Supreme Court settles the grant of Permanent Commission to Women Officers in the Indian Army: The Secretary, Ministry of Defence vs. Babita Puniya & Ors. (2020) INSC 145 (17 February 2020)

Introduction

Date of the Judgment: 17 February 2020

Citation: (2020) INSC 145

Judges: Dr. Dhananjaya Y Chandrachud, J and Ajay Rastogi, J

Can women in the Indian Army achieve parity with their male counterparts in obtaining Permanent Commissions? The Supreme Court of India, in a landmark judgment, addressed this crucial question, focusing on equality of opportunity for women seeking to serve the nation. This case arose from a series of writ petitions filed in the Delhi High Court, highlighting the struggle of women officers engaged on Short Service Commissions (SSCs) to gain equal footing with their male counterparts regarding PCs.

The core issue revolved around whether women officers, initially inducted through the Women Special Entry Scheme (WSES) and later through SSCs, should be granted PCs, and if so, under what conditions. The Court examined the historical context of women’s entry into the Army, relevant legal provisions, and arguments presented by both the Union Government and the respondent women officers.

The judgment was authored by Dr. Dhananjaya Y Chandrachud, J, with a concurring opinion from Ajay Rastogi, J.

Case Background

The journey of women’s entry into the Indian Army has been marked by gradual inclusion. Initially, women were made eligible for appointment as officers in specific branches such as the Army Postal Service, Judge Advocate General’s Department (JAG), Army Education Corps (AEC), Army Ordinance Corps, and Army Service Corps through a notification dated 30 January 1992. This was initially for a limited period of five years.

Later, in 1992, women became eligible for enrollment in Corps of Signals, Intelligence Corps, Corps of Engineers, Corps of Electrical and Mechanical Engineering, and Regiment of Artillery. The initial five-year tenure was extended, and in 2005, the Ministry of Defence (MoD) extended the tenure of WSES officers up to fourteen years, replacing WSES with SSCs.

The contesting respondents, excluding one who was not an Army officer, were selected as SSC officers starting from 1995-96. In 2003, Babita Puniya filed a Public Interest Litigation (PIL) in the Delhi High Court seeking PC for women SSC officers. Further, in 2006, Major Leena Gurav filed a writ petition challenging the service conditions imposed by circulars dated 20 July 2006 and seeking the grant of PCs for women officers.

In 2008, the MoD issued a circular granting PCs prospectively to women officers in the JAG and AEC, which was challenged for being prospective and limited to specific cadres. The Delhi High Court heard these petitions together and issued directions in 2010, which were then appealed to the Supreme Court.

Timeline:

Course of Proceedings

The Delhi High Court, after hearing the writ petitions, directed that women officers of the Air Force and Army on SSC who had opted for PC but were not granted that status would be entitled to PC at par with male SSC officers, with all consequential benefits. The High Court also directed the reinstatement of women officers who had not attained the age of superannuation for PC officers, with all consequential benefits.

The Union of India appealed this judgment to the Supreme Court. During the pendency of the appeal, the Supreme Court clarified that the operation of the Delhi High Court’s judgment was not stayed. The Union Government was directed to consider the grant of PC to women officers in JAG and AEC. Despite this, the matter was further prolonged, leading to the eventual judgment of the Supreme Court.

Legal Framework

The legal framework for this case primarily rests on the following provisions:

• ✓ Section 12 of the Army Act 1950: This section states, “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.” This provision allows the Central Government to specify the branches in which women can be employed in the Army.
• ✓ Article 33 of the Constitution of India: This article empowers Parliament to modify the rights conferred by Part III of the Constitution in their application to the members of the Armed Forces.
• ✓ Article 14 of the Constitution of India: Guarantees equality before the law.
• ✓ Article 15(1) of the Constitution of India: Prohibits discrimination on the grounds of sex.
• ✓ Article 16(1) of the Constitution of India: Guarantees equality of opportunity in matters of public employment.

The Court noted that while Article 33 allows for restrictions on fundamental rights for the Armed Forces, such restrictions must be by law and necessary for the proper discharge of duties and maintenance of discipline. The Court also emphasized that any differentiation based on sex must be justified with reason and must not be arbitrary.

Arguments

The arguments presented before the Supreme Court can be broadly categorized as follows:

Arguments of the Union Government:

