This Case Summary is written by Ritika Srivastava, a student at The ICFAI University, Dehradun

SYNOPSIS

The Constitution of India enumerates various provisions for women for their upliftment and to bring gender equality in the society. But it is still a question whether women are treated equally on par with men after 74 years of Independence. The answer is NO. India being one the largest democracy but Gender stereotypes always creates obstacles in the path of women. There is several of gender discrimination from which women are fighting since birth till the date of their death, they are bound in such stereotype but one of the battles ended in the favour of them in the Supreme Court’s landmark judgment namely “The Secretary, Ministry of Defence v. Babita Puniya & Ors. The honourable court ordered to grant Permanent Commission (PC) in 10 non-combat services at three month and further stated that women are now eligible to hold command posts by tire the existing ceiling. This judgment gives women an equal opportunity in the Indian Army by providing them a long-term job security.

BACKGROUND

Section 12 of the Army Act, 1950 defined the Ineligibility of females for enrolment or employment. It says that “No female shall be eligible for enrolment or employment in the regular Army, except in such cops, department, branches 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 provision 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”.

On 30th January 1992, a notice issued by the Union government in favour of female candidates that they are granted Short Service Commissions (SSC) for five year for the department such as Army Postal Service, Judge Advocate General’s Department, Army Education Corps, Army Ordinance Corps and Service Corps. And after few months in a same year on 31st December, five more department such as Mechanical, Signal and Electrical engineering, Engineers, Regiment of Artillery and Intelligence Corps.

FACTS OF THE CASE

In the year 2003, Babita Puniya, an advocate filed a writ petition in the nature of PIL before the Delhi High Court for granting Permanent Commission (PC) to military women who recruited as Short Service Commission (SSC) officers. And apart from this petition, many other petitions were filed by the women officers for the same and tagged their petition with Babita’s petition.

In the year 2005, the Minister of Defence declared that validity of the appointment scheme of the Indian Army regarding women officers being extended.

On 20th July 2006, a further notification issued which allows the SSC women officers to serve for maximum 14 years. In a same year on 16th October, Major Leena Gaurav again filed a writ petition challenging the terms and conditions issued by the Minister of Defence on 20th July for seeking to grant Permanent Commission (PC) for Women officers. In the next year (2007) Lt. Colonel Seema Singh also filed petition for the same issue of granting PC.

In the year 2008, the Union Government granted PC to SSC officers in some of the departments such as in JAG and Army Education Corps. Later, Major Sandhya Yadav and others challenged this notification that PC was granted to those who appointed after the date of implementation of this notification and only in two departments.

Delhi High Court flooded with the petition seeking to grant PC to the women officers. In 12th March 2010, Delhi High Court heard all the petition and held that PC should be granted to the women who were already recruited as SSC in all departments after five years of service. In July the Army appeared before the Supreme Court challenging this judgment but Supreme Court upheld the judgment of Delhi High Court.

On 2nd September 2011, again appeal was made in Supreme Court which held the given judgment to be continued. In 2018, the court was asked to review the order of granting PC to women in the Army.

At last on 15th February 2019, the Union Government issued a notification for PC to SSC women in the Army of eight combat support services and women officers were only serve on staff appointments. 

ISSUES RAISED

• Whether the order issue by the Centre on 15th February 2019 should be implemented?
• Whether women in the Indian Army should be granted Permanent Commission (PC)?
• What are the terms and conditions determine the Women officers in the Indian Army?

CONTENTIONS

The argument advanced by the Petitioner

1. It was argued that the judgment delivered by the Delhi High Court was unable to consider the relevant provisions under section 10 and section 12 of the Army Act, 1950.
2. It was argued that the centre has to consider the risk involved in the services of the Army officers especially to the women (child care issues, maternity issues and revolt areas or in any field). As stated in case Union of India v. PK Chaudhary.
3. It was argued that the border areas have less facilities and posting of women in such areas is not sensible because of hygiene.
4. It was argued in the Written Note by the Union of India by referring once again domestic obligations, motherhood, pregnancy and differences in the physical abilities as compare to all-male units.
5. It was argued about the considerable benefits of pension to the women in the army who served continued even after fourteen year notice issued on 15th February 2019.

