Women in the Armed Forces: How the courts celebrated the inherent differences between genders

Parallels between a 1996 US Supreme Court decision on giving equal opportunities to women in military training and recent Indian court decisions.
Women in the Armed Forces: How the courts celebrated the inherent differences between genders
Justice Ruth Bader Ginsburg, Women officers, Supreme Court

For a long time, the golden thread of rights guaranteed by the Constitution of India via Articles 14, 15, 16, 19 and 21 went compromised in the face of longstanding patriarchal notions that permeated the Armed Forces. At several occasions in the past, when officials from the Indian Armed Forces were asked about inducting women into combat roles, the resistance exuded a sense of deep-rooted gender bias. This resistance came at a huge opportunity cost for women officers demonstrating merit.

However, in a historic ruling passed in February last year, the Supreme Court held that Short Service Commission (SSC) women officers are entitled to Permanent Commission (PC) on par with their male counterparts.

More recently, in August this year, the Court passed an interim order allowing women to take the National Defence Academy (NDA) exam, thereby permitting entry to women in combat roles in the forces.

In this piece, we take a look at what weighed with the Supreme Court while making its decision, and how a United States Supreme Court decision laid the foundation for treating women in the Army at par. We also look at whether recent court decisions prophesize the inclusion of transgender persons in the Armed Forces.

Breaking the Army's glass ceiling: A brief timeline of events

US jurisprudence on inclusion of women in military training

The majority opinion in United States v. Virginia draws parallels with reasoning adopted by the Supreme Court of India, in terms of how it reconciled the inherent differences between genders. Justice Ruth Bader Ginsburg’s majority opinion went down in history, marking a revolution for women in the military.

As per the facts of that case, the Virginia Military Institute (VMI) had a long tradition as being the State's only male-exclusive public undergraduate higher learning institution. This led the US to bring a suit against Virginia and VMI on the ground that the admission policy of only accepting male applicants was unconstitutional.

Justice Ginsburg held that the male-only admission policy was unconstitutional since it failed to show “exceedingly persuasive justification” and therefore Virginia was held to have violated the Fourteenth Amendment’s equal protection clause. It was stated that the State must show “at least that the challenged classification serves important governmental objectives and that the ‘discriminatory means employed’ are ‘substantially related to the achievements of the objectives'".

Further, it was pointed out that the justification should be genuine and not rely on overbroad generalization about the different talents, capacities or preferences of males and females. Supporting the inclusion of women to VMI, Justice Ginsburg stated that “sex” cannot be a proscribed classification and that the “supposed inherent differences” between genders are no longer acceptable as a ground for race or national origin classification.

In a similar vein, the Bench of Justices DY Chandrachud and Ajay Rastogi, while hearing the 2020 petition questioning why women are not commissioned in the field, observed that “the administrative will and mindset needs to change”. The Centre had contended that women officers were not given commanding posts owing to the patriarchy that is heavily entrenched in our society. Additionally, it was contended that the dangers of women being taken as prisoners of war was another aspect that had to be taken into account.

The Centre's submissions before the Court raised more than a few eyebrows. The arguments included that women were “non-trainable" and had weaker physical capabilities, pointed out environmental and psychological realities, different physical standards, exposures, employment of women officers, etc. Disproving the contentions of the Centre, the petitioner women officers highlighted that they had worked to "the best of their capacities and capabilities since they were first inducted in 1992, for the last 27-28 years, and that they do not lack in any manner in the roles assigned to them.” It was further added by the officers that the submissions of the Centre “are nothing but misconceived and false bogies, to deny women Officers of their rightful entitlements.”

The Bench had clarified that the Centre’s response was based on set stereotypes that society holds where men are perceived to be physically stronger, while women are weak and submissive. The Court underscored that this is a “flawed notion” and is also in stark contrast to the 2019 policy released by the Centre via a notification which granted Permanent Commission to Short Service Commission (SSC) women officers in 8 streams in addition to the existing streams of Judge Advocate General (JAG) and Army Education Corps (AEC). This policy was confined to allowing women Permanent Commission with respect only to staff postings for women officers. The Court noted that denying command positions to women cannot be sustained in law and that their exclusion is a gross violation of Articles 14 and 16.

The Supreme Court, while recently passing the interim order allowing women candidates to appear for the NDA exam, also said that it would consider another petition seeking entry of female students to Sainik Schools and the Indian Military College since it is closely linked to admission to NDA. Being a 99-year-old institution, the Rashtriya Indian Military College, the Court stated, ought to complete 100 years with gender neutrality. To this, the Centre stated that a study group has been constituted by the defence services to formulate a curriculum for women cadets at the NDA and a Board of Officers has been convened to frame a futuristic proposal for training women cadets at NDA.

