END OF SYSTEMIC DISCRIMINATION AND INEQUALITY IN THE ARMED FORCES

 

Reading time : 12 minutes

Gloria Steinmen, world-renowned feminist, journalist and activist said- “The story of woman’s struggle for equality belongs to no single feminist nor to any one organization but to the collective efforts of all who care about human rights.”[1]

For a long period, there have been references to many discussions and debates focused on women. The position of women has continuously changed with modification of society. No doubt, the position of women has improved as per our constitutional laws but we cannot deny the fact that this society with patriarchal mindset are not acknowledging women as equal to men. Women are still being the victims of various brutal crimes committed by some sadistic kind of criminals. Women need to be understood, encouraged, respected as well as valued. We need to change our stereotype orthodox thoughts regarding women in order to get triumphant women in the society.

In the Indian context, who can forget the fighting spirit of the women warriors of Guru Gobind Singh and the inspiring legend of Rani of Jhansi? It is believed that Subhas Chandra Bose had read an article by an Englishman, who wrote after the first war of independence in 1857, “If there had been a thousand women like the Rani, we could never have conquered India.” According to the late Captain Lakshmi Sahgal, who was the Commander of the Rani Jhansi Regiment (RJR), Netaji chose this name for the regiment of the corps of female combat soldiers after reading that article. Each of the RJR soldiers of the Indian National Army (INA), roughly 5,000 in number, is a case history of grit and determination of women in combat role. In recorded human history women soldiers have been part of each and every campaign, performing variety of tasks such as ammunition carriers, picking up a weapon of a fallen soldier, washing, mending and cooking.

PATRIARCHY AND INDIAN SOCIETY

The most outstanding feature of India or for that matter any country is a strong patriarchal and patrilocal character. Majority of Indian states are patriarchal with only a few examples of matrilocal and matrilineal structure such as Kerala.

Patriarchal system in an Indian society means that the family unit is based on the joint household structure, where only one male is a head, who is in turn succeeded by a male.  In a patriarchal society, sons and daughters take their identity from their father but only the son is considered as a permanent member of the family, and daughters are just ad interim bit of the family.  She’s married into a dominant male family.

Patriarchy is a social system, men hold primary power and dominate in roles of political leadership, moral authority, social privilege, and control of property. The outdated system of social organization has determined and shaped the lives of women since time immemorial.

Women are casted as weaker sex, weaker beings. It is showcased that, women need protection, subservient and less important than men, and are denied the rights, opportunities, choices, and pay offered to the men.

WOMEN IN ARMY

Boasting about gender diversity at workplace and discussing successful women employee stories does not cover the bitter truth of gender inequality which is still the biggest issue working women are facing at workplace.

Inequality between men and women extends to various topics, one of them being the permanent commission[2] in the army. The Permanent Commission in the army means to serve until one retires. Men were allowed to enroll for this but women, were not given a choice to even opt for it. They were discouraged from continuing service after a period of 10 years which can at maximum be extended to 14 years.

Women officers in the Indian Army continue to serve the country in various roles and are eager to inspire young women to join the armed forces. An official who maintains a balance between personal and professional life is a perfect example of female empowerment. They are also a source of inspiration for many people who want to join the military.

In 1992, women were first inducted in the Indian Army as Short Service Commission (SSC), their pursuit for Permanent Commission (PC) has had a “chequered history”[3] on 25th March, 2021 with the Supreme Court’s landmark judgement granting women parallelism with their male counterparts.

WHAT IS PERMANENT AND SHORT SERVICE COMMISSION?

Short Service Commission[4] (SSC) means an officer’s career is of a limited period in the Indian Armed Forces on the other hand, the Permanent Commission (PC) means that the officers continue to serve in the Indian Armed Forces, till they 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 allowance enjoyed by the Permanent Commission are the same as Short Service Commission. At the end of 10 years, 3 options are given: either to opt for permanent commission, or opt out or, have the option of 4 years extension. The officers inducted thru Short Service Commission have a tenure for a period of 10 or 14 years.

TRANSITION OF WOMEN IN INDIAN ARMED FORCES

As the Indian Military Nursing Services originated in 1888, the role of women in the armed forces begun. It is a part of the Armed Force Military Services first formed under British India in 1888. The nurses of Indian army first served with distinction in World war I. women’s role further started to expand with the formation of the Women’s Auxiliary Corps, which allowed them to serve primarily in non-combat roles like communications, accounting, administration etc.  

