Civil Appeal Nos: 9367-9369 of 2011
Hon,ble Supreme Court of India
Bench: Dr. DY Chandrachud (CJI), and Justice Hemant Gupta
FACTS:
In 1992, the Central Government issued a notification that permitted females to be appointed to certain selective cadres of the army, such as Short Service Commissions (SSC), Regiment of Artillery, Intelligence Corps, Army Service Corps, and so on. Until the Central Government issued this notification, female officers were recruited in the army only to be limited in the medical, dental, and military nursing spheres. The term Short Service Commission means that the female officers were to be recruited only temporarily for a short tenure.
But their male counterparts recruited through the SSC had the added option of seeking Permanent Commission (PC) which provides permanent employment in the army till retirement to male officers (only). As a result, considering it to be a very discriminatory and sexist arrangement, the women officers recruited through SSC in the army started filing petitions seeking equal rights to obtain PC after the completion of their service tenure. Thus answering to their demands, Babita Puniya, a practicing advocate, filed a writ petition, in the form of a Public Interest Litigation (PIL) at the Delhi High Court and all the other separate petitions filed by the women officers in the army, navy, and air force were clubbed into one petition along with Babita Puniya’s petition. In the later months of the year 2005, The Ministry of Defence issued another notification which decided to extend the validity of the service tenure for women officers in the Indian Army which was followed by yet another notification issued in 2006, which extended the service tenure for women officers in Indian Army for a maximum of 14 years.
Major Leena Gaurav and Lt. Col. Seema Singh filed petitions in 2006 and 2007 respectively, challenging the working conditions imposed by the circulars, as well as seeking a grant of Permanent Commission for women officers. Finally, in 2008 the Central Government granted a Permanent Commission to women officers serving in the army but only in selected departments and similar posts in the Indian Air Force.
But petitions regarding the conditions laid down in circulars issued in 2006 and 2008 continued to be challenged through the filing of numerous petitions. As a result, the Delhi High Court in 2010 clubbed all the petitions together and ruled that PC should be granted to all the women officers recruited through SSC in the army who have served for more than 5 years and had applied for PC but were not granted the same. This judgement was challenged by the Army and they applied to the Supreme Court which nevertheless, upheld the judgement given by Delhi High Court and also mandated that the separate orders issued by the Supreme Court also be followed.
Thus in 2018, the Centre notified the Supreme Court that it has considered granting PC to women officers in the army following which, another notification was issued on the part of the Ministry of Defence in February 2019, stating that a Permanent Commission was given to women officers serving in 8 different service branches of the army but for “various staff appointments only”.
ISSUES RAISED:
The eminent issues which knocked on the doors of the Supreme Court were as follows:
- Was a Permanent Commission to be granted to women officers in the Indian Army?
- Whether the guidelines in the notification dated 15th February 2019 issued by the Government of India be implemented?
- What are the contemporary service conditions imposed by the Indian Army on its women officers?
CONTENTIONS:
Petitioner’s Contentions:
1. The Indian Army rebutted the decision of the Delhi High Court of grantting permanent commissions to its women cadres. They said that the high court did not pay adequate attention to the existing provisions under Sections 10 and 12 of the Army Act, 1950. They also added to their arguments that Article 33 of the Constitution of India was violated and they cited the case of Union of India v. P.K Chaudhary to strengthen their claims.
2. It was also argued that women are incapable of adapting to the adverse conditions in the army, provided that it was a biologically proven fact that women are inferior to men in the parameter of physical capabilities and such physiological differences have to be kept in mind.
3. In extreme border postings, there is a lack of hygiene and sanitary conditions, which is unfavourable for a woman.
4. While posting women officers a lot of things have to be kept in mind such as spouse postings, maternity leaves, childcare facilities and so on and such conditions can compromise the duties of male officers and create structural problems.
5. The granting of Permanent Commission to officers recruited through SSC can create problems in the structural arrangement of the army and also argued that through the notification issued on 15th February 2019, women officers already had access to pensionable benefits if they had served for 14 years or more and also stated that no discrimination was imposed whilst selection and training procedures.
Respondent’s Contentions:
- The main argument of the women officers was based on the fact that the orders given by the Delhi High Court during its ruling were not implemented as no steps were taken to fulfil the directions given by the high court.
- It was argued that the concern put forward by the Army as to the difficulty of selecting women for dangerous or remote areas is not a new issue as already thought the preceding years over almost 30 per cent of women officers in the army are already deployed in such areas and thus there should be no difficulty as to be able to tolerate the adverse conditions of lifestyle alongside the male officers in the army.
- The policy laid down by the Central Government lowers the status of women to that of a jawan.
