CONSTITUTIONAL ANALYSIS OF STATUS QUO OF PERMANENT COMMISSION OF LADY OFFICERS IN THE INDIAN ARMY

By Sabrina Bath-


Introduction

A patriarchal society is one where key roles and dominant positions have been given to the male counterparts giving them an advantage over women. It is similar to a collection of beliefs or philosophies attempting to defend patriarchal mindsets and emphasizes the underlying inequalities between the two genders. Through this article, the author attempts at explaining the long-forgotten patriarchal attitude that has existed with regards to the permanent commission of lady officers in the Indian Army. Woman’s journey towards demanding equality, the existing patriarchy in the Army has been evaluated through the landmark judgements of the Apex Court in relation to the permanent commission of women officers. This judgement has demolished a long-held sex stereotype due to which lady officers faced prejudice and were not being offered permanent a commission in the army. The Indian Constitution provides for equality of all under Article 14[1] and various other articles which provide for equal opportunity. It has been a decade since such cases have been pending before our judicial system with women asserting equal rights and not receiving the same.

Background of Permanent Commission for Lady Officers

Women were previously forbidden from serving in the permanent commission. They could only join the army on a short service commission. They were first admitted to the army in 1992 as part of the Women Special Entry Scheme (WSES). They were authorized to be in service for a term of five years in specific branches of the military, including branches such as engineers, signals, education and intelligence. Lady officers commissioned under this scheme had less pre-commission training than their male counterparts in the SSC. The SSC scheme was opened to women in 2006, and they were recruited under similar conditions as their male counterparts. The existing WSES recruits were offered the choice of continuing with the current program or opting for SSC. This permitted them to serve for a term of ten years, which might be extended to fourteen years. But this was limited to the already mentioned branches excluding combat arms like armoured corps and infantry. Whilst male officers had the opportunity to drop out of the SCC, the female officers were not made available the same preventing them from obtaining a government pension, which could only be accessible post 20 years of service.

Judicial Interpretation

Various petitions filed were based on a plea for equality of opportunity for lady officers in the Indian Army through Permanent Commissions. The primary appeal arose from a series of Writ Petitions filed in the High Court of Delhi between 2003 and 2006. The lady officers in SSC sought equality to their male counterparts by acquiring permanent commission after more than a decade of litigation. A writ petition in the nature of a public interest litigation was filed before the Delhi High Court by an advocate Babita Puniya in February 2003 demanding PC for women SCC officers. A writ petition was again filed in 2006 by Major Leena Gaurav challenging the services’ terms and conditions along with the issuance of PC. The writ petitions were duly heard but the order issued by the Delhi High Court in its ruling on 12 March, 2010 but was not followed.

The Secretary, Ministry of Defence v. Babita Puniya & Ors.[2]

The recruitment of “females” into the Indian Army was barred under Section 12 of the Army Act, 1950 unless and to the extent that was permitted by the central government[3]. During the proceedings, an order was issued by the government in February 2019 that granted PC to women SSC officers in ten branches of the Indian Army. They were also declared eligible for command positions by removing the current ceiling. Lady officers were still refused command positions and were only allowed in staff positions. In this judgement, it was proposed by the government that lady officers having up to 14 years of service would be eligible for permanent commission while those who have a service of 14 years or more would be eligible for permanent commission but could retire and be granted a pension. Officers with service of 20 years or more would be released immediately with pensionary benefits.

Lt Col. Nitisha v. Union of India[4]

This is a recent lawsuit in relation to the issue of permanent commission of lady officers in the Indian Army. This case was heard by the apex court and was presided over by Justices MR Shah and DY Chandrachud and the decision was given on 25 March, 2021. The central issue was if there is any indirect discrimination through the grant of permanent commission to lady officers. The court by using the law of indirect discrimination tried to determine if the same was an arbitrary or an illogical decision. The doctrine of indirect discrimination pertains to a ‘neutral’ law that equally applies to all yet favours one group over another. In the present case, the general instructions and procedures were challenged as they were found to be discriminatory towards the lady officers between the ages of 40 to 50 years. In regards to the medical criteria, they had to be in lines with their male counterparts between the ages of 25 and 30 years. It was also claimed that owing to physiological conditions caused by natural processes the lady officers cannot easily achieve the stringent standards as outlined in the instructions.

