Permanent Commission should be granted to women in the army: Analysis of The Secretary, Ministry of Defence v. Babita Puniya & Ors.

Permanent Commission should be granted to women in the army: Analysis of The Secretary, Ministry of Defence v. Babita Puniya & Ors.

3 Jul, 2022

Author – Raju Kumar, Student from Chanakya National Law University, Patna.

Author is a fourth year, B.A.,LL.B (Hons.) Student Pursuing his degree from Chanakya National Law University, Patna. He is a Senior Editor at The Society for Constitutional Law Discussion. He is also a Columnist at the Daily Guardian Newspaper. Author is thankful to his senior Mr. Sunny Kumar, and professor Dr. Kalpeshkumar L Gupta for his valuable contribution.

ABSTRACT

The Present case is one of the landmark judgments in the contemporary society. This judgment of Hon’ble Supreme court finds an important place which has contributed in the development of contemporary jurisprudence on ‘Gender equality’. In the present case the Hon’ble Supreme Court has adopted the ‘Progressive approach’. This decision of Hon’ble court has also favored the Feminist jurisprudence. The present case deals with majorly two broad topics, first one is being the service law and other is gender equality, particularly in the terms of armed forces. This judgment has been considered as one of the landmark cases which has uplifted the women. The judgment was pronounced by Dr. Dhananjaya Y Chandrachud J. and Ajay Rastogi J. This case has also opened the pathway for upcoming cases on ‘gender equality’.

Keywords :- Army, Women empowerment, Permanent commission.

  1. FACTS OF THE CASE

The Present case arises out of the Civil Appeal Nos 9367-9369 of 2011. In the year 2003, Babita Puniya, who was a practicing advocate files a writ petition[1], which was in the nature of Public Interest Litigation (PIL) before the Delhi High Court for the grant of Permanent Commission to women Short Service Commissions (hereinafter referred as SSC) officers in the Army.

When the proceeding was going on, on dated 20 July 2006, the two circulars were issued, conveying the sanction of the President of India regarding the grant of SSCs both on the technical and non-technical side to women officers. As per the circular the period of training was stipulated at forty-nine weeks at par with male SSC officers. The circulars were dealing with the provisions related to tenure, substantive promotions and adjustment of seniority. Furthermore, Serving WSES officers were given an option to move to the new SSC scheme or to continue under the erstwhile WSES. The first batch of women officers under the new scheme entered the Army in the year 2008. However, Para 1 (a) of the circular provides the condition that permitted women officers to serve for a limit of 14 years as an SSC official.

Interestingly, on dated 16th October, 2006, another Writ Petition[2] was instituted by Major Leena Gaurav before the High Court of Delhi. The petition was filed in order to challenge the terms and conditions of service imposed by the circulars vide dated 20 July 2006 and for seeking the grant of PCs for women officers.

Later on, on dated 26 September 2008, the MoD issued a circular envisaging the grant of PCs prospectively to SSC women officers in the JAG department and the AEC. Interestingly, once again this circular was also challenged by Major Sandhya Yadav before the Delhi High Court. This time the ground for challenge was that it granted PCs only prospectively and only to certain specified cadres.

While adjudicating the Writ Petition, Delhi High Court in his judgment vide dated 12 March, 2010 observed that women who had entered the Army on SSCs were granted with PCs on par with their male colleagues.

Later on, the aggrieved party i.e., The Union of India was not satisfied with the judgment of High court[3], and the matter was appealed before the Supreme Court. However, when the matter was sub judice before the apex court, it also proposed a separate policy for grant of PCs to women, which nonetheless was limited to staff positions, imposed different standards, as well as only applying prospectively.[4]

Once again, when the matter was still Sub judice, on dated 25 February 2019, the Union Government in the MoD issued a communication for the grant of PCs to SSC women officers in eight arms or services of the Army, in addition to the JAG and AEC which had been opened up earlier for PC.

ISSUES INVOLVED

  • The question before the Supreme Court was that, whether the guidelines given by the government on 15th Feb.2019 should be executed?
  • The next question before the Supreme Court was to decide that whether women should be awarded with Permanent Commission in the Indian Arm Force?
  • The next question before the Court was to decide that what are the condition which governs the Women Officers in Army?

