GENDER EQUALITY AND ARMED FORCES: APEX COURT’S TRANSFORMATIVE APPROACH
Kumar Mukul Choudhary and Varsha Singh
Abstract
When Article 15 was introduced in the constituent assembly for the debate, our founding fathers were of the opinion that it will transform our republic forever. In essence the Article prohibited discrimination on five grounds, which were internalised by the Indian society as valid grounds of discrimination. One of them was discrimination against women, which under the new Constitution was absolutely prohibited. Even after seventy birth anniversaries of the Indian republic, there are many aspects of the life where women are still discriminated. One of them is armed forces where women are still prohibited from service. But recently the Apex court gave a very historic judgement which restricted the discrimination against women in the armed forces. It allowed them the equality with their male counterparts in the matters of permanent commission. This judgement further ensured constraints upon the social stereotype arguments, used generally for discrimination against women. In this case comment the authors will analyse this judgement and the future implication it holds for India’s gender equality jurisprudence. The authors will further argue how this judgement has imposed burden upon the future courts to not accept the gender stereotype-based arguments. The authors will further argue how this judgement has imposed responsibility upon the other institutions as well to insure gender equality in our society. Furthermore, the author will look upon the aspect of the judgement where the Apex court recognised the application of fundamental rights in the army. The court-imposed restriction upon the interpretation of Article 33 to ensure that army cannot become a fundamental rights free zone.
Introduction
On 17th of February, the Supreme Court while deciding the appeal petitions on grant of permanent commission to the women officers in the army gave a historic judgement . The Apex court recognised the applicability of constitutional principles on gender equality in the armed forces. This judgement must be termed significant and transformative due to the service and gender equality jurisprudence it has developed, specially the sector of service in whose regard this jurisprudence has developed. This judgement has further ensured that we would remain on our true course for developing gender equality jurisprudence to its fullest in this vibrant democracy.
Facts of the case
The matter, Secretary, Ministry of Defence v Babita Puniya was related to grant of permanent commission (hereinunder PC) to the women officer in the army. Section 12 of the army act restrict appointment of women officer in the army except in cases if the central government provides for the same. Pursuant to the provision, in 1992 the central government issued the notification granting women entry in certain cadres and branches of army under W.S.E.S scheme for a period of 5 years . This was extended further by the virtue of notifications issued in 1998 and 2005 with additional promotional benefits . Writ petitions were filled in Delhi High court challenging the 2005 notification on the grounds of violation of equality. Since, both male and female officer will serve for 14 years under S.S.C and W.S.E.S scheme respectively but only male officers would be eligible for the PC .
Then in 2006 the President of India gave assent to granting of S.S.C to women and ended the 1992 scheme. While remaining women members had the option either to move to S.S.C scheme or to remain in erstwhile 1992 scheme . Then in 2008 another circular was issued granting PC to S.S.C women officers retrospectively but only in limited fields of service. Both of these notifications were also challenged before the Delhi High court .
Adjudicating upon all these challenges the Delhi High court held that, no discrimination should transpire between male and female members of army in grant of PC. Furthermore, permanent commission shall also be granted to those women officers who came before this court to challenge the notification, even though these women officers have attained the age of retirement .
Challenging this judgement, the central government came in appeal before the Supreme court. Then during the pendency of appeal the government made a separate policy for granting of P.Cs to women officers in 2019 in all departments where S.S.C is provided to them. But the policy provides for different terms and conditions for women in various years of their service under S.S.C and also applies prospectively .
ARGUMENTS OF THE PARTY AND JUDGEMENT
In this matter the principal argument of the union was that, the women cannot be granted P.Cs due to occupational hazards in the service . Furthermore, since women are not suitably capable as male members in these setups due to insurgency, child care and maternity issues. Hence, limited exposure should be given to them by way of grant of commission in staff appointment matters only . Furthermore, the government contended that Article 33 restricts application of fundamental rights in matters of Army act. Therefore, right of equal treatment cannot be applied in matters of grant of commission .
The Supreme Court rejected both arguments of the union government. First, the court held that, the arguments of union government on occupation hazard and incapability are social stereotypes generally used to restrict the empowerment of women .
The court further held “Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. ”
On the issue of Article 33 which restrict application of fundamental right in army the court held, Article 33 does not offer government’s free hand to violate fundamental right. Article 33 is applicable only in those matters which are necessary for proper functioning of the armed forces . Furthermore, since the government itself allowed women to work in the army by way of W.S.E.S. in 1991 therefore, it cannot restrict equality of opportunity in the matter of service and aspects of service.
The court held following “The policy decision of the Union Government is recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognized in the specified streams where women are permitted to seek engagement as equal members of the armed force that the Indian Army represents. ”
In the new policy of 2019, the government provided limited grant of P.Cs to women due to physical incapability of women. This was held invalid because of the court’s reasoning on gender stereotype arguments . Furthermore, the court held that, only giving advantage of policy on grant of P.Cs to those candidates who do not completed 14 years of their service is not valid. It is government’s fault as they didn’t follow the 2010 judgement of Delhi High court which mandated the P.Cs for women officer. Hence, P.Cs shall be granted to all the current service holders based on required qualification .