In an affidavit filed by the Ministry of Defence in this regard, it was stated that diluting physical training and service subjects like firing would inevitably impact the battle-worthiness of the Armed Forces. Therefore facilities like equitation, swimming, games and sports have to be developed. In the same light, the need to develop robust physical separation between male and female residential areas including bathroom cubicles with modifications to accommodate women candidates was highlighted. The petition before the Supreme Court stated that denying women the opportunity to be part of NDA was violative of their fundamental rights under Articles 14, 15, 16 and 19 of the Constitution.

In the United States, similarly, it was also believed that if women were admitted, they would “encroach on the rights of men; there would be new problems of governments, perhaps scandals; the old honour system would have to be changed; standards would be lowered to those of other coeducational schools; and the glorious reputation of the university as a school for men, would be trailed in the dust.”

It was also argued that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to include women would necessarily be “radical,” and so drastic as to destroy VMI’s program. It was also the contention of Virginia that VMI's training was 'inherently unsuitable to women'. However, it was observed by the Court of Appeals that some women are capable of all of the individual activities required of VMI cadets.

Justice Ginsburg highlighted that the notion that women’s admission would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, and is a prediction hardly different from other “self-fulfilling prophecies” that were routinely used to deny rights or opportunities. Drawing a parallel to this, Justice Ginsburg brought to light that back in 1876, when women first sought admission to the Bar and access to legal education, concerns of the same nature were expressed. The Court at that point explained why women were thought ineligible for the practice of law.

In presenting a remedial plan to maintain VMI as a male-only college, Virginia proposed to open the Virginia Women’s Institute for Leadership (VWIL) that would be more “suitable” for women. VWIL students would not experience the rigorous military training as in VMI, and they were to receive their “leadership training” in seminars, externships and speaker series episodes, which would be devoid of physical rigor or mental stress, pressures, hazards, etc., that came with VMI’s adversative training. On the whole, Virginia, while maintaining VMI was to be exclusively for men, failed to provide any “comparable single-gender women’s institution.” Instead the creation of VWIL was seen as a “pale shadow” of VMI.

This judgement had a far-reaching impact on any law which denied women opportunities to aspire and participate in contributing to society.

Does the recent Supreme Court order inevitably imply inclusion of transgender persons in the Armed Forces?

While celebrating the impending inclusion of women into the NDA fold, the question remains as to whether this inclusion would extend to the trans community in India. More often than not, the narrative when striving for progressive policies pertains to the gender binary, keeping the trans community outside the ambit of consideration. With the passing of the NALSA verdict, transgender persons were given legal recognition and conferred the third gender identity. All the fundamental rights available to men and women were therefore extended to the transgender community as well.

In October 2020, a trans woman, Hina Haneefa had applied for an entry to the National Cadet Corps (NCC) on the basis of her self-perceived identity, but was denied on the ground that the NCC did not have a provision for the third gender. Haneefa filed a petition before the Kerala High Court challenging Section 6 of the National Cadet Corps Act which allows only males and females to enrol. The petition urged that inclusion of sexual minorities such as transgender persons is necessary to address the rampant marginalization and discrimination faced by them. The NCC’s exclusion of the trans community also went against the Supreme Court’s ruling in NALSA v. Union of India, the Union government’s policy of inducting transgender persons into the elite paramilitary forces, as also the State of Kerala’s policy in this regard. In addition to this, the University College, Thiruvananthapuram (where Haneefa was then studying) also had a policy allowing transgender persons to pursue their studies without social discrimination.

In March 2021, the Kerala High Court ruled that a transgender person is entitled to be admitted to the NCC in accordance with their self-perceived identity. The Court held that the provisions of the NCC Act cannot preclude the operation of the provisions of the Transgender Persons (Protection of Rights) Act, 2019, which categorically recognized the right of transgender persons to a life with dignity prohibiting discrimination against them. The Court, therefore, directed that Haneefa be allowed to participate in the selection process based on the application submitted. The Centre was also directed to amend its enrolment criteria under Section 6 of the NCC Act and to issue guidelines on the entry of transgender persons within 6 months time.

In this context, along with the backdrop of the Supreme Court order permitting women candidates to appear for the NDA exam, it is only natural that the same be extended also to transgender persons. This will help realize the NALSA verdict in letter and spirit.

Conclusion

The apex court and the State High Courts, as institutions upholding the constitutional tenets of equality and non-discrimination, are slowly yet steadily paving the way towards a more inclusive future. From inclusion of transgender persons to the NCC to the recently passed interim order by the Supreme Court, attempts have been made to reconcile age-old notions of differences between the genders and to make for a more progressive, non-discriminatory society.

To quote from Justice Ginsburg's majority opinion is United States v Virginia,

“‘Inherent difference’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classification may be used to compensate women ‘for particular economic disabilities’ they have suffered and to promote ‘equal employment opportunity’, to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women”.

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