This case’s comment is given by Harshit Bhimrajka currently pursuing B.A.LLB (Hons) from the Rajiv Gandhi National University of Law, Patiala. This is a case comment on a very celebrated case; The Secretary, Ministry of Defence v. Babita Puniya & Ors. on which recently the final decision was given by The Supreme Court bench led by Justice Chandrachud.

Introduction

Gender equality in India has always been a fraught and thorny topic. Females and third gender are always struggling and fighting in this patriarchal society. Gender stereotypes always create barriers for third gender and women in the professional spaces and it also deepens gender discrimination at work.

One of the many gender discriminations from which women were battling ended in their favour as the Supreme Court of India in a landmark, and extremely laudable judgment named The Secretary, Ministry of Defence v. Babita Puniya & Ors. ordered the grant of permanent commission (hereinafter PC) in 10 non-combat service units at three months and held them to be eligible to hold command posts by enervating the existing ceiling. It also provides equal opportunity for women in the Indian Army by providing them long term job security, and the judgment is regarded as the watershed moment in the history of the Indian army. 

In various countries, these positions were granted a long time before like Norway allowed women in all combat battles in 1985, Pakistan also inducted its first women fighter pilot in 2013, the USA also allowed all ground combat roles for women in 2016, etc. Further, we will discuss the major events, facts, issues raised, and the judgment in detail to get a logical conclusion about this noteworthy case. 

Background facts

Before moving directly to the facts, it is pertinent to know the provision under Section 12 of the Army Act, 1950 that prohibited the recruitment of “females” into the army except- and to the extent that- the Central Government allows. Now through a series of a timeline, the facts will be explained.

For the first time in 1992, the Central government issued a notification allowing females to join certain cadres of the army like induction in Short Service Commission (hereinafter SSC), Intelligence Corps, Corps of Signals, Regiment of Artillery, Army Service Corps, Education Corps, the Judge Advocate General’s Department, etc before that the roles were limited to medical, dental, and military nursing service. Women engaged in these services seek parity with the male officers in obtaining permanent commissions.

So in February 2003, Babita Puniya, a practising advocate, filed a writ petition in the nature of public interest litigation at Delhi High Court, seeking permanent commission for female officers recruited through SSC in the army, at par with their male counterparts. Many other women officers (both air and army officers) separately filed a petition for the same. Their petitions were tagged with Babita’s petition. 

Later, in the ending months of 2005, the Ministry of Defence issued a notification extending the validity of the appointment scheme of the Indian Army for the women officers. In 2006 a further notification was issued allowing the SCC women officers to serve for a maximum of 14 years. Major Leena Gaurav again filed a writ petition on 16th October 2006 primarily to challenge the conditions of service imposed by the circulars previously in that year and also seeking for the permanent commission for the women officers. In 2007 Lt Col Seema Singh for the same issue moved to the court. 

Then in 2008, the centre decided to grant permanent commission to SSC women officers in some departments such as the Army Education Corps, Judge Advocate General, and the corresponding branches in the Air Force and Navy. Many more petitions were filed challenging the circular issued in 2006 and 2008. 

Finally, in 2010, the Delhi High Court decided to club all the petitions and directed Centre and defence ministry to provide the permanent commission to SSC women officers of the Air Force and Army who had opted for it and not yet granted. After the order of the Delhi High Court, Army challenged the order in the Supreme Court but it very rightly refused to uphold the order and said to implement the orders given by the Supreme Court. In 2018, the Central Government told the Supreme Court that it is considering granting permanent commission to women recruited through SSC in the army. In February 2019 the government issued guidelines that permanent commission will be granted to the women officers but prospectively and commissioned that only those women will be eligible who commissioned after this order is notified keeping the serving officers out of the ambit of the permanent commission. It granted a permanent commission to new SSC officers in eight combat roles.

Issues

The major issues which were raised in the Supreme Court were:

1. Whether women should be granted Permanent Commission in the Indian Army?
2. Whether the guidelines issued by the Government of India dated 15th February 2019 should be implemented?
3. What are the conditions governing the Women Officers in the Indian Army?

Arguments

The major arguments advanced are divided into two parts- by the Union Government and by the respondents.

Union Government

First, The argument advanced by the Union Government were challenging the judgment given by the Delhi High Court such as:

1. Grant of the Permanent Commissions to the Women Officer: it was argued that the statement or the decision given by the Delhi High Court failed to consider the relevant statutory provisions namely Section 10 and Section 12 of the Army Act, 1950 and instruction by the Government of India.
2. It was argued that the Government has to take into the account the inherent dangers involved in the services of the Army officers, there are adverse conditions of service which don’t include privacy in war areas, insurgency areas or in any field, maternity issues and child care issues which are always connected to a woman. As stated in the case Union of India v. PK Chaudhary that these considerations are not subjected to judicial review.
3. It was argued about the substantial benefits of pensionable services to the women officers who have continued even after fourteen years of services under the notice issued dated 15 February 2019. 
4. The Union Government has submitted that the Army faces a huge management challenge “to manage WOs in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station”. The Army has to cater to spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.
5. The committee constituted by the union to enquire into cadre issues in the Armed Forces favoured a lean permanent cadre of officers, supplemented by an enhanced support cadre. Thus, induction into the Permanent commissions through SSC  will disturb the structure of the Army.
6. In a Written Note, the Union of India added to these submissions by referring – once again – to “pregnancy, motherhood, and domestic obligations”, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene.
7. It was argued that the border areas lack very basic and minimal facilities and thus the deployment of women officers in such areas is not advisable because of habitat and hygiene.

