This Article is written by Aditya Singh, from Symbiosis Law School, Noida. This article deals with the suit filed against the existing gender stereotypes prevalent in the armed forces. This article further analyses in detail the respective facts, arguments presented by both parties and the judgement of this case.

Introduction

Previously the responsibilities assigned to women in the armed services had been restricted to the medical division, dental units, and army nursing services. But it was in the initial years of the 1990s that an order was passed for the non-combating sections of the military units to enlist women as Short Service Commission (SSC) officers. These include the Army Service Divisions, Education Corps (AEC), Intelligence Division, Legal, Engineers, Artillery, Electrical and Mechanical Engineers (EME), Postal Service, and the Department of Judge Advocate General (JAG).

In October 2005, the Central government advanced the acceptability of the Indian Army appointment scheme to female officers by way of a notice published by the Defence Ministry. In order to make this smoother, four amendments had been done to the Women Special Entry Scheme. The government in 2008, gave prospective Permanent Commissions to females in the JAG and AEC departments.

But in the past decades, many questions have been raised regarding the need of women in combat roles, or can a woman take the mental pressure of combat? Similarly, numerous statements have been passed to justify the stereotype, for instance, the women may voluntarily retire from the post if they get pregnant and that integration of women will decrease the morale and cohesion of their male counterparts.

Background facts

The foundation of this appeal was the demand for equal opportunities for women pursuing Permanent Commissions within the Indian Army. The leading appeal stemmed from a set of Writ Petitions that were filed in the years 2003 and 2006, before the Delhi High Court. Women involved with the Army’s Short Service Commissions, have spent about a decade or even longer in lawsuits trying to seek equality with their male peers only for getting Permanent Commissions.

Babita Puniya, a lawyer, submitted a Writ Petition in the form of a Public Interest Litigation in the High Court of Delhi, in February 2003, for securing Permanent Commissions for the Short Service Commission(SSC) women officers of the Army. In addition to the PIL introduced in the Delhi High Court, on 16 October 2006 Major Leena Gurav submitted a writ petition in which the conditions for service levied by the notices dated 20 July 2006 were challenged and the granting of Permanent Commissions to women officers was sought. The High Court gave instructions through their decision dated 12 March 2010, which were consequently never complied with, which was a major reason for the filing of this appeal. 

During the pending appeal, the central government through the MoD introduced a communication dated 25th February 2019 regarding the decision to grant of Permanent Commissions(PCs) to SSCs female officers in eight arms or army services in addition to the JAG and AEC that had been originally opened years back for granting PCs.

Issues

1. Whether the government’s policy dated February 15, 2019, should be incorporated?
2. Whether Permanent Commissions should be given to women officers in the Indian army?
3. What are the provisions regulating the Army Women Officers?

Arguments and proceedings

Arguments by the appellant

The Delhi High court’s ruling was unsuccessful in taking account of the relevant legislation and regulations of the Indian Government, such as Sections 10 and 12 of the Army Act. The considerable advantage of pensionable service was given to female officers who, by the policy decision of February 15, 2019, have continued to serve more than 14 years under temporary orders.

The Central Government is allowed to take into consideration the potential risks of serving in the armed forces, unfavourable conditions of duty that include the lack of privacy in field and conflict zones, pregnancy and childcare problems. Such factors are not subject to judicial review, as per the 2018 case of Union of India v P.K. Chaudhary. In India, contrary to their male colleagues employed in the same service who are more likely to be deployed in the combat fields, the women are not allowed to engage in tasks that are potentially dangerous in nature. 

There exists no discrimination between male and female SSC officials. The Government of India has asserted that perhaps the Army has a substantial administrative challenge in managing women officers with the requisite infrastructure regarding soft posts which do not include any dangerous tasks with the standard posts with the rest of women officers in the station. The Army has to also deal with the spousal postings, unavailability for long durations due to frequent leaves related to pregnancy and childcare that will ultimately affect the rightful dues of the male officers.

The Central government formed the Ajay Vikram Singh Committee to address the cadre problems within the Armed Forces which recommended a streamlined permanent cadre for officers complemented by a 1:1.1 improved support cadre. Therefore, more such integration of the Short Service Commission cadre into the Permanent Commission cadre would then disrupt the army’s organizational framework. As determined every time since 1992, by the headquarters of the Army, the Central government has limited the eligibility of female officers regarding appointments. These directives have never been brought into question or for invalidation.

It was further asserted that it is a bigger challenge for Women Officers to face such risks of service, due to their considerable absence from service because of pregnancy, motherhood and family responsibilities towards their families and children, particularly if both husband and wife are in service. It was also stated that underlying physiological disparities amongst men and women prevent equivalent physical efficiency leading to reduced performance standards, the participation of Women Officers demands regulated conduct in male presence. Thus, women officers posting in the male units will have its own unique complexities.

In addition to these, it was further argued that facilities are very poor in the border regions, with limited habitat and sanitation resources. Officers and men required to make majorly inadequate and fairly basic preparations. In the present conditions, it is therefore not feasible to employ Women Officers in these conditions or locations.

Arguments by the respondent

Even though there was no stay on implementing the Delhi High Court’s order, no measures were taken to offer Permanent Commissions to female Army officers in accordance with the Delhi High Court decision. The Army recognizes female officers to be an efficacious task force until they have served 14 years of service. The nature of their duties parallels that of the male officers. The argument made by the Union of India about the field of battle situations with respect to women officers lacked substance because of serving side-by-side with the male officers for almost 25 years.

The Union of India had stated that women’s participation will have a negative effect on the solidarity of the unit. The moment has arrived for the organisation to begin recognizing women as equal colleagues. In spite of the current set of appeals remaining under judicial consideration for around 10 years, female officers from all age groups and service classifications are even now being assigned dangerous locations, field zones, army headquarters and divisions without even being authorized to combat arms.

