judge, hammer, judgement

THE SECRETARY, MINISTRY OF DEFENCE V. BABITA PUNIYA AND ORS

FACTS

‘Gender discrimination’ is a major issue in India due to which Indian women are treated inferior to the men. The present case has a strong connection with the problem of ‘Gender discrimination’ faced by women in India. The initiation of the present case dates back to 2003 when Babita Puniya, the respondent in the present case filed a Public Interest Litigation (PIL) before the Delhi High Court seeking the grant of Permanent Commission (PC) to the Short Service Commission (SSC) women officers in the Indian army.

It was in 1992 for the first time that women were appointed in the Indian army as W.S.E.S. officers for a tenure of five years. Then in 1996, this tenure was increased to 10 years. Further in 2005, this tenure was increased by four years and subsequently became 14 years for women to serve as officers in the Indian army. Along with this, the Ministry of Defense of India decided to stop W.S.E.S. appointments and decided to induct women as Short Service Commission officers afterward. But the issue was that these Short Service Commission officers were not granted Permanent Commission at all and no pensionary or retirement benefits were given to them even after their hard work and dedication for 14 years in the Armed forces.

While the case filed by Babita Puniya in 2003 was in its course of hearing, a notification was issued by the Government of India in 2006 which required the sanction of the President of India regarding the appointment of women as Short Service Commission officers in both technical and non-technical branches of the Indian army. The training period of the women was also increased from earlier 23 weeks to 49 weeks at par with the male Short Service Commission officer. They were also provided the choice to leave the service after five years of completion if they wanted to. But in 2006, the restrictions and conditions imposed by the circular of the government were challenged by Major Leena Gupta[2] in the court and she demanded the grant of Permanent Commission to the women in the Indian army instead of appointing them for Short Service Commission.

Another circular was passed by the Government of India in 2008 with the provision to grant Permanent Commission to Short Service Commission women officers in two departments of the Indian army that is Judge Advocate General (JAG) and Army Education Corps (AEC) Department. Subsequently, a petition was filed against this circular by Major Sandhya Yadav as it provided Permanent Commission to women in just two departments of the Indian army and not in the rest.

ISSUES RAISED

After the 2010 Delhi High Court judgement, a petition was initiated by advocate Babita Puniya and others against the ministry of defense that they had failed to follow the orders of the court. Subsequently, the Solicitor General of India ordered the Government of India to grant Permanent Commission to the Short Service Commission officers in Judge Advocate General and Army Education Corps Department within two months and the case was stayed. After this, the Ministry of Defense started the court proceedings against the petitioners in the Supreme Court of India. The major issues raised in the present case are as follows:

  1. Whether the issue of not granting Permanent Commission to the Short Service Commission women officers as the male officers infringe their fundamental rights?
  2. Whether all Short Service Commission women officers be considered for Permanent Commission in the Indian Army?
  3. Whether women be considered for combat roles as well in the Indian army or just for staff appointments?

CONTENTIONS

CONTENTIONS OF PETITIONERS

The Petitioners argued that women officers shall be granted Permanent Commission only in the specific branches of the Indian army as specified by the Government of India in their February 2019 circular because it is a matter of ‘policy consideration’ of the Ministry of defence. Further, women are also not considered suitable for the posts of the Indian army because of the physiological factors associated with them. They expressed their views that the permanent Commission shall be granted to the women officers with less than 14 years of service tenure only as this would be in the organizational interest. They also contended that not granting women permanent Commission and other benefits at par with male officers does not violate their fundamental rights as this provision comes under the exception given in Article 33 of the Indian constitution.

ISSUE 1

The Army Act, 1950 has a provision that women are not eligible for the posts of the Indian army except in the specific departments which the Ministry of defence deems fit.[3] This ineligibility of women is because of the ‘physiological factor’ and domestic responsibilities like ‘motherhood’ and ‘child care’ associated with them. Also, this provision comes under the scope of Article 33 of the Indian Constitution which provides that the provisions of the Army Act, 1950 would act as an exception to distraction (if any) from the fundamental rights of the women. So, it can be said that these provisions of the Army Act, 1950 do not violate the fundamental rights of women.

ISSUE 2

The Army Act, 1950 provides the power to the Government of India to make rules on appointments of women in the Indian army and grant of Permanent Commission or Short Service Commission to them as well.[4] In February 2019, the Government of India issued a circular by exercising this power to grant Permanent Commission to Short Service Commission women officers in 10 branches of the Indian army. As this is an issue of ‘policy consideration’ of the Indian government, women shall be granted Permanent Commission in the specified branches of the Indian Army only. According to the petitioners, this provision shall be applicable only to those Short Service Commission women officers who had not yet completed 14 years of their service because those with service of more than 14 years have less service time left so they couldn’t be trained and used profitably by the forces. In short, all Short Service Commission women officers shall not be granted permanent Commission but only those with service tenure less than 14 years and that too in the specified ten branches of the Indian army shall be granted permanent Commission.

