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 milestone judgment, which signaled a move towards gender parity in the traditionally male bastion, asked the Centre to extend permanent service to all women officers within three months. Permanent service has been applicable to men so far. Women have till now been inducted through a Short Service Commission (SSC) that lets them work for up to 14 years, and only allowed permanent commission in the army’s legal and educational wings.
Following Monday’s judgment, women will get the same opportunities and benefits as their male colleagues, including ranks, promotions and pensions, and be allowed to serve longer tenures.
Facts of the case
A quest for equality of opportunity for women seeking Permanent Commissions in the Indian Army forms the basis of these appeals. The lead appeal originated in a batch of Writ Petitions which were instituted before the High Court of Delhi in 2003 and 2006. A decade and more spent in litigation, women engaged on Short Service Commissions in the Army seek parity with their male counterparts in obtaining PCs. The entry of women in the Army has a chequered history. The provision for the induction of women for an initial period of five years was extended by a notification 6 dated 12 December 1996 issued by the Ministry of Defence. The notification deleted paragraph 2 of SRO-11 under which enrollment was to be for a period of five years. On 28 October 2005, a notification was issued by the MoD by which the Union Government extended the validity “of the scheme of appointment of women as officers in the Indian Army”.
To facilitate this, four amendments were made to the earlier notification dated 15 February 1992:
1. The tenure of women officers inducted under the Women Special Entry Scheme (Officers) under the notifications was extended by five years from 1997;
2. The tenure of SSC male officers and WSES officers was extended up to fourteen years;
3.The WSES was to cease to apply as a consequence of which women officers were to be inducted through SSC in the corps/services notified by the notification; and
4. Substantive promotions were to be extended both to men and women SSC officers “as applicable to PC officers”.
The position that emerges from the above narration is that when the induction of women in the Army was envisaged with effect from 15 February 1992 in stipulated branches and cadres, the tenure of engagement was five years. The above stipulation of five years was deleted, the MoD provided that the tenure of WSES officers would be extended up to fourteen years. The Army instruction broadly followed the same course, as a consequence of which a cap on the length of service was introduced. The initial process of induction under the WSES was replaced by SSCs with an outer period of fourteen years. During the course of the proceedings, two circulars were issued, conveying the sanction of the President of India regarding the grant of SSCs both on the technical and non-technical side to women officers. The period of training was stipulated at forty-nine weeks at par with male SSC officers. The circulars had comprehensive provisions pertaining among other things, tenure, substantive promotions and adjustment of seniority. Serving WSES officers were given an option to move to the new SSC scheme or to continue under the erstwhile WSES.
Contentions made by the Union of India
During the pendency of this appeal, the Union Government in the MoD issued a communication dated 25 February 2019 for the grant of PCs to SSC women officers in eight arms or services of the Army, in addition to the JAG and AEC which had been opened up earlier for PC. According to the Union of India, women are not employed on duties which are hazardous in nature unlike their male counterparts in the same Arm/Service who are liable to be employed in combat duties. For instance, a male officer in Army Service Corps undergoes infantry attachment in field areas upon commissioning and may be posted later to Rashtriya Rifles/Assam Rifles for counter-insurgency/counter-terrorist operations. The personnel below officer ranks are similarly engaged in combat roles. A male officer in the engineering branch would undergo a tenure in the Rashtriya Riffle/Assam Rifles while women officers are not employed due to the “inherent risks”. There is no discrimination between men and women SSC officers. For example, male SSC officers are not eligible to opt for an M.Tech course. Women SSC officers in the JAG branch may avail 180 days of child care leave, while PC women officers are entitled to avail 360 days owing to the long period of service expected from them. The Union Government has submitted that the Army faces a huge management challenge “to manage WOs 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” as a result of which “the legitimate dues of male officers have to be compromised”.
Finally, it has been urged by the Union of India that it has re-instated all women officers covered by the judgment of the Delhi High Court insofar as it relates to the Army. Those who are not in service either did not join their posts or had sought release despite the grant of an extension in service. Hence, women officers who are out of service or are not covered by the judgment of the High Court cannot seek the benefit of the policy decision. Any extension of the benefit to a woman officer outside the scope of the policy decision would “open floodgates for litigation creating serious administrative issues of cadre management.” The engagement of women officers in the Army has been an evolutionary process. As we have seen, women officers were initially inducted in the year 1992 under the WSES, for a period of five years. This was extended for a further period of five years. On the incorporation of a provision for SSCs for women officers, options were granted to those amongst them who had been engaged under the earlier scheme to become SSC officers.
As a part of the pool of officers engaged as SSC officers, the tenure was extended to fourteen years with a provision for due promotions while in service. Following the judgment of the Delhi High Court, the Union Government was under a mandate to grant PCs to women officers, to the exclusion of the Combat Arms, and at par with the grant of PCs to their male counterparts. Significantly, the judgment of the Delhi High Court was not stayed by this Court at any stage, though there was a direction that no coercive steps would be initiated on the basis of the judgment in appeal. A direction by this Court not to initiate coercive steps is distinct from a stay on the operation of the judgment. There was no reason or justification for the Union Government not to act upon the directions that were issued by the Delhi High PART, particularly, in the absence of a stay on the operation and enforcement of the judgment. The Union Government continued to thwart implementation despite the order of this Court clarifying that “the operation of the impugned judgment is not stayed at all.” Scant regard has been paid to the Delhi High Court and to this Court as well. Eventually, nearly nine years after the judgment, the Union Government has communicated a policy circular by which a decision has been taken to grant women officers PC in eight Arms/Services, in addition to the existing streams of JAG and AEC. Thus, as a matter of policy, the Union Government has taken a decision to allow for the grant of PCs in all the ten streams in which women officers were currently being commissioned as SSC officers.
Stereotypes and women in the armed forces
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.
- The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;
- Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;
- A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;
- An all-male environment in a unit would require „moderated behavior‟ in the presence of women officers;
- The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and
- The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”.
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. 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. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas.
The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:
(a) 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;
(b) The option shall be granted to all women presently in service as SSC officers;
(c) 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;
(d) 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;
(e) The expression “in various staff appointments only” in para 5 and “on staff appointments only”
(f) 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
(g) 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.
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.
……..J. [Dr Dhananjaya Y Chandrachud]
……..J. [Ajay Rastogi]
New Delhi; February 17, 2020
Edited by Pragash Boopal
Approved & Published – Sakshi Raje