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Women in Indian Army: Wading through Patriarchy and Prejudices

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This article is written by Simran Singh Rathi, a student of Army Institute of  Law, Mohali

Prolegomenon

Gender Equality in the simplest of its meaning means when equal rights and opportunities are provided to all in every aspect of life be it; social, economic or educational without any sort of discrimination and, regardless of their gender. We are aware of the prejudices, inequalities and discrimination faced by women in history and the scenario in the 21st century is no different or worth applauding. The utopian goal of achieving gender equality seems a far-fetched dream around the world and India is no exception. Since time immemorial, gender equality is one phenomenon in Indian society, which however hard we try and pledge to achieve, we are still not close to realizing it to the core. The Indian Army, a battle-hardened and robust organization that stands firm in safeguarding our borders and motherland against all odds, is held in veneration by every citizen of our country but a chivalrous and gallant organization like the Army itself is no bereft of the deep-rooted patriarchal mindsets and gender stereotypes that still haunts it and this is when a sad state of affairs emanate. The notions of women being an inferior gender, lacking physical prowess and being too emotional to lead are some of the shocking remarks that women even in the Army have been enduring. The antipathy of the senior male officers, who are the product of their times; where in early days women were expected to get married and tend their families; is put into question as to how can women with similar strengths and capabilities of their male counterparts not lead the troops or does the whole argument stand baseless and just threatens their egos, which the patriarchy in the society has nurtured them with. The Preamble to our Constitution proudly declares that India as a sovereign state provides to its citizens justice, liberty, equality and fraternity but it is fairly evident that we have not been able to uphold these values in its true sense.

Historical Overview

It was during the British reign when in 1888, the Indian Military Nursing Service was formed which laid the bedrock for women in the Armed Forces and on its foundation later on, the role of women in the forces was expanded. The Indian Army nurses played a crucial role in ameliorating the suffering of the soldiers in World War I. Further, with the expansion of inclusion of women in the Army, the Women’s Auxiliary Corps was formed where the women served in non-combat roles such as administration, communication etc. During World War II, women actively participated and served their non-combatant roles with distinction. For the first time in India, it was in the Azad Hind Fauj where women were in active combat roles as a part of the women’s regiment named after Rani of Jhansi.

After independence, the year marking a milestone in taking a step towards gender equality was 1958 when on 1st November for the first-time regular commissions were awarded to women by the Army Medical Corps. Then in the year 1992, the first batch of women officers was inducted and commissioned in the Army through the Women Special Entry Scheme. As per the notification of the Central Government under Section 12 of the Indian Army Act, 1950 on 30th January 1992, women were made eligible to get commissioned as an officer in five branches and cadres of the Indian Army. The tenure fixed for women was for a period of five years and there was no allowance of pension or concessional benefits thereafter. In December 1992, an addition of five more branches was made excluding the combat arms and after being in force for five years, the time limitation was dropped. In 2005, the notification underwent four amendments wherein the validity of the appointment of women officers was extended to 10 years which could further be extended to 14 years and they along with the male officers were brought under the same scheme known as the Short Service Commission.

Scenario across the world

The world has come a long way today from defining and abiding by the rigid gender roles to now women standing shoulder to shoulder to their male counterparts and not only that but outshining them and breaking down the shackles of stereotypes. At present, the majority of the nations induct women in their respective Armed Forces in one form or the other while countries like Libya, The Gambia, Norway and Sweden have conscripted men and women on the same official pre-requisite conditions. In 2016, Unites States lifted the Pentagon’s ban on allowing women to serve on the frontline yet they are not deployed in direct combat. In 2018, UK allowed the women officers to serve in the elite special forces. Few of the countries like Canada, Denmark, Norway and Israel are the ones who’ve been inducting women to serve in a full combat capacity, ensuring total inclusion. Although many countries allow women to be an active part of the forces still the problems of gender parity are evident in foreign armies as well.

Unending legal battles

The women in the Army have been fighting the battle for parity for long and the first step to ensure the same was taken as early as in the year 2003 after 11 years of the notification that enrolled women as officers in the Army. A PIL was filed then by practicing advocate Babita Puniya, to grant permanent commission to women officers and shun the prevalent gender inequalities. It was followed by few women officers like Major Leena Gaurav and Lt Col Seema Singh who approached the Court seeking a permanent commission in the year 2006 and 2007 respectively.

