CASE COMMENT: SECRETARY, MINISTRY OF DEFENCE V. BABITA PUNIYA AND ORS. by Aparna Goswami

Posted on: November 19, 2020 Posted by: admin Comments: 0

Author : Aparna Goswami , Student at University Institute of Legal Studies, Punjab University.

CITATION: MANU/SC/0194/2020

INTRODUCTION

Babita Puniya and Ors. is a very recent example of the just and equal outlook of our judiciary. This case discussed the granting of Permanent Commission to women officers who have been inducted by Short Service Commission under orders of Indian Union Government starting 30th January, 1992. Over the years, many women officers and practicing advocates moved to Indian judicial system to oppose frequent orders of the government which restricted them from attaining Permanent Commission and the benefits following in all the corps and departments that they have been employed in. PC guarantees officers a life-long career (until the age of retirement) in the Armed Forces, which also comes with various benefits such as pension. In contrast, Short Service Commissioned (SCC) Officers are only given ten (or fourteen) year appointments and do not enjoy most of the benefits given to PC Officers.[1] To understand the circumstances of this case lets look at the background, issues and arguments raised in this case.

BACKGROUND

In Section 12 of the Army Act of 1950 it is laid that employment or enrolment of women in the army is prohibited except for corps, departments or branches that the government may specify for, by notification in their Official Gazette.[2] This implies that till today women are not allowed in front line combat roles in the Indian Army. It also entails that women can only be inducted in non-combative services in the army through government notice as and when the government decides.

On 30th January 1992, through a notice from the Union government, female candidates were granted short service commissions (hereinafter referred to as SSC) to be remaining for 5 years in Army Postal Service, Judge Advocate General’s Department, Army Education Corps, Army Ordinance Corps and Army Service Corps. By another notification dating 31st December 1992, women were made eligible to enrol in other 5 departments of the Army such as Corps of Signals, Electrical and mechanical engineering, Engineers, Intelligence corps and Regiment of Artillery.

In 2003 practicing advocate Babita Puniya filed a writ petition by way of Public Interest Litigation asking for permanent commission to women officers who were recruited as SSC officers in the army. Various other petitions seeking the same from armed forces officers was joined with this petition.

In 2005 a notification from MoD extended the validity of the appointment scheme for women officers and WSES would cease to exist and therefore women would be inducted through SSCs just as their male counterparts.

On 20th July 2006 presidents’ sanction was conveyed in two circulars under which present women serving under WSES scheme were to be given a choice to move to SSC scheme and women as an SSC officer were allowed to serve for a maximum of 14 years.

On 16th October 2006, Major Leena Gaurav moved to court challenging the terms of the notification dating 20th July of the same year, seeking permanent commission (hereinafter referred to as PC) for women officers. In 2007 Lt. Colonel Seema Singh moved to court for the same issue.

In 2008 Centre provided PC to SSC officers prospectively only in the departments of Army Education Corps and Judge Advocate General. This move was challenged by Major Sandhya Yadav and others as this only gave PC to new appointments dating after this notification of only two departments.

On 12th March 2010, Delhi high court clubbed all these petitions and held that PC should be offered to women already serving as SSC officers in all departments after 5 years of service and all other consequential benefits such as promotion and other financial benefits within 2 months of the order. In July the Army moved Supreme court challenging this order but supreme court upheld the order of Delhi HC.

On 2nd September 2011 the appeal was made in Indian Supreme Court which held the order of the questioned judgement to be continued. In 2018 the centre tells the court that it is considering granting PC to women officers in the Army.

In February 2019 Centre issued order for PC to SSC women officers of eight combat support services but only prospectively. The notice also said that women officers would only serve on staff appointments.

The issues that were henceforth raised in the court dealt primarily with granting of Permanent Commission for women officers already working in the army and if the guidelines issued by Centre in February of 2019 were to be upheld?

ARGUMENTS AND SUBMISSIONS

APPELLANTS

  1. The Appellants argued that judgement by Delhi HC failed to take notice of Section 10[3] and 12 of Army Act of 1950[4] under which the grant of commission is at the discretion of the President of India and women cannot seek employment except in such areas that the Government deem fit.
  2. Substantial benefit of pensionable service has been already provided to women officers under government orders.
  3. Policy decision such as those at the heart of this case lie exclusively in the domain of executive functions according to Section 12[5] of the 1950 Act and Article 33[6] of the Indian Constitution. Moreover, the scope of judicial review is the matter of command is limited as held in Union of India v P K Chaudhary.[7]
  4. War zones and border areas will pose questions of hygiene and therefore maintainability of women officers as it lacks minimal facilities and privacy.
  5. The induction of women into PC by SSCs will impact the present structure of the army.
  6. According to the Union of India, women are not employed on duty due to the hazardous nature of work and training male officers goes through and women officers will have to face inherent risks.
  7. They also cited that “the Army has to cater for spouse postings, long absence on account of maternity leave, child care leave as a result of which the legitimate dues of male officers have to be compromised.” And is already facing a management challenge for WOs in soft postings as well as other women in station.
  8. The written notes have spoken of peculiar dynamics and moderated behaviour on part of officers in presence of WOs, physiological differences between men and women that would make it a challenge for WOs to be at par in physical prowess and about the challenge that WOs would face in separation and frequent transfers affecting their domestic obligations.

