This Case Summary is written by Apoorva Singh & Ananya Singh, students of Galgotias University

SYNOPSIS

Gender equality has always been a point of discussion. In this case, we talk about gender equality in the armed forces. This case discusses granting permanent commission (hereinafter PC) to female officers who were enrolled via Short Service Commission in the year 1992. The bench of the Supreme Court consisting of Justice DY Chandrachud and Ajay Rastogi gave a rebuff to the contention raised by the army for denying PC to women. They criticized the army’s assumption about the ascribed role of women and labelled them as highly stereotypical. The judgement delivered by the bench is laudable, and have become an illustration of the equal outlook of our judiciary. 

BACKGROUND

The case commences from section 12 of the Army Act, 1950 which restricted the enrolment of women in the army, except in selected branches. This leads to the Union government releasing a notification wherein women were allowed to join certain branches for five years. The period which at the initiation was 5 years, was extended to 10 years and later on to 14 years. 

FACTS OF THE CASE 

On 30th January 1992, the Centre released a notification wherein women candidates were granted Short Service Commission. They were allowed to join selected branches of the army. Women who were appointed through SSC demanded equal status as their male counterparts and thereby seek PCs in the army.

In 2003, a writ petition was instituted before Delhi High Court by practising advocate, Babita Puniya for enabling PC to women officers. Many women raised the same issue so their petition was later on attached with Babita’s petition.

In 2006, in a policy revision Centre allowed women officers to serve for a period of a maximum 14 years as SSC officers. Later, Major Leena Gaurav and Lt. Col. Seema Singh challenged the court for the issue which came previously in the same year.

In 2008, the Ministry of Defense issued a circular enabling grant of PCs to women, but only prospectively. 

In 2010, Delhi High Court assembled all the petitions and administered the centre to grant PC to SSC women officers. Army moved Supreme Court challenging this order but Supreme Court upheld the order of Delhi HC.

In 2019, Centre brought notification granting PC to women officers of eight combat support services but only prospectively. The permanent commission applied to only those females who were employed after this request. 

ISSUES

• Whether women should be granted Permanent Commission in the Indian Army?
• Should the guidelines given by the Government of India dated 15th February 2019 be implemented? 
• What are the conditions governing the Women Officers in the Indian Army?

CONTENTIONS

ARGUMENTS BY APPELLANTS

Appellant i.e. the secretary and ministry of defence’s contentions were taken forward by the Union of India.

• According to the Union of India, the Delhi High court successfully slipped up sections 10 and 12 of the Army Act, 1950. These sections clearly state that the grant of PC is at the hands of the President of India and no women can seek employment apart from in areas government may seem fit. Therefore, no mandamus can be adduced in the court.
• Under Government Policy dated 15th February 2019, the benefit of pension is to be bestowed to those women officers who have completed fourteen years of service.
• Strengthened by section 12 of the Army act and Article 33 of the Constitution, query concerning recruitment and grant of PC is termed as policy considerations and are governed by the executives. The scope of judicial review in command and tenure has been limited as held in the Union of India and anr. V. Lt. Col. P.K. Choudhary and Ors.
• Union of India believes that army work is unfit for women as it carries “inherent risks” but ironically it has opposite thoughts for males.
• They cited that women already have to deal with pregnancy, motherhood and childcare, they won’t be able to do justice with their job as a soldier.  
•  The employment of more women officers into PC’s would disturb the organizational structure, as per the contention of the Union of India.
• The submission note of the Union of India has stated “physiological limitations” on the employability of Women Officers which comes with the challenges of motherhood, confinement and childcare. 
• The placement of Women Officers in border areas is not preferable because the area lacks elemental hygiene.

ARGUMENTS BY RESPONDENTS 

• Despite there being no stay order against the judgment of the Delhi High Court, no steps were taken to grant PCs to lady officials in the army.
• Bashing on above submissions, respondents furthered that only 4% women are employed in army whereas male holds a total of 96% employment in the army. Will this not count as prejudicial?
• Union of India stated that the existence of women in the army will destruct unit cohesion. The respondent in return said it would not happen only if the army treats women equally.
• Women officers have been left high and dry without any kind of pensionary privilege in comparison to their male equivalent.
• Even though there are vacancies of officers in support services, they are not allotting to women but those are filled by Retired Male officers of colonel rank.
• Appellant professes that woman officers are posted to those areas where the probability of conflict is almost a zilch while conversely 30% of all women officers are exposed to the warzone.
• Despite qualifying every mandatory course as their male equivalent, they are not able to seek PCs. This biased nature lowers the status of women to that of a jawan. 
• The army does not have a rule on which officers seeking PC imperatively allotted troops. If women officers meet qualifying criteria they must be promoted to the next rank just as their male equivalent.

