FACTS
Gender discrimination is still a big problem in India, where women are often treated as less important than men. This case directly relates to that issue, as it deals with the unequal treatment of women in the Indian Army. The matter began in 2003, when Babita Puniya, the woman involved in this case, filed a Public Interest Litigation (PIL) in the Delhi High Court. She asked the court to give women serving in the army under Short Service Commission (SSC) the same opportunity as men to get Permanent Commission (PC), which means a long-term career in the army with retirement benefits.
Women were first allowed to join the Indian Army in 1992 under something called the WSES (Women Special Entry Scheme), but only for five years. In 1996, this time period was extended to 10 years, and in 2005, it was extended again to 14 years. At that point, the Ministry of Defence decided to stop the WSES scheme and began appointing women under the Short Service Commission instead. However, even though women served for up to 14 years, they were not given Permanent Commission, meaning they had no job security, pension, or retirement benefits, despite their dedication and service.
While Babita Puniya’s case was still going on, in 2006, the Indian Government issued a new order. It said that women could be appointed as SSC officers in both technical and non-technical roles in the army, with the approval of the President of India. The training for women was increased from 23 weeks to 49 weeks to match that of male officers. Women were also given the option to leave the army after completing five years of service. However, this 2006 order was challenged by Major Leena Gupta, who argued in court that instead of offering temporary jobs through SSC, women should be given Permanent Commission.[1]
Then in 2008, the government released another order saying that women SSC officers could be granted Permanent Commission but only in two departments of the army: the Judge Advocate General (JAG) and the Army Education Corps (AEC). This led to another legal challenge, this time by Major Sandhya Yadav, who felt it was unfair to give Permanent Commission to women in only two departments while leaving out the others.
ISSUES RAISED
After the Delhi High Court gave its decision in 2010, advocate Babita Puniya and others filed a case against the Ministry of Defence. They claimed that the Ministry had not followed the court’s orders. In response, the Solicitor General of India directed the Government to give Permanent Commission (a long-term job) to officers from the Short Service Commission working in the Judge Advocate General and Army Education Corps within two months. The case was then put on hold. After this, the Ministry of Defence took the matter to the Supreme Court of India to challenge the petition. The main issues discussed in this case are:
- Whether or not the women in the Indian army granted permanent commission?
- Whether or not the implementation of government guidelines dated 15th February 2019 be made?
- The terms and conditions under which the female officers are governed?
CONTENTIONS
CONTENTIONS OF PETITIONERS
- The Union of India argued that the Delhi High Court didn’t properly consider Sections 10 and 12 of the Indian Army Act,[2] and the instructions issued by the Government of India before deciding to grant Permanent Commission (PC) to women officers.
- They said that many border areas lack proper facilities like hygiene and basic living conditions. Because of this, they believed it was not suitable to post women officers in front-line combat roles.
- They claimed that giving Permanent Commission to women officers could disturb the structure and functioning of the Army.
- The Union also raised concerns about pensions and other benefits that were granted to Short Service Commission (SSC) women officers, as ordered by the lower court and the Government of India.
- Another point raised was that male officers’ rights and dues were being affected because women officers often take long leaves for important personal reasons, like maternity leave and child care leave, which creates management issues in the Army.
CONTENTIONS OF RESPONDENTS
- They said that even though the Delhi High Court had ordered benefits and recognition for women officers, they still had not received them.
- Responding to the claim that the presence of women in the Army would create problems, they argued that women deserve equal opportunities just like men.
- They pointed out that both men and women undergo the same tough training in the Army, and after completing that, women are just as capable and deserving of promotions and Permanent Commission.
- They noted that retired male officers at the Colonel level are being recalled to fill vacancies, while capable women officers are being ignored for the same roles. At present, women make up only about 4% of the Indian Army.
- Around 30% of women officers are already posted in challenging and sensitive areas that don’t have proper facilities. So, working in such conditions isn’t something new for them.
