This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the Supreme Court’s interim order allowing women to appear for the NDA exam.
A Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy of the Supreme Court of India while deciding the case of Kush Kalra v. Union of India (2021) had passed an interim order permitting women to sit for the National Defence Academy (NDA) entrance test, which was held on September 5th, 2021. This decision of the Apex Court comes as a welcome step towards implementing gender equality in a male dominated society of India. While the Indian Army and women are not synonymous terms with respect to India, the judiciary has come up with a liberal thought process by allowing women to sit for the NDA examination thereby ending long born discrimination of women in the field of defence. The Centre’s intervention to postpone the absorption process of female candidates due to lack of sufficient infrastructure by a year was declined by the top Court while passing the interim order. The present article provides a detailed analysis of the Supreme Court’s reformative order.
NDA exam : an achievable hope for Indian women
The UPSC administers the NDA test, which serves as a stepping stone for students interested in entering the Army, Navy, or Air Force. NDA I and NDA II are national level exams held twice a year to assist individuals in pursuing a career in the military. The National Defence Academy and Naval Academy (NDA & NA) Examination is a two-step procedure in which candidates must first pass the exam and then pass the Service Selection Board’s personality test or interview (SSB). This exam has certain eligibility criteria which need to be abided by in order to appear for the aforementioned entrance exam.
Officers in the Indian Army are recruited through the National Defence Academy (NDA), the Indian Military Academy (IMA), and the Officers Training Academy (OTA). Direct entrance through UPSC is available through the NDA and IMA programmes. Women are commissioned alongside males via OTA, both through UPSC and non-UPSC modes of entrance. Both men and women are given a Short Service Commission, after which they are considered for a Permanent Commission.
The petition was submitted by Kush Kalra, who has been seeking an equal opportunity for women at par with men to get admission at the prestigious Pune-based National Defence Academy (NDA) and Kerala-based Indian Naval Academy (INA), before the Supreme Court in the case of Kush Kalra v. Union of India (2021). She stated that through various developments SCC women officers in ten streams are appointed subject to certain conditions laid down in the judgment of the Apex Court in the case of Secretary, Ministry of Defence v. Babita Puniya (2020). Justice Roy while hearing the present case questioned why the Army was closing one mode of entry for women, although the other two were open. Holding that ‘It is not just a gender principle but discriminatory otherwise also’, Justice Roy along with Justice Kaul dismissed the reasoning provided by the Additional Solicitor General Aishwarya Bhati, who had also appeared before the Court representing the Centre.
The reasons behind not allowing females to appear for the NDA exam is extremely influenced by a patriarchal mindset that is deep-rooted in our society as have been laid down hereunder:
- This examination does not only judge a candidate on the reliance of mental ability but physical abilities as well. Every kind of strength within a human is put to test by this examination so as to ensure that the soldiers of the nation can effectively deliver their duty irrespective of any kind of situation or circumstance. Somehow it was perceived that women could not fit in this box as they will terribly be failing in the same.
- India is a developing country and subjected to a plethora of socio-economic challenges, lacks in providing resourceful infrastructure for promoting female participation in the military. Investments being low, hiring females in the military by means of exhaustive training and awareness has always been at the end of the to-do list of the government.
A progressive order by the Supreme Court of India
In the case of Kush Kalra v. Union of India (2021), the Apex Court was hearing a petition that highlighted that denying women the opportunity to be part of NDA was violative of their fundamental rights under Articles 14, 15, 16, and 19 of the Indian Constitution. In addition to Kalra’s plea, the Court was reviewing Kailas Udhavrao More’s petition, which requests that girls should be allowed for admission to the century-old Rashtriya Indian Military College in Dehradun, which is run by the Ministry of Defence only for boys, beginning this academic year (2021-22). “It is reported that the Rashtriya Indian Military College (RIMC) is a 99-year-old institution that will celebrate its 100th anniversary next year. The question is whether it will celebrate its 100th birthday in a gender-neutral manner or not” viewed the Supreme Court of India in this regard.
