Context:

Recently, In a landmark judgment, the Supreme Court (SC) has upheld a Delhi High Court order of 2010 that seeks to grant permanent commission to women officers at par with their male counterparts. The Supreme Court of India has again showed what a constitutional culture of non-discrimination can achieve in demolishing obstinate structures of gender-based  iscrimination in state and civil society. Along with granting a role to women in combat arms, the judgment essentially highlights the denial of equal opportunity in their existing roles for promotion to higher commands.

Women in Army: Background of the case:

• The induction of women officers in the Army started in 1992.
• They were commissioned for a period of five years in certain chosen streams such as Army Education Corps, Corps of Signals, Intelligence Corps, and Corps of Engineers.
• Recruits under the Women Special Entry Scheme (WSES) had a shorter pre-commission training period than their male counterparts who were commissioned under the Short Service Commission (SSC) scheme.
• In 2006, the WSES scheme was replaced with the SSC scheme, which was extended to women officers.
• They were commissioned for a period of 10 years, extendable up to 14 years. Serving WSES officers were given the option to move to the new SSC scheme, or to continue under the erstwhile WSES.
• They were to be however, restricted to roles in streams specified earlier which excluded combat arms such as infantry and armoured corps.

Criticized to the Government’s Arguments:

• The note had shown women officers in a poor light, saying isolation and hardships would eat into their resolve and that they would have to heed to the call of pregnancy, childbirth and family.
• Difficult life in conflict zones: In conflict zones there are “minimal facilities for habitat and hygiene”.
• The note had mentioned that women ran the risk of capture by enemy and taken prisoner of war.
• The court held that the note reflected the age-old patriarchal notion that domestic obligations rested only with women.
• The court also dismissed the point that women are physiologically weaker than men as a “sex stereotype”.
• The court noted that challenging abilities of women on the ground of gender is an offence 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.

2 key arguments shot down by the Supreme Court:

The government put forth other arguments before the Supreme Court to justify the proposal on the grounds of permanent commission, grants of pensionary benefits, limitations of judicial review on policy issues, occupational hazards, reasons for discrimination against women, SSC as a support cadre, and rationalization on physiological limitations for employment in staff appointments. The apex court has rejected these arguments, saying they are “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women”. It has also said that it only shows the need “to emphasise the need for change in mindsets to bring about true equality in the Army”. The Supreme Court rejected arguments against greater role for women officers, saying these violated equality under law. They were being kept out of command posts on the reasoning that the largely rural rank and file will have problems with women as commanding officers. The biological argument was also rejected as disturbing.

Implications of the Judgement:

• The spirit of the order is the principle of non-discrimination. According to Article 16, Gender only cannot serve as the basis for inequitable and unequal treatment in any sphere, including in defence forces.
• It also held that right to equality under Article 14 needs to be prescribed by a right to rationality that forbids any “blanket” and “absolute” prohibition.
• The implications of the judgment will have to be borne by the human resources management department of the Army, which will need to change policy in order to comply.
• But the bigger shift will have to take place in the culture, norms, and values of the rank and file of the Army, which will be the responsibility of the senior military and political leadership.
• After the Supreme Court’s progressive decision, they have no choice but to bite the proverbial bullet.
• There are examples of women soldiers in combat roles like in Israel, Germany, US and Australia.
• This gender equality can be achieved by establishing professional standards and adhering to them without any bias.

Conclusion:

The current case is in line with a series of judgments that Supreme Court gave in recent years in order to address various forms of gender discrimination in Indian society and to assert Right to Equality. Making gender justice less contingent on the executive’s mood swings is the primary task of the judiciary. Making it immune from judicial re-visitations remains the paramount constitutional duty of all citizens, but more particularly of feminist citizens’ crusade for judicial consistency as a badge for constitutional rights and justice. Therefore, Indian armed forces must draw inspiration and move towards gender mainstreaming in the Indian armed forces.