The processes that confer privileges to one group and not another group are often invisible to those upon whom that privilege is conferred.
India is a country where custom and culture hold a strong influence on the social and political outlook of the people. It also is a country with religious beliefs set in stone. This social background makes it difficult for women to escape discrimination, whether it arises in their household, in rural areas or urban areas and even in workplaces.
Patriarchy is a universal phenomenon virtually found in every society. In India, a distinctive form of patriarchy peculiar to Hinduism and unique to Indian Society is Brahmanical patriarchy, formulated by the Brahmans to maintain their status quo and power over other castes through endogamous marriage.
A system where men hold a superior stance in Indian society has also been prevalent in the indian legal system, primarily in family law. Women are not held at par with men in the field of family law. The scenario is in a state of transition and is changing for the greater good but there still exists discrepancies which make it difficult to make unbiased and gender neutral laws.
The status of women under the old hindu laws was rectified to a certain degree by the introduction of the Hindu Code which consisted of Hindu Marriage Act 1955; Hindu Succession Act, 1956; Hindu Adoption and Maintenance Act, 1956. These acts basically achieved only two prevailing rights for women, the right to a divorce and right to inherit property.
The inequality can be further highlighted by the adoption rights. Initially an unmarried woman was not allowed to adopt a child but through introduction of The Personal Amendment Act of 2010, a new section 8 was added and an unmarried woman was allowed to adopt. This came with more conditions which stated that if a woman is married, she cannot adopt with or without the consent of her husband but the husband can adopt with the consent of his wife.
Patriarchy is a social system where men hold supreme power in the arenas of political leadership, moral authorities, social privilege and control of property. It goes as far as being patrilineal, meaning that in some communities, property and title is inherited by male lineage. A patriarchal ideology generally stems from the inherent natural differences between men and women and tries to justify the dominance of males.
In a patriarchal society, boys and girls take their identity from their father but the boy is considered as a permanent member of the family but the girl is just a transit element of the family to another predominantly husband’s family. Another aspect affected by this is inheritance and resource distribution. Usually, property is inherited by male successors and passed down in the family accordingly. According to the traditional legal practice, a daughter is only allowed maintenance of land and when she is married, her right of land use is dismissed and given back to the family unit.
Work and Women
Women have been known to work longer hours than men and to be paid lesser than them. For example, women in agriculture juggle their household duties and still work from 4am to 8pm but a man works from 5am to 11am or sometimes from 11am to 3pm (Andhra Pradesh 2006, p.12-17).
The status of equality between the two genders extends to various topics, one of them being the permanent commission in the army. The Permanent Commission in the army means to serve until one retires. Men were allowed to enroll for this but women, who were only recruited in the army in 1992, through the Women Special Entry Scheme (WSES) were not given the choice to opt for it. They were discouraged from continuing service after a period of 10 years. At the same time, they were kept out of any command appointment and could not avail government pension which is only possible after serving for 20 years as an officer.
A morsel of victory for women arrived when the supreme court recently passed a favourable judgement causing a dent into the patriarchal mindset of the Indian Army. It ruled that “All female officers were eligible for permanent commission and command posts.” The ruling, however, is restricted only to officers in non combat units.
PERMANENT COMMISSION IN ARMY FOR MEN (PC)
A permanent commission in the army means a career in the army till you retire, having to serve up to sixty years of age as a soldier or an officer. The promotion opportunities for this commission are widespread and one can rank to the level of an army general under this plan. Perks and allowances enjoyed by the PC are the same as short service commission (SSC). At the time of choosing, candidates are given an option among the existing commissions and are granted accordingly. Short service commission in the armed forces is for a stipulated amount of time of 8 to 14 years. Minimum time period of service is 8 years after which the candidate can avail for retirement and maximum is 14 years. Perks and allowances do not differ from the PC but there is a bridge in promotional opportunities. In SSC, chances of promotion become less.
