On 17th Feb 2020, the Supreme Court division bench consisting of Justice D Y Chandrachud and Ajay Rastogi delivered a historic judgement regarding Permanent Commission of Women Officers (WO’s) in the Indian Army.^[1] Two most important things that came out of this judgement were:

1. All serving Women SSC (short service commission) officers shall be considered for grant of PC (Permanent Commission) irrespective of the tenure of their service.
2. The blanket ban on women’s appointment to command position is unconstitutional. They can not be just restricted to “Staff position”.

After this judgement, a long battle of more 28 years came to an end. In the present article, we will look into this judgement in detail and will try to understand its implications.

“Women Officers In Indian Army: A Chequered History”

Employment of Women in Indian Army is guided by Section 12 of The Army Act, 1950 which states that:

“No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or another 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.”^[2]

Using the enabling provision, the Central Government in 1992 opened up some branches for women officers.^[3] They were to be appointed only for 5 years with no provision of Permanent Commission. It was known as W.S.E.S (Women Special Entry Scheme). This scheme was extended in 1996 for a further five years.^[4]  In 2005, the Ministry of Defence (M.O.D) extended this scheme for four more years.^[5] Also, W.S.E.S was replaced by S.S.C (Short Service Commission) under which the tenure of the officers was fixed as 14 years.

Para 19 of Terms of Engagement issued earlier in 1992 stated that: –

“On expiry of the contractual period of commission i.e. five years commissioned service from the date of grant of commission, they will be released from the service. The officers granted commission under this Army Instruction will not be granted permanent commission or any extension beyond five years of commissioned service. ”^[6]

In none of the further orders, the condition regarding non-granting of PC was altered. Women SSC Officers were denied PC despite an extension of their tenure under the subsequent orders of the government.

In February 2003, Babita Puniya, an advocate instituted a Writ Petition in the nature of a Public Interest Litigation before the Delhi High Court for the grant of PC to women SSC officers in the Army.

On 26 September 2008, the MoD issued a circular envisaging the grant of PCs prospectively to SSC women officers in the JAG (Judge Advocate General)  department and the AEC (Army Education Corps). This was challenged in Delhi High Court on two main grounds- that it granted PC’s prospectively and only to some caders.

On 12th March 2010, the High Court held that it will not interfere in the decision of not offering PC’s to both male and female officers as part of “manpower management exercise”.^[7] However it held that Women SSC officers in all cadres are entitled to PC’s at par with their male SSC counterparts.^[8]

This judgement of Delhi High Court was challenged in Supreme Court by the Centre. Meanwhile, this appeal was pending MoD issued a communication dated 25 February 2019 for the grant of PCs to SSC women officers in eight arms or services of the Army, in addition to the JAG.

However, there were two main contentions regarding this proposal. Firstly it stipulated that women officers will be employed “in various staff appointments only” and will not be given command positions. Secondly that the policy would come into effect prospectively from the date of the issuance of the letter. Due to its prospective implementation, it created three categories of officers.

1) Women Officers of up to 14 years of service would be considered for PC’s.

2) Women Officers with more than 14 years of service would not be considered for PC’s but can continue to remain in service till they complete 20 years of service. They will also be eligible for pension.

3) Women Officers with more than 20 years of service will be released with pensionary benefits immediately upon the conclusion of the present appeal.

This new policy was termed as in ‘Organizational interest’. The main rationale behind this categorization was that Women Officers who have crossed 14 years in service have very little time left to be trained. Since they were employed for a limited period they have trained accordingly and are not skilled for PC.  Also, they can not be employed gainfully as very fewer years of their service is left.

The Union Government has submitted that the Army faces a huge management challenge “to manage WOs in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station”.^[9]

The Army also 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”.^[10]

“Ms Lekhi submitted that this is based on the predominant fear of male officers representing ninety-six per cent of the overall strength that four per cent of the officers who are women would “eat away vacancies” in the higher ranks.”

Counsel for WO’s has pointed out that restricting women officers in just “staff appointments” will prevent their professional growth. It was also brought into the notice of the Court that Women officers who are commissioned in various corps are assigned duties similar to male officers (SSC or PC) of that corps. Both male and female officers of the same corps undergo the same training, undergo similar professional courses and get same field postings. Hence the argument that they are provided lesser training or that they have lesser years to serve does not hold ground.

They made a point that there are several command positions which do not require any special training such as NCC Battalions, Training officers, Commandants of Sainik and Military Schools still WO’s are kept away from these positions.

It was also submitted by the respondent that even male officers seeking PCs are not eligible for the command of troops. This position is only given to those officers who clear their Promotion Board. The same facility should be given for the women SSC’s. If women officers are found eligible for promotion they can be given PC’s otherwise they may continue in a manner as other non-empanelled PC male officers do.

It was further pointed out how the Indian Army is letting women officers go despite vacancies which they can easily handle. Instead, they are appointing retired male officers. If this classification of WO’s was not there then these vacancies could have been occupied by the Senior SSC WO’s.

Due to such discriminatory policy of Indian Army, WO’s are deprived of basic benefits such as a pension,  ex-servicemen status, ex-servicemen contributory health scheme and encashed leave. It is happening to them despite dedicating prime years of their life to service of the Nation.

“We are accordingly of the view that SSC women officers, both within the period of fourteen years‟ service and beyond, should equally be entitled to consideration for the grant of PCs.” 

