The Supreme Court of India recently put many years of litigation to rest in the Navtej Singh Johar case. Pursuant to a colonial era section in the Indian Penal Code, Section 377 banned ‘unnatural acts’ which in common parlance meant that ‘gay sex’, irrespective of the fact that it may be consensual. Years and years of discrimination, at least in the eyes of law, has come to an end. However, as Katju, J. wrote in an opinion in the Express, this will not suddenly dispense with the societal effects of this law having been around for so many years. That being said, when an arm of the government, plainly defies a ruling of the Court, and the same is not condemned or no action is taken, it sets back any progress or advancement that may have been brought on by such a judgement.
The last bit of the preceding paragraph gives people enough hint as to what is about to be said ahead. The Chief of Army Staff, General Bipin Rawat has said, that the army will not allow ‘homosexual acts’ or ‘adultery’ among its people, as it is a conservative, not- modernized, not westernized institution.
One must take the issue with that comment in general, but ‘not modernized, not westernized institution’ statement raises a simple question- Is the right to be yourself, or true to yourself a privilege only afforded by western countries? Being homosexual is not a choice, and one’s orientation is a biological determination.
He said “When one joined the Army, some of the rights and privileges authorised for civilians by the Constitution were not authorised for them [the Army].”
Why is it that to be in the army one must hide this essential aspect of themselves?
In general, the statement of the General about dealing with it under sections of the Army Act, (Please check the article in FN 1), seems to suggest that an ordinary legislation is superior to that of the Constitution. 46(1) of the Act, says as under-
“..is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind;”
But with the recognition of it being included in Article 21 of the Constitution, the term ‘unnatural acts’ so far as consensual homosexual acts have no standing in the law.
There are other instances as well where the government disregards Supreme Court judgements when they find doing so to be the easier option to go with. On the heavily contested Sabarimala issue as well, the BJP President, who is a member of the Upper House said that they will not support the verdict and that it stands with the people of the state, who are in turn defying the verdict.
Such an open assault on the judgements of the apex court cannot be tolerated in a country governed by core Constitutional Principles of the separation of powers and rule of law.