Case Title: The Secretary, Ministry of Defence V. Babita Puniya & Ors.
In an important ruling on gender equality, the Supreme Court stated that women in the army shall be given Permanent Commissions regardless of the length of their service, in all ten streams where the Union Government has previously decided to offer women Short Service Commissions.
The Court further ruled that it is unreasonable and in violation of Article 14 of the Constitution for women to be completely excluded from leadership positions. As a result, the Court declared the regulation that stipulates that women would only be offered "staff assignments" to be unenforceable.
"An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. Implicit in the guarantee of equality is that where the State's action does differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner. An absolute prohibition of women SSC officers from obtaining anything. Still, staff appointments evidently do not fulfil the purpose of granting PCs as a means of career advancement in the Army", the Court held.
It was decided that, in the absence of a specific rationale from the Army, it was unlawful to categorically exclude women from consideration for criterion or command appointments. When women, their abilities, and their accomplishments in the army are criticised, the Court stated that both women and the army are being insulted.
The Supreme Court upheld the Delhi High Court's 2010 decision upholding the right of female short service commission officers in the Air Force and Army who applied for a permanent commission but were only granted an extension of their SSC to PC on par with male short service commission officers and to receive all ensuing benefits. The Court said that it was not interfering with the Government's decision to exclude women from combat jobs at the same time.
"Courts are indeed conscious of the limitations which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the Armed forces. For this reason, we have noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals", the bench observed.
In the present case, an SC bench made up of Justices DY Chandrachud and Ajay Rastogi had reserved decisions on February 5. As he read the verdict, Justice DY Chandrachud attacked the Centre's written notes, which had used the physiological traits and household responsibilities of women as justifications for not appointing females to command positions. The Court further stated that a mindset shift on the side of the government is necessary to abolish gender discrimination in the armed forces.
The SC also questioned the Ministry of Defense's 2019 policy, which permitted permanent commissions in specific professions to specific classes of women based on their years of service. Women officers who had served more than 14 years were not included under this policy.
The Government gave several reasons in its written justifications for not appointing women to command positions, including physical restrictions, male troops' resistance to women in leadership, who are primarily from rural backgrounds, home responsibilities resulting from women's societal roles, etc. The Central Government's justifications for not appointing women to command positions in the Indian Army were decried as "extremely retrograde" in the written arguments made by female officers before the Supreme Court.
The written submissions have cited instances of women officers, including Squadron Leader Minty Agarwal, Divya Ajit Kumar, IAF officer Gunjan Saxena, etc., who have won gallantry awards for their bravery during combat operations in order to refute the Centre's arguments regarding the physical weaknesses and unsuitability of women as command officers.
In addition to the existing 2 streams of Judge Advocate General and Army Educational Core, the Center made a policy decision on February 25, 2019, to grant Permanent Commission to Short Service Commission Women Officers in the 8 streams of the Indian Army (Signals, Engineers, Army Aviation, Army Air Defence, Electronic and Mechanical Engineers (EME), Army Service Corps, Army Ordinance Corps, and Intelligence) (AEC). The following conditions were placed on the Court's acceptance of the policy decision made by the Centre on February 15, 2019:
All serving women officers on the SSC will be given consideration for PCs regardless of whether they have more than fourteen or twenty years of service;
All women currently employed as SSC officers will be given the choice;
Female SSC officers with more than 14 years of service who choose not to be considered for the grant of PCs are permitted to remain in their current positions until they have accrued 20 years of pensionable service;
As a one-time measure, all current SSC officers with more than fourteen years of service who are not appointed on PC will additionally have the advantage of remaining in service until reaching pensionable service;
The phrases "on staff appointments only" and "in various staff appointments only" in paragraphs 5 and 6 are not required.
SSC women officers who get PC in accordance with the aforementioned instructions are eligible for all related perks, such as promotions and cash compensation.