Status as on- 14/01/2023

“One is not born, but become a woman”- Simon de Beauvoir

Article 14 of the Constitution embodies the general principles of equality before the law and prohibits unreasonable discrimination between persons.

Clauses (1) and (2) of Article 16 lays down the general rule of equality of opportunity or appointment under the state and that no citizen can be discriminated against or be ineligible for any employment or office under the state on grounds only of religion, race, caste, sex, descent, place of birth or residence.

A quest for equality of opportunity for women seeking Permanent Commissions in the Indian Army forms the rationale of the instant case.

The lead appeal originated in a batch of Writ Petitions which were instituted before the High Court of Delhi in 2003 and 2006. Section 12 of the Army Act 1950 provides – No female shall be eligible for enrolment or employment in the regular Army, except as the Central Government may, by notification in the Official Gazette, specify on this behalf.

30th January 1992

According to the power conferred by section 12, the Central Government issued a notification making women eligible for appointment as officers in the specific branches/cadres of the Army. The provision of induction of women which was initially five years was extended gradually for another five years and by a notification published in the official gazette on 19th November 2005, the tenure of SSC male officers and WSES officers was extended up to fourteen years;

In 2003

Babita Puniya instituted a writ petition like Public Interest Litigation before the High Court of Delhi, to grant women engaged in Short Service Commission in the Army seeking parity with their male counterparts in obtaining Permanent Commissions. Various other petitions seeking the same were clubbed with this petition.

During the proceedings, two circulars were issued on 20th July 2006, conveying the sanction of the President of India regarding the grant of SSCs both on the technical and non-technical side to women officers.

16th October 2006

Apart from the PIL which was instituted before the High Court of Delhi, a writ petition was filed by Major Leena Gurav, primarily to challenge the terms and conditions of service imposed by the circulars dated 20 July 2006 and for seeking the grant of PCs for women officers.

On 26 September 2008

The MoD issued a circular envisaging prospectively granting PCs to SSC women officers in the JAG department and the AEC. The circular was challenged before the Delhi High Court by Major Sandhya Yadav and others on the ground that it granted PCs only prospectively and only to certain specified cadres.

12th March 2010

The Writ Petitions were heard together by the Division Bench of the Delhi High Court. By a judgment dated 12 March 2010, the High Court issued directions, which were not complied with, hence the present Appeal and the Supreme Court upheld the order of the High Court.

25th February 2019

The government issued guidelines that a permanent commission will be granted to the women officers but prospectively and commissioned that only those women will be eligible who commissioned after this order is notified keeping the serving officers out of the ambit of the permanent commission. It granted a permanent commission to new SSC officers in eight combat roles.

ISSUES

Issues raised henceforth before the Supreme Court are:

1. Whether the guidelines issued by Central Government through a notification dated 15th February 2019 should be upheld?
2. Whether women appointed under SSCs should be granted an equal opportunity of Permanent commission as their male counterparts?

CONTENTIONS

On behalf of the Petitioner

1. It is contented that section 10 of the 1950 Act, confers the discretion of the President about the award of commission on any person in the Army. Further Section 12 of the Act confers discretionary power on the Central government concerning the enrolment or employment of women officers in the regular Army.

The ability to give commission is placed with the president and no mandamus can be asserted from the court.

2. The reason for not providing women PCs, who are already in service is that after 14 years they have a limited year of service left, and training them would result in a loss of resources.
3. Substantial benefits of pensionable service have already been granted to women via order dated 15th February 2019, providing women would be allowed to work if they have completed 14 years of service but not 20 years to an attaint pension without scrutiny.
4. The issue related to the recruitment and grant of PCs has been constituted as a policy decision and the executive has exclusive domain over it, this provision has been protected by Article 33 as an exception to the fundamental rights provides under Part III of the constitution. This Article empowers the Parliament to restrict/abrogate by law, fundamental rights in the application to the members of armed forces. The scope of judicial review in command and tenure has been limited as held in the case of Union of India Vs PK Chaudhary.
5. It was submitted that restrictions on the employability of women in the Army are “Inescapable due to peculiar operational compulsions of the Army”, also women are not fit because of their physiological differences from men.
6. There has been no discrimination since extra benefits are available like maternity leave which their male counterparts are deprived of.

On behalf of the Respondents-

1. There was no stay on the implementation of the judgment of the Delhi High Court and no steps were taken to grant PCs to women officers in the Army.
2. It was submitted that women officers are considered effective workforce until they complete their 14 years of service during this period the nature of duties remains the same hence the contention of the Union of India holds no water.
3. It was submitted that the object of restriction provided under Article 33 is to ensure the proper discharge of their duties and maintenance of discipline amongst them and not for discrimination.
4. Despite the present batch of appeals, women officers of all ages are still being posted to sensitive areas, field areas, head- quarters, and warfare zones without being commissioned into combat arms. Thirty percent of all women officers are posted in the field (combat zones).
5. Women Officers have been left in the lurch without pensionary and promotional benefits at par with their male counterparts, while both undergo the same training process.
6. Order issued by Government dated 25th February 2019, for the PC has only prospective effect.

JUDGEMENT

1. Chandrachud J. said the impact of Article 33 is to enable Parliament to limit or abrogate the fundamental rights in their application to the armed forces members. But such a restriction or abrogation must be by law. Moreover, restriction or abrogation must be enacted to ensure the proper discharge of duties and the maintenance of discipline.
2. The court said that the policy decision of the government is the right of the women officer to equality of opportunity. One facet of which is the principle of nondiscrimination embodied under Article 15(1) and the other is the principle of opportunity in the matter of public employment embodied in Art 16(1).
3. SC did away with all the discrimination based on the year of service for the rant of PC in 10 streams of combat support arms and services, bringing them on par with male officers also removed the restriction of women officers only being allowed to serve in staff appointments. A command is now open to women
4. Upholding the 2010 Delhi High Court Verdict ruled that women officers who joined the Indian army through SSC are entitled to PCs.
5. The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender that 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 that assumes that domestic obligations rest solely on women.
6. this Court must clarify that the prospective application of the decision does not mean that it would only apply to women officers who have been appointed as SSCs officers after the date of the decision but also to women who are currently appointed under SSC.
7. Those who served 20 years or more whether or not they got a PC, will be entitled to pension benefits.
8. The policy decision has been taken by the government allowing for the grant of PCs to SSCs women officers in all ten streams where women had been granted SSC only in the Indian Army were accepted by the court with subject to some conditions.

Conclusion-

Hence, the Hon’ble Supreme Court has rightly delivered this judgment in favor of women by granting them permanent commissions at par with their male counterparts. This is a hammer in the face of stereotypes that don’t consider women equal to men. However, India has made commendable progress in development, yet gender disparities persist against the country’s economic growth. The constitution grants equality to women and prohibits discrimination before the law but the personal laws resulting in a dual system allow discrimination against women. Moreover, SC should be vigilant in looking after the conditions of women engaged in other workforce and committees should be made for that regard.

Disclaimer: The above article is based on the personal interpretation of the related orders and laws. The readers are expected to take expert opinions before relying upon the article. For more information, please contact us at ibc@centrik.in.

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