SC shatters glassceiling for women army officers

Lifts 14-year bar on permanent commissions, clears command roles

NEWDELHI: The Supreme Court on Monday struck a blow for gender parity in the army, saying that women should be considered for command roles, and that all women officers are entitled to permanent commission. It asked the army to give them permanent commission within three months.

In a judgment hailed for creating a new equality paradigm in the armed forces, the top court, upholding a 2010 Delhi high court verdict, ruled that women officers who joined the Indian Army through Short Service Commission (SSC) are entitled to permanent commission (PC) even if they have more than 14 years of service.

The bench of justices DY Chandrachud and Ajay Rastogi also held that there cannot be an “absolute bar” on women officers being considered for command appointments, paving the way for their elevation to such roles. To be sure, the case was only about permanent commission and command roles in non-combat streams of the army.

Defence minister Rajnath Singh welcomed the judgment. “I wholeheartedly welcome Honble Supreme Court’s judgement on giving the Women officers permanent commission in the Armed Forces. PM Shri Narendra Modi has supported the idea of permanent commission for women & announced the change in policy in his Independence Day speech in 2018”, he tweeted.

A permanent commission

allows officers to serve in the army till they retire, unlike the SSC, which is for a specific period of 10 or 14 years. Women can only join the armed forced through SSC; they are not offered ab initio permanent commission in any of the forces.

There was no immediate response from the Indian Army.

The Union government proposed in February 2019 that permanent commission should be given to Ssc-recruited women officers with less than 14 years of service. It also decided that these could only be given in “staff appointments” and not in command roles in specific non-combat streams. These appointments were to start in April.

Before this, PC was available to Ssc-recruited women officers in the Judge Advocate General (JAG) and Army Education Corps (AEC) which belonged to the Services stream.

“All serving women officers on SSC shall be considered for the grant of PCS irrespective of any of them having crossed 14 years or, as the case may be, 20 years of service; The option shall be granted to all women presently in service as SSC officers,” the court ruled on Monday.

It took the Union government to task for the restriction on command roles, called its decision one that perpetuated “gender stereotypes”, was “against constitutional values” and “disturbing”, and treated women as the “weaker sex”.

In the affidavit filed by the central government in May 4, 2018, it had submitted that restrictions on the employability of women in the Army are “inescapable due to the peculiar operational compulsions of the Army”. The Union government also stated that measures to eradicate the divide between men and women officers in as many streams as possible were being adopted in an incremental manner.

“To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission,” the court said.

The judgment came after a petition by the defence ministry challenged a 2010 verdict of the Delhi high court, which ruled that SSC women officers in Indian Army and Indian Air Force should be granted permanent commission at par with male SSC officers.

Monday’s case was regarding the army. Similar cases concerning Indian Navy and Indian Air Force are pending before the Supreme Court.

To be sure, the judgement does not mean that all women officers will be given command roles. Currently only some male officers make it to command roles, based on a stringent selection process.

The central government, during the pendency of the appeal in the Supreme Court, issued a communication on February 25, 2019, granting permanent commission to SSC women officers of the Indian Army in eight non-combat streams. This was, however, limited to staff appointments only.

The top court said: “An absolute prohibition of women SSC officers to obtain anything but staff appointments evidently does not fulfil the purpose of granting PCS as a means of career advancement in the Army… the Army has provided no justification as to why women across the board should not be considered for any criteria or command appointments.”

The judgment will immediately impact 322 women officers in the army. It will also have a bearing on the careers of women who join the army now.

In February 2003, Babita Puniya, an advocate, instituted a petition in the nature of a Public Interest Litigation before the Delhi high court for the grant of permanent commission to women SSC officers in the army. On September 26, 2008, the defence ministry issued a circular envisaging the grant of permanent commissions prospectively to SSC women officers in the JAG department and the AEC . The circular was challenged before the Delhi HC by Major Sandhya Yadav and others on the ground that it granted permanent commissions only prospectively and only to certain specified cadres.

The Centre’s contentions were largely surrounding three points — the technical issue of terms of tenure under SSC; that male soldiers are not “mentally schooled” to accept women in command roles; and women are not fit for command rules, which might involve combat, because of their “physiological differences” with men.

“The submissions to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women,” the judgment said. It added that the “reliance on the inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women may not undertake tasks that are “too arduous for them”.

Reacting to the verdict, Lieutenant Colonel Seema Singh, one of the petitioners, said: “The army is one of the best organisations to work with; it makes you feel at home, and is the kind of place to fight for and that’s why we went to court. The women who have and will come after this will have to prove the judgement worthy. It’s now on us.”

Appearing for the Centre during the course of the hearing earlier this month, senior counsel R Balasubramanian reiterated the army’s stand that only SSC women officers with up to 14 years of service were to be considered for permanent commission. As per the proposal, women with more than 14 years of service would be permitted to serve up to 20 years without consideration for permanent commission, and then released subject to pensionary benefits, and women above 20 years of service would be released with pensionary benefits immediately upon the completion of the case in the Supreme Court.

This was on the basis that women with more than 14 years of service were inducted under the Women Special Entry Scheme for a short period. Since their employment was for a limited period, they were imparted shorter pre-commission training of 24 weeks. Hence, the centre argued that those officers had limited exposure and responsibility.

The Supreme Court dismissed the proposal and observed that the Union government’s policy of 2019 in allowing SSC women officers permanent commission was in furtherance of the mandate of Constitution. It added that there was no reasonable justification to restrict PC only to women with up to 14 years of service.

The court also noted that though the Delhi high court delivered its verdict in 2010, the Centre failed to implement the order for nine years even though the Supreme Court did not stay the high court judgment.

“This situation of women officers with service above 14 years has come to pass plainly as a consequence of the failure of the Union Government to comply not only with the directions of the Delhi High Court but also those which were issued by this Court on 2 September 2011. In this view of the matter, we see no reason or justification to deprive SSC women officers of the grant of PCS on the ground that they have crossed 14 years of service,” the court ruled.

The argument that male soldiers were not ready for woman commanders did not find favour with the court, which held that if the army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities. However, such a justification, the court said, must take place on a case-bycase basis, in light of the requirements and exigencies of a particular appointment. There cannot be a blanket non-consideration of women for command appointments, the court said.

The court also rejected that argument that it would be 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”. Such arguments, the court said, are founded on a strong stereotype which assumes that domestic obligations rest solely on women.

Advocate Aishwarya Bhati, who represented women officers in the matter, termed the judgment a “watershed moment for women across the world. “The next goal is to push for combat goals,” she added.

Congress leader Rahul Gandhi, along with several other opposition leaders and women’s rights groups, welcomed the verdict and criticised the stance of the central government in the case. “The Govt disrespected every Indian woman, by arguing in the SC that women Army officers didn’t deserve command posts or permanent service because they were inferior to men. I congratulate India’s women for standing up & proving the BJP Govt wrong”, Gandhi tweeted.

Major Navdeep Singh, advocate in the Punjab & Haryana high court, told HT: “It’s a beautiful judgment by the Supreme Court. In my personal opinion, the well-rounded decision by the Delhi HC should not have been challenged by the Govt. I can, however, say with certainty that the current army chief, who is a very mature and balanced professional, will find ways to assimilate woman officers in appropriate roles equitably.”