Image source - https://bit.ly/3280bB9

This article is written by  Anant Bajpai and Bhawna Sachdeva pursuing BBA.LLB(Hons.) from Centre for Legal studies, GIBS, affiliated to GGSIPU, Delhi.                              

Abstract

Patriarchy is a social structure in which men have been empowered with primary roles and dominant status, privilege over women. It is like a set of principles or ideology which tends to justify this patriarchal mentality and promotes inherent natural differences between men and women. The Authors in this article endeavours to explain the foregone patriarchal mentality that has prevailed over the years in the Army related to permanent commission of women. The author in this article has tried to analyze the journey of a women’s for clamming parity over patriarchy in Indian army.

The author’s work is based on the current judgement that had been delivered by the honourable Supreme Court related to the permanent commission of women in the army. The court in its latest judgement has busted the sex stereotype that was been prevailed over the years and has held “Despite the deficiency of officers in support services, the Army is letting go of trained women officers due to gender discrimination and not granting permanent commission to women officer’s this is an absolute bar on women seeking criteria or command” Therefore, it becomes necessary to understand the term of appointment in army for men and women, reason behind such difference of term of appointment, contentions in the case, speaking order of High Court and Supreme Court and what was the rationale behind the apex court judgement in purview of Indian Constitution.

Through this article the authors have attempted to explain the concept, government regulations and judicial contentions and decisions in purview of Indian Constitution.

Introduction

The word “Patriarchy” is derived from Greek mythology and it literally means “Rule of father”. In general terms it is defined as the societal structure where male dominated society. As we look back to human history the persistence of male domination was so much that the concept of patriarchy was not even recognized back then, and it was not even considered as the societal wrong or dominant status of one gender.

Patriarchy is a social structure in which men have been empowered with primary roles and dominant status, privilege over women. It is like a set of principles or ideology which tends to justify this patriarchal mentality and promotes inherent natural differences between men and women. Traditionally men were considered for the role of warriors and the women as the housekeepers so the roles were well demarcated at that time, this very fact has distinguished the line of specific gender based task distribution and has managed to put weightage into the male dominant structure. The man has been discriminating against women from ages despite the fact women have shown bravery and their capability in all the fields.

If we go back to the history at the time freedom struggle the name we all are been aware of the great Rani laxmi bai who not only fought the battle but lead the freedom revolution in the country, As we move forward at the time of world war-II the women’s played the significant role in the Azad hind force for the country. So it is evident by the very fact from history that women have always brought laurels to the country. India got independence in 1947 but it has taken almost forty-five years for the government of India to recognize the potential of women in the army as the first batch of Women officers was inducted and got commissioned in 1992 but till now the women are in quest of claiming parity in Armed services. Prior to 1992 women were not allowed to be enrolled as an officer in Indian army.

Later as per the notification of Union Government on 30th January 1992 the Women were made eligible for appointment as an officer in Indian Army in specified branches of Army Act.[1] They were allowed to enrol only five branches, Later on five more branches were added to these criteria. The initial notification remained in force for just five years. Also the tenure fix for women for employment was five years and they were not allowed to work beyond that.

The allowance to women for the enrolment in army flipped the pages of discrimination to different platform. Earlier they were discriminated against and dominated by non-recruitment and now they are being biased on the basis of duration of employment. Even after the end of the tenure they are not entitled for pension or other concessional benefits of being an army officer and there have been no provision for grant of permanent commission to the women.

Permanent commission is basically the entitlement to army officers to work till their age of retirement i.e. a career in the army till you retire.

The option is given to the army officers whether they want to opt for permanent commission or specialisation. Male officers get this option to opt after the completion of ten years of services whereas women after the decade of pendency of case are now allowed to opt for grant of permanent commission but they have to opt after the completion of three years of their services.