- Article 33 of the Constitution of India, lays down the limitations of the scope of ‘judicial review’ which was argued by the Army to have not been followed during judgement delivery by the Delhi High Court. The respondents however argued that Article 33 was to be applied only in cases involving issues of maintenance of discipline or discharge of officers, so it should not be applied to anything else.
- The next argument was based on violation of Article 14 of the Constitution of India which protects the fundamental right to equality. The light was shed on the discrimination prevailing in the armed forces, where both men and women are recruited through the SSC (Short Service Commission) undergoing the same training and recruitment procedures, but only male officers have the option to opt for permanent commission, unlike women counterparts. Thus the women officers argued that they should also be treated with parity and on equal footing as their male counterparts in the army.
RATIONALE:
The Supreme Court verdict was given by a division bench that included CJI D.Y. Chandrachud and Justice Hemant Kumar, in favour of the women officers, granted them the eligibility for permanent commission. It was stated that a clear violation of Article 14 of the Constitution (right to equality) was evident and Article 33 was not applicable in this case as the power of the parliament to restrict the fundamental rights of army officials ,can only be invoked in cases concerning issues of maintaining discipline or performance of duties.
Some key points of the rationale are listed below:
- Discontinuation of discriminatory terms: Certain terms included in the notifications regarding appointments of specific staff members, were rendered ineffective by the Supreme Court.
- Gender Equality: The tenure of service, whether it is (14 or 20 years) all women officers were made eligible to apply for and also recieve permanent commission. All incentives such as salary, and pension promotions should be equally available to women. SSC female officers should also enjoy the benefits of being in service until pensionable age.
- Urgency to address the issues raised: Within at most three months, of the Supreme Court’s pronouncement of its decision, the army will take all required necessary steps to implement the orders.
DEFECTS OF LAW:
Section 12 of The Army Act, 1950 clearly states that no female shall be eligible for enrolment or employment, in the regular army subject to very specific and limited number of exceptions. This is a very sexist arrangement that promotes gender discrimination faced by women in the workplace, which is already a very deep-rooted indigenous aspect of Indian Society. The provision in Section 12 in itself violates the fundamental constitutional principles of equality enshrined in Articles 14 (Right to Equality), Article 15 (which protects the citizens from any discriminatory measures taken by the state against them on the grounds of caste, sex, religion race or place of birth) and Article 16 (which promotes equal employment opportunities in governmental institutions for both men and women). Restricting women from serving in the army perpetuates gender stereotypes and denies women equal opportunities in the armed forces as well as upholds the fact that women are physiologically different and incapable and inferior compared to men. This is a very prominent statutory defect that enshrines a provision that turns the law meant to protect us against us.
INFERENCE:
The Supreme Court delivered a very admirable and honourable judgement which upheld the principle of gender equality eminently in the 21st century. The conditions imposed by the Supreme Court on the notice of 15th February 2019, and the directives issued against the army, clearly do away with any inequalities whatsoever based on gender. Speaking ill about or even doubting the capabilities of their very own women officers invites insult and shame upon an institution as noble as the Indian Army. The judgement is a huge step to mitigate gender injustice still lurking amongst us even after 77 years of independence. It was questioned by the court that if women have repeatedly proved themselves the best in fields like sports, music, athletics, art, dance and so on even after being physiologically different from their male counterparts in those fields then why are they being made subjects to discrimination in one of the most significant employable areas? The issue of women being treated with discrimination at workplaces was also taken up in the case of Air India v. Nergesh Meezra where an air hostess was terminated from her job because of issues such as marriage and pregnancy.
This highlights the deep-rooted patriarchal norms in Indian Society. Still, however, the irony is that during the training or recruitment procedures issues of maternity leave, pregnancy, sanitation, or hygiene were not taken into consideration while granting permanent commissions to the daughters of the country who eagerly want to serve their nation it was denied on their faces giving them excuses of physical incapability and biological problems. The CJI very rightly mocked the system by asking why domestic issues are not considered in the case of male officers provided that they even have paternal responsibilities and duties towards their wives or families.
The Indian Constitution is feminist so nobody has the authority to defy the provisions contained in Article 14(right to equality), Article 15 (prohibition of gender discrimination) and Article 16 (provision for equal opportunities in employment). Article 33 of the Constitution is only applicable where the questions of maintaining discipline or proper discharge of duties are involved. Though the appeal made by the army was concerned only with the issues persisting in the Indian Army, the Supreme Court ruled that its orders and directions were equally applicable to all women officers in the Air Force as well as the Navy. Such backdated mentalities, especially in the army cannot be encouraged in the 21st century, because patriotism is a feeling that arises irrespective of gender.
Name: Arno Dasgupta
College: Department of Law Calcutta University