There are multiple ways through which men can join the permanent commission. Choosing it as an option in the types of commission column while filling the form is a start. Some of the ways to join for men are as follows :-
- National Defence Academy (NDA)
- Combined Defence Service (CDS)
- Air force Common Admission Test (AFCAT)
- Indian Navy Entrance Test (INET)
- TES entry
- NCC special entry
PERMANENT COMMISSION FOR WOMEN
Earlier, the permanent commission was not available for women. They were only allowed to join the army under the short service commission. The introduction of women in the army took place in 1992 through the Women Special Entry Scheme (WSES). They were allowed to serve for a period of five years under certain streams such as the Army Education Corps, Corps of Signals, Intelligence Corps and Corps of Engineers. Recruits under the WSES had a shorter pre-commission training period compared to their male counterparts who were recruited under the SSC.
In 2006, the SSC was extended to women and they were recruited under the same. The existing recruits under WSES were given an option to continue with the same scheme or opt for SSC. Through this, they were allowed to serve for a period of 10 years, extendable to 14. This was again only restricted to the streams mentioned above, which excluded combat arms such as infantry and armoured corps.
While male officers could opt out of the SCC, females did not have the option which kept them from gaining government pension which is available only after 20 years of service.
The Court Cases
A PIL asking for permission to grant women SSC officers to be granted the permanent commission was filed in 2003. A writ petition was also filed by Major Leena Gurav on October 16, 2006, challenging the terms and conditions of services imposed by circulars that year, and seeking PC for women officers. In the month of September, 2008, the defence ministry passed an order stating that women officers from the Judge Advocate General (JAG) and Army Education Corps (AEC) will be granted PC. This was further challenged by Major Sandhya Yadav in the Delhi High Court as it only granted PC prospectively and to certain specified streams.
The Delhi High Court heard the challenges of 2003, 2006 and 2008 and gave a judgment in 2010. Women officers of the air force and army in SSC were allowed to participate in the permanent commission and would be entitled to be at par with male SSC officers. This was only available to women who had instituted proceedings and those who had retired during the pending judgements of the writ petition. Officers who had not attained the age of superannuation for permanently commissioned officers would be reinstated with consequential benefits.
This order was challenged by the government in the supreme court. Though the Delhi High court had passed a favourable judgement, it was not implemented by the defence ministry. During the case with the hearings ongoing, in February 2019, the government passed an order which granted PC to SSC women officers in eight streams of the Army besides JAG and AEC, which was already opened up in 2008. These streams are Army Air Defence (AAD), Signals, Engineers, Army Aviation, Electronics and Mechanical Engineers (EME), Army Service Corps (ASC), Army Ordnance Corps (AOC) and Intelligence Corps. They still refused to grant any command appointments to women, keeping them in staff positions.
During this hearing, the Government proposed that women officers who have served up to 14 years could avail the permanent commission, those who had finished a period of 14 years and more could serve for 20 years without being considered for PC but would retire with pension and officers who have served for more than 20 years would be released with pensionary benefits immediately.
Arguments by the Government
A] Motherhood, childcare and many psychological limitations have a strong hold when it comes to employment opportunities for women in the army.
B] Familial separation, career prospect of spouses, absences due to pregnancies were seen as challenges for women to meet.
C] The probability of working in difficult physical conditions was another reason. The government believed that women were not fit to serve in ground combat roles.
D] Army units were generally an “All male environment” with men coming from rural backgrounds who were unlikely to show the same respect to a female leader they would a fellow male officer.
Firstly, the arguments presented by the Government were all rejected, the apex court believed that they were “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women.”
The supreme court also said that it shows the need “to emphasise the need for change in mindsets to bring about true equality in the army.”
It rejected arguments against greater role for women officers as it violated equality under law. The biological argument was rejected as disturbing.
The court has removed all discrimination on the basis of years of service for grant of PC in the 10 streams of combat support arms and services, bringing about a sense of equality between male and female officers. A monumental aspect of the judgement lies with that part of the verdict where women are no more restricted to serve in staff appointments. This opens up multiple promotional opportunities for women and gives them a chance to be at par with their male colleagues. It also means that women in junior ranks would undergo the same training and tenanting critical appointments which are deemed necessary for higher promotions.
