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The Court commented extensively on how the Centre's submissions against the same were based on flawed gender stereotypes
The Supreme Court on Monday took critical note of the need to change mindsets about gender stereotypes that view women as the weaker sex, while re-affirming the Delhi High Court’s 2010 ruling to allow the grant of Permanent Commission to Women Short Service Commission Officers on par with their male counterparts.
The Court ultimately held in the case of the Secretary, Ministry of Defence v. Babita Puniya & Ors. that,
The Judgment was delivered this morning by a Bench of This is fineustices DY Chandrachud and Ajay Rastogi. Justice Chandrachud authored the judgment.
In its judgment, the Court comments extensively on how the Central Government’s submissions on the issue “only go to emphasise the need for change in mindsets to bring about true equality in the Army.”
“Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court", the Bench observed.
The Court has proceeded to highlight how the Central Governments submissions are founded on “sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women.” As explained in the judgment,
“Underlying the statement that it is a 'greater challenge' for women officers to meet the hazards of service 'owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families' is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the inherent physiological differences between men and women' rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are 'too arduous' for them.”
The Bench emphasises that these do not make for a Constitutionally valid basis to deny women officers of the armed forces permanent commission on par with men. Further the Court also pointed out that various submissions made concerning the dynamics of army life placed an unfair burden on women. As recorded in the judgment,
The Court takes note that the Centre’s submissions before the Supreme Court assumed a tone contrary to its own 2019 policy, wherein permanent commission was extended to women officers, albeit on limited terms. Inter alia, the judgment notes,
“Confronted on the one hand with a solemn policy decision taken by the Union Government allowing for the grant of PC to women SSC officers in ten streams, we have yet on the other hand a whole baseless line of submissions solemnly made to this Court to detract from the vital role that has been played by women SSC officers in the line of duty.”
The Court goes on to add that that the Centre’s line of reasoning in its submissions were not only disturbing, but also insulting to the dignity of the Indian Army - to both men and women. As stated in the judgment,
“Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate. Women officers of the Indian Army have brought laurels to the force."
In view of the vital role played by women officers since their first induction in 1992, the Court in fact remarked that,
It points out that the decision to extend Permanent Commission opportunities to women officers in all ten streams of the Armed Forces would mark a step forward in recognising the right of equal opportunity in the Army.
“This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women.”
While re-affirming the Delhi High Court ruling, the Bench also registered its approval over the delay in implementing the High Court directive, particularly given earlier categorical clarification in 2011 that the High Court ruling has not been stayed. As observed in the ruling,
“Nearly a decade has elapsed since the date of the decision. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals.”
In this backdrop, the Supreme Court took note that the Centre’s attempt to exclude women who had crossed 14 years of service from being considered for Permanent Commission was part of the fallout of prolonging the implementation of the High Court ruling.
“This situation of women officers with service above fourteen years has come to pass plainly as a consequence of the failure of the Union Government to comply not only with the directions of the Delhi High Court but also those which were issued by this Court on 2 September 2011", the Court said.
The Court proceeded to clarify that the opportunity to be granted Permanent Commission cannot be denied to any serving woman officer, regardless of the number of service she has rendered.
“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 … the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them.”
The Court also proceeded to set aside the limitation in the Centre’s 2019 policy, whereby women were not allowed appointment to command positions. Rather, the policy only allowed permanent commission for women officers in ‘staff appointments”. In unequivocal terms, the Court said,
The Court went on to add that “If the army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities and if necessary, to future courts. However, such a justification must take place on a case-to-case basis, in light of the requirements and exigencies of a particular appointment.”
"The blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law."
The Bench went on to hold that the 2019 policy decision which has been taken by the Government allowing for the grant of Permanent Commission (PC) to Short Service Commission (SSC) women officers in all the ten streams in the Indian Army is accepted, however subject to the following conditions, i.e.:
All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;
The option shall be granted to all women presently in service as SSC officers;
Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;
As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;
The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced. In other words, women are eligible to be considered for grant of Permanent Commission in command positions as well.
SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and
At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers.
Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.
The Court also added, “SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.”
[Read the Judgment]