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Constitutional Equality: Granting Permanent Commission for Women in Army

Dated: July 19, 2020

                                                                                                                                                          - By Megha Bhatia

Feminist thought has been around for over a century now, bringing to light the lives and struggles of women and gender minorities. Gender has influenced both country-wide legal and cultural environments. Gender representation has long eluded the fundamental guarantees of equality before the law and equal protection of law. 

Anupama Rao in her book named “Gendered Citizenship: Historical and Conceptual Explorations” discusses about two-fold classification of the world i.e. public and private spheres. The gender-specific social roles lead to dividing social space into “ghar” (home) and “bahar” (outside). These spatial separation often includes feature division. 

Feminist ideology for the mainstream

The Indian Armed Forces, a widely regarded institution, has often gained recognition as one of the world's largest volunteer armies. The powers of women’s jobs confined to the Short Service Commission (SSC) for a stipulated duration, however, paints a distorted feminist image of women in the public domain.

The Supreme Court’s position as the flag carrier of transformational constitutionalism did not emerge from the void. The Supreme Court judgments passed by Dr Justice DY Chandrachud illustrate the highly rooted gender norms that have been serving as persuasive deterrents to women joining the field. The decision aims to guarantee long-term job protection and fair opportunities for women in the Armed Forces.

The Hon’ble Supreme Court's decisions of 17 February 2020 and 17 March 2020 have represented a milestone when it comes to their relation to modern female jurisprudence. As a consequence of these decisions, the court took careful notice of the need to reform mindsets regarding gender norms that regard women as the lesser sex, while reaffirming the 2010 decision of the Delhi High Court to require Women Short Service Commission officials to be given equal to their male counterparts.

As also noted from claims raised by the Union of India, the unequal treatment of both men and women in the Armed Forces implored stereotypic conceptions of physical and psychological capacities by specific generalizations focused on deep-rooted biases and stereotypes regarding gender roles in society.

Constitutional feminism about the rights enshrined in India’s constitution

Legislative Feminism is concerned with the usage of legislative forces and dealing for the main aim of changing the status of women through its clauses. Consequently, in the decision-making process, societal and human roles for patriarchal situations are envisaged to compensate for fair opportunity. The drawbacks of the electoral mechanism makes it important that the Constitution be read in a pro-women and anti-subordination manner. 

The equality system is enshrined under Article 14, which provides equality before the law and equal protection of law. Under Article 15(1), it is prohibited for the State to discriminate against any person on grounds of ethnicity, colour, caste, sex and place of birth or any of them. At the same time it allows special provisions for women and children to be made pursuant to Article 15(3). 

Although Articles 14 and 15 clearly and unequivocally exclude such stereotyping and generalization, as regards the domain of service law, it was in 2007 that the Supreme Court, in Anuj Garg v. Hotel Association of India, for the first time seriously engaged in the concept, laying the foundation for a transformative constitutional vision of gender equality.

Anuj Garg challenged the constitutional validity of Section 30 of the Punjab Excise Act, 1914 which prohibited employment of women in such premises wherein liquor or any intoxicating drug was consumed. The Court held the provision to be unconstitutional against the bedrock of Articles 14 and 15 of the Constitution of India, 1950. The Court was of the view that:

“It is to be borne in mind that legislation which pronounced “protective discrimination”, such as this one, potentially serve as double-edged swords. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.”

The Permanent Commission judgments

Through upholding the anti-stereotyping theory, the Supreme Court, by Justice Chandrachud in The Secretary, Ministry of Defense v. Babita Puniya and Ors, paved the way for progressive constitutionalism.

The Court held that although Article 33 allowed limitations on fundamental rights in the Armed Forces, it also made it plain that these freedoms could only be limited to the degree that proper discharge of duties and training were required. Likewise, the Court also rejected the blanket ban on women in command appointments issued by the Permanent Commission (and limited only to personnel positions), observing that the Army carried the responsibility of defending this restriction, and that it could only be accomplished on a case-by - case basis, in any event.

Article 39 of the Indian Constitution orders the State to strive towards fairly ensuring the right to sufficient means of life for men and women. Nevertheless, the Babita Puniya decision, though recognized in ringing constitutional feminism for its revolutionary quality, remains silent on the issue of how women should participate in fighting units.

This issue was especially exempt from the jurisdiction of the decision, as it was not an appellate subject before the Judge. That is often a problem that emerges from the traditional belief that women are not effective enough to fight and unwilling to withstand physically arduous circumstances.

In the light of Babita Puniya’s judgment, one would expect that constructive steps in these matters would be taken in the immediate future. While this constitutes a significant move in the fulfilment of the basic statutory pledge to women’s freedom and integrity, it does leave the question of military operations vulnerable to another round of litigation.

Indeed, the time is perfect for a recognition that woman Army officers are not adjuncts of a male-dominated institution whose existence within restricted limits must be “tolerated.” The Union government's outstanding decision to extend the Permanent Commission to female SSC officers in all ten streams in which they are commissioned is a long-awaited step towards recognizing and realizing women's right to equal opportunities in the Army.