The Hon’ble SC vis-a-vis its emancipatory project has pronounced a seminal judgement conducive to consummate transformative constitutionalism. Women are not the problem, gender stereotype deeply embedded in the social milieu is. The same is annunciated by the preserver of Indian democracy, our Hon’ble Judiciary through one of the most celebrated Indian judgements. The apex Court via its judgement – Secretary, Ministry of Defence v. Babita Punia & Ors (2020 SCC Online 200) dated 17th February 2020, permitted the grant of Permanent Commission (hereinafter ‘PC’) to women Short Service Commission (hereinafter ‘SSC’) officers in all the ten streams. It has also paved way for employability of the women officers to the Command posts in the Army. The judgement surcease a decade long, nail biting battle against the preconceived notion of women being the adjuncts of their male alter ego.
A PIL in 2003 and a Writ Petition in 2006 was filed before the High Court of Judicature at Delhi in order to quench the quest for equality of opportunity for women seeking PCs in the Armed Forces. Meanwhile in 2008, the Ministry of Defense envisaged prospective grant of PCs to women SSC officers in JAG and AEC. The same was also challenged. Division Bench of Delhi High Court in 2010 directed the Union to grant PCs to women SCC officers at par with male SCC officers with all consequential benefits of career advancement and post-retirement benefits. Meantime, contempt proceeding was also initiated by the Respondent which was stayed by the apex Court. The Court further clarified that operation of the judgement pronounced by the Division Bench of Delhi High Court was not stayed, the erstwhile was stayed. But no efforts were taken by the government to implement the same. Later in 2019, Ministry of Defense granted PC to women SSC officers in all the ten streams and informed the Court that it would not consider women officers who have crossed fourteen years of service for the grant of PC.
The Hon’ble Judiciary by giving the verdict has successfully granted PCs to the non-combatant women officers but will it be able to ensure the equality within the Army! The Government has always been addlepated of accepting women officers in the command roles. Chief of Defence Staff (India), Bipin Rawat endorsed the perspective of Government by blaming the trepidation of army personnel in accepting women officers as their equal counterparts which is the outcome of rural upbringing. The Army, being the instrumentality of state had hardly deviated from the vision of the Government. Armed forces, being enthralled by the gender stereotypes has always being skeptic and reluctant towards the capabilities of women.
In the instance, the same view is echoed in the submissions of the Union of India wherein, they constantly reminded the Court about the ‘exigencies of service’, ‘physical capabilities’, ‘composition of rank and file’ and, ‘infrastructure’. They elucidated that ‘army is a way of life and it requires sacrifice and commitment which is an arduous task for women officers due to their prolonged absence during gestation period, motherhood and domestic obligations toward their families and children.’ They espoused their submission by enunciating that there exists an inherent physiological difference between women officers and their male alter egos which forestalls equal physical performance resulting in lower physical standards. They further substantiated by vocalizing that the presence of women officer in an all-male unit leads to a ‘moderated behavior’.
Assailing it, the respondents adverted to ‘battlefield scenario’, ‘unit cohesion’ and, ‘national security’ via intimation that there exists shortage of 9441 officers in the armed forces. Despite it, the army is letting go trained women officers by gender stereotyping and reinforcing encapsulation of women in the threshold of domesticity. The vacancies are overcome by providing re-employment to the retired male officers below the age of superannuation. There exist no physiological differences when both male and women officers perform similar duties, undergo similar professional courses and training and even when posted to sensitive field areas. The Army considers women officers as an effective workforce until the expiry of their tenure i.e., fourteen years of service. The sudden concern regarding physiological limitation soars only after the expiration of tenure of SSC women. These women officers are not even given pension or retirement benefits. The Army is following a non-discriminatory policy vis-à-vis posting but is antithetical in the grant of PCs.
