Propped-Up Warrioress: Supreme Court grants Permanent Commission for Women in Indian Army

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Aviral Chandra and Ujeer *

“A woman is like a teabag – you never know how strong she is until she gets in hot water” – Eleanor Roosevelt

The honorable Supreme Court of India in a landmark judgement of The Secretary, Ministry of Defence Versus Babita Puniya and others[1]  led towards gender equality and gender parity in Indian army paving the way for the Permanent Commission and most importantly command posting for all women officers. This judgement paved the way for all women officers to be at par with male officers in terms of promotions, ranks, benefits, pensions and command positions.

FACTS:
Many writ petitions were filed in Delhi High Court in 2003 and 2006 seeking equality of Opportunity for Women in the Indian armed forces. The primary demand was to form a Permanent Commission for women in the Indian army. Women in the military have limited participation.

Section 12 of the Army act, 1950[2] contains provisions making women ineligible for any enrollment in the Indian army. However, the Central government on 30th January 1992 issued a notification making women eligible for some specific posts in the army. This notification was further extended another notification on 12th December 1996 and the clause containing five years deleted.

Again on 28 October 2005, the Ministry of Defense issued a notification and made several amendments in the notification dated 15 February 1992 and they increased the tenure of women officers inducted under the earlier notifications by five years from 1997 and also provided that the tenure of WSES officers would be extended to fourteen years. Therefore the initial periods of WSES were replaced by the Short Service Commission (S.C.C.) of women with a period of fourteen years. During this situation, a Public Interest Litigation (P.I.L.) was filed in Delhi High Court for the formation of a Permanent Commission in 2003.

Also, on 20 July 2006, the President sanctioned two circulars, delivering the permission of S.C.C.s both on the technical and non-technical side to women officers. On September 26, 2008, the Ministry of Defense issued a circular granting P.C.s prospectively to S.S.C. women officers in the Judge Advocate General (J.A.G.) and Army Education Corps (A.E.C.) department. However, Major Sandhya Yadav and others challenged this circular in the Delhi High Court for the reason that the circular grants P.C.s only to certain specific cadres. The counsel on behalf of the Major argued that the permanent commission which is granted by the Ministry of Defense was only in particular streams. That specific is also a staff stream and not a combat stream.

 Delhi High Court Ruling-
The Delhi High Court clubbed all the petitions, i.e. 2003, 2006 and 2008 together and granted the permission for Short Service Commission women officers to establish a permanent commission in 2010. Provided that the judgment was only for those women officers in service:

i.  Those who had instituted P.I.L. before the High Court.

ii.  Those who had retired during the proceedings continued in the High Court.

iii.  Those who had reached the age of retirement.

Challenging of the Delhi High Court Judgment-
The Government challenged the High Court Judgment in the Supreme Court. However, while the proceedings had been taking place in the Supreme Court, the High Court order didn’t stay, the Government snubbed the order of the High Court and didn’t implement it.

Submission of the Petitioners:
The Government passed an order in February 2019 to establish Permanent Commission for Short Service Commission Women in Eight streams of the army, added to J.A.G. and A.E.C. But the Government relegated women only to the staff unit, not in the command unit.

Moreover, the Government makes the proposal before the Supreme Court which follows-

i.   Those women officers who completed 14 years of service would be eligible for P.C.

ii.  Women officers above fourteen years of service would allow extending its service for more than six years, i.e. Twenty years of service with Pension Benefit, but excluded from P.C.

iii.  Women officers above 20 years of service would be entitled to Pensionary benefits immediately.

Further, before the divisional bench headed by Justice D.Y. Chandrachud and Ajay Rastogi, the government pointed out significant issues:

1.  Technical Issue: The women officer who recruited through S.S.C. would not be permitted for P.C. because of the training and course for P.C. officers as different from S.S.C. officers. In contrast to male counterparts, they were trained to be eligible for P.C. after ten years of service.

2.  Psychological Issue: The Government argued that the male soldiers are not mentally prepared to accept the women officer as a commander or as a superior officer.

3.  Physiological Issue: The Government feebly argued that the women are unsuitable for command posts, which may involve combat, because of the physiological difference with men.

4.  Domestic Obligation: Another gender-based argument by the Government that the women will have to face enormous challenges because:

i. Non-appearance of women due to pregnancy.

ii. Motherhood.

iii. Domestic obligation towards their children and families.