ARGUMENTS

3.1 UNION OF INDIA

  • The UOI majorly argued on the 7 grounds they are- Grant of PC, Pensionary benefits, Policy considerations, Occupational hazards, Discrimination, Ajay Vikram Singh Committee report: SSC as a support cadre, and Employment in staff appointments.[5]
  • UOI argued that the Hon’ble Delhi High Court had failed to take care the relevant statutory provisions under Section 10[6] & 12[7] of the Army Act, 1950.[8]
  • Union of India, relying on the judgment of Union of India v P K Chaudhary[9], argued that the Govt. has to take proper care of the inherent danger which are inherent danger involved in the service. Furthermore, it was also argued that there are some situations where maintaining Privacy is not impossible.[10] Furthermore, issues like Maternity and Child Care are always a concern and these considerations are even not open to judicial review.[11]
  • It was argued by the UOI that under notice published vide dated 15 February, 2019, the substantial benefit of pensionable service has been provided to women officers who have continued beyond fourteen years of service under interim orders.
  • The UOI argued that the Army faces a huge management challenge “to manage WOs in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station”. Furthermore, it was also argued that The Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.[12]
  • It was argued that the induction into the permanent commission through SSC will harm the structure of the Army.[13]
  • The govt. once again raised the concern over pregnancy, motherhood, and domestic obligations”, differences in physical attributes, “peculiar dynamics” of all – male units, and hygiene problem.[14]
  • It was argued by UOI that the border areas are not suitable for the deployment of lady officers because of habitat and hygiene.[15]

3.2 RESPONDENTS

  • On behalf of the respondent Ms Meenakshi Lekhi and Ms Aishwarya Bhati learned Council argued majorly on the following grounds- Battlefield Scenario, Unit cohesion, National security, discrimination, and on the policy, letter dated 25 February 2019.[16] 
  • It was argued that the women officers are considered as an effective workforce until they complete 14 years of service. Women officers served shoulder to shoulder with male officers for twenty-five years, the contention advanced by the UOI with respect to battlefield scenarios lacks substance.[17]
  • Rejecting the argument of UOI that the presence of women has a negative impact on unit cohesion, it was argued from the respondent side that it is the time that the organization should start accepting women as equal colleagues.[18]
  • It was argued that women officers of all ages and service profiles are being posted to sensitive places, field areas, force head-quarters and units without being commissioned into combat arms.[19]
  • On ground of Discrimination, Learned Council Ms Lekhi argued on three points that are (i.) Lack of opportunity for professional growth; (ii) Absence of job security due to the ambiguous status of the cadre; and (iii) Rendering service under Junior Officers due to the lack of a uniform and equal promotion policy.[20]
  • It was argued that when women officers are trained hard just like other male officers in order to tackle any situation then why not they are given higher post on command position even if they are qualified enough.
  • It was argued that 30 percent of all the women officers are exposed to a hostile environment.[21]
  • Furthermore, it was also argued that the policy inculcate by the Union Government with respect to the grant of PCs to SSC women officers, also lowers their status to that of a jawan.[22]

JUDGEMENT

While rejecting the Submissions of Union of India, Chandrachud J. started his analysis through constitutional provisions. He observed that while Article 33 allows for restrictions upon fundamental rights in the Armed Forces, However, it also made it clear that these rights could be restricted only to the extent that it was ‘necessary’ to ensure the proper discharge of duties and the maintenance of discipline.[23]

Furthermore, it was observed by the Chandrachud J. that the engagement of women officers in the Army has been an ‘evolutionary process’.[24] Moreover, the court while emphasizing on the ‘recognition of right’[25], have referred to two important articles of Indian constitution namely Article 15 (1)[26] and Article 16 (1).[27]

The 2019 Policy Document submitted before the Court, even PCs (in certain fields) had been opened up to women.[28] In fact, it has created an internal conflict within the submissions of the union of India, as:

“The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution.”[29]

Furthermore, the court also rejected the ‘Blanket restriction on criteria appointment’, and observed that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case-to-case basis.[30]

If we conclude the judgment we will find the following things-

  • That, the Supreme court upheld the 2010 judgment of Delhi High court where it was held that the women officers who joined the Army through SSC are entitled to permanent commission.
  • The Supreme court has ended the all discrimination which was based on years of service for grant of permanent commission in ten streams of combat support arms and services, bringing them on an equal footage with male officers.
  • The supreme court has also removed the restriction of women officers which were allowed to serve in staff ranks only.[31]
  • This judgment was also a call for ‘change of traditional mind’. The Court has ordered that within 3 months, all SSC women officers will have to be considered for permanent commission irrespective of their tenure in service.[32]