The argument advanced by the Respondent

1. It was argued that there is nothing new about the concern regarding to privacy, women of all ages are still recruited on such post where risk factors is high, no sanitation in force headquarters, field areas, warfare areas and so on.
2. It was argued that the Centre promotes the discriminatory policy regarding granting of PC to SSC women officers and also lower their position to that of a jawan.
3. It was argued that the Centre claimed the presence of women establish a negative effect on the unit cohesion. Women should provided equal opportunity as men, added.
4. It was argued that women served the nation same as the male counterparts do then why they are left in the lurch without pension and promotion.
5. It was argued that it about 30% of the women officers is exposed to combative environment and aware about risk factor present in war zone.

RULES

• Article 14 of the Indian Constitution (Equality before Law).
• Article 15 (1) of the Indian Constitution (Principle of non-discrimination on the basis of sex.
• Article 16 (1) of the Indian Constitution (Equality of opportunity for all the citizen of India in the matters of public employment).
• Article 33 of the Indian Constitution (Power of the Parliament to modify the right conferred by this Part in their application).
• Army Act, 1950.

FINDINGS 

On the basis of the facts and arguments advanced by petitioner and respondent, the court held the following:

1. The option shall be given to all the women officers currently recruited as SSC officers.
2. All the women officers serving as SSC shall be considered for granting PCs regardless whether any of them crossed fourteen years or twenty years of service.
3. The considerable benefits shall be granted to the SSC women officers who are in service and even after as pensionable service.
4. The specialization choice shall be available to all the women officers during they are opting for the grant in PCs alike male counterparts.
5. The judgment delivered by the Delhi High Court is affirmed.
6. The term “in various staff appointments only” and “on staff appointment only” mentioned under para 5 and para 6 of the order issued on 15th February 2019 respectively shall not be enforced with respected to PC of women.

REASONING

The Supreme Court headed by Justice D.Y Chandrachud challenged the issue presented by the Union government and stated that they have ingrained in stereotypical assumptions that domestic works are the responsibilities of women only and added that such order against a specific gender clearly violates their fundamental right guaranteed under Article 14 of the Indian Constitution. And not granting PC to the women officers clearly violated their Fundamental Rights provided under Article 14, 15 and 16. Justice Chandrachud said although Article 33 of the Indian Constitution permits restriction on Fundamental Right in armed forces and it is mentioned that it could be restricted up to the extent that it is essential to maintain the adequate discharge of duty and discipline. There are certain conditions laid down granting PCs to SSC women officers. Justice Chandrachud also said that “Constitution is itself feminist, as the main function off feminism is to distort social Hierarchies and so is of constitution.”

CRITICAL ANALYSIS

Indian Court has always come forth to protect the rights of women and this judgment again proven that our court stands up for the right of the women which were not granted to them. It is genuinely a progressive judgment and literally safeguards its place as a guardian of the constitution.

The fundamental rights guaranteed under Indian Constitution would granted to us if not followed by the quotes in letter and spirit. There were number of cases where the courts have extended fundamental right such as in Chairman Railway Board and others v. Chandrima Das (Mrs) and others and C.B. Muthamma v. Union of India to Anuj Garg v. Hotel Association of India. 

CONCLUSION

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces when the true picture of their service conditions tells a different story”. Supreme Court on Indian’s Army failure to enact the judgment which allows PC for women officers. This judgment undoubtedly appreciatable and commendable but it still left us with a question whether do we the holder of right. There is a need to ask our right from other institutions.

Article 39 of the Indian Constitution empowers the state to work for securing equality for men and women and a right to proper means of livelihood. This whole issue arises from the stereotypical idea against women that they are physically weaker than men, not enough efficient to fight and are not capable to face such situations. This mindset should be needed to change because it violates firstly their rights and also break them mentally and emotionally.