RESPONDENTS

  1. They furthered that PCs were still not granted to women officers and no steps regarding the previous judgement by Delhi HC were undergoing.
  2. Women in the Army were already being deployed to field areas, war zones and sensitive areas without hygiene or privacy concerns so the question of privacy was not new for women officers and held no merit.
  3. Women having undergone all required training and courses should be as much deserving of getting PCs as their male counterparts. I f the eligibility, compatibility and deservedness of the WOs cannot be questioned then they should also have the opportunities at par with male officers.
  4. While women serve equally as the male counterparts, they should also be at the receiving ends of incentives such as pensions and promotions that women SSC officers have suffered from.
  5. Women SSCs have the option of PC at the completion of three years of service in contrast to ten years of male officers rendering them less experienced and lacking in their capabilities.
  6. Restricting SSC women officers only to staff appointments is to prevent their career growth by restraining them within vacancy restrictions, promotions and placements.
  7. A woman officer working for fourteen years is neither given pension nor retirement benefits and her status is lowered to that of a “Jawan.”
JUDGEMENT AND ANALYSIS

In the beginning of this judgement the egalitarian outlook of the court is evident where the court observed this as a “quest for equality of opportunity for women.” And then the appointment of women in army has been referred to as a revolutionary process in para 50.

The court then rightly stated in para 52 that this policy decision taken by the Union Government is the right of women officers to equality of opportunity which has been embodied in non-discrimination of Article 15 and equality of opportunity in matters of public employment in Article 16 (1) under the Indian Constitution. The court can be seen regretting the fact that even after more than 70 years of independence there is a need to change the mindset of our citizens and admit to the values of our constitution.

In para 54 the court in very true and significant words have pointed out the deep-rooted prejudice against women and strong sex stereotypes in the submissions advanced by the appellant. The court very justly attributed the argument of women having “greater challenge” in meeting the hazards of service owing to their domestic obligations as a strong stereotype assuming that domestic obligations only rest on women and hence is discriminatory. The court further overthrew the argument of hygiene and sanitisation by pointing out that already 30% of women officers are in fact deputed to conflicting areas. These arguments not only point out the futility of societal prejudices but also emphasise the dire need of this nation to change mindsets to bring about “true equality”.

The counter affidavit that was filed contains an elaborated detail of service rendered by women SSC officers to the cause of the nation and in view of which the arguments of inferiority of biological composition of women made by appellants are not only ignorant but also disturbing in a country where women have brought laurels to the nation.

Still keeping in notice, the restrictions of judicial review in matters of armed forces the courts quotes that “The time has come for a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be tolerated within narrow confines.” Justice D Y Chandrachud has laid that even though fundamental rights has been restricted under Article 33 of the Indian Constitution, it should be clear that this can be done only to the extent in which proper discharge of duty and discipline can be maintained. An absolute bar on command appointments can not exist under the constitution with the pillar of equality under Article 14 upholding it.

Finally, in Article 69 The Apex Court issued the following directions to the Union Government accepting the policy decision taken by the Union government dated 25th February if:

  • All women officers on SSC including those who are presently serving irrespective of crossing 14 years or 20 years are considered for grant of PCs.
  • All women who do not opt for or are not appointed on PC shall be allowed to continue in service until twenty years of pensionable service can be achieved, which is only a one-time benefit for the latter.
  • Women with over 20 years of service who are not granted PC shall retire on pension terms.
  • The clause “various staff appointments only” in both para 5 and 6 shall not be enforced.
  • Women SSC officers when offered PC shall be able to exercise their options for being considered for the grant on the same terms as their male counterparts and be entitled to all consequential benefits.

Hence the judgement has rightly granted all women officers the right to be offered Permanent Commissions and Command posts at par with their male counterparts in all ten branches where they have been inducted on Short Service Commission.

This judgement is without a doubt a move which will form the basis of a more accepting and beneficial environment for women in the army but hopefully also precedes many more egalitarian changes to come. The courts strong statements against gender stereotypes and discrimination is a big relief for more than half the population of the country in these times of raising cries of gender equality. This will boost the morale of women already serving in the nation and also motivate more women to get recruited hence consequently prompting a better gender ratio in our Armed Forces.

However, this cannot be considered a step enough to curb all the problems women face in the armed forces. Problems like low acceptance even extending to outright exclusion, sexual harassment, low comfort level, highly stereotyped notions of gender and all of this resulting in low job yields and satisfaction. Not to forget that women are still not allowed in front line Combative roles in our army despite excellent performance from women officers in other areas of Army as well as combative areas of Air Force and Navy. In the least this is an ambitious step in the right direction but there are still many more much-needed changes on the way.

REFERENCES
  1. Secretary, Ministry of Defence v. Babita Puniya and Ors., MANU/SC/0194/2020.
  2. Sanjeev Sirohi, SC Shatter Armour Plated Ceiling By Holding Women Eligible For Command Posts, (LegalServicesIndia, February 25, 2020), <http://www.legalservicesindia.com/law/article/1438/21/SC-Shatter-Armour-Plated-Ceiling-By-Holding-Women-Eligible-For-Command-Posts> last accessed on 11 November 2020.
FOOTNOTES

[1] Jai Brunner, Supreme Court Grants Navy Women PC, (Supreme Court Observer, 20th March 2020),< https://www.scobserver.in/the-desk/supreme-court-grants-women-pc-in-navy> last accessed on 11 November 2020.

[2] Army Act 1950, Section 12.

[3] Ibid

[4] Army Act 1950, Section 12.

[5] Ibid

[6] Constitution of India, Article 33.

[7] Civil Appeal No. 3208 of 2015 on 14.07.2016

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