CASE: THE SECRETARY, MINISTRY OF DEFENSE VS. BABITA PUNIYA
BY- Prathana Patel
Decided on: 17th February 2020
Citation: Civil Appeal Nos 9367 – 9369 of 2011
The author tries to explain the difficult and stretched out journey fought and won by the women which resulted in breaking the glass ceiling. The paper also shows how one pillar of democracy supports and restricts the other to commit mistakes which ultimately result into the protection of rights of its citizens and leads to the smoother running of democracy.
Pleading the grant of Permanent Commission in Indian Army advocate Babita Puniya filed a writ petition in Delhi High Court. On 20 July 2006 two circulars with the sanction from the President of India were issued. This circular concerned the recruitment training, promotion, service span and seniority adjustment of the women in the army. In the same year the WSES (Women Special Entry Scheme) was replaced by SSC (Short Service Commission).
The Ministry of Defense on 26 September 2008, issued a circular envisaging the grant of permanent commission to SSC women officers in JAG (Judge Advocate General) and AEC ( Army Education Corps). The same was challenged in Delhi High Court by Major Sandhya Yadav & others. They stated that the circular grants Permanent Commission to only certain specified cadres.
In a contempt proceedings the then Solicitor General of India on 2 August 2010 argued in court that Women SSC officers on service would be considered for grant of Permanent Commission in JAG and Education Branch of Army within two months. The court passed the judgment in the favor of women but the order was never implemented.
While the case was pending in the Apex Court the government’s brought ordinance in February 2019 and proposed that Permanent Commission should be given to SSC recruited women officers who have served for less than 14 years. These appointments would only be as ‘staff appointments’ & not in non-combat streams. Even after the proposal of the government in 2019 the case continued as it had a loophole that the advantage was only provided to women officers who have served less than 14 years.
Finally the landmark judgment was passed on 17th September in the favor of women granting the permanent commission in Indian Army.
- Respondent’s Arguments:
- No steps were taken to grant the Permanent Commission for women in spite of the judgment of Delhi High Court.
- When the nature of the duties of men and women are the same then why is there the difference with respect to battlefield scenarios?
- It was alleged by the Union of India regarding the negative impacts of women on units and it is the time to accept women as equal colleagues.
- The third argument raised regarding the posting of women in sensitive places, field areas, force headquarters and units even without posting being posted into combat arms.
- Just like men, women officers have served for the nation in their important years of life and tried without getting in terms of pension and promotional benefits.
- The appellant claimed women’s exposure to a hostile environment where there is grave danger of their enemies is discriminatory and biased as 30% of women in the army are recruited in combat zones.
- As a result of gender bias the Indian army is letting go of their trained female officers despite deficiency of officers in support service.
- The training for men and women is similar in the SSC course but still women are not eligible to seek permanent commission.
- This discrimination against the women with respect to grant permanent commission in the policy, it lowers the status to that of Jawan/JCO.
- Union Government’s Arguments:
- The government stated that Delhi High Court’s Judgment failed in recognizing the orders of government of India regarding Section 10 and 12 of Army Act.
- The government also mentioned that there is no discrimination in SSC officers. They submitted that army faces challenges in managing the women in soft posting with required infrastructure, not involving hazardous duties with the regular post with the other women in station.
- The army also has to provide facilities to the spouse and cater their postings. The females remain absent during their maternity leaves and childcare leave and as a result the legitimate dues of male officers have to be compromised.
- Women are not posted at hazardous places unlike the male counterparts.
- There are other issues associated with this such as adverse condition of service, absence of privacy in field and insurgency areas, maternity issues and child care.
- The women are being provided pension. Any woman who has served beyond 14 years will be provided the pension as per the interim orders by policy dated on 15 February, 2019.
- Further it was argued that there are physiological differences between male and females.
- In border areas there is minimal health and hygiene facilities which and as per current situation posting them in those areas is not advisable.
The supreme court stated, irrespective of the serving year all shall be considered for the grant of permanent commission. The court grants the permanent commission in 10 streams of combat support arms and services which brings women equal to the male officers they are mentioned as below:
- Regiment of Artillery
- Corps of Engineering
- Corps of Signals
- Army Service Corps
- Army Ordnance Corps
- Corps of Electrical Engineers
- Corps of Mechanical Engineers
- Army Education Corps
- Intelligence Corps
- Judge Advocate General
The court also removed the restriction on women officers only being allowed to serve in staff appointments, which is the most significant and far reaching aspect of the judgment. Justice D.Y. Chandrachud stated that the Union is trying to stereotype the gender role which is against article 14 of Indian Constitution. Court affirms the order passed by the Delhi High Court.
Irrespective of gender everyone should get the options in SSC whether to go for PC or not. All the women officers who are eligible and granted PCs through SSC should be entitled the perks such as pension, promotions and other financial incentives also, they should be entitled to continue the service until pensionable service and the same would apply on all SSC women officers too.
- Critical Analysis:
The judgment passed by the Supreme Court sets valuable precedent. The Union stated in court that Article 33 of the Indian Constitution restricts the fundamental right when it comes to the Armed Forces but the same was rejected by the Justice D.Y. Chandrachud. Instead he noted: Article 33 does not restrict anybody’s fundamental rights and made clear that it can only be restricted to certain extent where discipline has been maintained.
The court observed contradictions between policy issued and arguments done by the Union in court. The argued regarding the physiological difference between the male and female officers but in the policy it extended grant of PC’s to other corps in support arms and recognized that physiological difference is not above the women’s entitlements under constitution. Further the court noted that arguing about the physiological difference portrays women as ‘weaker sex’ & it stereotype’s the view.
The grant of Permanent Commission was only given in staff appointments and not in command appointments has borne the burden justifying such exclusion and this can only be done on a case to case basis. It can be said that this is granted with restrictions.
- Authors View:
In author’s view women are considered as subordinate sex worldwide, no matter in which field they are they faced many difficulty to reach at the position they are holding today. If we see the history of our armed forces it shows it never welcomed women with open hands as they started getting appointed lately in 1992 while we got independence in 1947. Author also believes that this judgment should be celebrated as it not only brought gender equality but also highlights the gender role and stereotype prevailing not only amongst citizens but also at the union.
The argument by the parties highlighted the issue prevailing in the armed forces and we came to know regarding the reasons why women were unseen at commanding posts. In 1992, there were restrictions on span of service till of only 5 years and only in certain departments. Due to restrictions being imposed on women their representation in the armed force is very less. As per the reports there Indian army comprises only 3.8% women, the Navy and Air Force comprises 6% and 13% respectively which is limited in comparison to population of India.
On the basis of this judgment in the month of march the Apex Court granted PC in the Navy. It can be concluded it has opened the door for women too into all armed forces just like the slogan of Indian Navy- “An Ocean Of Opportunity”.