“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. This is evident from the submissions which were placed as a part of the record of this Court.”
In a major verdict today, the bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. The Court also ordered that after the judgement of Delhi High Court, Centre should grant permanent commission to women officers.
Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.
The Court took a strong exception to the following submissions made by the Union of India,
(i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;
(ii) 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;
(iii) 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;
(iv) An all-male environment in a unit would require „moderated behavior? in the presence of women officers;
(v) The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and
(vi) 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”.
Terming the aforementioned submissions ‘disturbing’, the Court said that 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. It said,
“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.”
The Court further highlighted that numerous other commendation certificates and laurels achieved by women officers have been placed on record. Their track record of service to the nation is beyond reproach. 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, hence, issued the following decisions:
(i) 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” in para 6 shall not be enforced;
(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.
(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and
(iii) 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.
[The Secretary, Minister of Defence v. Babita Puniya, 2020 SCC OnLine SC 200, decided on 17.02.2020]