Lt Col. Nitisha v. Union of India
A recent case in granting of permanent commission of women army officers is Lt Col. Nitisha and others v. Union of India. It was tried in the supreme court and presided over by Justice D.Y. Chandrachud and Justice M.R. Shah. The judgement was given on March 25th, 2021.
The major issue was discrimination and whether granted women PC led to indirect discrimination. The court in question, sought to refer to the doctrine of indirect discrimination and whether granting PC was an arbitrary or an irrational decision. Doctrine of indirect discrimination refers to a “neutral” law applied to all equally but favouring a particular group over a disadvantaged group.
The appellants challenged the procedures and general instructions laid down by the army which were deemed unjust and biased against women officers of age group 40-50 years. They were required to be at par with male officers of an age group of 25-30 years in terms of medical standards. The appellants also argued that due to changes in the physiological conditions due to natural processes, women officers would find it difficult to meet the severe criterias laid down by the general instructions.
The issues argued were –
- Whether or not granting of permanent commission of women Army officers leads to indirect discrimination.
- Whether the rules given in the General Instruction are violative of Article 14 of the Indian constitution.
The importance of this case lies in the fact that the grant of permanent commission of women officers was exteriorly neutral but indirectly discriminatory. It marks the first time that the supreme court has held indirect discrimination as a violation of the Indian constitution. The supreme court reached further and articulated an alternative model for discrimination and equality. It drew a difference between intention and effect, how discrimination occured due to an individual’s doings and how it was portrayed through impersonal workings of an institution. Justice Chandrachud stated that the need for substantive equality, which the constitution is an advocate of required reviewing both systemic and indirect discrimination. With reference to indirect discrimination, the court drew parellels from the Canadian Supreme Court in the case of Fraser v. Canada Attorney General which ordered that there should be a two-stage test to determine indirect discrimination.
Benefits of adding women to the Permanent Commission
“There is no justification to exclude women officers based on irrational and arbitrary standards. We must rebuild the structure of our society to include women.” said the Supreme Court.
- Past performances – A gander at the past record shows the growth which comes with handing more responsibility to women and increasing their level of involvement. The IAF have allowed women to be fighter pilots and the Army has sent them to UN peacekeeping missions globally,
- There are positions where women soldiers already hold power, command platoons, companies and second in command successfully, with their male colleagues accepting orders from them as a part of a professional force.
- Excluding women due to their standing in society and discriminating them based on gender disregarded the true potential they reach through training. It ignored the advanced skillset a recruit could have and multiple new ideologies an officer could bring to the table, this increases more opportunity for growth of the Army in general, increasing productivity alongside.
THE WAY FORWARD
A change in culture, norms and values of rank in the Indian Army, which falls under the responsibility of senior military and political leadership is necessary. The points put forward by the supreme court in their judgement will have to be carried out by the Human Resources department of the Army which will need to make some policy changes in order to comply with the judgement.
The idea of a progressive Army, accepting women at par with men is not something that can be implemented in a day but with the favourable judgement by the supreme court can be considered a good start. It has been a gradual process starting from the introduction of women into the Army in 1992, catalysed by the judgement regarding granting of Permanent Commission in the Army for women officers. Gender equivalence values have to be instilled amongst the people and in a nation like India with a strong foundation and an ironclad constitution which advocates a non-discriminatory society, it can be an easy task. Women should be viewed as members of the army first, women second. Masculinity should not be a factor but calibre, skill and efficiency should be the factors affecting qualification and promotions. Patriarchy is a longstanding issue which has claws in all the aspects of life but with proper legal roles, it can be crushed.
Author: Zainab Burmawala
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 Michael Kimmel, Global Masculinities: Restoration and Resistance, p.1
 WPC 1109 of 2020
 Equality before law – The state shall not deny to any person equality before law or the equal protection of the laws within the territory of India. Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
 2020 SCC 28