Constitutional validity of the Judgements

The reasoning behind both the judgements was based upon the principle of equality as enshrined in the Indian Constitution[5]. Various contentions that had been made by the union government on the basis of physiological limitations of women, occupational hazards, lack of basic facilities in border areas, management challenges, etc. were clearly against the constitutional values. Majority of the contentions were rejected because in the view of the Apex court, they were based on sex stereotypes based on traditional preconceptions about women’s gender roles. The need for change in the mental setup was emphasised to uphold true equality of lady officers in accordance with Articles 14, 15 and 16 of the Constitution. Through the above-stated judgements, the apex court aimed at upholding guaranteeing equality to lady officers[6] in terms of service, conditions of service[7] and equal opportunities in terms of promotions[8] at par with their male counterparts. The entitlement of lady officers to equal opportunity has two aspects[9]:

a) The principle of non-discrimination on the basis of gender, enshrined in Article 15(1) of the Constitution[10].

b) Equality of opportunity for all citizens in public employment pursuant to Article 16 (1)[11].

Further, it was also argued that Article 33 authorises restrains on fundamental rights in armed forces but it also specifies that the same can only be imposed to the extent necessary to ensure discipline and the discharge of duties[12].

The court has abolished all forms of discrimination based on years of service for the award of PC restoring equality between male and female officers in lines with the basic rights guaranteed under the Constitution. The significance of these judgements stems from the premise that the permanent commission of lady officers was externally neutral but indirectly discriminatory. It was a stepping stone as for the first time the court ruled that indirect discrimination is violative of the Indian Constitution. The apex court also went on to articulate an alternative model of equality and discrimination by distinguishing between the effect and intent and how to discrimination occurs resulting from an individual’s actions and how the impersonal intricacies of an organisation portray it. In the opinion of Justice Chandrachud, demanding substantive equality which is advocated for in the Constitution necessitates a consideration both for indirect and systemic discrimination. Addressing indirect discrimination, the court found a significant positive correlation with the Canadian Apex Court’s decision in Fraser v. Canada Attorney General[13] that mandated a two-stage procedure for establishing indirect discrimination.

Article 39 of the Constitution provides that the state should strive at ensuring the right to an adequate means of livelihood for both men and women[14]. The decision given in the case of Babita Puniya was lauded for its transformational potential in resounding constitutional feminism but it remained quiet on the issue if lady officers could serve in the combat units of the Indian Army or not. This issue was specifically exempted from the scope of the ruling as it was not the focus of the Court’s appeals. Trashing the Court’s weaker sex argument for denial of permanent commission to lady officers, it was correctly ruled that the blanket ban by the army to consider lady officers for criterion or leadership post without an individualised rationally could not be justified in law.

Conclusion

The decisions given by the apex court are commendable as they provide for lady officers to be eligible for rank, promotion, pension and permanent commission in the Indian Army. The concept of having of progressive army where lady officers are treated at par with their male counterparts cannot be adopted overnight but the recent rulings by the court have been favourable for a promising step towards this direction. Gender equality ideals must be ingrained in the population, which is not easy in a country like ours having an unbreakable constitution and a firm framework that pushes for a non-discriminatory community. Patriarchy has been a long-standing concern having its tentacles in all the faces of life yet it can be smashed by upholding the fundamental rights guaranteed in the Constitution and with adequate laws.


References: [1] INDIA CONST. art 14. [2] The Secretary, Ministry of Defence v. Babita Puniya & Ors., (2020) 7SCC 469. [3] The Army Act, 1950, s. 12, No. 46, Acts of Parliament, 1950 (India). [4] Lt Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261. [5] Ibid., 1. [6] Ibid., 1. [7] INDIA CONST. art 15 (1). [8] INDIA CONST. art 16(1). [9] Bhupinder Kumar Sharma v. Bar Association Pathankot, AIR 2002 SC 41. [10] Ibid., 7. [11] Ibid., 8. [12] INDIA CONST. art 33. [13]Fraser v. Canada Attorney General, 2020 SCC 28. [14] INDIA CONST. art 39.



Author- Sabrina Bath

Symbiosis Law School, Pune (LLM)

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