Submission of the Respondent:

The Respondent draws the attention of the court on the total strength and shortage of officers in the army. The full strength of army officers in the Indian army is 50,266 out of which 40,825(including 1,653 women officers) are occupied, and 9441 seats are vacant. Besides, in this occupied seats, 157 male officers are re-employed after their retirement.

Further pointing out Women’s officers’ structure in the Indian army. Women are presently holding 1653 out of which 77 women are above 20 years of age, 255 women are between 14-20 years of age, and 332 women are still undecided. While 332 women are still uncertain and 157 male officers are re-employed after there retirement. Verily, It shows how pathetic and deplorable conditions of women in the army.

Now considering the arguments of the petitioner, the Respondent submitted the following explanations:

1.  On-field scenario: The women officers are regarded as an effective workforce in the army until 14 years of service. They have similar duties as male officers and morever, they work shoulder to shoulder with male officers. So, The allegation by the govt for Physiological issues lacks substance.

2.  Psychological Factor: The Petitioner submitted that the male soldiers are not mentally prepared to accept women officers as superior officers or commanders. So, It is a time that the Indian army has to accept women as their colleagues.

3. National Security: There is a risk of capture the women by the enemy and taken prisoner of war. Respondent submitted that the women officers are still posted to sensitive and tense areas, although they are not commissioned into combat streams. So alleging that they might be capture by enemies is a deeply flawed argument.

The Respondent underlined the discriminations faced by the S.S.C. women officers:

1.      The Respondent pointed out the discriminations faced by the women in the army:

2.      A dearth of opportunities in professional growth

3.      No job security because of the uncertain status of the cadre.

4.      No fair promotional policy and pensionary benefits.

 The Final Verdict
The Supreme Court considering arguments of both sides allowed women officers following concessions:

1.  Women officers who are serving as S.S.C. are now permitted to opt for P.C.

2.  Women officers who are serving or completed their 14 years of service, can now extend to 20 years and entitled to a pension after their retirement.

3.  Women officers who served 20 years or more in the service are entitled to the P.C. with pension benefits.

4.  Non-Fighting command unit is now open for women officers, and they can achieve to the colonial rank.

5.  The above orders apply to all women in all services of the army.

What doesn’t allow:

1.  Women Officers cannot serve in combat arms – the judgment leaves it to the discretion of the government.

2.  Only in Non- Combat arms, command positions are allowed for women officers.

3.  There are no separate reserved seats for the P.C. or command position for the women. The judgment ensures equal treatment in the army.

So women officers are now can serve in Regiment and Artillery, Corps of Signal, Army Service Corps, Army Ordnance Corps, Corps of Electrical Engineering, Crops of Mechanical Engineering, Intelligence Corps, Army Education Corps, and Judge Advocate General.

Furthermore, the Supreme Court Stated that the arguments of the petitioner are ‘based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminates against women’. Perhaps, strongly urges to change the mindsets which bring equality in the army.

 
The Way Ahead – ‘WOMEN IN COMBAT ZONES’

Thus, the Supreme Court has decided that the Permanent Commission must be formed for all the women officers irrespective of any distinction in the service periods. However, the Court has still not considered the formation of P.C.s in combat areas for women. The Court believes that the formation of P.C.s for women is ‘a policy matter’.

The Supreme Court commented that it is a ‘policy matter’ and thus leaving it on the Government of India to decide on this. The Government should take steps in this matter and should learn from other countries like the U.K., Australia, and the U.S.A. The U.K. Government had already taken steps to make women eligible for combat roles in 2016. The Australian Government has also allowed women officers in all combat and non-combat zones.

‘BUSTING SEX-STEREOTYPES’

In this judgment, the Supreme Court has also quashed all the ‘sex-stereotypes’ related to the role of women in all the fields in which men think women cannot stand a chance due to the physical strength. The Court believed that not giving P.C.s to women just on the basis that they can get pregnant or for their motherhood are nothing else but ‘sex-stereotypes’.

The Court also quashed the arguments which were based on the physical strength of women and held them constitutionally invalid for denying equal opportunity to women.

In the concluding lines, we would like to add that Women must be given an equal opportunity like men in the army. 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’. Therefore, the Permanent Commission for women in combat zones should also be made by the Government of India.

[1] Civil Appeal Nos 9367-9369 of 2011
[2] Section 12 in The Army Act, 1950: Ineligibility of females for enrolment or employment.

*Authors:
Aviral Chandra, 2nd-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow
Ujeer, 2nd-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow

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