Case Analysis of the Secretary, Ministry of Defence vs.Babita Puniya & Ors by Devarupa Bhattacharyya

Case Analysis of the Secretary, Ministry of Defence vs. Babita Puniya & Ors.:- Devarupa Bhattacharyya

Court: Supreme Court of India

Petitioner: Secretary, Ministry of Defence.

Respondent: Babita Puniya

Citation: MANU/SC/0194/2020

Coram: Dr DY Chandrachud, Ajay Rastogi, JJ

INTRODUCTION

The Supreme Court mandated the permanent commission (PC) of women officials in the Army and made them eligible for promotion, rank and pension. This judgment has created history in terms of Gender Equality in the Army. It’s a perfect example of Feminist Victory.

BACKGROUND OF THE CASE

§ In February 2003, Babita Punia , an advocate filed a Writ Petition in the nature of a Public Interest Litigation ( PIL) before the Delhi High Court for the grant of Permanent Commission to women SSC officers in the Army.

§ Apart from the PIL, another Writ Petition was instituted by Major Leena Gaurav on 16th October, 2006 initially to challenge the terms and conditions of service imposed by the circulars dated 20th July 2006 and for seeking the grant of PCs for women officers.

§ The strategy amendment in 2006 permitted women officers to serve for a limit of 14 years as an SSC official.

§ In September 2008 The Central Government chose to allow the permanent commission to SSC ladies officials in the Judge Advocate General Office and Army Education Corps and their comparing branches in the Air force and Navy as well.

§ Adjudicating Writ Petitions challenging this, the High Court of Delhi held in 2010 that women who had entered the Army on short service commission [SSCs] were granted with PCs on par with their male colleagues.

§ The Union of India appealed this decision to the Supreme Court. During the period of pendency , it also propose a separate policy to accord of PCs to women, which was limited to “staff positions” and not in command roles in specific non – combat streams.

§ In May 2018, The Government finally disclosed to Supreme Court that it is planning about awarding permanent commission to women officials enrolled through SSC in the Army; In August PM Modi marked a terrific move by announcing that women officials will have the option to decide on changeless commission in parts of the military separated from existing ones like law and instruction.

§ In February 2019, the legislature brought a new notification reporting PC of women officials yet tentatively made it appropriate to those with less than 14 years of service.

§ The existing officials were kept out of the radius of this notification.

§ In the same month, the Centre issued a request for an award of perpetual commission to new SSC officials in eight battle bolster arms / administrations.

§ On 17th February, 2020 this landmark judgment is delivered which paves the way for permanent commission of women in the Army and also makes them suitable for command positions.

ISSUES INVOLVED

1. Whether the guidelines given by the government on 15th Feb.2019 should be executed?

2. Whether women should be awarded with Permanent Commission in the Indian Arm Force?

3. What are the condition governing the Women Officers in Army?

Arguments:

The chief arguments advanced by the Union and the Respondents are –

Union Government

1. It was argued that the Delhi High Court failed to consider the relevant statutory provisions u/s 10 & 12 of the Army Act, 1950[1] and instruction by the Government of India in its decision.

2. It was argued that the Government has to take care of the inherent danger involved in the service, there are some adverse situations where maintaining privacy could be impossible in war zones, insurgency areas or in any field, maternity and child care issues which are always present, as stated in the case Union of India vs. P.K.Chaudhary https://indiankanoon.org/doc/56768737/ that these considerations are not subjected to judicial review.

3. It was argued about the substantial benefits of pensions for the women who have continued even after 14 years of services as under the notice published dated 15 Feb. 2019.

4. The Union Government has emphasized that, “the Army has to cater to spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.

5. The induction into the permanent commission through SSC will harm the structure of the Army.

6. Once again in a Written Note, the Government raised issues of “pregnancy, motherhood, and domestic obligations”, differences in physical attributes, “peculiar dynamics” of all – male units, and hygiene problem.

