Women officers in the Indian Army: A bastion breached

“The right to equality is a right to rationality,” observed a two-judge bench of the Supreme Court on February 17 while ruling on the appointment of women officers in permanent commissions of the Indian Army and in command positions. The landmark verdict, delivered by Justices D.Y. Chandrachud and Ajay Rastogi, ruled that all serving women officers on the short service commission (SSC) would be considered for the grant of permanent commissions on the same terms as their male counterparts. Even those women officers who did not opt for a permanent commission but had completed 14 years of service could continue in service until they reached the point where they would be eligible for pensionable benefits. The judgment, with its wide-ranging observations on gender equality, is being seen as a blow for women’s rights and has been hailed by women’s organisations. Women SSC officers with over 20 years of service who were not granted a permanent commission would retire with pension benefits, the bench ruled.

The court pulled up the Central government for delaying the implementation of a March 2010 Delhi High Court order that ruled that women officers in the Indian Air Force and the Indian Army should be considered for permanent commissions. Terming the exclusion of women from all except staff appointments as indefensible, the bench held that if the Army had cogent reasons for excluding women from a particular command appointment it could present them to future courts if necessary. It held that the blanket non-consideration of women for criteria or command appointments was unsustainable in law and said that the Army could provide “no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments”. The arguments for denying women command positions by both the Union government and the Army were rejected by the court.

A public interest litigation petition filed in 2003 in the Delhi High Court pleaded for the grant of permanent commissions for women SSC officers. Women who were engaged in the SSC in the Army sought parity with their male counterparts for permanent commissions. Under Section 12 of the Indian Army Act, 1950, only the Central government had the powers to specify enrolment or employment of women in the regular Army. In January 1992, the Union government, through a notification, made women eligible for appointments as officers in specific branches and cadres of the Army. The notification, which identified five areas, was only applicable for five years.

In December 1992, another five categories were added. It was only in December 1996 that the time limit of five years of the notification was dropped. In 2005, four amendments were made to the 1992 notification wherein the validity of the scheme of appointment of women as officers was extended. The tenure of SSC male officers and Women Special Entry Scheme (WSES) officers was extended to 14 years. The WSES was replaced by SSCs.

On the 2003 petition, the Delhi High Court ruled in March 2010 that women officers were entitled to permanent commissions on a par with their male counterparts, barring combat arms. Union governments led by both the Congress and the Bharatiya Janata Party (BJP) thwarted the implementation of this ruling despite a Supreme Court order in 2011 that insisted that the “operation of the impugned judgment was not stayed at all”. It noted that “scant regard has been paid to the Delhi High Court and to this Court as well”. On February 25, 2019, the Union government issued a policy circular allowing permanent commissions for women officers in 10 categories, including arms and services where they were otherwise commissioned as SSC officers only.

Yet, the government’s submission in court contradicted its own policy circular and betrayed a patriarchal bias. It argued that the grant of commission under Section 10 of the Act was at the discretion of the President of India. The bench noted that the entry of women in the armed forces had been part of an evolutionary process that began in 1992 followed by some encouraging court orders. It said there was “no reason or justification for the Union government not to act upon the directions that were issued by the Delhi High Court, particularly in the absence of a stay on the operation and enforcement of the judgment”.

Stereotypes

The submissions, the court held, “betray a lack of understanding of the plain consequences of the decision”. The bench also observed that “seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognise the commitment to the values of the Constitution”. It commented on the stereotypes that underpinned the government’s submissions: one, the “profession of Arms was a way of life which requires sacrifice and commitment beyond duty”; two, women officers must deal with pregnancy, motherhood and domestic obligations; three, an all-male environment would require “moderated behaviour” in the presence of women officers; four, the physiological limitations of women officers were accentuated by challenges of confinement, motherhood and child care; and five, the deployment of women officers was not advisable in areas where members of the armed forces were confronted with minimal facilities for habitat and hygiene.

Women, the government held, are not employed in duties of a hazardous nature on account of enhanced risks, unlike their male counterparts in the same arm/service who are liable to be employed in combat duties. The government maintained that there was no discrimination between male and female officers as male SSC officers were not eligible to opt for a Master of Technology course. The Army faced a huge management challenge to “manage Women Officers in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station. The Army has to cater for spouse postings, long absence on account of maternity leave, child care leave”, because of which the “legitimate dues of male officers gets compromised”.