Noor Inayat Khan[5] is known for her astonishing service in World War II. She was a wartime British secret agent of Indian origin. She was the first female radio operator sent into Nazi-occupied France by the Special Operations Executive (SOE). She was later arrested and eventually executed by the Gestapo.

Section 12 of the Army Act, 1950[6] made women ineligible for enrolment or employment in the regular Army.

 Section 12 of the Army Act, 1950[7]:

“Ineligibility of females for enrolment or employment.- No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other 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.”

The Union Government made amendment, in January 1992, and women were made eligible for some branches/cadres in the army on Short Service Commission. They were allowed to serve for 5 years under certain streams such as Judge Advocate General’s Department, Army Education Corps, Army Ordinance Corps (Central Ammunition Depots and Material Management), and Army Service Corps (Food Scientists and Catering Officers). In December 1992, women were eligible for further five departments of the regular Army, namely: Corps of Signals, Intelligence Corps, Corps of Engineers, Corps of Electrical and Mechanical Engineering, Regiment of Artillery.

Women had a shorter pre-commission training session as compared to male recruits, commissioned under Short Service Commission. This was due to a scheme named the Women Special Entry Scheme.

In 1996, an amendment was issued to the WSES, under which the commission for an initial period of five years was made further extendable by five years in the Regiment of Artillery, Corps of Engineers, Corps of Signals, Army Service Corps, Army Ordinance Corps, Corps of Electrical and Mechanical Engineers, Army Education Corps, Judge Advocate General, and Intelligence Corps department. Women who had been granted commission for an initial period of 5 years were requires to furnish an option for extension by five years or for release. A provision was made for promotion on a substantive basis to the rank of Lieutenant after 2 years and to the rank of Captain after 5 years. 

In February 2003, Babita Puniya, an advocate filed a Writ Petition in the nature of a Public Interest Litigation before the Delhi High Court for the grant to women Short Service Commission officers in Army.[8]

In 2005, the Ministry of Defense provided that the tenure of Women Special Entry Scheme officers would be extended up to 14 years. The army instruction broadly followed the same course, as a consequence of which a cap on the course, as a consequence of which a cap on the length of service was introduced. Besides that, the existence of WSES was also ceased which made women eligible to enroll into the armed forces only through Short Service Commission like the male counterparts.

In July 2006, the president authorized two circulars which granted women serving under the WSES scheme an option to move to the SSC scheme and gain the benefit of serving for a maximum 14 years tenure. Lately in July 2006, a writ petition was filed by Major Leena Gurav[9], in Delhi High Court challenging the terms and conditions of July 2006 notification, and seeking PC for women officers.

The Centre in September 2008, prospectively granted permanent commission to women offices but just in two departments- Army Education Corps and Judge Advocate General. This was further challenged by Major Sandhya Yadav and Ors.[10], that only two departments were offered PC and that too prospectively.

In March 2010, Delhi High Court combined all the pending petitions of 2003, 2006 and 2008 together and held that women who were already serving under the Short Service Commission should be offered Permanent Commission after 5 years of service along with all other consequential benefits within 2 months of the order.[11] However, this benefit was available only to women officers in service who had instituted proceedings before the High Court and had retired during the pendency of these writ petitions. This order was challenged by the army in the Supreme Court but the court upheld Delhi High Court’s verdict.  In July 2010, the Army challenged this order. The Supreme Court in turn upheld Delhi High Court’s order which meant that the Centre was bound to implement the order.

Later in September 2011, the case reached to the Apex Court through an appeal and the court held the order of the questioned judgement to be continued.

In 2019 February, an order was issued the Center granting PC to women in 8 combat support services but again only prospectively. Thus, the issued raised in Secretary, Ministry of Defence V. Babita Puniya & Ors.[12] primarily dealt with granting of PC for women officers already working in the army and whether or not the February 2019 guidelines were to be upheld?

The Secretary v. Babita Puniya &Ors. (2020)[13]

The arguments presented by the Government were all rejected, and the Supreme Court believed that they were “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women.” There was no stay of the implementation of judgment of the Delhi High Court.