• ✓ The grant of PC is at the discretion of the President of India, and there is no fundamental right to claim PC.
• ✓ Section 12 of the Army Act, 1950 reinforces that no woman is eligible for employment except in such corps and departments as the Government of India may determine.
• ✓ The policy decision communicated on 25 February 2019, which allows for the grant of PC to women officers in eight additional arms/services, applies prospectively.
• ✓ The skills of SSC women officers can be utilized by training them in specialized fields such as language interpreters, imagery interpreters, and cyber and information technology.
• ✓ Women are not employed on duties which are hazardous in nature unlike their male counterparts.
• ✓ The Army faces a huge management challenge to manage women officers in soft postings, considering maternity leave, child care leave, and spouse postings.
• ✓ The Ajay Vikram Singh Committee favored a lean permanent cadre of officers, supplemented by an enhanced support cadre, and further induction into the PC cadre would upset the organizational structure of the Army.
• ✓ Women officers granted PC would be recommended only for staff appointments.
• ✓ The profession of arms requires sacrifices and commitment beyond the call of duty, which is a greater challenge for women officers due to pregnancy, motherhood, and domestic obligations.
• ✓ Inherent physiological differences between men and women preclude equal physical performances, resulting in lower physical standards for women.
• ✓ Posting women officers in all-male units has its own peculiar dynamics, and infrastructure in forward areas is basic with minimal facilities for habitat and hygiene, making deployment of women officers not advisable.

Arguments of the Respondent Women Officers:

• ✓ The Union Government did not implement the Delhi High Court judgment despite there being no stay on its implementation.
• ✓ Women officers have served the organization for almost twenty-five years, and the battle is against mindsets.
• ✓ The nature of duties for women officers is similar to male officers, and they have served shoulder to shoulder with male officers for twenty-five years.
• ✓ The presence of women does not have a negative impact on unit cohesion.
• ✓ Women officers are being posted to sensitive places, field areas, force headquarters, and units without being commissioned into combat arms.
• ✓ Women officers have suffered from serious discrimination, including lack of opportunity for professional growth, absence of job security, and rendering service under junior officers due to the lack of a uniform and equal promotion policy.
• ✓ The policy letter dated 25 February 2019 is discriminatory as it requires women officers to exercise their option for PC earlier than male officers, restricts them to staff appointments, and applies the policy prospectively to keep senior women officers outside the ambit of PC.
• ✓ There are several command roles that do not require any special training, including NCC battalions, record officers, training regiments, commandants of Sainik schools and Military schools, and provost unit commanding officers.
• ✓ The services in which women officers have been inducted as SSC women officers are not combative in nature, and they perform similar duties as their male counterparts.
• ✓ The claim that there is a probability of women officers being exposed to a hostile environment is discriminatory and without any basis, as women officers are regularly posted to field units where male officers from the same corps also serve.
• ✓ There is an acute shortage of officers in the Indian Army, and the Army is letting go of trained women officers due to gender discrimination.
• ✓ Women officers undergo training for all mandatory courses, and no rule prescribes that officers seeking PC have to compulsorily be given command of troops.
• ✓ The policies for women officers in the Army lower their status to that of a jawan/JCO, as they are neither given pension nor retirement benefits.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issues that the court addressed can be summarized as follows:

1. Whether women officers in the Indian Army are entitled to Permanent Commission (PC) on par with their male counterparts?
2. Whether the policy decision of the Union Government dated 25 February 2019, which allows for the grant of PC to women officers in eight additional arms/services, is valid?
3. Whether the restriction imposed on women officers being granted PCs save and except for staff appointments is valid?
4. Whether the distinction between women officers with less than fourteen years of service and those with more than fourteen years of service for the grant of PCs is valid?

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

Cases:

• ✓ Ram Sarup v Union of India, (1964) 5 SCR 931, Supreme Court of India: This case dealt with the validity of the Army Act, 1950 and its impact on fundamental rights. The Court held that the Act was enacted in pursuance of the enabling power conferred upon Parliament by Article 33 of the Constitution and is entitled to protection despite the restrictions imposed by its provisions on the fundamental rights guaranteed by the Constitution.
• ✓ Lt. Col. Prithi Pal Singh Bedi v Union of India, (1982) 3 SCC 140, Supreme Court of India: This case discussed the balance between the necessity of discipline in armed personnel and the denial of fundamental rights. The Court noted that the public interest in the maintenance and preparedness of the Armed Forces of the nation has to be weighed with an equally compelling public interest in balancing the abrogation or restriction of fundamental rights of the officers in the Armed Forces.
• ✓ R Viswan v Union of India, (1983) 3 SCC 401, Supreme Court of India: This case concerned the extent of restrictions on fundamental rights under Section 21 of the Army Act, 1950. The Court noted that restrictions imposed upon fundamental rights in exercise of the power conferred by Article 33 must be “absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline”.
• ✓ Union of India v P K Choudhary, Civil Appeal No 3208 of 2015, Supreme Court of India: This case dealt with the scope of judicial review in matters of command/tenure in the Armed Forces. The Court held that courts must refrain from questions concerning the Armed Forces as they constitute matters of policy in which courts cannot interfere.

