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Wednesday, August 04, 2021

SC orders Army reform: Change mindset, give women equal role

Indefensible and disturbing: Court on arguments against greater role for women.

Written by Ananthakrishnan G |
Updated: February 18, 2020 3:22:18 am
supreme court, permanent commission to women army officers, order on women permanent commission, indian express Citing cases of women’s contribution to the armed forces, the apex court said that the Centre should grant permanent commission to women officers.

Calling for a “change in mindsets”, the Supreme Court, in a momentous ruling Monday, directed that women officers of the Indian Army, serving under Short Service Commission, be considered for grant of Permanent Commission, irrespective of tenure of service, and also for command posts in non-combat areas since “an absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14”.

Stating that “the absolute exclusion of women” from all command assignments except staff assignments is “indefensible”, the bench of Justices D Y Chandrachud and Ajay Rastogi, rejecting arguments against giving greater role to women officers, said their non-eligibility for command posts will be considered on case-to-case basis. It said “necessary steps for compliance with this judgment shall be taken within three months”.


2 key arguments shot down

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.

Underlining that “women officers of the Indian Army have brought laurels to the force”, the bench described as “disturbing” the attempts to dilute their role “by the repeated pleas made before this Court that women, by the nature of their biological composition and social milieu have a less important role to play than their male counterparts”.

Referring to the stellar roles of women officers, the bench said “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”.

The bench, ruling on an appeal by the Centre against a 2010 Delhi High Court judgment which directed that women officers be considered for permanent commission, criticised the government for not taking steps to implement this. Advocate Meenakshi Lekhi and Senior Advocate Aishwarya Bhati appeared for the petitioners.

Read | SC gives govt time to reconsider move on permanent commission to women in Army

“There is fundamental fallacy in the distinction which has been sought to be drawn between women officers with less than fourteen years of service with those with service between fourteen and twenty years and above twenty years. The judgment of the Delhi High Court was rendered on 12 March 2010. Nearly a decade has elapsed since the date of the decision. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals. However, it failed to do so despite the categoric assertion by this Court in its order dated 2 September 2011 that what was stayed as an interim measure is the action for contempt and not the operation of the judgment.”

“Having failed to enforce the judgment, the Union Government has now informed the Court that it would not consider women officers who have crossed the age of fourteen years in service as SSC officers for the grant of PCs. This situation of women officers with service above fourteen years has come to pass plainly as a consequence of the failure of the Union Government to comply not only with the directions of the Delhi High Court but also those which were issued by this Court on 2 September 2011. In this view of the matter, we see no reason or justification to deprive SSC women officers of the grant of PCs on the ground that they have crossed fourteen years of service,” it said.

The bench, while lauding a government policy of September 2008 to grant women permanent commission in two services and a February 2019 decision to extend this to eight more branches, said this “is a recognition of the right of women officers to equality of opportunity”. The court, however, took exception to the part of the February 2019 policy which limited permanent commission to staff appointments and said “such a restriction was not imposed in 2008. “The consequence of this is an implicit acceptance by the Army that women can, in certain situations, receive criteria or command appointments,” it said.

It said “where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reason… Whether a particular candidate should or should not be granted a criteria or command assignment is a matter for the competent authority to consider having regard to all the exigencies of service, performance and organisational requirements. In the present case, the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments”.

“Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either. The absolute exclusion of women from all others except staff assignments is indefensible. If the Army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities and if necessary, to future courts. However, such a justification must take place on a case-to-case basis, in light of the requirements and exigencies of a particular appointment. The blanket non-consideration of women for criteria or command appointments… cannot be sustained in law”.

On arguments referring to challenges on account of physiological and societal realities, the bench said “the decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution”.

Writing for the bench, Justice Chandrachud said “seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court”.

He said “the submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a ‘greater challenge’ for women officers to meet the hazards of service ‘owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families’ is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the ‘inherent physiological differences between men and women’ rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the weaker sex and may not undertake tasks that are too arduous for them”.

“Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the ‘peculiar dynamics’ in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women,” it said.

The bench said the arguments “only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles — that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere — it is unlikely that there would be a change in mindsets”.

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