A further induction of SSC officers in permanent commission cadre would “upset the organisational structure” of the Army, the government said. The Union government averred that it had restricted the eligibility of women officers to select appointments on the basis of decisions taken at the Army headquarters. Counsel for the government based his arguments on two facets: one, the need to protect national security and operational effectiveness, and two, non-linear battlefield scenarios in future wars. Under four heads—exigencies, physical capabilities, composition of rank and file, and infrastructure—the government held that it was a greater challenge for women officers to meet major hazards and challenges as they had domestic obligations, more so when both husband and wife were service officers.

The physical capability of women officers was also a challenge for the command of units as “officers were expected to lead from the front and needed to be in prime physical condition to undertake combat tasks”. The inherent physiological differences prevented women from physical performances of the same standard as men.

Although normally reluctant to make comparisons with other countries, the government note stressed that countries that had women army officers also had women in the rank and file, unlike in India, Pakistan and Turkey. The result was an all-male environment in the armies of these countries and the presence of women officers would require “moderated behaviour” by male officers. “Posting of women officers in all-male units thus has its own peculiar dynamics,” the submission said.

Under “infrastructure”, it said that as infrastructure was very basic in the forward and border areas with minimal facilities for habitat and hygiene, manning forward posts and small detachments with restricted communication facilities led to “feelings of isolation” and hence deployment of women officers in such situations was not advisable. Women officers, counsel for the petitioners contended, were a minuscule 4 per cent of the total strength of commissioned officers in the Army. Women officers had served the Army for almost 25 years (women officers began to be commissioned from 1992-93) including in sensitive zones, field areas and units without being commissioned into combat arms.

‘Baseless submissions’

The bench came down heavily on the government’s baseless submissions based on deeply entrenched sex stereotypes. They were also deemed constitutionally flawed as they were based on assumptions about socially ascribed gender roles.

“Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers,” the bench said.

The bench observed that while the submission elaborated on the service rendered by women SSC officers, their role was sought to be “diluted by the repeated pleas made that women by the nature of their biological composition and social milieu” had a less important role to play than their male colleagues. Such a line was “disturbing” as it ignored the “solemn constitutional values which every institution in the nation is bound to uphold and facilitate”.

The bench noted the commendation certificates and laurels achieved by women officers, which were placed before it on record. Women officers in the Army were not adjuncts to a male-dominated establishment whose presence must be “tolerated” within narrow confines, it observed.

Counsel for the petitioners, among whom was BJP Member of Parliament Meenakshi Lekhi, argued that the government’s submission was gender-biased and stereotyped women. They pointed out how women SSC officers were discriminated against by lack of opportunity for professional growth, had no job security because of the ambiguous nature of the cadre and were made to render services under junior officers due to a lack of uniform and equal promotion policy. The policy letter of February 2019 was discriminatory as it restricted women officers only to staff appointments.

Some 30 per cent of women officers were posted at combat zones but denied permanent commission of service. It was pointed out that officers who sought permanent commission were given command positions. There was selection by merit in command positions which women could also apply for if they were allowed. It was also pointed out that a woman officer who had worked for 14 years did not receive a pension or any retirement benefit. Male SSC officers, on the other hand, were allowed to opt for a permanent commission with all its benefits.

There is a fundamental fallacy, observed the court, in the distinction sought between women officers with less than 14 years of service, those with between 14 and 20 years of service and those with over 20 years of service. Noting that a decade had passed since the Delhi High Court’s order of March 12, 2010, the bench said that the Union government was duty-bound to enforce it. “Having failed to enforce the judgment, the Union government has now informed the court that it would not consider women officers who have crossed the age of 14 years in service as SSC officers for the grant of PCs [permanent commissions],” it noted.

‘Irreparable damage’

The judgment in effect held the Union government responsible for the situation women officers with more than 14 years of service found themselves in and observed that the “failure to implement” the judgment had caused “irreparable damage” to women officers who had lost the benefit of promotions and assumption of higher responsibilities owing to the “chequered history of the litigation”. The court conclusively held that all women SSC officers should equally be entitled to consideration for permanent commissions.

While cognisant of the limits of judicial intervention in matters relating to the armed forces, the court remarked that there was implicit acceptance by the Army that women could, in certain situations, receive criteria or command appointments. An absolute bar on women who sought criteria or command appointments was not in agreement with the guarantee of equality under Article 14. It was pointed out that the principle of equality entailed that where the state differentiated between two classes of persons, it did not differentiate between them in an unreasonable or irrational manner.

Women’s organisations such as the All India Democratic Women’s Association have welcomed the court order and demanded that the Central government implement it within the stipulated three months.