The gender discrimination in Indian democracy is continuing from years. Women have been fighting for thier rights from birth till there last breath to break the stereotypes. One of the landmark case that ended up in favour of the battle fought by them is the secretary, ministry of Defence V Babita Puniya & Ors. Where the court made a decision to give women in army an opportunity to have long term job security like male officers.

Case Name:
The Secretary, Ministry Of Defence V. Babita Puniya & Ors

Citation:
Civil Appeal Nos 9367 – 9369 Of 2011

Bench:
Hon'ble Dr. Chandrachud, Hemant Gupta

Facts

• Section 12 of the Army Act, 1950 prohibits the recruitment of females into the army except in the case that the Central Government allows it to some extent.
• The roles being limited to medical, dental, and nursing, in 1992 the central government allowed females to join certain cadres through a notification into short service commission (SSC), intelligence, signals, artillery, service corps, education and JAG department.
• Women officers of these cadres seek parity to their male counterparts by being allowed to obtain permanent commission.
• Feb 2003 in Delhi high court, a writ petition under a PIL is filed by Babita Puniya for the purpose of granting permanent commission to SSC women officers.
• In 2005, MoD extends the appointment scheme of women officers in the Army followed by a notification to maximize service of SSC women officers to 14 years in 2006.
• Major Leena Gaurav and Lt Col Seema Singh filed a writ petition seeking permanent commission in 2006 and 2007 respectively.
• In 2008, centre allowed permanent commission to SSC women officers in education and JAG department in all three services, i.e Army, Navy, and the Air force.
• In 2010, Delhi high court raises centre and MoD to grant permanent commission to those who had claimed for it.
• MoD raised the issue to supreme court, but it was refused.
• In 2019, the centre notified that permanent commission will be accredited to women officers but only who are commissioned after the notification has been passed.

Issue

• Whether or not the women in the Indian army granted permanent commission?
• Whether or not the implementation of government guidelines dated 15th February 2019 be made?
• The terms and conditions under which the female officers are governed?

Rules

• Article 33 of the constitution of India.
• Section 10 & 12 of the Army act, 1950.
• Article 14 of the constitution of India.
• Article 15(1) of constitution of India.
• Article 16(1) of constitution of India.

Literal Rule:
This rule follows the legal maxim verbis legis non est recelendum which means that there shall be no departure from the words of law[1]. So, it makes the court to stick to the literal meaning of the words. The intention of the legislature in the above provisions is quite clear and straight as interpreted from the language. It looks above the consequences and just focus on the words provided.

The court also rejected the argument and stated that it is stereotypical to assume that the females are responsible for domestic work only. Such gender specific norms violate the article 14 and 15 of the constitution even though article 33 provides certain restrictions on these rights in armed forces but these restrictions can be limited to certain extend. Fundamental rights cannot be restricted merely because of article 33.

Moreover, to argue on the basis of psychological difference will show them as a weaker sex. "Constitution is itself feminist, as the main function off feminism is to distort social Hierarchies and so is of constitution."[2] So it is the duty of judiciary to look after the actual and literal meaning of the statue irrespective of the consequences.

Judgement by the Supreme court
Justice D.Y Chandrachud leading the given bench stated that the Union held stereotypes on gender equality. It was emphasized that it violated Article 14 which granted fundamental rights. Even though Article 33 allows restrictions in the fundamental rights of army personnel, it was only in matters of maintaining duty and discipline.

The bench imposed certain conditions on the policy taken by the union on 15 February 2019, these are:

• All SSC women officers are eligible for PC even if they have crossed 14 years of service or 20 years in the specific case.
• Order by Delhi High court is to be followed and imparted.
• Similar to the male officers, women would get choice of specialisation when they apply for PC.
• SSC women officers granted PC would be able to get all benefits and incentives of pension and promotion.
• Terms stated like 'In staff/On staff appointments only' will not be used regarding PC of women officers.
• All SSC women officers will get benefit of continuing their service till it becomes pensionable.
• Union must take steps to comply with the judgement within 3 months of its passing.

Analysis
The first is how the main thing lighted up has been how gender roles are now seen through an anti-stereotypical lens on basis of physiological and psychological aspects. The court has had a history of being loose on these fronts for the defence domain as Articles 14 and 15 clearly rule out discrimination on gender and stereotypical roles. So now it makes it difficult to justify arguments based on these stereotypes as the courts are now fully using the anti-stereotype principle.

While the Court's track record on this issue has been inconsistent, particularly in the sphere of service law, there has been a more consistent application of the anti-stereotyping principle since 2007. These decisions, with their unambiguous interpretation and application, will make it much more difficult for stereotype-based arguments to be upheld in Court in the future.

Secondly, it was clearly brought up that the armed forces cannot and will not be a place with no rights, even though Article 33 states that fundamental rights can be restricted for the fulfilment of the needs of the armed forces, it cannot completely overrule the rest of the rights that must be an essential part of the needs of the people in the armed forces as stated by Part III of the Article. The way the court navigated through this difficult area is commendable as they brought forward the need of Article 33, but it clearly indicated that it could not be used as a knife to cut down the other Articles that guarantee certain rights to the people.

Thirdly, it brought forward the fact that the court does not need to burden itself with enforcing of fundamental rights. It is notable how the court managed to decipher and bring the judgement to a logical end as the case of induction of women in the armed forces has been an evolutionary process since 1992 and the state's question of not granting PC to the women cadre was then overtaken by its own evolving policies.

The job of the court was made easier as it did not have to force gender equality onto an institution that was ready to go against it, rather they used their own logic and arguments to reroute them through their decision. Instead of it being a case of the armed forces vs the court, it became a case wherein the court just made the armed forces follow their own policies to a logical conclusion, in this the court just acted like a critique and did not let the armed forces support discrimination of any sort.

Lastly, it is notable how the army and navy act which only allow induction of women in armed forces where the government allows it, these acts have never been challenged. So, the court had difficulty to point this out because the reason why it wasn't challenged was not because of the combat role capabilities of women rather because the armed forces had formed a stringent view on this front.

However, let's suppose that the court does put these acts under challenge, what would happen then? Wouldn't the defence and the state's national security considerations be then at risk? The step taken by the court may be too far as it would overrule certain security domain aspects, but this would be logically fought with. However, the recent developments have shown the armed forces opening in these matters and how they have approached this scenario with terms of equal correspondence. So, the Army's changes along with court's decisions make it imperative to have any questions for serious and big challenges.

Comment
The order by the supreme court enables a benchmark to be set for considerations in all aspects for equality of women and male officers. It has allowed for all the departments to revise their own arrangements to employ maximum workspace equality to all their employees and subordinates.

The decision gives women officer's ability to continue into the domain of national service as per their will rather than a pre-determined notion of a set time frame without any eligible perks for the same. However, the country cannot success when half of the citizens are left behind. There exists a community which do not identify as these genders and have the same patriotism and courage to serve the country. There are still miles to go to have a nation which is free from gender biases and discrimination.

End-Notes:

1. H.N Tewari, Legal Research Methodology 95(Allahabad law agency, Faridabad, 1997).
2. Hon'ble Justice Dy Chandrachu

Written By: Devanshi Sharma, Final Year LL.B. (Hons.) Student - Jindal Global Law School, O.P. Jindal. Global University