Thursday, 4 June 2020

SC Shatters Armour Plated Ceiling By Holding Women Eligible For Command Posts

By Sanjeev Sirohi
Updated: March 14, 2020 4:22 pm

The long gruelling, nerve wracking and nail biting legal battle fought by women officers for gender equality finally very rightly ended in their favour as Supreme Court just recently on February 17, 2020 in a latest, landmark and extremely laudable judgment titled The Secretary, Ministry of Defence Vs. Babita Puniya & Ors. in Civil Appeal Nos. 9367-9369 of 2011 with Civil Appeal Nos. 1127-1128 of 2013 and with Civil Appeal No. 1210 of 2020 has finally shattered the plated ceiling by clearly, categorically and convincingly ordering the grant of permanent commission in 10 non-battlefield services in three months and held them to be eligible to hold command posts. In a resounding rebuff to the Army, the Bench of Supreme Court comprising of Justices DY Chandrachud and Ajay Rastogi not just trashed the Army’s “weaker sex” argument for denying them permanent commission as it had just no merit but also blasted the Army’s dogged resistance to provide permanent commission to women officers! The Bench also said that these were “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminates against women”.

Finally, we thus see that the curtains have been brought down to the long fought legal battle lasting for more than a decade leaving women officers with a big smile on their face which they richly and rightly deserve also! This historic and path breaking verdict will directly benefit 332 women officers who are serving in the Army and others who join the eligibility ranks in the future. Army Chief General Manoj Naravane minced no words in saying that, “The judgment of the Supreme Court is a very enabling one. It gives a lot of clarity on how to move forward. The first task at hand is to comply with the SC judgment to grant Permanent Commission. We have drafted a plan. We will send out letters to everyone and ask for their choice. The same procedure that’s followed for male Short Service Commission (SSC) officers will be followed in ensuring Permanent Commission for women. It will be the same rule now for everyone.”

While expressing her delight at the remarkable judgment, senior advocate Aishwarya Bhati who represented the women officers in the Apex Court very rightly said that, “With this [ruling], we can have a woman as the Chief of Army Staff [who only comes from the combat arms], as it opens doors for that. Though it is a long way to go. Women can now be Brigadiers, Major Generals or Lieutenant Generals. They will be judged not on their gender but on their individual merit, capability or suitability. They [Bench] junked the argument of domestic duties, motherhood, biological requirements of women and [the verdict] will ensure greater gender justice and gender dignity in all walks of life. Women are already performing combat roles in the IAF. This verdict will ensure greater roles commensurate with their individual merit and aptitude.” She also rightly pointed out that, “Women have been in the Army since 1992, so to deny PC to existing officers and command positions to all of them betrays the constitutional guarantee and is also contrary to their impeccable service record for the past 27 or 28 years.”

It cannot be overlooked that apart from Israel where women soldiers were allowed entry in intensive combat roles since 1995, Germany too allowed women in combat since 2001 and Australia too opened all jobs in its defence forces to women in 2013. Pakistan also inducted its first women fighter pilot in 2013. Norway allowed women in all combat roles in 1985. In USA all ground combat jobs were opened to women in 2016. In July 2016, British PM lifted ban on women serving in close combat units. In Canada all military occupations open to women since 1989. North Korea, France and Netherlands are among the other countries that allow women to be in front-line combat positions. Why then should Indian Army lag behind? Of course, all these countries have also been instrumental to a great extent in shaping the decision of the Apex Court in this case.

Before proceeding ahead, it would be prudent to discuss the manner in which this noteworthy case was initiated and finally brought to its logical conclusion. The major events are only being mentioned here and not each and every events. They are as follows:-

 

2003

In February, Babita Puniya who is a practicing advocate in Delhi High Court filed a PIL before the High Court seeking permanent commission for women officers recruited through Short Service Commission (SSC) in the armed forces on par with their male colleagues.

Several groups of women officers from both the army and air force also approached the High Court for relief separately. Their petition was tagged with that of Babita Puniya.

 

2006

A policy revision allowed them to serve for a maximum of 14 years as an SSC officer.

Another writ petition was filed by Major Leena Gaurav on October 16, 2006 challenging the terms and conditions of service imposed by circulars earlier that year and to seek permanent commission for women officers.

 

2007

Lt Col Seema Singh also moved the court.

2008

The Centre decided in September to grant permanent commission to SSC women officers in Judge Advocate General department and Army Education Corps and their corresponding branches in Air Force and Navy. More petitions were also filed in Delhi High Court in challenging the 2006 and 2008 circulars.

 

2010

In March, a Delhi High Court Bench allowed the petition and directed the Defence Ministry to extend permanent commission benefits to the SSC women officers of Air Force and Army who had opted for permanent commission yet not granted the same.

In July, the Army challenged the order. The Supreme Court very rightly refused to put the Delhi High Court order on hold which by implication meant that the Centre was bound to implement the Delhi High Court order. It instead issued notice to women officers.

 

2011

It was on September 2, 2011 that the case reached the Apex Court in appeal. The Apex Court held that “the operation of the impugned judgment is not stayed at all”.

 

2018

On May 9, Centre tells Apex Court that it is considering granting permanent commission to women officers recruited through SSC in the Army.

On August 15, PM Modi announces a major shift by declaring that women officers will be able to opt for permanent commission in branches of armed forces apart from existing ones like legal and education.