Article 14 of the Indian Constitution
Long back in 1978, the Supreme Court of India while deciding the case of Maneka Gandhi v. Union of India observed that Article 14 prohibits the government from acting arbitrarily and assures justice and equality of treatment. The idea of reasonableness, which is a fundamental part of equality or non-arbitrariness both legally and philosophically, penetrates Article 14 like brooding omnipotence. Restraining female candidates from appearing in the NDA exam for over several years based on the ground that females are not physically as compatible as men stands against Article 14 of the Indian Constitution. The interim order of the Supreme Court of India has stood alongside several female aspirants who have been facing discrimination in the name of gender for over several years now thereby putting an end to the same.
Article 15 of the Indian Constitution
Article 15(1) of the Indian Constitution guarantees prohibition from discrimination between citizens on grounds of religion, race, caste, sex, or place of birth. The legitimacy of an act under Article 15 is determined by the mode of operation and impact on fundamental rights, rather than the motivation or goal of the act. The act is unlawful if the effect of its operation is to discriminate against citizens on the grounds specified in the Article.
The Centre had told the Supreme Court in response to Kush Kalra’s petition that women could not claim violation of any fundamental right for being denied entry to the National Defence Academy or the Indian Naval Academy because male cadets trained there have no automatic advantage in future career advancement prospects over women whose only route into the Army is through short service commission recruitment. According to the affidavit submitted by them, the NDA is only one of the various modes of entry for recruitment in the Indian Armed Forces, with an average of 1,470 officers commissioned in the Army, including 670 officers from the Indian Military Academy (IMA) and NDA, as well as officers from the Officers Training Academy (OTA), where both men and women officers are commissioned through UPSC and non-UPSC modes. These contentions were declined by the top Court before delivering the interim order allowing women to appear for the NDA exam.
Article 16 of the Indian Constitution
Equal opportunities in matters of public employment are guaranteed under Article 16 of the Indian Constitution. According to this provision, ‘equality only means equal treatment to equals’. It is quite evident that an individual getting discriminated against in public employment specifically for the gender they are born with stands unreasonable. No contention can back such an unjustified decision. Kush Kalra’s petition clearly mentions ‘sex’ as the foremost ground of discrimination against females aspiring to join the Indian Army by means of the NDA examination.
Article 19 of the Indian Constitution
Article 19 of the Indian Constitution grants a list of seven valuable freedoms which are necessary for the dignity of an individual and the functioning of a democratic system. In accordance with the discussed petition, infringement of Articles 19(a) and 19(g) dealing with freedom of speech and expression and to practice any profession or to carry on any occupation respectively, have been called into question.
The observations made by courts
- In light of the NDA test that was held on 5th September 2021 and after hearing skilled counsel for the parties, the Court decided to grant an interim order allowing women candidates to participate in the examination subject to subsequent instructions from the Court.
- In light of the interim orders issued by the Court, the Court instructed UPSC to publish the appropriate corrigendum and publicize it widely so that the objective of the decision is converted into benefit at the ground level.
The second decision made in the interim order highlights the concern of the top Court relating to the effectiveness of the enforcement mechanisms in the nation. The order though interim has a stronghold on the reasons it promotes and validates the courage and willingness of female army aspirants. It is truly a remarkable one. The interim order also reflects on the check and balance the judiciary carries out on the actions of the executive of democratic India.
The Indian Army selection board reconsidered the cases after the landmark judgment of the Supreme Court of India in the case of Secretary, Ministry of Defence v. Babita Puniya (2020), and granted a permanent commission to 147 additional women. A total of 424 women have been granted permanent commission till now. It is extremely unlikely for a democratic nation like India who has rejoiced over 75 years of its independence from foreign rulers, to encourage such a kind of discrimination amidst adopting the Constitution as supreme law of the land. Ignorance of grave infringement of the fundamental principles of the Indian Constitution by the government and the state authorities have not only taken away opportunities from several females who aspired to be soldiers to the nation but also restricted the options that females intending to join the army have had. The interim order by the Supreme Court of India, therefore, has been a reformative decision in the interest of the female candidates appearing for the NDA examination in the coming years.
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