Supreme Court also said that it shows the need “to emphasize the need for change in mindsets to bring about true equality in the army.” The arguments against role for women officers as it violated Art. 14 i.e., Right to Equality.

Calling for a change of conventional mindset of Government to put an end to gender discrimination in armed forces, Supreme Court directed that within three months, all women Short Service Court officers should be considered for permanent commission irrespective of their tenure in service.

Implementation of decision of Babita Puniya’s Case

Following the decision in Babita Puniya, a government ascent was issued in July, 2020 foe taking administrative steps to fulfill the directions. In August, 2020 a set of General Instructions were issued for the conduct of a “Special No. 5 Selection Board 2020” to screen women Short Service Commission officers for the grant of Permanent Commission “based on the existing policy regarding grant of permanent commission…applied uniformly to all SSC officers”.

Special No. 5 Selection Board was convened between 14 and 25 September, 2020 to consider women SSC officers for the grant of PCs. Acc. to the counter affidavit by union government, this was “on same terms and criterion as their male counterparts.” This particularly included medical fitness and reliance on the Annual Confidential Reports (ACRs).

Medical fitness criteria were suitably adapted by the women but their fitness was at their current age. On the other hand, the male officers had their fitness tested when they chose to opt for PC i.e., either 10 or 14 years into their service.

Women SSC officers, after 2010 Delhi High Court decision, were allowed to serve as SSC officers beyond 14 years. When the Supreme Court finally evaluated women SSC officers for PCs in 2020, many of them were tested for fitness after more than 14 years of service. Male PC officers didn’t undergo fitness testing once they had received PC status.

LT. COL. NITISHA V. UNION OF INDIA[14]: INDIRECT DISCRIMINATION IN GRANTING OF PCS?

A PC in army means to serve until one retires. This was one of the major concerns related not only to career but also equality. In 2020, the Supreme Court finally in Babita Puniya’s case decided to grant PC to women.

But, despite of it, trained women were not granted PC with an infirm argument that women are physically weak and are comparatively more prone to be caught by the enemies. All these arguments were nothing other than a sex stereotype and a challenge to the Right to Equality mentioned in Article 14 of the Constitution[15]. It was identified as indirect discrimination.

In early 2021, a writ petition was filed in the Supreme court by Lt. Col. Nitisha. The court in this case sought to refer to the doctrine of indirect discrimination and whether consideration to grant PC for women officers is arbitrary and irrational. The major issue was discrimination and whether the army was practicing doctrine of indirect discrimination. It was presided over by Justice D.Y. Chandrachud and Justice M.R. Shah. The judgment was given on 25th March, 2021.

What is the doctrine of Indirect Discrimination?

The doctrine of Indirect Discrimination refers to an apparently “neutral” law which has been applied to everyone equally but it favors a particular group over a disadvantaged group. To determine indirect discrimination, it is important to determine the consequences or effects of a law.

Proceedings

The petitioners challenged the procedure and general instructions laid down by the army which were deemed biased and unjust again women SSC officers of age 40-50 years. They were required to be at par with the male officers of an age group of 25-30 years in terms of medical fitness. The petitioner also argued that because of changes in the physiological conditions due to natural processes, women officers would find it difficult to meet the criterion laid down by the general instructions.  

Issues Raised in the case:

  • Whether or not granting of PC to women army officers leads to indirect discrimination.
  • Whether the rules given in the general instructions are violative of Art. 14 of Indian Constitution.

The government (respondent) said before the Supreme Court that to justify the proposal on the grounds of PC, grants of pensionary benefits, limitations of judicial review on policy issues, occupational hazards, reasons for discrimination against women and rationalization on physiological limitations for employment in staff appointments.

Supreme Court rejected these arguments, saying they are “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women”.  It also said that theirs is a need “to emphasize the need for change in mindsets to bring about true equality in the army”.

Verdict

It was held by the Supreme Court that the policies applied for denying permanent commission to women officers are facially neutral but in reality, they are highly discriminatory as they fail the test of constitutional guarantees because the true picture of service performance of these women officers show a different picture.