 

2019

In February, the government took out a notice announcing permanent commission to women but prospectively and made it applicable to only those women commissioned after the order was notified keeping the serving officers out of the ambit. On February 25, Centre issues order for grant of permanent commission to new SSC officers in eight combat support arms/services.

2020

On February 17, this landmark judgment is delivered which paves the way for permanent commission of women in the army and also makes them eligible for command posts.

To start with, the ball is set rolling in para 1 of this landmark judgment wherein it is observed, “A quest for equality of opportunity for women seeking Permanent Commissions (PC) in the Indian Army forms the basis of these appeals. The lead appeal originated in a batch of Writ Petitions which were instituted before the High Court of Delhi in 2003 and 2006.”

To recapitulate, it is then pointed out in para 50 that, “The engagement of women officers in the Army has been an evolutionary process. As we have seen, women officers were initially inducted in the year 1992 under the WSES for a period of five years. This was extended for a further period of five years. On the incorporation of a provision for SSCs for women officers, options were granted to those amongst them who had been engaged under the earlier scheme to become SSC officers. As a part of the pool of officers engaged as SSC officers, the tenure was extended to fourteen years with a provision for due promotions while in service. Following the judgment of the Delhi High Court, the Union Government was under a mandate to grant PCs to women officers, to the exclusion of the Combat Arms, and at par with the grant of PCs to their male counterparts. Significantly, the judgment of the Delhi High Court was not stayed by this Court at any stage, though there was a direction that no coercive steps would be initiated on the basis of the judgment in appeal. A direction by this Court not to initiate coercive steps is distinct from a stay on the operation of the judgment. There was no reason or justification for the Union Government not to act upon the directions that were issued by the Delhi High Court, particularly, in the absence of a stay on the operation and enforcement of the judgment. The Union Government continued to thwart implementation despite the order of this Court dated 2 September 2011 clarifying that “the operation of the impugned judgment is not stayed at all.” Scant regard has been paid to the Delhi High Court and to this Court as well. Eventually, nine years after the judgment, the Union Government has communicated a policy circular dated 25 February 2019 by which a decision has been taken to grant women officers PC in eight Arms/Services, in addition to the existing streams of JAG and AEC. Thus, as a matter of policy, the Union Government has taken a decision to allow for the grant of PCs in all the ten streams in which women officers were currently being commissioned as SSC officers.”

To say the least, it was in 1992 that Centre notifies women eligible for appointment as officers for five years in the Army Postal Service, Judge Advocate General Department, Army Education Corps, Signal Corps, Intelligence Corps, Corps of Engineers, Corps of Electrical and Mechanical Engineering and Regiment of Artillery among other Corps. It was in December 1996 that Ministry of Defence deleted the five-year clause for enrollment. It was in November 2005 that the initial process of induction of women officers under the WSES was replaced by SSCs with an outer period of 14 years. The first batch of women officers under the new scheme were recruited in Army in 2008.

Be it noted, the Bench then rightly notes in para 51: “The decision of the Union Government to allow PCs to women officers in all the ten streams where they are being inducted as SSC officers substantially renders redundant the submission of Mr Balasubramanian, learned Senior Counsel, based on the provisions of Section 12 of the Army Act. Section 12 contemplates that women will be eligible for enrollment only in those segments of the Army where the Union Government has, by notification, permitted their enrollment and engagement. Even on a textual interpretation of Section 12 as it stands, it is evident that the policy decision dated 25 February 2019 of the Union Government has allowed for the grant of consideration of PCs to commissioned women officers in all the ten streams which have been notified.”

Importantly, it is then rightly underscored in para 52 that, “The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognised in the specified streams where women are permitted to seek engagement as equal members of the Armed force that the Indian Army represents. With the Union Government having recognised the induction of permanently commissioned women officers in its policy decision dated 25 February 2019, we are of the opinion that the submissions which have been made by the Union of India betray a lack of understanding of the plain consequences of the decision. The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution.”

To put things in perspective, it is then lamented in para 53: “Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court. Repeatedly, in the course of the submissions, this Court has been informed that:

(i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;

(ii) Woman officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;

(iii) A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;

(iv) An all-male environment in a unit would require ‘moderated behavior’ in the presence of women officers;

(v) The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and

(vi) The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”.”

While pooh-poohing the specious submissions made, the Bench then minces no words to hold in para 54 that, “The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the ‘weaker’ sex and may not undertake tasks that are ‘too arduous’ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas.”

What’s more, the Bench then goes on to add without mincing any words in para 55: “These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets. Confronted on the one hand with a solemn policy decision taken by the Union Government allowing for the grant of PC to women SSC officers in ten streams, we have yet on the other hand a whole baseless line of submissions solemnly made to this Court to detract from the vital role that has been played by women SSC officers in the line of duty.”

No doubt, it is an extremely laudable and landmark judgment which must be applauded, appreciated and admired by all of us! It shall certainly go a long way in ensuring that gender justice prevails in Army also. Who can deny this?

It has very rightly held that blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law. It also rightly observed that it is an insult to women as well as the army when aspersions are cast on women, their ability and their achievements in the army. The Apex Court rightly frowns on the reprehensible tendency to always stereotype women as “weaker sex” which cannot be justified under any circumstances!

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.     n

By Sanjeev Sirohi

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