Women had always been a subject of floccinaucinihilipilification. The discrimination has stemmed from the idea of misogyny which is still prevalent even after seventy years of the birth of post-colonial independent state. Its very inception can be witnessed in the era of post-Independence but pre-Constitution. During the Constitutional Assembly Debates, when the representation of women was low due to the vacancies created by resignations, Purnima Banerjee, one of the Constituent Assembly members, suggested that the vacancies should be filled up by women to ensure egalitarian perspective in the drafting of Indian Constitution. HV Kamath’s observed that the political philosophers were always skeptic about the capability of women in the administrative wing because she is governed by her heart and not mind. Running an administration requires a person to be cold and calculating which women dearth. This reinforced the deeply entrenched stereotype against women.
Whenever women’s efforts are appreciated she has been juxtaposed with a man. Her efforts are neither celebrated nor applauded because of her enterprising nature, but she accomplished it despite a weaker sex. The patriarchal set up has also engulfed the mainstream media. ‘Mardaani’ is the magnificent specimen which delineates how a woman IPS officer has established herself in a male-dominated society. Mardaani means ‘mannish’ or ’like a man’ which is incongruous and the society is anew triumphant in reinforcing women as the adjuncts of their male counterparts.
Women are considered to be emotionally driven, compassionate and, considerate and the repercussions of this stereotype lead to the belief that women are amateurish in command positions. The same view is echoed in the Constituent Assembly Debates, which is accentuated by the Armed forces when it denied the ingress of women officers in combat units. The Indian history comprises a phenomenal book which has remarkable stories to evince the vigor and valor of women in the battlefield. Women like Rani of Jhansi have already made it to the battleground and led a rebellion against the British. The Azad Hind Fauj also had a regiment named after the Rani – Rani of Jhansi Regiment, which was an all women infantry combat unit. When Bose had considered women as ‘vanguard of freedom struggle’ and Gandhi had opined ‘if women do not take equal parts with men in political, social, religious or economical affairs, India’s star will never rise’, why the Government and its instrumentality are confining women in the threshold of domesticity.
Women have always demonstrated considerable orchestration in community, informal organizations and, in public offices. In the instance, when the world is combating against a virus and it had taken the wind out of superpowers like US, Italy and China’s sails, countries like Iceland, Finland and Norway, who have female leaders have commendably combated the pandemic with their efficient strategies. APJ Abdul Kalam aptly said, ‘if women are into assembly, they will bring developmental politics rather than political politics.’
There are a dozen of countries who allow women in combat units. Few among them are Australia, Canada, Denmark, France, Germany, Israel, New Zealand, Norway and, US. A study concluded that women have a stronger survival instinct, better endurance, and can cope trauma and manage pain which shows how women are the stronger sex. A study in the American Journal of Physiology, Endocrinology and Metabolism showed that how women are better in burning fat as energy while on the contrary men use more energy and their muscles tend to fatigue more easily. Even then the Government has the audacity to transpire that women are enchained considering their physiological limitations.
A hundred and one reasons can never undermine the constitutional entitlement to dignity which has been attached to each individual irrespective of his caste, color, creed or sex. If society still strongly holds gender stereotypes that men are socially dominant, physically prowess and the breadwinners of the family and that women are feeble, fickle minded, submissive and foremost domesticators, it is paradoxical and panglossian that there would be a change in the mindsets of the people. Legal subjugation mingled with societal acceptance is the magic wand through which we can bring the change we desire. The entitlement of the engagement, enrollment or employability of women officers in the Armed forces is a condition precedent to the whims and fancies of the Central Government, which is shielded by the Constitutional Provisions. Engagement of women in combat arms has always been a matter of policy and it is high old time that intervention by the Court is necessitated. The government is yawping for the equality of Muslim women and thereby has abolished Triple Talaq, but what about the equality of opportunity of women in services. The question as to whether women should be allowed in combat units and which arms and services should be allocated to women should be afforded to the class or groups of person who are affected by it. Law is dynamic and so does society the Indian constitution with its dynamic ability of recognizing the changing aspects of fundamental right makes it an inclusive document.