GENDER EQUALITY IN THE ARMED FORCES

GENDER EQUALITY IN THE ARMED FORCES

 

 THE SECRETARY, MINISTRY OF DEFENCE V. BABITA PUNIYA & ORS. 

CIVIL APPEAL NOS 9367-9369 OF 2011

 

BACKGROUND

Section 12 of the Army Act, 1950  prohibited the recruitment of “females” into the army except- and to the extent that- the Central Government allows. For the first time in 1992, the Central government issued a notification allowing females to join certain cadres of the army. Women engaged in these services seek parity with the male officers in obtaining permanent commissions. So in February 2003, Babita Puniya, a practising advocate, filed a writ petition in the nature of public interest litigation at Delhi High Court, seeking permanent commission for female officers recruited through SSC in the army, at par with their male counterparts. Many other women officers (both air and army officers) separately filed a petition for the same. Their petitions were tagged with Babita’s petition. Later, in the ending months of 2005, the Ministry of Defence issued a notification extending the validity of the appointment scheme of the Indian Army for the women officers. In 2006 a further notification was issued allowing the SCC women officers to serve for a maximum of 14 years. Major Leena Gaurav in 2006 & Lt Col Seema Singh in 2007 again filed a writ petition on 16th October 2006 primarily to challenge the conditions of service imposed by the circulars previously in that year and also seeking for the permanent commission for the women officers. Then in 2008, the centre decided to grant permanent commission to SSC women officers in some departments such as the Army Education Corps, Judge Advocate General, and the corresponding branches in the Air Force and Navy. Many more petitions were filed challenging the circular issued in 2006 and 2008. Finally, in 2010, the Delhi High Court decided to club all the petitions and directed Centre and defence ministry to provide the permanent commission to SSC women officers of the Air Force and Army who had opted for it and not yet granted.

After the order of the Delhi High Court, Army challenged the order in the Supreme Court but it very rightly refused to uphold the order and said to implement the orders given by the Supreme Court.

In 2018, the Central Government told the Supreme Court that it is considering granting permanent commission to women recruited through SSC in the army. In February 2019 the government issued guidelines that permanent commission will be granted to the women officers but prospectively and commissioned that only those women will be eligible who commissioned after this order is notified keeping the serving officers out of the ambit of the permanent commission. It granted a permanent commission to new SSC officers in eight combat roles.

THE MAJOR ISSUE WHICH WERE RAISED IN THE SUPREME COURT WERE:

  1. Whether women should be granted Permanent Commission in the Indian Army?
  2. Whether the guidelines issued by the Government of India dated 15th February 2019 should be implemented?
  3. What are the conditions governing the Women Officers in the Indian Army?

COURT HELD

The Supreme Court bench led by Justice D.Y Chandrachud challenged the notions given by the Union and stated that they are entrenched in stereotypical assumptions of ascribed gender roles for women. Moreover, it is a clear violation of their fundamental rights guaranteed under Article 14 of the Indian Constitution. He said that although Article 33 of the Indian Constitution did allow for restrictions on Fundamental Rights in armed forces it is also clearly mentioned that it could be restricted only to the extent that it was necessary to ensure the proper discharge of duty and maintenance of discipline. It was decided that policy decision taken by the union allowing the women officers in PCs through SSC are subject to some conditions:

  1. All the women officers presently on SSC service are eligible to PCs irrespective of any of them crossed fourteen years of service or, as the case may be, twenty years of service.
  2. The order given by the Delhi High Court is affirmed.
  3. All the choices of specialization shall be available to the women officers at the time of opting for the grant in PCs, on the same terms as their male counterparts.
  4. There are some expressions like in various staff appointments only, and on staff appointments only in the policy by the Government, these should not be enforced with respect to the PC of women.
  5. All the women officers who are eligible and granted PCs through SSC should be entitled to all consequential perks including pension, promotion, and financial incentives. 
  6. The benefits of continuing in the service until the attainment of the pensionable service shall also apply to all the SSC women officers. 

Finally, it is held that the necessary steps should be taken for the compliance of the court’s decision within three months of the judgment. 

 

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