ABOUT THE AUTHOR
This article is written by Archana V S, a sixth semester three year LLB student of Government Law College Thrissur. The article in detail discusses the case Secretary, Ministry of Defence v. Babita Puniya and Ors. and about gender equality in Defence forces.
NAME OF THE CASE : SECRETARY, MINISTRY OF DEFENCE V. BABITA PUNIYA AND OTHERS
CITATION : (2020) 7 SCC 469
JUDGMENT DATED ON : 17th FEBRUARY 2020
BENCH : DHANANJAYA Y. CHANDRACHUD (J), HEMANT GUPTA (J)
PETITIONER : Secretary, Ministry of Defence.
RESPONDENT : Babita Puniya
INTRODUCTION
Indian constitution enumerated provisions for upliftment of women to bring gender neutrality in the Country. However Gender stereotypes always creates barriers for women in the professional spaces and it also deepens gender discrimination at work. One of the many gender discriminations from which women were battling ended in their favour as the Supreme Court of India in a landmark and extremely laudable judgment named The Secretary, Ministry of Defence v. Babita Puniya and Ors.
FACTS OF THE CASE
In the year 2003, Babita Puniya, an advocate filed a writ petition in the nature of PIL before the Delhi High Court for granting Permanent Commission (PC) to military women who are recruited as Short Service Commission (SSC) officers. And apart from this petition, many other petitions were filed by the women officers for the same and tagged their petition with Babita’s petition.
In the year 2005, the Minister of Defence declared the validity of the appointment scheme of the Indian Army regarding women officers being extended.
On 20th July 2006, a further notification was issued which allowed the SSC women officers to serve for a maximum of 14 years. In the same year on 16th October, Major Leena Gaurav again filed a writ petition challenging the terms and conditions issued by the Minister of Defence on 20th July for seeking to grant Permanent Commission (PC) for Women officers. In the next year (2007) Lt. Colonel Seema Singh also filed a petition for the same issue of granting PC.
In the year 2008, the Union Government granted PC to SSC officers in some of the departments such as in JAG and Army Education Corps. Later, Major Sandhya Yadav and others challenged this notification that PC was granted to those who were appointed after the date of implementation of this notification and only in two departments.
Delhi High Court was flooded with the petitions seeking to grant PC to the women officers. On 12th March 2010, Delhi High Court heard all the petitions and held that PC should be granted to the women who were already recruited as SSC in all departments after five years of service. In July the Army appeared before the Supreme Court challenging this judgment but The Supreme Court upheld the judgment of Delhi High Court.
On 2nd September 2011, another appeal was made to the Supreme Court which ordered it to continue the given judgment. In 2018, the court was asked to review the order of granting PC to women in the Army.
At last on 15th February 2019, the Union Government issued a notification for PC to SSC women in the Army of eight combat support services and women officers were only serving on staff appointments.
ISSUES RAISED
1) Whether women officers should be granted Permanent Commission in the Indian Army?
2) Whether the guidelines issued by the Government of India dated 15th February 2019 should be implemented?
3) What are the conditions governing the Women Officers in the Indian Army?
ARGUMENTS ON BEHALF OF THE PETITIONER
• It was argued that the judgment delivered by the Delhi High Court was unable to consider the relevant provisions under section 10 and section 12 of the Army Act, 1950.
• It was argued that the Centre has to consider the risk involved in the services of the Army officers especially to the women (child care issues, maternity issues, and revolt areas or in any field). As stated in the case Union of India v. PK Chaudhary.
• It was argued that the border areas have fewer facilities and posting women in such areas is not sensible because of hygiene.
• It was argued in the Written Notice by the Union of India by referring once again to domestic obligations, motherhood, pregnancy, and differences in the physical abilities as compared to all-male units
. • It was argued that the considerable benefits of pension to women in the army whose service continued even after fourteen-year notice issued on 15th February 2019.
ARGUMENTS ON BEHALF OF THE RESPONDENT
• It was argued that there is nothing new about the privacy concern, women of all ages are still recruited on such posts where risk factors are high, no sanitation in force headquarters, field areas, warfare areas, and so on.
• It was argued that the Centre promotes the discriminatory policy regarding granting of PC to SSC women officers and also lower their position to that of a jawan.
• It was argued that the Centre claimed the presence of women establish a negative effect on the unit cohesion. Women should be provided the equal opportunity as men, added.
• It was argued that women served the nation the same as their male counterparts do then why they are left in the lurch without pension and promotion.
• It was argued that about 30% of the women officers are exposed to a combative environment and aware of risk factors present in a war zone.
JUDGMENT
The Supreme Court bench as headed by J. Dhananjaya Y. Chandrachud challenged the notion of the appellant i.e, the Union Government, and stated that they are inveterate in deciding the gender roles for women. This approach of the appellant has based on the stereotypical assumption that domestic works are the responsibilities of women only. And this approach of the appellant violates Article 14 of the Indian Constitution for Women. And not giving permanent commission to women officers in the Army is a clear violation of their Fundamental Rights guaranteed under Articles 14, 15 and 16.
He also said that although Article 33 allows the Parliament to impose restrictions on Fundamental Rights of Armed forces, these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duty and maintenance of discipline.
The court held that the policy decision of the Union of India dated 25th February 2019 that allows the permanent commission to women officers in 10 streams (continuation of permanent commission in 2 already existing streams and grant of permanent commission in 8 new streams) is in accordance to section 12 of the Army Act, 1950.
The Apex court also held that the policy decision taken by the Union of India dated 25th February 2019, will be subject to the following conditions:-
• The order given by the Delhi High Court is affirmed
• All the serving women officers on short service commission shall be considered for the grant of permanent commissions, regardless of any of them crossed 14 years of service or 20 years of service, as the case may be
• All the women officers who are eligible and granted Permanent Commission from SSC should be entitled to all the substantial perks like promotion, financial incentives, and pension-like their male counterparts.
• The women officers and male officers shall choose a specialization at the time of opting Permanent Commission, on the same terms.
• All women officers shall be provided with the benefits of continuing in the service until the attainment officers of the pensionable age.
• The expressions like ‘in various staff appointments only ‘ and ‘on staff appointments only ‘, shall not be enforced concerning Permanent Commissions of women.
CONCLUSION
The judgment after these many years of hard work and struggle seems welcomed by the majority population in the country. This judgment upheld the right of women to have PC in the Army thereby making them stand shoulder to shoulder with their male counterparts.
Women officers in the Air Force and other streams shall benefit immensely from it as from now onwards they cannot be denied command posts nor be denied the highest post of Chief also. This judgment shall always be remembered as one of the best judgments which heralded gender equality in defence services also which includes all the services – Army, Navy, and Air Force
Everyone is a complicated human being, and Everyone is strong and weak and funny and scared.
-Laverne cox
