Permanent Commission To Women In Army : What Did The Court, Union And The Women Say And How It Matters

Two things totally unrelated to each other happening right now have a strange yet compelling connection. One is the Indian army’s call for women officers seeking permanent commission to start sending their applications. Another one is the promotion works of the movie, Gunjan Saxena. If you have ever wondered why this, much celebrated Kargil girl is still not serving the IAF unlike many Kargil heroes still in their uniforms. The answer lies in the first event mentioned. It is because women were not granted permanent positions in Armed forces. Well, times have changed now.

The Supreme Court judgement earlier in February this year was celebrated for promising equality in the Indian army. Though it is a welcome move undoubtedly, it is imperative to understand the evolution and reasoning of the demand to understand what costs equality, even in its limited scope.

Captain Bhavana Kasturi leading an all-male contingent in R-Day parade 2019

Women in Army:                                                                                                   

Section 12 of the Indian Army act, 1950 clearly states that women cannot be employed in the regular army, unless in certain branches as approved by the central government. This can never be challenged in courts that it is in violation of fundamental rights that mandates non-discrimination and equality of opportunity in public employment, for the reason that Article 33 grants power to the Parliament to abrogate fundamental rights to an extent, for the armed forces’ proper discharge of duty.

Owing to this, women were never employed in the Indian Army (IA). A ray of light was visible in 1992 when the IA started recruiting women in 5 branches namely Army postal service, Judge and Advocate general (JAG), Army education corps (AEC), Army ordinance corps and Army service corps. This recruitment was made through Women special entry scheme (WSES) for a tenure of 5 years. Later the same year, IA opened gates for women in 5 more branches namely Corps of signals, Intelligence corps, Corps of Engineers, Corps of electrical and mechanical engineering and Regiment of artillery.

This change had happened within the ambit of section 12 of the army act. The IA shall be grouped into 3 categories as, Combat arms, Combat support arms and services. Women are still not allowed in combat arms. The 10 branches enlisted above fall in the other 2 categories.

To summarise, women still have a blanket ban in combat arms and are recruited only in 10 out of the roughly 21 branches of the IA, since 1992.

In 1996, IA increased the tenure of the WSES recruits by another 5 years. In 2005, WSES was replaced by short service commission (SSC) for women. This has a tenure of 10 years extendable by 4 years. SSC recruitment procedure and training are the same for men and women.

As found in the SC Judgement, there are 1653 WOs out of the total 40825 officers.

The Dispute:

Though the WOs undergo same recruitment procedure, training and posting in par with their SSC male counterparts, they are denied permanent commission to serve in the army till retirement (60 years) in parity with the male officers.

This was challenged in Delhi High court in 2003 and 2006. It must be noted that the case does not deal with recruiting women in combat arms of the army as it is a policy matter and the judiciary cannot interfere in that.

What is a permanent commission?

By the end of the SSC officer’s tenure of 10 years, they can opt for PC to serve in the army till retirement.  This includes perks like Ex-servicemen status, pensionary benefits, etc.

In 2008, the Ministry of Defence (MoD) granted PC to WOs of JAG and AEC branches only with prospective effect. The Delhi HC in 2010 held that WOs of all 10 branches should be granted PC in parity with men, with a limited retrospective effect. The Union challenged it in SC and the litigation furthered for a decade.

Despite the SC order that the Delhi HC decision should be implemented and the judgement is not stayed at all, the MoD was reluctant to comply.

Arguments:

Few of the regressive arguments of MoD are, women in command roles require moderated behaviour of male units, meaning, men don’t prefer women bosses; being in the army is a way of life which requires sacrifice beyond call of duty including the officer’s families; maternity, child-care and domestic obligations influence the WOs role – due to which legitimate dues of male officers are compromised; physiologically women are not equal to men; some PC include combat duties which cannot be allotted to women, so WOs shall be eligible only in staff appointments, etc.

The sex-stereotypes presented by the MoD are debunked by the counter-arguments, that women have fought shoulder to shoulder with men for over 25 years now, but the battle is against the mind-sets; the stereotypes that domestic obligations are only to women, maternity weakens the career prospects and women are weaker sex are constitutionally flawed notions; 96% officers’ promotions are prioritized by stopping the 4% WOs.

The shortage of 9441 officers are being handled by re-employing retired male officers when it can be managed by granting PC to WOs; 30% of WOs are already posted in conflict zones, who keep bringing laurels to the army; when there is no discrimination in posting, why should there be any in granting PCs?

There are no separate charter of duties for men and women commissioned officers. They all perform the same duty and they should be allowed to enjoy equal status with that of men.

Politicisation:

On the 72^nd Independence Day (2018), Prime Minister Modi said that he wants to ‘gift’ PC to the brave daughters. A simple approach would have been to implement the Delhi HC judgement which was pending unreasonably. But, the government took a debased route through a notification in 2019 that said PC for WOs will only be in staff appointments and with prospective effect. Both of which are in clear violation of the HC decision and hence been promptly struck down by the SC.

Also, the centre displayed a show of tokenism through first woman army officer to lead all-male contingent and parade adjutant to an all-male unit in 2019 and 2020 Republic days respectively.

Supreme Court decision:

After hearing both the sides of the argument, the SC held that,

 “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.”

It directed the Union government to grant PC to women with retrospective effect and not just in staff appointments but all the commands wherever they are eligible as per merit in par with men. This extends to WOs in service and whoever were already eligible as per Delhi HC decision, i.e. the women who filed the petition and those who were in service then and who were retired during the pendency and non-implementation of the HC judgement.

MP Meena Lekhi with Women officers after the SC judgement

Coming together of women:

This is a long battle for women to achieve equality, even in the limited scope of their appointment. It is disturbing to note that even the strongest women by virtue of which they are in the Indian army are also subjected to sex-stereotypes, that too by the state that was supposed to be a guardian of equality. This sheds light on the inequality meted out against women by the state, let alone marginalised sectors.

This is one remarkable litigation where women came together for a cause despite party ideologies. Meenakshi Lekhi, one of the counsels for the WOs, was a sitting BJP MP herself. Still, that did not stop her from challenging the government. This is a classic example of what revolutionary changes women could bring upon when they fight patriarchy together.

Salute to the all-women team of officers and advocates who fought tooth and nail against the system.

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