The court held that systemic discrimination as contrary to substantive equality. Indirect discrimination as a tool of jurisprudence analysis, could result in the redressal of several inequities by probing provisions, criteria or several practices that have a disproportionate and adverse impact on the members of groups who belong to groups that are constitutionally protected from discrimination under Art 15(1) of the Constitution[16]. The court also said that systemic discrimination on account of sex at the workplace would encapsulate patriarchal disadvantage that permeates all aspects of her being from the outset, inc. reproduction, sexuality and personal choices which operate within an unjust structure.

Consequently, the court stated that in order to achieve substantial equality, indirect discrimination, even without discriminatory intent is prohibited.

Implication of the Order

Women officers will be eligible to tenant all the command appointments, at par with male officers, which would open avenues for further promotions to higher ranks. Supreme Court had done away with all the discriminations on the basis of years of service for the grant of PC in 10 streams of combat support arms and services, equalizing them with male officers. The implications of above judgment will have to be bore by the human resources management department of the Army, which will need to change policy in order to comply. In junior ranks and career courses and tenanting critical appointments, which are necessary for higher promotions.  Supreme Court removed the restrictions on women officers by allowing them to serve in staff appointments, which is the most significant and far-reaching aspects of the judgment.

FURTHERING

The bigger shift of this decision will be on the culture, norms, and values of the rank and file of the army, which will the responsibility of senior military and political leadership. After the Supreme Court’s progressive decision, the Army has no other choice than to swallow this bitter bite.

CONCLUSION

The Armed Forces are the backbone of our country. Women also have the same passion for serving in the armed forces as men do. In such situation, it is unethical and immoral to ban them by putting a limit to their serving tenure. They fight every moment of their lives for protecting us, for protecting the country. But this kind of fight was unacceptable. This kind of discrimination from their end was absolutely superfluous. The women officers can now take a sigh of relief as they have defeated the sex stereotype prevailing in the country and its system since time immemorial. They have paved the way for all the women irrespective of being in the armed forces or not.

After the landmark judgments of Babita Puniya’s case and Lt. Col. Nitisha’s case, the path of gender equality has certainly been remarkably heralded which shall ensure that women are no longer denied Permanent Commission or denied the command posts. These judgments shall always be remembered as one of the best judgments for gender equality in defense services.

Women deserve a bigger role in armed forces as they encouraged participation and share power and information as they have leant this since their childhood, and yet are ruthless when the situation demands. It comes naturally to them to enhance the self-worth of their colleagues and get the best out of them, a rare but much sought-after quality in a good leader. Our armed forces are opening the doors to women very hesitantly. Their role must be made more board-based.


[1] Interview with Gloria Steinmen, Journalist, The Seattle Times, September 12, 2012

[2] Permanent Commission, India, available at: https://www.indianarmy.nic.in/ (Visited on June 25, 2021)

[3] Lt. Col. Nitisha v. Union of India (2021) SCC OnLine SC 261

[4] Short Service Commission, India, available at: https://www.indianarmy.nic.in/ (Visited on June 25, 2021)

[5] Samantha Dalton, “Noor Inayat Khan: The Indian princess who spied for Britain”, BBC News, Nov. 8, 2012

[6] The Army Act, 1950 (Act 46 of 1950), s. 12

[7] The Army Act, 1950 (Act 46 of 1950), s. 12

[8] Secretary, Ministry of Defense V. Babita Puniya (2020) 7 SCC 469

[9] Major Leena Gurav V. Union of India (2010) WP (C) 16010 of 2006 (High Court of Delhi)

[10] Major Sandhya Yadav & Ors. V. Union of India (2010) WP (C) 9028 of 2008 (High Court of Delhi)

[11] Babita Puniya V. The Secretary & Anr. (2010) WP (C) No. 1597 of 2003 with 16010 0f 2006; 3357 & 3686 of 2007; 9028 of 2008; 7669, 8495, 9264 & 9367 of 2009

[12] (2020) 7 SCC 469

[13] (2022) 7 SCC 469

[14] (2021) SCC OnLine SC 261

[15] The Constitution of India, art. 14

[16] The Constitution of India, art. 15(1)

Khwahish Arya, Jamnalal Bajaj School of Legal Studies, Banasthali University

Author:  Khwahish Arya, Jamnalal Bajaj School of Legal Studies, Banasthali University

Editor: Kanishka VaishSenior Editor, LexLife India.

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