7. The border areas are not advisable for the deployment of lady officers because of habitat and hygiene.

Respondents:

The arguments advanced by the respondents includes

1. That the concern related to privacy, physical inability, and hygiene is not new, lady officers of all the ages are still being posted to places which are dangerous and where there is no provision of sanitation like warfare zones, sensitive area, and force headquarters.

2. It was claimed by the government lawyer that the presence of women provides a negative impact on unit solidarity. But, it was argued that they should learn to accept women as equal to male coparceners.

3. It was argued that women officers are also trained hard just like male officers to handle any challenges then why not they are given higher post on command position even if they are qualified enough.

4. The interesting fact that 30 percent of all the women officers are exposed to a hostile environment.

5. It was argued that what’s the reason for pull them back in the race of promotion, pension when they are providing equal service to the nation as their male counterparts do.

6. The policy inculcate by the Union Government with respect to the grant of PCs to SSC women officers, also lowers their status to that of a jawan.

JUDGEMENT

The Supreme Court bench led by Justice D.Y Chandrachud dismissed the perceptions given by the Union and stated that they are ingrained in conventional assumptions of ascribed gender roles for women. Moreover, it is a clear violation of their fundamental rights guaranteed under Article 14 of the Indian Constitution.[2] He said that although Article 33 of the Indian Constitution [3]did allow for restrictions on Fundamental Rights in armed forces it is also clearly mentioned that it could be restricted only to the extent that it was necessary to ensure the proper discharge of duty and maintenance of discipline.

1. The SC has done away with all discrimination on the basis of years of service for grant of permanent commission in ten streams of combat support arms and services, bringing them on a par with male officers.

2. It has also removed the restriction of women officers only being allowed to serve in staff ranks, which is the most significant and far- reaching aspect of judgement.

3. The Apex Court upheld the 2010 verdict of Delhi High Court ruled that women officers who joined the Army through SSC are entitled to permanent commission.

4. Calling for a change of traditional mindset on the part of the Government to put an end to gender bias in the Armed forces, the SC directed that within 3 months, all SSC women officers will have to be considered for permanent commission irrespective of their tenure in service.

5. The arguments sighted by the Government are founded on a strong stereotype which assumes that domestic obligations rest solely on women.

This case was only about permanent commission and command roles in non- combat streams of the Army. Women officers are still not allowed to serve in combat units like the Infantry, the Armored Corps and Mechanized infantry.

CONCLUSION

“How important it is for us to recognize and celebrate our heroes and she-roes!”

– Maya Angelou

This was an ultimate triumph over orthodox system and obviously a commendable job done by our honorable Supreme Court of India in the field of gender justice. At last 17 years long court battle goes in favor of women officials of Indian Arm Forces. After this landmark order, the path to gender equality has certainly been remarkably opened which shall ensure that women officers in the Air Force and other streams shall benefit immensely from it as from now onwards they cannot be denied command posts nor be denied the highest post of Chief as well.

References

1. Gautam Bhatia, Gender Equality in the Armed Forces. https://indconlawphil-wordpress-com.cdn.ampproject.org/v/s/indconlawphil.wordpress.com/2020/03/20/gender-equality-in-the-armed forces/amp/?amp_js_v=a3&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15911183144018&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Findconlawphil.wordpress.com%2F2020%2F03%2F20%2Fgender-equality-in-the-armed-forces%2F

Devansh, Secretary Ministry of Defence v. Babita Puniya, Law Times Journal, May 2 2020. http://lawtimesjournal.in/secretary-ministry-of-defence-vs-babita-puniya/ https://indiankanoon.org/doc/117198144/ .

[1] 10. Commission and appointment. The President may grant, to such person as he thinks fit, a commission as, an officer, or as a junior commissioned officer or appoint any person, as a warrant officer of the regular Army. [2] Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth [3] https://indiankanoon.org/doc/829916/.