Female officers have generally been left aside with respect to promotion opportunities and pension privileges, as compared with their male peers, especially after devoting their best years of life towards serving the country. The appellant’s argument that the female officers are likely to be subject to a dangerous atmosphere under which there is a significant danger of them entering into conflict with the enemies is prejudiced, unreasonable, and without any substance. As about 30% of all female officers are assigned field postings.

In spite of the shortage of officials in the support services, the Indian Army is letting go of qualified female officers because of discrimination against women and not giving female officers Permanent Commissions. Indian Army vacant positions can be managed effectively by female officers. Female officers have to go through training regarding all compulsory courses which are often pursued by other male officers of the SSC. But still, only the male officers are however allowed to apply for Permanent Commissions. 

No Indian Army regulation provides that the authoritative control of units must be mandatorily provided to officers requesting for Permanent Commissions. If female officers are considered eligible and worthy for the rank of Colonel, they could be elevated to the next rank or be permitted to proceed in the way as certain non-empaneled male officers of the Permanent Commission are currently authorized. Furthermore, apart from the prejudiced aspect regarding the grant of permanent commissions, such policies with respect to the female army officers often drops their rank, bringing it at par with the rank of a jawan/JCO.

Analysis of the prevailing gender stereotypes

Initially, it is essential to consider that although female officers have been in the armed services for more than twenty years now, they amount up to only 13.28 percent in the Air Force, 6.7 percent in the Navy, and 3.89 percent in the Army. Female officers struggle through poor recognition from all stakeholders ranging from highest to lowest ranks, who regard them as a troublesome issue and therefore not fit for service.

Thus it is difficult to determine if the latest decision would represent any modification in enrollment or promotion trends and seeing females in posts of command unless such competent women are recognised by not only the men they will eventually lead but as well as by those they will further report to. It is however also challenging for female officers to demand respect in positions previously dominated by men with battle situations experience and who are typically considered to be much more knowledgeable and thus capable of leading the forces.

The assertion that females are not sufficiently capable does not bear much significance because many nations- Denmark, New Zealand, Finland, Australia, Kurdistan, and several others hire women for roles related to combat. New Zealand in its armed forces has practically no limitations on the roles of female officers. Female officers are combating Islamic State of Iraq and the Levant (ISIL) in Kurdistan, even in war zones.

Captain Meredith Mathis of Army, who gave cultural assistance to the U.S. troops in Afghanistan, claimed she had witnessed quite so much fighting, if not more, as compared to several other army soldiers, which included leading teams, conducting on foot-patrols,  improvised explosive devices (IEDs), and getting mortared. In addition, she appreciated their efficacy by mentioning an event in which female officers gained important information by communicating with Afghan women who declined to interact with male officers. But as a fact sending female officers can increase the resources available for critical roles that include social and communication abilities, which not all soldiers possess. Furthermore, women officers serving as members of the cultural-support units have been posted alongside almost all-male special-ops divisions in nations such as Afghanistan and Norway. These female officers had to share the bathroom facilities and the mud huts for camping with the male officers.

Judgement

The regulatory decision made by the Central Government requiring Short Service Commission women officers to be given Permanent Commissions (PCs) across all 10 streams where females have been given Short Service Commissions (SSC) in the Indian armed forces is agreed as follows:

1. All-female officers allowed to serve on SSC will, therefore, be recognized for giving the PCs, regardless of any of them having completed 14 years or 20 years of service, depending on the case.
2. All females currently in service as SSC officers are also to be given the opportunity.
3. The statement “only in various staff appointments” in paragraph 5 and “on staff appointments only” in paragraph 6 will therefore not be implemented; regarding female PCs.
4. Even at the point of choosing for the grant of Permanent Commission, all options with respect to specialization should be provided to the female officers on the very same aspects just like the male SSC officers. Female SSC officers should be allowed to exercise their rights on the same grounds as their male colleagues, to be eligible for getting the PCs.
5. In this case, the Delhi High Court’s order is upheld.
6. SSC female officers who are given the PCs in compliance with the aforementioned guidelines shall be provided with all subsequent advantages, for instance, promotional and other financial advantages.

Conclusion

Female Indian Army officers have given glory to the armed forces. Their overall history of serving the country is just beyond scrutiny. Trying to insinuate them on their capabilities based on their gender is an act of disrespect not just towards their integrity and competence as a woman but also to the honour of the Indian Army members, be it men or women, who work as responsible citizens in a collective challenge. It really is necessary to understand that female army officer are not just supplements of a male-dominated system. The views expressed by the Center to the Supreme Court are an affirmation of the patriarchal culture which is widespread in the Indian armed forces. Rather than incorporating regulations that are equally relevant for both males and females, the popular belief is that one would have to behave like a man in order to become an effective member of the armed forces.

What we ought to remember, though, is that statements about females getting held as a prisoner during  war, pregnancy, parenting, physically and psychologically inequalities become irrelevant when a female chooses to take the burden of such challenges.  If a female officer does not feel afraid of getting taken captive during war, therefore this type of thinking needs to be addressed and changed.

References

• Ministry of Defence v. Babita Puniya- https://indiankanoon.org/doc/117198144/
• https://www.thehindu.com/news/national/sc-gives-one-more-month-to-centre-for-giving-permanent-commission-to-all-women-officers-in-army/article32010337.ece
• https://theprint.in/defence/women-could-be-given-command-posts-in-army-if-govt-changes-its-mindset-says-sc/360048/
• https://www.nationalheraldindia.com/india/permanent-commission-and-command-posts-to-women-officers-in-army-sc-grants-one-month-time-to-implement-decision

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