Legal Provisions:

• ✓ Section 12 of the Army Act 1950: Specifies the eligibility of females for enrolment or employment in the regular Army.
• ✓ Article 33 of the Constitution of India: Empowers Parliament to modify fundamental rights in their application to the Armed Forces.
• ✓ Article 14 of the Constitution of India: Guarantees equality before the law.
• ✓ Article 15(1) of the Constitution of India: Prohibits discrimination on the grounds of sex.
• ✓ Article 16(1) of the Constitution of India: Guarantees equality of opportunity in matters of public employment.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• ✓ Ram Sarup v Union of India [CITATION]: The Court acknowledged the principle that the Army Act, 1950 is protected by Article 33, but emphasized that restrictions must be necessary for the proper discharge of duties and maintenance of discipline.
• ✓ Lt. Col. Prithi Pal Singh Bedi v Union of India [CITATION]: The Court recognized the need to balance national security with fundamental rights, but held that restrictions must be by law and for a valid reason.
• ✓ R Viswan v Union of India [CITATION]: The Court reiterated that restrictions on fundamental rights must be absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline.
• ✓ Union of India v P K Choudhary [CITATION]: The Court distinguished this case, noting that while courts are conscious of limitations on judicial intervention, non-intervention in the present matter would be a travesty of justice.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the principles of equality, non-discrimination, and the need to correct historical injustices against women officers in the Indian Army. The Court emphasized that the arguments presented by the Union Government were based on sex stereotypes and did not justify denying equal opportunity to women.

The Court was also influenced by the fact that the Union Government failed to implement the Delhi High Court’s judgment despite there being no stay on its implementation. This failure caused irreparable prejudice to the women officers who were denied promotions and the assumption of higher responsibilities.

The Court also noted the significant contributions of women officers to the Indian Army, highlighting their achievements and service to the nation. This evidence countered the arguments made by the Union Government that women officers are not suited for certain roles due to their biological composition and social milieu.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio:

Logical Reasoning:

Ratio Decidendi: The ratio decidendi of the judgment is that women officers in the Indian Army are entitled to Permanent Commission (PC) on par with their male counterparts. The Court emphasized that denying PC to women officers based on sex stereotypes is a violation of their fundamental rights, particularly the right to equality of opportunity under Articles 14, 15, and 16 of the Constitution of India. The Court also held that the policy decision of the Union Government, while recognizing the need to grant PC to women officers, must be applied without any discriminatory conditions.

Final Orders

The Supreme Court issued the following final orders:

1. The policy decision of the Union Government dated 25 February 2019 to grant PC to women officers in all ten streams is upheld.
2. All serving women officers, irrespective of their length of service, are entitled to be considered for the grant of PC.
3. The restriction that women officers granted PC would be recommended only for staff appointments is struck down.
4. Women officers are entitled to all consequential benefits, including promotions and financial benefits, at par with their male counterparts.
5. The Union Government was directed to implement the judgment within three months from the date of the judgment.

Impact of the Judgment

The Supreme Court’s judgment had a profound impact on the Indian Army and society at large.

Societal Impact:

• ✓ The judgment was celebrated as a victory for gender equality and women’s rights in India.
• ✓ It challenged traditional gender roles and stereotypes prevalent in the armed forces and society.
• ✓ The judgment boosted the morale of women officers and encouraged more women to join the Indian Army.
• ✓ It paved the way for greater inclusion and diversity in the armed forces.

Legal Impact:

• ✓ The judgment clarified the scope of fundamental rights in the context of the Armed Forces.
• ✓ It emphasized that restrictions on fundamental rights under Article 33 must be necessary and not discriminatory.
• ✓ The judgment set a precedent for future cases concerning gender equality in the armed forces.
• ✓ It reinforced the principle that policy decisions must be based on reason and not on stereotypes.

Critical Analysis

The Supreme Court’s judgment in the Babita Puniya case is a landmark decision that has significantly advanced the cause of gender equality in the Indian Army.

Strengths of the Judgment:

• ✓ The judgment unequivocally affirmed the right of women officers to be granted PC on par with their male counterparts.
• ✓ It struck down discriminatory practices and policies that were based on gender stereotypes.
• ✓ The Court’s emphasis on equality of opportunity and non-discrimination was a powerful message.
• ✓ The judgment was a victory for the rule of law and the protection of fundamental rights.
• ✓ The judgment recognized the contributions of women officers and their right to professional growth.

Limitations of the Judgment:

• ✓ The judgment did not address the issue of women in combat roles, which remains a contentious issue.
• ✓ The implementation of the judgment may face challenges due to resistance from certain sections of the armed forces.
• ✓ The judgment did not provide specific guidelines for implementation, leaving room for interpretation and potential delays.
• ✓ The judgment did not address the broader issue of gender bias in the armed forces, which needs to be tackled through systemic reforms.

Conclusion

The Supreme Court’s judgment in the Babita Puniya case is a landmark decision that has significantly advanced the cause of gender equality in the Indian Army. The Court’s emphasis on equality of opportunity, non-discrimination, and the need to correct historical injustices has set a precedent for future cases concerning gender equality in the armed forces. While the judgment has its limitations, it is a significant step towards creating a more inclusive and equitable environment for women in the Indian Army. The judgment also serves as a reminder that policy decisions must be based on reason and not on stereotypes, and that the rule of law and the protection of fundamental rights are paramount.