CONCLUSION

The present case is based on gender equality. In the present case the Hon’ble Supreme Court has adopted the ‘Progressive approach’. This decision of Hon’ble court has also favored the Feminist jurisprudence. There is no doubt that women in India have been a subject of discrimination for a long year. Furthermore, even after 74 years of Independence the women have to face discrimination at several occasions. In fact, the present incident was a paragon of it. We must here quote the line of renowned scholar, Dr. B.R. Ambedkar, “I measure the progress of a community by the degree of progress which women have achieved.”[33] Finally, the supreme court has served the justice. However, as compared to other states, we may find ourselves that we have really delayed in eliminating this gender-based discrimination. I’m saying it on the ground that Norway had allowed women in all combat battles in the 1985, almost 35 years ago. Furthermore, USA had also allowed all ground combat roles for women in the year 2016. However, this case was only about the permanent commission and command roles in non- combat streams of the Army. Women officers are still not allowed to serve in combat units like the Armored Corps, the Infantry, and Mechanized infantry. At last before we close our discussion, we must write it with great satisfaction that the long fight on gender justice has been gone in the favor of women. This judgment will be considered as a landmark judgment on ‘gender- justice’ and it will definitely open the path for upcoming cases.

[1] WP (C) 1597 of 2003

[2] WP (C) 16010 of 2006

[3] High Court of Delhi.

[4] Gautam Bhatia, ‘Gender Equality in the Armed Forces. https://indconlawphil-wordpress-com.cdn.ampproject.org/v/s/indconlawphil.wordpress.com/2020/03/20/gender-equality-in-the-armed forces/amp/?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15911183144018&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Findconlawphil.wordpress.com%2F2020%2F03%2F20%2Fgender-equality-in-the-armed-forces%2F’ (accessed 19 November 2021)

[5] See, Paragraph 26 to 36

[6] Section 10 of the army act, 1950 reads as, “Commission and appointment- The President may grant, to such person as he thinks fit, a commission as, an officer, or as a junior commissioned officer or appoint any person, as a warrant officer of the regular Army.”

[7] Section 12 of the army act, 1950 reads as, “Ineligibility of females for enrolment or employment-  No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army, or any branch thereof in which females are eligible for enrolment or employment.”

[8] ACT NO. 46 OF 1950

[9] Civil Appeal No 3208 of 2015, decided on 15 February 2016

[10] See, Paragraph 28

[11] Union of India v P K Chaudhary Civil Appeal No 3208 of 2015, decided on 15 February 2016

[12] See, Paragraph 30

[13] See, Paragraph 31

[14] See, Paragraph 54

[15] See, Paragraph 35

[16] See, Paragraph 37 to 43

[17] See, Paragraph 38

[18] See, Paragraph 38

[19] See, Paragraph 38

[20] See, Paragraph 39

[21] See, Paragraph 54

[22] See, Paragraph 42

[23] Gautam Bhatia, ‘Gender Equality in the Armed Forces. https://indconlawphil-wordpress-com.cdn.ampproject.org/v/s/indconlawphil.wordpress.com/2020/03/20/gender-equality-in-the-armed forces/amp/?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15911183144018&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Findconlawphil.wordpress.com%2F2020%2F03%2F20%2Fgender-equality-in-the-armed-forces%2F’ (accessed 19 November 2021)

[24] See, Paragraph 50

[25] See, Paragraph 52

[26] Article 15 (1) of the Indian constitution reads as, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

[27] Article 16 (1) of the Indian constitution reads as, “Equality of opportunity in matters of public employment-  (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”

[28] Gautam Bhatia, ‘Gender Equality in the Armed Forces. https://indconlawphil-wordpress-com.cdn.ampproject.org/v/s/indconlawphil.wordpress.com/2020/03/20/gender-equality-in-the-armed forces/amp/?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15911183144018&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Findconlawphil.wordpress.com%2F2020%2F03%2F20%2Fgender-equality-in-the-armed-forces%2F’ (accessed 21 November 2021)

[29] See Paragraph 52

[30] See Paragraph 67

[31]Sushant Singh, Explained: What Supreme Court said on women in Army, https://indianexpress.com/article/explained/women-in-army-what-supreme-court-said-6273177/

[32] See Paragraph 70

[33]Also see,  https://www.sekarreporter.com/r-hemalatha-i-measure-the-progress-of-a-community-by-the-degree-of-progress-which-women-have-achieved-b-r-ambedkar-had-said-going-by-this-the-judiciary-isnt-fari/