FINDINGS

• Centre asserted that it is the woman who has the domestic duties on them. This deep-seated stereotype approach of the appellant infringes Art.14 of the women.
• Court dissented with the appellant on the hygiene and sanitization argument by stating that already 30% of women are exposed to minimal hygiene and warzone area.

REASONING

• Justice Chandrachud detected those dominant mindsets who suffer from a deep-seated stereotype about the role of women in society. While criticizing this opinion of the appellant, Justice Chandrachud held that women should not be deprived of opportunities merely because dominant mindsets of the army have a discriminatory approach towards them. 

• Art.33 permits parliament to restrict fundamental rights of armed forces only to the extent that it ensures the proper discharge of duty and discipline within them. However, the partitioning in giving the PC status to female officers cannot be called a proper discharge of duty. Thus, the army could not take the protection of Article 33.
• Not granting PC to female officers is their infringement of Art.14, 15 and 16.
• The Court held that the policy decision of the Union of India dated 25thFeburary 2019 that allows Permanent Commission to women officers in 10 streams is as per sec.12 of the Army Act, 1950.

DISPOSITION/ JUDGMENT

The Supreme Court judgment is subject to certain conditions that are listed below:-

• All-female officers of SSC are eligible to PC putting aside the fact they have crossed 14 or 20 years of service. 
• The statements stating “in various staff appointments only” and “on staff appointments only” in both Para 5 and 6 shall not be enforced. 
• Female officers from now on receive privileges like pension or promotion benefits like their male equivalent.
• Women who crossed 20 years of service and have not granted PC shall retire on pension terms.
• Women SSC officers shall have the choice of opting for PC just as their male counterparts.

CRITICAL ANALYSIS

The union in submissions asserted that Art. 33 of the Indian Constitution empower Parliament to restrict fundamental rights of armed forces but the argument was rejected by Justice Chandrachud. In lieu, he said that Art. 33 are not intended to restrict someone’s fundamental right up to the time proper discharge and discipline is maintained.

While evaluating Union submissions, Justice Chandrachud inferred the judgment by reckoning the interpretation of sex, understood regarding socially constructed gender, in NALSA and Navtej Singh Johar judgments. Herewith, the court stated that traditional gender roles, such as that a woman’s primary responsibility is domestic, can be considered biased under articles 15 and 16. 

The judgment should be applauded as it has resulted in gender equality and simultaneously shattered gender stereotypes and discrimination prevailing in the dominant mindsets of the Union. But will it have any influence outside the purview of the armed forces? Judgments like Triple Talaq and Sabrimala have gained an important battleground as it involves religious personal law. While affairs on public employment like the Puniya case may carry a small weightage but it surely depicts a word that Court will always work against gender stereotypes.

CONCLUSION

India, i.e. Bharat, cannot only be formed on the shoulders of her ‘Shiva’ but also on the shoulders of her ‘Parwati’ and then only Bharat can be a ‘Shakti’:

The Indian Army holds a prestigious reputation in the eyes of the public. An equal gender ratio will enhance the reputation of the Indian army. Many countries are changing their attitude not just to promote equality, but also because they need the skills that women have. It’s been a long fight, dating back to 1992, but it finally paid off when the Supreme Court granted permanent commission status to women officers in the Indian armed forces and made them eligible for command positions, allowing them to perform all types of military roles – full combat, combat support, and combat command. This verdict will serve as a milestone in curbing the gender ratio in our Armed forces. But has this verdict cured all intricacies women face in society? We are farfetched from the real battle, but we can put our feet up as the difference has initiated. This verdict will surely boost the confidence of women to chase their dreams instead of bothering about the patriarchal society. In the end, the judgment is undoubtedly laudable but we have a long way off.