Now what is it? Is it just backwardness of society which we need changes with time or is it a patriarchy system that has been followed for centuries in our country and is believed that women are incapable of working equal to men? It has been many years of independence, the implementation of Indian Constitution that provides for equality in its article 14[2] and many such other articles and it has been almost a decade of pendency of such case in front of our judicial system and women claiming for the equal rights in army and they did not get any till now.

https://lawsikho.com/course/insolvency-bankruptcy-code-ibc-nclt-sarfaesi
                 Click Above

Analysis on judgement that changed the facets of women empowerment

The Secretary, Ministry of Defence (Appellant) Versus Babita Puniya & Ors (Respondents)

Facts

The current case is related to the permanent commission of the women’s in Armed services. Women were recruited in certain streams of the army starting 1992. These included Army Education Corps, Corps of Signals, Intelligence Corps, and Corps of Engineers.

Women were recruited under the Women Special Entry Scheme (WSES) which had a shorter pre-commission training period as compared to the male counterparts under the SSC.

In 2006, the SSC scheme was extended to women officers. However, while male SSC officers could opt for permanent commission at the end of ten years of service, women officers didn’t have this option. Therefore, the women officers were kept out of any command appointments, and could not qualify for government pension, which starts only after twenty years of service as an officer.

A PIL was filed in 2003 in the Delhi HC for grant of permanent commission to women SSC officers in the Army. In 2006, Major Leena Gurav filed a writ petition against the terms and conditions of service imposed by circulars earlier that year, as well as the issue of permanent commission.

In 2008, the defence ministry issued a circular saying that in the two streams – Judge Advocate General (JAG) department and the Army Education Corps (AEC), permanent commission would be prospectively granted to SSC women officers. This was also challenged.

The Delhi HC heard the three challenges together and ruled that the women officers of the Air Force and Army on SSC who had sought permanent commission but were not granted the same would be entitled to PC at par with male SSC officers.

The union government at the time challenged the decision in the Supreme Court, So the current appeal originated against the order of Delhi high court.

Contentions

Appellant: The union of India contended that the questions related recruitment, posts, cadres and criteria for the grant of permanent commission are policy decisions and they lie exclusively on the domain of executive functions. The government justified the proposal on the grounds of permanent commission, grants of pension benefits and limitations of judicial review on policy issues.

It had come up with a proposal whereby women officers with up to fourteen years of service would be granted permanent commission, while those above fourteen years would be permitted to serve for up to twenty years and retire with pension without being considered for PC, and those with more than twenty years would be released with pension benefits immediately.

The government had mentioned several reasons behind the differential treatment of women and men like the government pointed to occupational hazards and physiological limitations for women in answering the “call beyond duty” of the Army. It’s not stated that the isolation and hardships would eat into their resolve as well as the fact that they have to heed to the call of pregnancy, childbirth and family. The note also mentioned that women ran the risk of capture by the enemy and being taken as prisoners of war.

Respondent: The learned counsel on behalf of respondent contended that the appellant has instituted the proceedings under Indian constitution[3] in spite there being no stay on the implementation of judgement of the Delhi high court and steps have been taken to grant permanent commission to women officers in compliance with Delhi High court judgement.

Further it is contented that this lack of parity is due to the predominant mind-set of male officers. And claimed that women officers are facing serious discrimination which is hindering there opportunity for growth in army and absence of job security with no Pensionary and promotional benefit at par with male counterpart are some of the reasons for this lack of parity.

It was further contended against the factors which were stressed by the union government regarding battle-field scenarios; it was submitted that women perform the same nature duties as male counterparts so this contention of union government lacks substance.

It was submitted that the army should start accepting women as equal colleagues as men are serving in sensitive places, field areas, force headquarters and units without being given a permanent commission.

https://lawsikho.com/course/diploma-m-a-institutional-finance-investment-laws

Rationale

The reasoning behind the judgement was based on the concept of equality that is enshrined in our constitution[4] and the court claimed the submissions of the union government were against the constitutional values.

