‘Women aren’t adjuncts’ — what SC said while granting permanent commission to women in Army

SC says arguments based on physical strengths and weaknesses of men and women do not constitute a valid basis for denying equal opportunity to women officers.

Women officers in the Indian Army (representational image) | Wikipedia

New Delhi: The Supreme Court Monday upheld a 2010 Delhi High Court verdict, stating that the Narendra Modi government has to give permanent commission to women officers in the Army irrespective of their years in service.

The bench comprising Justice D.Y. Chandrachud and Justice Ajay Rastogi said: “At the stage of opting for the grant of PC (permanent commission), 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.”

The judgment, however, does not apply to combat roles, but clarifies that women officers would be eligible for command posting as well. The court has granted the government three months’ time to implement the order.

ThePrint chronicles the legal journey of the case and explains the Supreme Court’s reasoning.

Induction of women in the army

Women officers were first inducted in the military nursing service in 1927 and as medical officers in 1943.

Then, in 1992, a notification was issued making women eligible for appointment as officers in certain specific cadres such as Judge Advocate General (JAG) and Army Education Corps (AEC).

Through this special entry scheme, women were initially brought in for 5 years of service, which was then converted into Short Service Commission (SSC) — with a tenure of 14 years.

In 2008, permanent commission was extended to women in streams of Judge Advocate General and Army Education Corps.

Then, in March last year, the Modi government decided to grant permanent commission to women in all 10 branches where they are inducted for Short Service Commission — Signals, Engineers, Army Aviation, Army Air Defence, Electronics and Mechanical Engineers, Army Service Corps, Army Ordnance Corps and Intelligence, besides JAG and AEC.

However, the benefit was not applicable retrospectively and thus ruled out the women officers in the job now.

Why not combat?

The 2010 Delhi High Court judgment was passed by a bench comprising Justices S.K. Kaul and M.C. Garg on petitions filed in 2003 and 2006 by women officers who were granted SSC in the IAF and Army and who now sought permanent commission.

They had challenged the government’s refusal to consider them for permanent commission. The consequence of not being granted permanent commission was that they were deprived of certain benefits and privileges such as pension, ex-serviceman status and medical facilities.

Notably, the petitioners before the Delhi High Court had specifically submitted that they were not seeking induction into combat, which they said was a “policy matter”.

The high court accepted this argument and left combat roles untouched.

In its judgment, the Supreme Court also acknowledged the high court’s viewpoint that this was a policy decision and has, therefore, clarified that the judgment does not apply to combat roles.

“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 apex court observed.

‘Irrespective of length of service’

While the case was pending in the Supreme Court, the central government informed the top court about its 2019 decision to grant permanent commission to SSC women officers in eight arms, in addition to JAG and AEC.

The court, however, noted that the decision only envisages that women officers with less than 14 years of service would be considered eligible for grant of permanent commissions.

According to the decision, women officers with more than 14 years of service but less than 20 years of service were to continue until they attain pensionable service of 20 years, without the grant of permanent commission.

While the court appreciated the decision, it highlighted the “fundamental fallacy” in creating a distinction between women officers with less than 14 years of service and those beyond the 14-year mark.

It also highlighted the fact that the Delhi High Court judgment was passed in 2010 and that the government was duty-bound to implement it, but failed to do so until 2019. This, it said, “caused irreparable prejudice” to women officers.

The court, therefore, clarified that the SSC women officers, both within the period of 14 years of services and beyond it, should be entitled to consideration for grant of permanent commission.

“We therefore clarify that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them,” it ruled.

To be considered for command appointments

Another aspect of the central government’s 2019 policy decision was the restriction that permanent commission would only be granted for staff appointments and not command appointments.

The court noted that such a restriction was not imposed when the JAG and AEC branches were opened up for grant of permanent commission.

It then observed that an absolute bar on women seeking criteria or command appointments would violate Article 14 of the Constitution, which guarantees equality before law. The Army, it said, had also failed to provide a justification for the restriction.

The court, therefore, ruled that whether a particular candidate should or should not be granted a criteria or command assignment “is a matter for the competent authority to consider having regard to all the exigencies of service, performance and organisational requirements”.

It, however, added that if the Army does have convincing reasons for excluding women from a particular criteria or command appointment, “it may provide them to the relevant authorities and, if necessary, to future courts”.

Busting ‘sex stereotypes’

In the verdict, the Supreme Court also lamented the central government’s submissions highlighting the “physiological limitations” of women officers.

In a section titled “stereotypes and women in the armed forces”, the bench said that submissions such as those citing pregnancy and motherhood as reasons for not granting permanent commission to women were based on “sex stereotypes”.

“The time has come for a realisation that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be ‘tolerated’ within narrow confines,” it said.

The court then asserted that arguments based on physical strengths and weaknesses of men and women, and adding “social context of marriage and family”, do not constitute a constitutionally valid basis for denying equal opportunity to women officers.