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Introduction:

The armed forces of every country has been reluctant to include women more in the field and India is no exception. There are a multitude of reasons behind this. Some of them are valid, like the argument stating the differences between physical abilities and strength of men and women. While the other reasons have more to do with the ingrained prejudices of the society we live in.

Nevertheless, women are discriminated against for non-combat roles of the armed forces too. The most important cause of this is the perception of women in the minds of the society. The men are considered strong and the ones who are supposed to be fighting wars in the front lines. It has been like that since ancient times.

What people fail to understand is that there are a lot more jobs that have to be taken care of other that front-line combat. The image that people have of the armed forces always involves fighting physical battles which make it difficult for them to accept women, who have lesser physical abilities biologically to get involved.

This article focuses on the case of Babita Puniya and how the landmark judgement led to permitting women for permanent commissions in the Indian Armed Forces. Women were being discriminated on various grounds and all consequential perks including pension, promotion, and financial incentives were always denied to them. Despite being qualified, they had to go through these unfair situations for a long time until this judgement was passed by the Supreme Court in 2020.

Case: The Secretary, Ministry of Defence v. Babita Puniya & Ors. Civil Appeal No. 1210 of 2020

Bench and Quorum:

Division bench consisting of Justice D.Y. Chandrachud and Justice Ajay Rastogi

Facts:

Section 12 of the Indian Army Act of 1950[1] says that it is prohibited the recruitment of women into the army except and to the extent that the central government allows. In 1992, women of the Indian Armed Forces were allowed by the Central Government to be recruited in Short Service Commission (SCC), Regiment of Artillery, Intelligence Corps, Corps of Signals, Army Service Corps, Education Corps, the Judge Advocate General’s Department, and so on.

Before this they were only allowed general medicine, dental and nursing services for the armed forces. They sought Permanent Commission (PC) which were only available for their male counterparts.

A writ petition in the form of a PIL seeking PC for women like the male officers was filed before the Delhi High Court in 2003, by an advocate, Babita Puniya. Other officers from the Indian Air Force and the Indian Army had also filed for the same cause and thus these were clubbed together with the Babita Puniya case.

A notification was issued by the Central government stating that female officers can serve for a maximum of 14 years. Major Leena Gaurav and Lt. Col. Seema Singh moved to the Supreme Court asking for PC. After a couple of years, in 2008, women were granted PC in specific areas such as the AEC and the JAG department of all the armed forces.

Despite this, women who opted for PCs were not granted the same. Thus, various petitions were filed and they were clubbed together. The Delhi High court held that women should be granted the PCs if they had opted for it and fit the criteria. The Army appealed this further and the SC held the same judgement.

In 2018, the Central Government informed the SC that it was contemplating on granting women, hired through SSC, PCs in the army. The Ministry of Defence (MoD) announced in 2019, that SSC female officers in the 8-arms or services of the Army will be granted PC. However, it was also stated that female officers would only be engaged in “various staff appointments only” after receiving a PC.

Issues:

1. Whether the women should be granted permanent commission in the Indian Armed Forces?
2. Whether the guidelines issued by the government of India which had been dated 15th February 2019 should be implemented?
3. What are the conditions governing the women officers in the Indian Army?

Laws:

• Section 12 of the Indian Army Act, 1950
• Article 14, 15, 16, 33 of the Indian Constitution

Rationale & Analysis:

The Union Government and the Ministry of Defence filed an appeal in the Supreme Court challenging the previous judgement of the Delhi High Court. They contended that the judgement did not take into consideration Section 10[2] and Section 12 of the Army Act, 1950. With reference to these special provisions, the court cannot issue a writ of mandamus.

The various other reasons stated by the appellants included the inherent dangers that the officers have to face as a part of the job. There won’t be any sort of privacy in war areas or insurgency areas, the infrastructure would not be good enough to accommodate women, catering to spouse postings, and so on.

The submissions also mentioned about maternity leave and child-care leave while explaining the difficulty in finding replacements. As a result, “the legitimate dues of male officers have to be compromised”[3]. The habitat and hygiene of the posts are substandard and lack even the most basic necessities.

The respondents contended that it was not new for women to be in situations like these as they have been providing assistance to their male counterparts through medical support, technical support or others. The women go through the same training but are benchmarked against the lowest rank of the army men even if they are eligible and deserving.

Thus, denying them of the same opportunities is a violation of Article 14, 15 and 16 and that they should also be able to receive promotional, financial and retirement benefits.

In this case, the fundamental rights of equality, right against discrimination and right to equality of opportunity in government jobs were blatantly violated. That being said, Article 33 which gives the powers to restrict the fundamental rights of the army officials and Section 10 and Section 12 of the Army Act, 1950 was the shield against concerns raised regarding the above mentioned.

Thus, the apex court after hearing the contentions of both sides held that “sexist bias and service bias” were deeply ingrained in the Indian Armed Forces, and women officers had been discriminated against for years.[4] It held that the provisions were a clear violation of Article 14.

The court also noted that Article 33 permits limitations on Fundamental Rights in the military, but it also specifies that such restrictions may only be imposed to the extent required for ensuring the appropriate execution of duties and upholding discipline.

The following are the major orders given by the Supreme Court in this case:

• Female officers currently serving in the Short Service Commission (SSC) are eligible for Permanent Commission (PC), regardless of whether they have completed 14 or 20 years of service.
• These officers have the option to choose any specialization they desire for PC, just like their male counterparts, and will receive all associated benefits such as pension, promotions, and financial incentives.
• The terms “in various staff appointments only” and “on staff appointments only” in the notification should not be enforced for female officers seeking PC.
• All SSC female officers will also be entitled to the benefits of continuing in service until they reach the pensionable service period.
• The plaintiff must take necessary actions to comply with the Supreme Court’s decision within three months of the pronouncement of this judgment.[5]

Conclusion:

This case has been noted as a landmark judgment considering that it would provide all female officials permanent commission, enabling them eligible for promotion, rank, and pension benefits. It put women on equal footing with men and rejected the sex stereotypes and the gender discrimination. As initially the PC scheme was available only prospectively and to specific cadres, it also showed a class wise discrimination within the women officers.

The potential and ability of the officers should be the actual criterion and the contention of the appellants stating the physiological limitations of women was dismissed. Women after this judgement can get the highest ranks in all ten branches of the army that they are a part of. It removes the blanket restrictions imposed on women being in higher posts.

References:

1. Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469
2. Chowdhry, P., Women in the Army, https://www.jstor.org/stable/20764357

[1] Section 12 of Army Act, 1950 – Ineligibility of females for enrolment or employment – No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army, or any branch thereof in which females are eligible for enrolment or employment.

[2] Section 10 of Army Act, 1950 – Commission and appointment – The President may grant, to such person as he thinks fit, a commission as, an officer, or as a junior commissioned officer or appoint any person, as a warrant officer of the regular Army.

[3] Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469 (Pg 490)

[4] Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

[5] https://main.sci.gov.in/supremecourt/2010/20695/20695_2010_8_1501_20635_Judgement_17-Feb-2020.pdf

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ARTICLE WRITTEN BY SWETA SHOUMYA