demanding the inclusion of the queers in the army. However, I would argue that inclusion in the armed forces cannot be argued for, from the lens of inclusion but rather the question is if the queers want to be complicit in the blatant brutalization of human rights that the Indian army has been committing in the name of protecting the Indian nation state from militants. Let us elaborate.

Firstly, when it comes to constitutional morality as explicated in the Johar judgment, the army obviously will not come within its ambit. Given the extensive powers it has been bestowed with in the name of securing our borders, the army is that institution that exceeds any parameters of legality. Hence, one finds that most allegations of abuse against the army are not investigated and if they are, the acquittals come thick and fast. When Section 370 was abrogated in Kashmir, the Indian government hailed its decision as one that would imbue women and Dalits with rights, no matter that the people of the state had no say in their fate and the entire state continues to be shut from most channels of communication. Some queers including some well-known activists added that the decision would be good for queers too.⁴ Now that Jammu and Kashmir would no longer have its own laws, the decriminalization of Section 377 would apply there as well. Leaving aside the latent Islamophobia of such a claim, what was striking is how these activists completely ignored scores of fact-finding reports, including those by Amnesty International, about how Kashmiri men are sexually tortured by the Indian army.  In fact, sexual assault on men is quite a common tactic in occupied territories but it is still under-researched.⁵ In short, what we see in Kashmir is the weaponization of sex to suppress any kind of dissent against the Indian state. Since, the topic of this essay is recognition of homosexuality in the army, let us be specific here. All these aforementioned reports suggest that it is not only forced peno-vaginal penetration but also sodomy and penetration by foreign objects that are used to subjugate Kashmiris. Kashmiri women have been bearing the brunt of rape and varied forms of sexual torture as modes of subjugation too but the larger point I am trying to make here is that this form of torture cuts across gender and since the subject of discussion here is homosexuality, the focus is on how rape exceeds the heterosexual framework in the region. If one were to go by the epithet “gay sex” that the media uses to name sexual activities mentioned under Section 377, then it is precisely gay sex that is weaponised by the Indian army as yet another tool of colonization. So then how do I, a queer person, who derives both consensual pleasure and a sense of identity from such sexual acts, advocate for the recognition of homosexuality by the army when I know that it uses those very acts as yet another torture tactic?

Most importantly, given that a particular state is occupied, what traction does a Supreme Court judgment on consensual “gay sex” have when the army is always already invested with extra judicial powers, including those of sodomy and electric shocks to the genitals?⁶ It is important to remember here that Section 377 is still in our statutes to criminalize non-consensual non peno-vaginal sex. As many feminists have suggested, Section 377 can be used by married women in the absence of any law on marital rape. Hence, the queer movements had only demanded a reading down of Section 377 (that is decriminalization) to remove consensual sex from its ambit. Thus, if the Supreme Court judgment were to really apply to Kashmir, as many queer individuals are suggesting post Article 370, then the army would be the first group of offenders under Section 377 for non-consensual sodomy and other forms of penetrative torture. However, as we discussed earlier, the army exceeds our Constitution and hence Section 377 still does not really apply in the state at least so far as the army is concerned.

The majority, as overfed as it is by propaganda media that bends backwards in front of the ruling government, is rejoicing the Kashmiri occupation. As an Indian citizen, I am complicit in this occupation. I have blood on my hands too. But, as a queer person, I refuse to deepen my complicity by advocating the inclusion of homosexuals in the army and hence my joy that it is not happening. At least for now.

There is a personal investment too in this disinvestment from the army. What comes to your mind when an average Indian hears “army”? A dashing man who chivalrously protects the borders. If Bollywood iconography were to be believed, this man is supposed to be every woman’s heartthrob. He is strong and protective. His natal mother and mother India are one and the same.⁷ Even if women make it to the army, they have to rise up to this nationalist masculinity to make that cut. Growing up with nick names like “chakka” (which I still hear sometimes on dating profiles, depending on how deep the eyeliner is on the profile photo), “mawga” and “boudi”, I never had access to this masculinity and I am obviously not the only one.Many of us worked on our body language and speech relentlessly to become the men the society wanted us to be. However, I gave up when I realized as much as I tried, a subtle note in my laughter or the rolling of legs or the way I held the tea cup could break every effort into piecing together masculinity. From trying to repair this broken masculinity, it gradually became my strength. Not that rolling eyes or snide remarks do not matter but they do not incite any effort on self. Make no mistake. I am not trying to make a virtue of this brokenness or trying to make a liberal argument on identity. My perceived femininity does not automatically lead to a critique of the army. If that were the case, then there would be no queer right wingers or the hijra leader, Laxmi Narayan Tripathi would not famously state that hijras should be allowed to protect India’s borders. However, for me, brokenness signals the journey from the personal to the political. In refusing the norm of this so-called chivalrous masculinity, one is also questioning why one’s sense of belonging to a nation can only be proven by deifying the army. That is the challenge that brokenness poses and if the queers (if not the rest) are able to really stay with it, we will perhaps reassess how we belong to the nation and how and why we relate to the army.

Notes:

[1] For full text of the judgment, see this and for a succinct analysis of the judgment, check Alternative Law Forum.

[2] https://www.news18.com/news/india/army-wants-homosexuality-adultery-to-be-punishable-approaches-defence-ministry-2369357.html

[3] On right wing queer points of view, check Abhijit Iyer Mitra’s article and this video. Ashok Row Kavi, arguably the father of gay movements in India also espouses similar points of view.

[4] A panel discussion held at the School of Oriental and African Studies condemning the abrogation of Section 377 was disrupted by a group of masked men who brandished the rainbow flag and shouted “Gay for JK.” Ironically, one of the speakers on the panel, Dibyesh Anand is a queer individual and has been very vocal about the occupation of Kashmir.

[5] A major shortcoming of this essay is that it is still limited to a gender binary and that is also because so far there has been no study of how gender non-binary individuals in the region have borne the brunt of torture by the army. However, one needs to be careful about not imposing identity labels like “transgender” or even “queer” while conducting such studies in the region without an understanding of how gender operates and is understood in Kashmir.

[6] There have been several detailed studies about modes of torture and killing in Kashmir. Needless to say, successive Indian governments have denied such tortures but these reports exist to point out what is repeatedly negated. For example, The Association of Parents of Disappeared Persons and Jammu and Kashmir Coalition for Civil Society have this detailed report that also describes sexual assault on men and minor boys among many others.

[7] Films like Border, LOC Kargil and others have depicted army officers dying to protect the country which is always imagined as a mother figure. See this image of Bharat Mata at an army camp. For a brief history of Bharat Mata, check this.

Sayan Bhattacharya is a research scholar and gender activist.