Court took into notice that restriction regarding “Staff Appointment” was not taken in J.A.G (Judge Advocate General) and A.E.C (Army Education Corps) branches.^[11] This is implicit acceptance by the Army that women in some conditions can take command positions. An absolute bar on women seeking command position is not in consonance with Article 14 of the constitution. When states differentiate between two classes of citizens it has to provide a reasonable basis for that. The Army did not justify this differentiation. If men can be promoted to PC’s based on some criteria, so do women on those same criteria, but the blanket non- consideration of women of PC’s is against Constitutional values.

The Court pointed out that the Union Government was bound to enforce the judgement of Delhi High Court. There was no stay on the HC judgement during the pendency of this appeal. However, it failed to implement its judgement. Almost a decade has passed till HC judgement and blames squarely falls on lackadaisical attitude of the government and army for its non-implementation. SSC WO’s should not suffer due to non-implementation of Delhi HC judgement. Hence every serving Women SSC Officer would be eligible for Permanent Commission.

“This results in a unique, ‘all male’ environment in a unit where presence of WOs requires moderated behavior in their presence. Posting of WOs in all male units thus has its own peculiar dynamics.”

During the course of the argument, the appellant made very distressing remarks regarding the ability of Women Officers. Their arguments were based on ‘Sex Stereotype’ and ‘Socially Ascribed Role Of Gender’. According to them, Women Officers would not be able to deal with ‘Occupational Hazards’ because they are restricted due to pregnancy, motherhood and domestic obligations. It was argued that WOs due to their lesser physical capability are unfit for command of units. Also, the presence of women WO’s would lead to discomfiture among the male members of units. These submissions were based on the stereotypes regarding women. It was asserted that the burden of domestic roles falls squarely on the women and they can not manage it with her professional duty. Also, gross generalization about the physical capabilities of an entire gender was made. It was assumed that women are inferior to men because of their physical capability. No steps were taken to fairly evaluate the capabilities of female officers. No chances were given to WO’s to prove their capabilities. Pleas regarding ‘Discomfiture’ of the male subordinates is a classic case of victim-blaming. Instead of looking at WO’s as their equal, they are considered as an outsider who will threaten unit harmony.

The Court has rejected all these patriarchal arguments based on sex stereotypes and psychological differences between men and women. It has held that such arguments do not constitute a constitutional basis for denying equal opportunity to women officers.

In fact, this whole line of argument was against constitutional norms and values which every institution of this country is bound to follow.

“To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.” 

The most important reason behind this hesitation to grant PC’s to women is the insecurity of male officers that WO’s will be promoted to higher positions and they may have to serve under them. This insecurity stems from the patriarchal mentality of men which consider it below their dignity to work under women. The main issue here is of a “Male Ego”. We can not blame the Army squarely for this type of misogynist arguments. Army Men are not from some other planets. They are part of the same society in which each one of us lives. This patriarchal mindset develops in our school, colleges and most importantly at our homes.

The solution to this problem lies in changing the mindset of the people. It cannot be changed in a day but we have to start from somewhere. To change it we need more representation of women in every sphere of public life. Whether it is politics, bureaucracy or bar and bench. This judgement will go a long way in opening avenues that were closed to women just because of their gender. It will give confidence to young girls to achieve their dreams and not to be worried about the patriarchal notions of their gender by society. The court gave examples of 11 exemplary women SSC officers who have excelled in their role.^[12] They have been recognized by various international organizations for their bravery and valour. Some of the names include Lieutenant Colonel Anuvandana Jaggi. She served as a Team Leader of the United Nations Military Observers Team in the UN mission in Burundi. She was awarded Commander‟s Commendation and an Appreciation Epistle from the Chief of Army Staff for her commendable effort. Lieutenant Bhavana Kasturi recently led a contingent of the Indian Army Service Corps, becoming the first woman to lead an all-men Army contingent in the history of India. There are many more such capable officers. These women serve as an inspiration for millions of Indian girls. Now through this SC judgement, they will get their due honour and respect.

^[1] Samanwaya Rautray, SC rules in favour of permanent commission to women officers, economictimes.indiatimes.in, (May 10, 2020, 10:30 PM), SC rules in favour of permanent commission to women officers.

^[2] Army Act, 1950, § 12, NO. 46, Acts of Parliament, 1950 (India).

^[3] SRO-11, published in the Gazette on 31 January 1992.

^[4] SRO-10(E), published in the Gazette on 12 December 1996.

^[5] SRO-121, published in the Gazette on 19 November 2005.

^[6] SAI NO/1/5/92.

^[7] Live Law, * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 14.12.2009 % Date of decision: 12.03.2010 + WP (C) No.1597 of 2003 B, (Last Visited May 11, 2020).

^[8] Id.

^[9]  SUPREME COURT OF INDIA, IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos 9367-9369 of 2011 The Secretary, Ministry of Defence, (last visited, May 10, 2020).

^[10] Id.

^[11] SUPREME COURT OF INDIA, IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos 9367-9369 of 2011 The Secretary, Ministry of Defence, (last visited, May 10, 2020).

^[12] SUPREME COURT OF INDIA, IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos 9367-9369 of 2011 The Secretary, Ministry of Defence, (last visited, May 10, 2020).

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ABOUT THE AUTHOR

Nishant Mishra

Nishant Mishra is a first-year student of Gujarat National Law University pursuing BA.LLB (Hons). He possesses a keen interest in Criminal and Constitutional Law.