Respondents

Second, the arguments advanced by the respondents that permanent commissions to the women officers were still not granted, and no steps were taken regarding the order passed by the Delhi High Court. Some of the other’s arguments by the respondents are as follows:

1. It was argued that it is not new about the concern related to privacy, women officers of all the ages are still being posted to places which are dangerous and where there is no sanitation like field areas, force headquarters, sensitive area, warfare zone.
2. It was alleged by the Union of India that the presence of women creates a negative impact on unit cohesion. It is argued that women should also give equal opportunities as men, they should start accepting women as equal to male coparceners.
3. It was argued that women undergo rigorous training and all mandatory courses which male officers undergo for SSC, then why only males are eligible to seek PCs. If women are found eligible, compatible, and deserving to the higher rank posts then they should be promoted to the next rank or allowed to continue in the manner other non-empanelled PC men officers are presently allowed.
4. The evident fact that 30 percent of all the women officers are exposed to a hostile environment or where there is a situation of grave danger is present. .
5. It was argued that why women officers should be left in the lurch without incentives like pension or promotion when they are equally providing their service to the nation as their male counterparts do.
6. It was argued that besides the discriminatory nature of the policy by the Union Government with respect to the grant of PCs to SSC women officers, it also lowers their status to that of a jawan.

Judgment

The Supreme Court bench led by Justice D.Y Chandrachud challenged the notions given by the Union and stated that they are entrenched in stereotypical assumptions of ascribed gender roles for women. Moreover, it is a clear violation of their fundamental rights guaranteed under Article 14 of the Indian Constitution. He said that although Article 33 of the Indian Constitution did allow for restrictions on Fundamental Rights in armed forces it is also clearly mentioned that it could be restricted only to the extent that it was necessary to ensure the proper discharge of duty and maintenance of discipline. It was decided that policy decision taken by the union allowing the women officers in PCs through SSC are subject to some conditions:

1. All the women officers presently on SSC service are eligible to PCs irrespective of any of them crossed fourteen years of service or, as the case may be, twenty years of service.
2. The order given by the Delhi High Court is affirmed.
3. All the choices of specialization shall be available to the women officers at the time of opting for the grant in PCs, on the same terms as their male counterparts.
4. There are some expressions like in various staff appointments only, and on staff appointments only in the policy by the Government, these should not be enforced with respect to the PC of women.
5. All the women officers who are eligible and granted PCs through SSC should be entitled to all consequential perks including pension, promotion, and financial incentives. 
6. The benefits of continuing in the service until the attainment of the pensionable service shall also apply to all the SSC women officers. 

Finally, it is held that the necessary steps should be taken for the compliance of the court’s decision within three months of the judgment.

Conclusion

This decision by the Supreme court no doubt is appreciable and commendable and should be admired by all of us. It ensures the women’s position in the Indian Army and also prevails in gender justice in the Army also. It removed the blanket restrictions imposed on the women officers for holding higher rank posts. It is rightly observed by the decision given by the bench headed by Justice Chandrachud that it is an insult to women officers and to the Indian Army also when aspersion is cast on women, their potential, ability, and achievements in the army.  

After this landmark order, the path to gender equality has certainly been remarkably heralded which shall ensure that women are no longer denied permanent commission or denied command posts! Even women officers in the Air Force and other streams shall benefit immensely from it as from now onwards they cannot be denied command posts nor be denied the highest post of Chief also. This judgment shall always be remembered as one of the best judgments which heralded gender equality in defence services also which includes all the services – Army, Navy, and Air Force.

“How important it is for us to recognize and celebrate our heroes and she-roes!”

– Maya Angelou

References

• Gautam Bhatia, Gender Equality in the Armed Forces. https://indconlawphil-wordpress-com.cdn.ampproject.org/v/s/indconlawphil.wordpress.com/2020/03/20/gender-equality-in-the-armed-forces/amp/?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15911183144018&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Findconlawphil.wordpress.com%2F2020%2F03%2F20%2Fgender-equality-in-the-armed-forces%2F 
• SC Shatter Armour Plated Ceiling By Holding Women Eligible For Command Posts, Legal Services India, Feb 25, 2020. http://www.legalservicesindia.com/law/article/1438/21/SC-Shatter-Armour-Plated-Ceiling-By-Holding-Women-Eligible-For-Command-Posts
• https://www-casemine-com.cdn.ampproject.org/v/s/www.casemine.com/judgement/in/56090d17e4b0149711178d98/amp?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15911183144018&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.casemine.com%2Fjudgement%2Fin%2F56090d17e4b0149711178d98
• Devansh, Secretary Ministry of Defence v. Babita Puniya, Law Times Journal, May 2 2020. http://lawtimesjournal.in/secretary-ministry-of-defence-vs-babita-puniya/ 
• https://indiankanoon.org/doc/117198144/ 

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