In 2008, women were finally granted permanent commission prospectively but that too only in two departments which was the Army Education Corps and the Judge Advocate General which was challenged by Maj Sandhya Yadav and others owing to the disparity in granting the permanent commission to the officers of specific Corps. In 2010, Delhi High Court took a step ahead and heard together all the pending petitions regarding this issue and held that the women should be offered permanent commission after 5 years of service along with the concessional benefits which too was challenged before the Hon’ble Supreme Court but was upheld.

In 2019, an order was issued by the Centre wherein permanent commission was granted to women in other eight services which were Signals, Engineers, Army Air Defence, Mechanical Engineers, Electronics and Army Aviation and had to be applied prospectively. 

In 2020, the long and arduous battle for permanent commission for women in Army resulted in victory when the Hon’ble Supreme Court in its landmark verdict in the case of Secretary, Ministry of Defence v. Babita Puniya & Ors. ruled that all women officers commissioned on the SCC basis were eligible for permanent commission and command posts in the non-combat units. It was held that due to the inherent stereotypes and biases, women should not be bereft of equality in a reverent organization like Army. 

Although this judgement was welcomed with opened arms yet, in 2021 the case of Lt Col Nitisha v. Union of India argued over the pertinent issues where even though the abovementioned judgement granted women permanent commission yet the problems of discrimination still persisted owing to the unjust general instructions to be met by the women officers for permanent commission.

Equality still not a reality

In the Army, for the women officers, it isn’t the enemies who act as a detrimental obstruction rather it is the deep-rooted patriarchal mindsets that pull women down and withhold them howbeit, they have carved out a niche for themselves and are now moving not only together but ahead of their male counterparts which have been duly upheld by the Hon’ble Supreme Court in the year 2020 in the case of Secretary, Ministry of Defence v. Babita Puniya & Ors as it was held that leaving women bereft of permanent commission is a sheer violation of Article 14 and Article 16(1) of the Constitution that provides every citizen with the right to equality and the equal opportunities to be available to all citizens in matters of public employment respectively. It was also held that a complete ban on assuming command roles cannot be accepted since it is again violative of the right to equality. The judgement was given in favour of equality which will without any doubt provide women already serving in the Army and those aspiring to join, an impetus whereby they can realize their best selves and boost their morale. The abhorrence shown by courts towards gender stereotypes and prejudices gave a hope that it would also act as an anchor in steering the future course of things to ensure complete gender parity in the Indian Army.

But all hopes went to vain and the taste of victory couldn’t last long for women officers in the Army as just after a year of this celebrated and much-applauded judgement, in 2021, the criteria for evaluation for women officers to get the permanent commission set by Army was termed as “irrational” and “arbitrary” as the court observed that in no way can “perverse equality” exist in the Army in the case of Lt Col Nitisha v. Union of India. The criteria in itself reflected the gender-discrimination where a 45-year-old women officer was required to meet similar standards in terms of medical fitness to that of a 25-year-old male officer which was blatantly prejudicial and demonstrated the patriarchal mentality, where Army was still being considered as an all-men club. The court considered it a farce to apply laws equally to unequal parties when they are well-established to cater to the male standpoint.

Conclusion

The journey foe women officers in the Indian Army so far has been a bumpy ride full of ups and downs but they have come a long way too as we moved forward with the advent of the demand for equality in form of the feminist movement, we saw women being an active part of the Independence movements, Azad Hind Fauj and World Wars, after which the need for recognition of their selfless service rose as women had proved their mettle. Yet it took India forty-five years after Independence to induct women officers in the Army and the struggles for them since then have not waned as they still are in pursuit of parity which must conclude in meeting the ends of equality. To achieve equality in its true sense we require a paradigm shift where we have to do away with all the ingrained patriarchy and chauvinism, unfounded biases and inbuilt stereotypical notions and only then will we be able to savour the quintessence of equality and realize the dream of men and women being placed at the same pedestal in the society without any discrimination.

https://lawmentor.in/2022/03/19/women-in-indian-army-wading-through-patriarchy-and-prejudices/

Case Summary

THE SECRETARY, MINISTRY OF DEFENCE v. BABITA PUNIYA & Ors (2020 SCC ONLINE 200)

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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.