Updated: Apr 11, 2021
When we see a country like India where equality is the very bedrock of constitutional framework, if a question can be raised then it will be on the unequal commission of women in the armed forces. Although attempts had been made over the years yet no great success was ever achieved. But, the Supreme Court in its recent ruling has cleared the way for permanent commission of women in armed forces.
Ø The issue raises from section 12 of the Indian Army Act, 1950 which states as under:-“Ineligibility of females for enrolment or employment – No female shall be eligible for enrolment or employment within the army, except in such corps, department, branch or other body forming a part of, or attached to any portion of, the army because the Central Government may, by notification within the Official Gazette, specify during this behalf.”
Ø There are two types of commission in the armed forces, the Short Service Commission and the Permanent Commission; the women were allowed to join armed forces only on the short service commission which provided for 5 years of compulsory service.
Ø The various corps or departments to which women can join were five as of the Government notification dated 30.01.1992 giving them a service of 5 years only. Then, by the Government order dated 31.12.1992 five new departments were included taking the total tally to ten. They were:-
a) Army Postal Service.
b) Judge Advocate General’s Department.
c) Army Education Corps.
d) Army Ordnance Corps (Central Ammunition Depots and Material Management).
e) Army Service Corps (Food Scientists and Catering Officers).
f) Intelligence Corps.
g) Corps of Engineers.
h) Corps of Electrical and Mechanical Engineering.
i) Regiment of Artillery.
Ø On 28 October 2005, a notification was issued by the Ministry of Defense by which the Union Government extended the validity “of the scheme of appointment of women as officers within the Indian Army” for an additional five years for the ladies officers inducted under the ladies Special Entry Scheme (Officers).
Ø In 2006, the WSES scheme was replaced with the SSC scheme, which was extended to women officers.
Women raising voice against Injustice:
In 2003, an Advocate, Babita Punia filed a P.I.L. for grant of permanent commission to the ladies officers.
In 2006, Major Leena Gaurav challenged the terms and conditions imposed on the services of women through a writ petition.
The Delhi High Court decided Babita Puniya vs. Secretary of Defense and another on March 12, 2010, through a division bench of Sanjay Kishan Kaul and Mool Chand Garg, JJ, allowing the writ petition observing William Henry’s quote “Nature gave women an excessive amount of power, the law gives them too little”.
The court allowed the prayer of the permanent commission of women officers in armed forces observing in its unanimous decision that any judicial body which follows the principles of the Constitution of India will always strike down such a provision as ultra vires to the Articles 14, 16 & 21 because when the women officers are training simultaneously to the male officers who are granted permanent commission then there is nothing to suggest that when vacancies arose the female officers are absorbed from it subject to their fitness and similarly when it comes down to seniority, that of a women officer is always dropped before a male officer of short service commission.
The Court relied upon Union of India v. Hindustan Development Corporation wherein it explained the nature and scope of the doctrine of 'legitimate expectation:-
It is generally agreed that legitimate expectation gives the applicant sufficient locus stand for review which the doctrine of legitimate expectation is to be confined mostly to the right of a good hearing before a choice that ends up in negating a promise or withdrawing an undertaking is taken.
The Court allowed the petition held that the aforementioned benefit of the permanent commission will only be provided to women officers in service and those who have brought this writ petition.
The decision of the Supreme Court
The Union Government appealed against the above decision in the Supreme Court.
During the pendency of the Appeal, a proposal was made before the Court by the Union providing regarding the Policy letter dated 25.02.2019 wherein the policy letter provided for the permanent commission of women in ten departments of Armed forces subject to their choice and availability with a restriction that they have to decide about this in their fourth year of service.
The proposal made few positive changes to the policy letter saying:-
i. The policy would be modified for the advantage of those officers who have served for more than four years and therefore cannot opt for this option.
ii. Women officers who have crossed 14 years of service will be allowed to work till 20 years of service and will be given pension benefits.
iii. Women who have serviced for more than 20 years would be disengaged immediately after this appeal is decided with pension benefits.
The Union submitted that the Delhi High court’s decision has failed to comply with the statutory condition which as per section 10 of the Indian Army Act, 1950 provides that the commission will be given at the discretion of the President and further section 12 lays that the women are not eligible except in department where Union decides, further the scope of judicial review has been reduced in Union of India Vs. P.K. Chaudhary as this is a policy matter.
On the contrary, the counsel for the respondents submitted before the Court that the Government has failed to comply with the order of the Hon’ble High Court despite there being no stay order. The respondents also submitted about the vacancies available and mindset problem that the Government questioned saying that if the nature of the duty of both the men and women are similar, why only women lack the substance to fight on the battlefield, further they point out that it is horrendous to say on the part of the Government that the presence of female officer will adversely affect the unit cohesion. They submitted that it is high time the organization starts accepting equal colleagues. They said that the discrimination for male officers deciding within their 10 years of service and female officers deciding in their fourth year of service cannot be accepted.
The Government rejected the Government affidavit which provided that since most of the soldiers come from Rural environment and the way they have been brought up they are not willing to accept commands from a woman, giving a command in the hands of women officers will change the dynamics of Armed forces if a woman is captured as a war prisoner then it will be a problem for the country and government so they should be kept away from direct combat. The difference in the physical strength of women does not allow them to lead from the very front. The Court was very annoyed by these reasons and regarded them as “Sexual stereotypes”.
The bench headed by Justice D. Y. Chandrachud took a dig at the Union for not enforcing the decision of the Delhi high court in this regard. The court rejecting the proposal of the Government said that it has to allow all women who are willing to get permanent commission irrespective of their service duration. The Court also removed all such barriers which restricted women from being appointed to command post, so now they will be appointed on command post on case to case basis, earlier they were only appointed on staff posts which the Court regarded as a violation of the basic fundamental of equality as given in Article 14 of the Constitution.
The Court has directed the Centre to implement the decision within three months, however, this must be understood that the present decision does not apply to combat roles i.e. infantry, armor, and artillery.
Ø The Court has not made the Permanent Commission a right and it is up to the Government of the day to decide whether and when to provide permanent commission to women but the bench made it clear that the Government has to pass a reasonable order if they are denying a woman officer which is subject to judicial view.
Ø The Court in March has also opened the gates for a permanent commission of women in Naval Forces as well on similar grounds.
Ø The Court has also rejected adjudicating the matter of combat roles for women as they were not part of the original decision of the High Court, however various countries in the world have allowed women in combat roles as mentioned in the decision itself.
Ø Two studies are significant to point out here, one is from Wall Street Journal in 2018 which talks about the U.S. marine corps experience with women soldiers which has 149 women died in combat in Iraq, Afghanistan, and Syria but the largest number of casualties have taken place by helicopter and airplane crash while the second-largest in by I.E.D. Blasts but only 11 women are currently serving in frontal combats. The second article is from Marine corps times in the U.S. Armed Forces which had a study of firing training between a pure male unit and a mixed unit of male and female and in all parameters they found that in all trials the male unit is defeating the mixed unit, which is a reality check, so less physically demanding jobs are good for them as the report suggests.
Ø Every step, policy, or decision needs to be implemented in its letter and spirit to produce the best result, so it is up to the Government and Courts to ensure its proper implementation.
The landmark decision is most welcomed however it is necessary to understand that it is a long way clear from an equal representation of women in the Armed forces. At present, there are about 1560 women officers which is 3.9% of the total 42,000 officers. India, as a country from the time of Vedas, has treated women with great honor and dignity and if the decision is well implemented it can be said that the glory of women will return.
- LEGAL HUMMING YASH SINGH