Secretary, Ministry of Defence vs. Babita Puniya [Gender Equality in Armed Forces]: Case Analysis
IN THE SUPREME COURT OF INDIA
(Civil Appellate Jurisdiction)
Civil Appeal Nos 9367-9369 of 2011
Secretary, Ministry of Defence
Date of Judgement
17th February 2020
Dr. Dhanunjaya Y Chandrachud, J and Hemant Gupta
“Women are the largest untapped reservoir of talent in the world” .Hillary Clinton
This is a progressive judgment by the Apex Court of the country. As, Court has granted Permanent Commission to women officers in ten streams in which earlier only Short Commission was allowed.
There is a difference between PC and SSC- In the former, one has a choice to serve till 60 years of age and in the latter official can serve for 14 years only.
This judgement is a step towards achieving substantive equality for women which is the aim and objective of the Constitution of India. Women, since the beginning of the universe to till date, have shown their mantle and confirmed that they are no less than anyone.
There have been tremendous examples to name a few, like- Gargi, Razia Sultan, Gunjan Saxena, Indira Gandhi, Katty Sullivan, Kamala Harris.
Article 33 of Indian Constitution provides the power to Parliament to modify the rights conferred by part 3 or determine the extent to which these rights shall apply to armed force.
Sec 12 of Army Act, 1950 provides that no female is eligible for the enrollment in army unless the Union Government may, by notification in the Official Gazette, specify.
This leads to Union Government issuing a notification on dated 30th January 1992, allowing women to be eligible for appointment in some specific branches in the army. As this provision was for five years which later extended in 1996 by notification of the Ministry of defense on 12th December and it also deleted the time limit of five years in 1992 notification.
On 19th November 2005 ministry of defense provided that the service tenure of the Women Selection Entry Scheme shall extend up to 14 years. This was also followed by Army and hence a cap on length of service was introduced. The process of induction followed or observed by WSES was replaced by SS, along with an outer limit of 14 years.
We have a baby in February 2003 lawyer filed a petition in the nature of PIL in Delhi High Court for permanent Commission to women in the military then SSC.
During the proceedings, two circulars were issued in 2006, they did 20 July, by which the president of India granted SSE’s both on the technical and non-technical side to women officers. Here, serving women officers we’re given the choice either to shift to new SSE or remain under WSES.
Along with certain terms and conditions,para1(a)-Tenure of Short Service Commission: Short Service Commission (SSC) Technical in the Regular Army will be granted for 14 years i.e. for an initial period of ten years extendable by a further of four years.
Provisions for substantive promotions were made-(e) Substantive Promotion: Women granted Short Service Commission under these rules will be eligible for substantive promotion as under:- “(i) To the rank of Capt – On completion of 2 years reckonable commissioned service.
(ii) To the rank of Major – On completion of 6 years reckonable commissioned service.
(iii) To the rank of LT Col – On completion of 13 years reckonable commissioned service.”
A petition was filed challenging the circulation asking for PC for women officers. This leads the centre to issue a circular in 2008 by which it granted a permanent Commission to Short Service in Judges Advocate General and Army Education Department.
In March 2010, Defence Ministry circular guided to extend the benefit of a permanent Commission to short Service Commission officers in Air Force and Army who had decided on a Permanent commission yet not conceded equivalent.
In 2011, this case went to Apex Court. In August 2018 Prime Minister announced that women officers have an option for a changeless Commission in part of the military separated from existing cases.
In 2019 parliament brought a notification granting a permanent Commission to women officers which is to be enforced prospectively.
- Whether Women Officers should be granted Permanent Commissions in the Indian Army?
- Whether the Guidelines issued by the Government of India on 15th-Feburary-2019 are worth implementing?
- Whether the Law relating to Army are Discriminatory in nature or not?
ARGUMENTS BY APPELLANTS
ARTICLE 33:- Article 33 of the Constitution gives Parliament the power to modify the Fundamental Rights or to determine the extent of any right conferred by Part-III in application to members of Armed Forced.