The arguments put forth by the Petitioner before the Supreme Court to justify the proposal on occupational hazards, reasons for discrimination against women and physiological limitations. These arguments were rejected by apex court by saying that they are based on sex stereotypes, Premised on assumptions about socially ascribed roles of gender which discriminate against women”. It has also said that it only shows the need for change in mindsets to cause true equality within the Army as their “physiological features” do not define their rights. It is the mind-set that has to be changed.

Decision

The Apex Court held that: “Even at its bare minimum, the right to equality is a right to rationality. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reason. Courts are indeed conscious of the limitations, which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the armed forces. For this reason, we have noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals.’ The SC also spoke strongly of a ‘need for change in mindsets to bring about true equality in the Army’. Women officers of the Indian Army have brought laurels to the force. Their track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army — men and women — who serve as equal citizens in a common mission. The time has come for a realisation that women officers in the Army are not adjuncts to a male-dominated establishment, whose presence must be ‘tolerated’ within narrow confines”[5].

Authors view

According to my point of view this case is not about women empowerment or up-liftment, this is about the equality of rights and opportunity to both women and men. Both men and women are undoubtedly different creatures of God and have physiological differences. There are many things that a man cannot perform and many things which woman cannot perform but this does not render them unequal. 

Like a coin has two sides similarly men and women both are two different sides of a society but both the sides are equally important, the head side always needs a tail side and vice-versa to function. 

As men cannot give birth to a child, and women after giving birth cannot sacrifice motherhood for some professional duty, it is the mother who is the primary care-taker and feeder of the child. The responsibility of women starts the moment she conceives the child and with this responsibility she cannot be allowed to participate in the army.

But this phase of child birth is a very little phase of women’s life and it can be managed with certain maternity leave and benefits, and once the child has grown enough she can rejoin the army.

Another misconception is that Women menstruate every month and during this cycle she goes through the immense pain, due to which her body gets weak and during those days she cannot work efficiently. 

But this cycle stays just for a few days and the pain is tolerable if proper care and caution are taken and this regular pain increases women’s tolerance power and makes them stronger and would not stop a woman from being an active participant in the army.

Habitat and Hygiene are other reasons for non-appointment of women in Indian army. Army officers are often posted to the conflicted zones, fields with minimal facilities of habitat and hygiene. But these troubles are the same when they are posted regularly in such areas with men for their hospitality and care-taking. If they can be posted for the hospitality then why can’t it be posted as an officer?

The major consequence in the appointment of women in front-line areas is being captured by the enemy and taken prisoner of war. The imprisonment may lead to the un-safety of women and result in sexual assault and abuse. It is stated that women are not capable physiologically to be granted permanent commission as their training duration is less, Women are not less than men in any way, so they shall be provided with Training of equal duration and for an instance even if they are considered weak then, like every weak student needs more attention, women shall also be given more training for being capable for more laborious work and be fit for participation in army.

Lastly, the absolute prohibition on women to participate in combat is appropriate but not granting the permanent commission or pensionary benefits after retirement is not justifiable as they also go through the training and also put in all their efforts and labour. 

Conclusion

With an acute shortage of officers in Indian army the retired male officers are reappointed but women are not appointed because of the gender discrimination, these vacancies can easily filled up by eligible female candidates. Even though putting in all the effort, sacrificing her family,women officers are entitled for the pension after retirement as well as permanent commission. 

It has been scientifically proven that at many odd tasks women are much more analytically efficient than their male-counterparts. All the reasons for non-appointment of women can be dealt with the sufficient training of women and she can be made capable physiologically. And to resolve the problem of prison of war situations, women may remain prohibited from combat. As mentioned above also this case is not about women empowerment it is about the equality of rights. As equality is a dynamic concept with many aspects and it cannot be crippled within traditional limits.

An institution like the Indian Armed Forces cannot be in isolation, it changes with the times. As technology, perceived threats and socio-cultural factors change, the Armed Forces evolve and adapt to these changes, so after the judgement that has been announced by the apex court, it is the right time for the government to amend policies relating to permanent commission, rank, and pension to upheld constitutional values that has been enshrined in our constitution.


LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY