IN THE SUPREME COURT OF INDIA
(Civil Appellate Jurisdiction)
Civil Appeal Nos 9367-9369 of 2011
Secretary, Ministry of Defence
Date of Judgement
17th February 2020
Dr. Dhanunjaya Y Chandrachud, J and Hemant Gupta
Background of the dispute
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.
In February 2003, Babita Puniya, an advocate instituted a Writ Petition in the nature of a Public Interest Litigation before the Delhi High Court for the grant of PC to women SSC officers in the Army. Apart from the PIL which was instituted before the High Court of Delhi, a Writ Petition was filed by Major Leena Gurav on 16 October 2006 primarily to challenge the terms and conditions of service imposed by the circulars dated 20 July 2006 and for seeking the grant of PCs for women officers.
The Writ Petitions were heard together by the Division Bench of the Delhi High Court. By a judgment dated 12 March 2010, the High Court issued directions, which were subsequently not complied with, hence the present appeal.
1. Whether the guideline by the government dated 15th February 2019 should be implemented?
2. Whether women should be granted Permanent Commission in the Indian Army?
3. What are the conditions governing the Women Officers in Army?
Arguments of the Union Government
Challenging the judgment of the Delhi High Court, the following submissions have been urged on behalf of Union of India:
- Grant of PC– The judgment of the Delhi High Court has failed to take notice of the relevant statutory provisions and orders of the Government of India; namely Section 10 and 12 of Army Act.
- Pensionary Benefits- The substantial benefit of pensionable service has been provided to women officers who have continued beyond fourteen years of service under interim orders by the policy decision dated 15 February 2019.
- Policy considerations-The Union Government is entitled to take into account the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care. These considerations are not open to judicial review; as held in Union of India v PK Chaudhary.
- Occupational hazards- 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.
- Discrimination– There is no discrimination between men and women SSC officers.
- 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”.
- SSC as a support cadre- The Ajay Vikram Singh Committee constituted by the Union Government to enquire into cadre issues in the Armed Forces favoured a lean permanent cadre of officers, supplemented by an enhanced support cadre in the ratio 1:1.1. Hence, further induction into the PC cadre through the SSC cadre will upset the organizational structure of the Army.
- Employment in staff appointments- Since 1992, the Union Government has restricted the eligibility of women officers to select appointments, as decided from time to time by Army headquarters. These orders have not been subjected to challenge or been invalidated.
- It was argued that it is a greater challenge for WOs to meet these hazards of service, owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families, especially when both husband and wife happen to be service officers
- It was further argued that inherent physiological differences between men and women preclude equal physical performances resulting in lower physical standards also, presence of WOs requires moderated behavior in male presence. Posting of WOs in all male units thus has its own peculiar dynamics
- It was also submitted that infrastructure in forward/border areas is very basic with minimal facilities for habitat and hygiene. Officers and men have to make do with primitive/make shift arrangements. Deployment of WOs in such situations or places in the current circumstances is not advisable.
Arguments of the respondents
- Inspite of there being no stay on the implementation of the judgment of the Delhi High Court, no steps were taken to grant PCs to women officers in the Army in compliance with the judgment of the Delhi High Court.
- Battlefield Scenario: The Army considers women officers as an effective workforce until they complete fourteen years of service. The nature of duties is similar to male officers. Having served shoulder to shoulder with male officers for twenty-five years, the contention advanced by the Union of India with respect to battlefield scenarios lacks substance;
- Unit cohesion: The Union of India has alleged that the presence of women has a negative impact on unit cohesion. It is time that the organization starts accepting women as equal colleagues; and
- National security: Despite the present batch of appeals being sub-judice for ten years, women officers of all ages and service profiles are still being posted to sensitive places, field areas, force head-quarters and units without being commissioned into combat arms;
- Women officers have been left in the lurch without pensionary and promotional benefits at par with their male counterparts despite having dedicated prime years of their lives to the service of the nation
- The claim of the appellant that there is a probability of women officers being exposed to a hostile environment where there is a grave danger of their coming in contact with the enemy is discriminatory and without any basis. Thirty percent of all women officers are posted in the field (combat zones)
- Despite the deficiency of officers in the support services, the Indian Army is letting go of trained women officers due to gender discrimination and not granting PCs to women officers.The vacancies in the Indian Army can be easily handled by women officers;
- Women officers undergo training for all mandatory courses which other SSC male officers also undertake. However, only male officers are eligible to seek PCs.
- No rule of the Indian Army prescribes that officers seeking PC have to compulsorily be given command of troops. If women officers are found fit and deserving for the rank of Colonel, they may be promoted to the next rank or be allowed to continue in the manner other non-empaneled PC male officers are presently allowed;
- In addition to the discriminatory nature of the policy with respect to the grant of PC, the policies for women officers in the Army also lowers their status to that of a jawan/JCO.
Decision of the Court-
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:-
1. 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.
2. The option shall be granted to all women presently in service as SSC officers.
3. The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced; with respect to PC of women.
4. At the stage of opting for the grant of PC, all the choices for specialization 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.
5. The order of the Delhi High Court is affirmed in this case.
6. 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.
Edited by Sree Ramya
Approved & Published – Sakshi Raje