OCCUPATIONAL HAZARDS:- According to the Union of India, Women Officers cannot be deployed on duties which are dangerous in nature like combat duties because of their physiological differences or due to inherent risks.
AJAY VIKRAM SINGH COMMITTEE:- According to its report, the induction of SSC( Short Service Commission) into PC(Permanent Commission) will disturb the structure of the Army.
MR. R BALASUBRAMANIAN, the learned senior counsel, mentioned the case UNION OF INDIA v. P.K. CHAUDHARY, in which it was held that command/ tenure are not subject to Judicial Review.
PENSIONARY BENIFTS:- According to Government Policy dated 15th-Feburary-2019, the substantial benefit of pension is to be provided to Women Officers who have continued beyond Fourteen years of service prospectively.
DISCRIMINATION:- There is no discrimination between male officers and women officers. Rather, women officers are given extra benefits like maternity leave.
The Women Officers have to deal with pregnancy, motherhood, childcare and domestic obligations towards their families and this may not be well suited to a life of soldier in the Armed Force.
The deployment of Women Officers on border areas is not advisable because the area lacks very basic and minimal facilities like habitat and hygiene.
ARGUMENTS BY RESPONDENT
Even after 74 years of Independence, only 4% women are employed in Army whereas there are 96% of male in the Army…….. is this not discriminatory in nature?
Since there was no stay order against the decision of Delhi High Court but still the Government took no step to work on that.
Not giving equal opportunities to women on the basis of physiological differences is a form of discrimination and considering women as a weaker section of the society.
The Union of India has alleged that the presence of women has a negative impact on unit cohesion. But this is high time that the organization must accept women equal to men.
There is a shortage if officer in the Army but those are filled by retired male officer of Colonel rank, when they can be easily filled by women officers who are eligible and compatible for the same.
The appellant have stereotype approach towards women, as according to them, the domestic obligation solely lies on the shoulders of women. But in reality their counter male also have equal responsibility towards the family.
When both Women Officers and Male Officers undergo same training then, why only Male Officers are eligible for Permanent Commission?
When women are working equally then they are also entitled to get the equal substantial benefits which their counter-male receive i.e., pension after retirement to all women officers who are currently employed.
Almost 30% of women officers are deployed at a place with hostile environment or at dangerous places/ border areas.
SECTION 10 OF THE ARMY ACT, 1950:- 10. 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.
SECTION 12 OF THE ARMY ACT, 1950:- 12. 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.
ARTICLE 14 OF THE INDIAN CONSTITUTION:- 14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
ARTICLE 15 OF THE INDIAN CONSTITUTION:- 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
- No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
- access to shops, public restaurants, hotels and palaces of public entertainment; or
- the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
- Nothing in this article shall prevent the State from making any special provision for women and children.
ARTICLE 16 OF THE INDIAN CONSTITUTION:- 16. Equality of opportunity in matters of public employment.-
- There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
ARTICLE 33 OF THE INDIAN CONSTITUTION:- 33. Power of Parliament to modify the rights conferred by this Part in their application etc.- Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,
- the members of the Armed Forces; or
- the members of the Forces charged with the maintenance of public order;
DECISION OF THE COURT
The Supreme Court Bench as headed by J. Dhananjaya Y. Chandrachud challenged the notion of the appellant i.e., the Union Government and stated that they are inveterate in deciding the gender roles for women. This approach of the appellant is based on the stereotypical assumption that domestic works are the responsibilities of women only. And this approach of the appellant violates Art.14 of the women. And not giving Permanent Commission to women officers in the Army is a clear violation of their Fundamental Rights guaranted under Art.14, 15 and 16.
He also said that although Art.33 allows Parliament to impose restrictions on Fundamental Rights of Armed Force, but these rights could be restricted only to the extent that it was absolutely necessary to ensure the proper discharge of duty and maintenance of discipline.
The Court held that the policy decision of the Union of India dated 25thFeburary-2019 that allows Permanent Commission to women officers in 10 streams (continuation of Permanent Commission in 2 already existing streams and grant of Permanent Commission in 8new streams) is in accordance to sec.12 of the Army Act, 1950.