RATIONALE
After listening to both sides of the case, Supreme Court Judge Dr. Dhananjaya Y. Chandrachud gave important decisions on 17th February 2020 regarding the notice issued by the Ministry of Defence in February 2019:
- All women officers in the Indian Army who are currently serving under Short Service Commission (SSC), no matter how many years they have worked, will now be allowed to get a Permanent Commission (PC).
- If a woman officer under SSC has completed more than 14 years of service and does not wish to take a Permanent Commission, she will still have the option to serve until she completes 20 years. After that, she will be eligible to get a pension.
- Women officers who have already completed more than 20 years of service but did not get a Permanent Commission earlier will now retire but will receive full pension benefits.
- Female officers under SSC must receive the same benefits as male officers—this includes promotions, career growth, and financial benefits—without any kind of unfair treatment or discrimination.
The Court also instructed the Ministry of Defence to follow and implement these orders within three months from the date the decision was made.
DEFECTS OF LAW
Even though the judgment has many positives, there are still some important problems that need to be looked at closely:
- Limited scope of combat roles:
The court did not say that women can fully join combat units like Infantry, Armour, or Artillery. These roles are still mostly for men. The court said this is allowed under Article 33[3], but it may keep the military unequal for women.[4]
- Implementation challenges:
Although the court told the military to give permanent commissions (PCs) to women, there might still be delays or resistance. This could be due to bias, lack of proper facilities (like toilets, housing, or family support systems), or just a slow response from the system. The court didn’t explain how to make sure these changes actually happen properly.[5]
- Dependent on individual cases:
The court removed the ban on women getting command roles, but it still left the final decision to individual officers in power. This means it’s not a guaranteed right for all women. Personal judgments could hide deeper, unfair treatment in the system.
- Exclusion of retired/previous women:
Only women who were part of the legal cases or were still in service during the hearings (in Delhi High Court or Supreme Court) got the benefit. Other women who had already left or didn’t go to court were not included.
- Lack of inclusivity in family context:
The court mentioned that women often have family duties, but it didn’t ask the military to provide proper help, like maternity leave, childcare, or job transfers for spouses. So, women officers are still expected to manage everything on their own.
- Retrospective Application Gaps:
Even though the court said the changes would apply to the past, only some officers were included. Women who had already retired before the case or didn’t file petitions were left out, which may be unfair to them.
INFERENCE
We already know that in the past, women in our country were considered less important than men and had to fight hard to get their rights. Sadly, even today, gender-based discrimination still exists, and Indian women are still fighting against it.
Before 1992, women were not allowed to join the armed forces at all. But over time, they were allowed to join as Short Service Commission (SSC) officers in non-combat roles. At first, they could only serve for five years. Later, this was increased to 10 years and then to 14 years. However, they were not treated the same as male officers. Women received fewer benefits, fewer promotions, and fewer chances to grow in their careers.
The recent decision by the Supreme Court supports the idea that everyone should be treated equally and that no one should face discrimination based on gender. This judgment allows women officers to receive the same benefits and opportunities as male officers. It is an important step toward building a fair and equal country for all its citizens. However, the judgment’s impact depends on effective implementation, which has faced challenges, as seen in subsequent cases addressing indirect discrimination.
Even though women are still not allowed in all branches of the Indian Army and are not yet given combat roles, this judgment is a positive step toward that goal. Hopefully, we will reach a time soon when women are fully included and treated equally in every part of the army.
Fatema Topiwala
University of Mumbai, Thane Sub-Campus
[1] Leena Gupta v. Union of India, 2012 SCC OnLine CAT 3059.
[2] The Army Act, 1950, § 10 and 12, No. 46, Acts of Parliament, 1950 (India)
[3] INDIA CONST. art. 33
[4] Devanshi Sharma, The Secretary, Ministry of Defence v/s Babita Puniya
[5] Gauri Kashyap, SCO Explains: Indirect Discrimination in the Army (30th Apr 2021)