ISSUE 3

Women are eligible for staff appointments only in the Indian army due to the ‘physiological factors’ associated with them. They are unsuitable for combat duties as these tasks involve postings in harsh areas with a lack of proper sanitation and hygiene. Further, the domestic responsibilities associated with women like ‘motherhood’ and ‘child care’ can act as an obstacle in serving the combat duties. Therefore, they shall be considered only for staff appointments and not for combat roles in the Indian army.

CONTENTIONS OF RESPONDENTS

On the other hand, the Respondents argued that all women officers irrespective of their service tenure shall be granted Permanent Commission in all the branches of the Indian army. They were of the view that the issue of not granting permanent Commission and other facilities to the female officers as the other male officers violates their fundamental rights as enshrined in our Constitution. They further urged the court that women shall be considered for combat roles also along with staff appointments because even today they are provided training for such roles and are even performing combat duties at par with their male counterparts.

ISSUE 1

Not granting Permanent Commission to the Short Service Commission women officers in the Indian army as the male Short Service Commission officers infringes the fundamental rights of the women as enshrined in our constitution. This violates their ‘Right to non-discrimination based on gender’[5] and ‘Right to equal opportunity’[6] in jobs as contained in Part III of the Indian Constitution. It is the duty of the state to protect these basic rights of all it’s citizens that the state has failed to do. So, there is a clear violation of the fundamental rights of the serving women officers in the Indian army.

ISSUE 2

Short Service Commission women officers are provided training and allotted tasks just as other male officers. They equally work hard and show dedication as the male officers but even then, they are not granted Permanent Commission as men in the name of ‘physiological factors’ associated with them. Even the February 2019 notification states that the Permanent Commission would be granted to the women only in the 10 specific branches of the Indian army and not in the rest like other male officers. This provision does not even apply to women with more than 14 years of service. This shows they are not given equal status as men in the Indian army. There is a clear violation of their fundamental rights. So, all women officers irrespective of their service tenure shall be granted Permanent Commission as the other male officers are given.

ISSUE 3

Even today, women officers serving non-combat roles in the Army are provided training for combat roles as well. During their service tenure, they are ordered to perform combat duties just as other male officers and are even posted in highly stressful field areas with minimal facilities of hygiene and sanitation. This shows that they are eligible to perform both combat and non-combat roles in the Indian army. So, they shall be considered for both combat roles in non-combat roles in the Indian army.

RATIONALE

After hearing both the sides of the case, the Supreme Court Judge Dr. Dhananjaya Y. Chandrachud gave the following orders on 17th February 2020 about the notification passed by the Ministry of Defence of the Government of India in February 2019:

  1. All the serving Short Service Commission women officers irrespective of their service tenure would be eligible for getting Permanent Commission in the Indian army.
  2. If a Short Service Commission women officer with more than 14 years of service does not opt for Permanent Commission then she shall be given choice to continue her service till twenty years of the tenure after which she would be entitled to pension benefits.
  3. Women officers with more than twenty years of service tenure who were not able to get Permanent Commission in the past will have to retire and will get all the pension benefits.
  4. Female Short Service Commission officers would be given all the benefits including financial benefits and related to the promotion or career progression just as the male Short Service Commission officers get without any discrimination.

Further, the court asked the Ministry of Defence of the Indian government to comply with the orders within three months from the date on which the order was passed.

INFERENCE

We are already aware of the fact that women in our country had always been considered ‘inferior’ to men in the past and they had to struggle for their rights. But even today, the discrimination based on gender is still there and the Indian women are still struggling against it. Before 1992, the women were not at all inducted into the armed forces but with the changing times, they were given a chance to get appointed as Short Service Commission officers for staff appointments. Earlier the tenure of the service for them was just five years which was increased to 10 years and further increased to 14 years. But they were not treated as the other male officers in the Indian army and were given fewer benefits, promotions and career progression opportunities as compared to the men. The judgement given by the Apex court in the present matter promotes the principle of ‘Right to equality for all’ and ‘Right to non-discrimination based on gender’ as enshrined in our constitution. This judgment provides an opportunity for the women officers to get all the benefits and opportunities equally as their male counterparts. This judgement is surely a step towards an ideal nation where all the citizens would be treated equally. Although women are not granted prominent Commission in all the branches of the Indian army and are not even considered for combat roles today, this judgment is a stepping-stone to that destination which we would reach in the near future.

Leezer Kaur

(Army Institute of Law, Mohali)


[1] The Secretary, Ministry of Defence v. Babita Puniya And Ors., 2020 SCC OnLine SC 200.

[2] Leena Gupta v. Union of India, 2012 SCC OnLine CAT 3059.

[3] Army Act, 1950, § 12, No. 46, Acts of Parliament, 1950.

[4] Id.

[5] India Const. art. 15, cl. 1.

[6] India Const. art. 16, cl. 1.

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