The Apex Court also held that the policy decision taken by Union of India dated 25thFeburary-2019, will subject to the following conditions:-
- The order given by the Delhi High Court is affirmed.
- All the serving women officers on Short Service Commission shall be considered for the grant of Permanent Commissions, regardless of any of them crossed 14 years of service or 20 years of service, as the case may be.
- All the women officers who are eligible and granted Permanent Commission from Short Service Commission should be entitled to all the substantial perks like promotion, financial incentives and pension like their male counterparts.
- The women officers and male officers shall make the choice of specialization at the time of opting Permanent Commission, on the same terms.
- All women officers shall be provided with the benefits of continuing in the service until the attainment of the pensionable age.
- The expressions like ‘in various staff appointments only’ and ‘on staff appointments only’, shall not be enforced with respect to Permanent Commissions of women.
This judgment of Supreme Court granting permanent Commission to women officers is a progressive judgment Indian Court has always stand up for the rights of women And this time again Quote has upheld the right of women which were not given to them by the legislature now an by the custom then. It is truly protected its place as a Guardian of the constitution.
Art14 to 18 provides or guarantees right to equality. Article 14 provides that state shall provide equality before law and equal protection of law. Article 15 provides that state shall not discriminate on the grounds of religion, race, caste, sex, or any of them.
Article 15(3) Provide state can make special provision for the advancement of women and children.
Article 16 state shall not discriminate on the basis of religion, race, caste, place of birth, sex , resident or any of them.
These fundamental rights would be only let us if not followed by the quotes in letter and spirit. There have been plethora of cases in which courts have extended these rights like in the case of CB Muthamma to Anuj Garg. –Allowing right to work two women equally to their counterpart.
In Chandrima Das case, Court has reiterated that article 14 is for all weather citizen and or not.
This case has been decided by a bench of epic squad headed by honorable JUSTICE DY CHANDRACHUD who has earlier said that “Constitution is itself feminist, as the main function off feminism is to distort social Hierarchies and so is of constitution.”
Not providing permanent Commission to women Officer Court has held violates article 14, 15 and 16. Cote has remarked that in spite of undergoing the same training as their counterpart undergo, still they do not have the books are the length of time which the counterpart enjoys.
Why do they have the limit to serve the nation in spite of having all the capacities to do so.
“We cannot succeed until half of us are held back” -Malala Yousufzai
This judgment though progressive have left us with a question That whether do we the holders of right. Need to ask for our rights from other institutions.
This also lead to people to believe that apart from these binary identities there exist a community of people who do not identify themselves with these identities, but still have the same patriotism, same enthusiasm, same drive to serve the nation But still, they are held back and this LGBTQ Community is denied their right. Though is a big success we have miles to go before we sleep.
- THE SECRETARY, MINISTER OF DEFENCE v. BABITA PUNIYA.
- INDIAN CONST. art. 14, 15, 16 and 33.
- THE ARMY ACT, 1950, NO. 46 ACTS OF PARLIAMENT (1950).
- SUSHANT SINGH, WOMEN IN ARMY: WHAT SC SAID, THE INDIAN EXPRESS, FEBURARY 18, 2020 AT 11.
- SANJEEV SIROHI, ADVOCATE, SC SHATTER ARMOUR PLATED CEILING, LEGAL SERVICE INDIA (AUGUST 14, 2020, 10:35 PM), http://www.legalservicesindia.com/law/article/1438/21/ .
 Infra at 7
 Infra at 5
 Infra at 5
 Civil Appeal No 3208 of 2015, decided on 15 February 2016
 C.B. Muthamma v. Union of India, A.I.R. 1979 SC 1886 (India)
 Anuj Garg v. Hotel Association of India, 2007 (India)
 Chairman, Railway Board and others v. Chandrima Das (Mrs) and others, (2000) 2 S. C. C. 465 (India)
Author: Aakanksha Verma & Khushboo Sharma This Case Comment was shortlisted in 1st Our Legal World National Case Comment Writing Competition 2020