ANALYSIS OF THE JUDGMENT
This judgment raises some vital and thought-provoking issues with respect to gender stereotype laws, their understanding and application. The manner in which the Apex court in the present matter answered these questions had made this judgment transformative. It has ensured a new beginning in our gender equality jurisprudence.
In the present case, the biggest question before the court was unequal treatment of male and female members of the army. Which the petitioners tried to justify with the help of deep-rooted gender-based stereotype argument that, women cannot follow the army culture which in itself is a way of life, they could not live in places and frontiers of the army . But the court did not accept any of the contentions of the petitioners and based its judgement upon the principle it has developed in Anuj Garg judgement .
That principle interpreted Article 15 in a manner, which included in it not only the discrimination based only on sex but also prohibited the psychological inequality and gender-based stereotype discrimination against the women . The court further held that, merely because petitioners believes that women have certain responsibility such as motherhood, pregnancy which keeps them away from work, it is solely based on assumption that only women holds these obligations in the society.
Therefore, this cannot stand as a ground for discrimination against women . Looking upon the previous record of the court in service matters this judgement must be termed historic. Earlier the courts have interpreted Article 15 in a formalistic sense i.e. inequality only occurs when it is solely based upon gender and there is no inequality if anything more is added to the gender as base of discrimination . This resulted into acceptance of stereotype arguments which imposed restriction upon the rights of women .
Best example of this would be the Nargesh Mirza judgement of the Apex court. But post Anuj Garg era the courts have applied anti-stereotype principle consistently. In the present judgement also, the court has relied upon the same principle. It ensured that in future, courts acceptance of stereotype arguments has become bleak.
Another aspect of the judgement which has made it transformative is, the interpretation of the Article 33 of the constitution. While interpreting Article 33 the court has held that army is not beyond the constitutional democracy, it is not a right free zone. Article 33 can be implemented only on those spheres of regulation of army which are essential for allowing army to fulfil its duty.
Further the court pointed out that, burden of proof for justifying such exclusion of fundamental right is upon army and the army cannot in the shield of Article 33 impose blanket restriction upon the fundamental rights. Only those fundamental rights can be restricted which are necessary for proper functioning of the army .
This judgement of the Supreme Court can also be termed historic for the approach the court has taken in this Judgement. It this case the court has pointed out that, only the courts do not hold the responsibility of ensuing equality in every aspect of the society but it is also the responsibility of other institution of the society to grant equality. In this judgement the court itself recognised that induction of women in army is an evolutionary process which has started in 1992 .
Therefore, when army make gender stereotype arguments regarding granting of P.Cs to women officers, it undermines its own policy decision of granting equality to women in the army. This approach has made the task of the court very easy as now the court didn’t need to enforce equality upon the army but it can deduce application of principle of equality from the policy of army itself.
This approach has imposed responsibility upon the army to reach at the logical conclusion with regard to their policy of equality and to further fulfil the equality principle in the army in true sense. This approach has also helped the Apex court in reaching at the conclusion that Article 33 do not restrict the application of Article 15 in the army. Since, the army has itself applied the principle of equality to grant women service and limited commission in the army.
But this approach of the court also brings to our notice limitation on the future possibility of reforms by way of adjudications of the courts. Since the biggest difficulty in bringing gender equality in the army is restriction imposed under the act with regards to inclusion of women in the army. Furthermore, this provision was also never challenged before the court. The court accepted its limitation of adjudication upon matters related to army, since many matters such as promotion on merit and posting of officers comes within the policy facet of the army and the government, which the court cannot adjudicate.
The only thing the court has decided is non-applicability of stereotype arguments and the decision based on those arguments and any discrimination based upon those arguments against the women. Therefore, the only way by which gender equality can become part of services is by way of reforms done by the services themselves. Since, many aspects of the army are not within the adjudicating authority of the court due to being a policy decision or due to issue of national security. Hence, it is ultimately armed forces which can insure gender equality within the Indian army and not the courts.
Conclusion
This judgement of the Apex court must be respected and appreciated on many counts. Firstly, it recognised the justifiability and restrictive interpretation of Article 33 of the constitution . This ensured protection of the fundamental rights in Armed forces and no free hand to the army in matters of the fundamental right. Secondly, this judgement restricted the scope of gender stereotypes arguments for the future court. In this matter the court do not accepted physical incapability of women in matters of protection of country and national security.
Hence, future courts have to think twice before accepting these kinds of arguments in other service matters which are not of similar physical and mental nature as serving the army. The court further imposed duty upon the future courts to restrict validity of stereotype arguments in following words “These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets. ”
This judgment of the Apex court has asserted more strongly the concept of women equality and empowerment in the Indian service jurisprudence. In essence it has washed the historical grim record of the court in women equality matters prior to Anuj Garg judgment.