By Divyanshu Sharma
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Citation: 2020 SCC Online SC 326
Act: Article 14, Constitution of India
Principle: Equal permanent commission for female armed
forces officers
The position of women officers in the Indian Armed Forces has been a contentious issue since the beginning of this century. The contention is based on granting an equal status to the women officers in relation to their male counterparts. Women were inducted in the Indian Army in 1992, which allowed women to be inducted in six departments of the military only. While the initial tenure of women officers was five years, through subsequent amendments it was extended to 14 years. After 14 years of faithful service to their nation, these women officers were to be released from service, without any regard to whether they wanted to continue the service. The biggest problem with this system was that it forced women, who had reached the highest level of success, to stay under their junior officers, in rank and file, as it did not give them the status of Permanent Commission, thus restricting their promotion.
Permanent
Commission (PC) means that the person is allowed to serve the army till the
full age of retirement, and to achieve promotions, even in command positions.
This status provides several perks to the officer, even after retirement. Since
Indians never consider women to be ready for the leadership in the front-lines,
women are not promoted beyond an extent, even if they are eligible for it.
Delhi
High Court’s Order of 2010
In 2008,
the Ministry of Defence granted PC status to women officers in the departments
of Judge Advocate General and Army Educational Corps. This order was challenged
in the Delhi High Court, as it was only prospective in nature, i.e. it applied
to women officers who would be joining the army after this order came and not
to those officers who were already in service, and it applied only to a few
departments. The Delhi High Court refused to deal with the validity of this
order, naming the reservation of departments a policy decision which wasn’t a
part of the appeal. However, it clearly stated that the army was supposed to
consider all officers who were currently in service for the PC status.
While
this order was passed in 2010, the Union Government didn’t comply with it. In
2011, the Supreme Court clarified the position, saying that the order of the
Delhi High Court wasn’t stayed, i.e. the government was required to comply with
the order and issue fresh directions accordingly. This case is based on appeal
by the Union of India, on behalf of the Indian Army, against the Delhi High
Court order.
Protection
of Article 33
During
the pendency of the decision, in 2019, the Union Government gave a proposal of
giving PC status to women, only in case of non-combat related jobs, extending
it to ten departments. The biggest problem was that it restricted the PC status
only to staff appointments. Thus, if a woman officer was eligible for a command
post, she wouldn’t be considered for it.
This
proposal was defended by saying that, if women are made to go to the
front-lines and lead the army in command positions, they would have to stay in
inhospitable conditions, which would be difficult for them. Secondly, it was
contested that women officers are less capable of fighting due to their
maternal instincts, which would be disastrous in a combat situation. Then, the
government said that if PC is given to women officers beyond these departments,
it would disrupt the organizational structure of the Army. All these
contentions were challenged on the ground that they were discriminatory in
nature on the basis of sex, and thus, were violative of Article 14 of the
Constitution, i.e. Right to Equality.
To
counter this contention of violating Article 14, the government took the
protection of Article 33 of the Indian Constitution. Article 33 provides that
the Parliament has the power to make laws, which might abridge the fundamental
rights to the members of armed forces, to ensure the proper functioning of the
armed forces and maintain discipline within them. The government stated that
this segregation, between male and female officers, was necessary to ensure the
functioning of the Indian Army, and thus outside the perview of Fundamental
Rights.
The Court
said that the essence of Article 33 and its protection lies in the fact that
the restriction of the fundamental right should be absolutely necessary for the working of the army. However, the
segregation in giving the PC status to women officers cannot be termed as
absolutely necessary for the working of the army. Thus, the government could
not take the protection of Article 33.
Gender
Inequality Within The Army
The
judgement reiterated the age old problem of gender inequality, inherent in the
Indian Army. The reasons given by the government for not giving PC status in
combat fields to women were based on
intrinsically based sex stereotypes, wherein women are always considered
psychologically and physically weak.
The
reason that promotion of a woman officer to the front lines would disrupt her
family and the life of her children was also categorized as stereotypical. Secondly,
the defense of inhospitable conditions
was seen as unreasonable, as junior level women officers were made to act in
the same physical conditions in which a Command Officer would. So, the fact
that women officers are not fit for such conditions was found ludicrous.
The
Supreme Court lauded the government on its move of expanding the PC coverage to
women in 10 departments, showing a move away from the ingrained biases. This
move was seen as reestablishing the right to equal opportunity in public
employment and also a move against sex based discrimination.
However,
the restriction of the PC status to “only staff appointments” was seen as
violative of Article 14. The Court struck down this phrase and mandated that the
PC to women officers should be given
even for Command Posts, which should be decided on the basis of their merit
and not their sex.
Non-Compliance
with the Delhi High Court Order
The 2019
proposal stated that only those women officers who have not completed 14 years
of their service would be eligible for the PC status. Women officers who have
completed the 14 years would be allowed to continue service till they complete
20 years of service, so that they would be eligible for pension. This
distinction was seen by the Court as erroneous, as the order for granting the
PC status to women officers came in 2010 from the Delhi High Court, which
wasn’t complied with by the government. In spite of the Supreme Court
clarifying that there is no stay on the Delhi High Court order, the government
didn’t act.
The conundrum
faced by women officers above 14 years of service was due to the inefficiency of the government.
Thus, the court ordered that women who have completed 14 years of their service
would also be considered for the PC status, only this time. Secondly, women
officers with more than 14 years of service, who don’t opt for the PC status,
would be allowed to continue with their service till 20 years of their service
are complete.
Final
Order
Through
this judgement, the Supreme Court ordered that the proposal for giving PC
status to women officers will be accepted, but without the clause of “only
staff appointments”. This means that women officers would also be eligible for
command positions.
Secondly,
only for this time, women officers who have completed 14 years of service would
also be eligible for the PC status, as the lapse in time was due to the
government’s fault.
Thirdly, women
officers, with more than 14 years of service, who don’t opt for the PC status
would be allowed to continue with their service till 20 years are complete.
Thus,
this judgement was a major victory for women equality within the Indian Army,
as it provided them with permanent commission status, after a long fight of 10
years.
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Divyanshu Sharma is a 2nd Year Law student at National Law University, Delhi. An avid researcher, he enjoys reading about several contemporary legal and political issues. He is passionate about the feminist aspect of law and likes to understand law in this direction. His core interests include Constitutional Law and Commercial Law.
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