Case Analysis: Secretary Ministry of Defence v Babita Puniya & Ors (2020)

In one of the Landmark Judgements of the Supreme Court namely The Secretary, Ministry of Defence v. Babita Puniya & Ors.[1] provided equal opportunity to women in Army post and equal treatment with men counterparts commenting on the stereotype mentally and blanket ban restrictions on army women services.

Indian Constitution enumerated provisions for women upliftment to bring gender neutrality in the Country. The question which needs to be addressed is whether women are treated equally on par with men after 74 years of Independence. The answer does not look affirmative if we take into cases into concertation. Judiciary has played important role in uplifting women and providing equal opportunity.

Judges

Dr Dhananjaya Y Chandrachud, Ajay Rastogi.

Facts | Secretary Ministry of Defence v Babita Puniya & Ors (2020)

In 2003, Babita Puniya (advocate) instituted a writ petition in the nature of Public Interest Litigation to grant women engaged on Short Service Commissions (hereinafter SSC) in the Army seeking parity with their male counterparts in obtaining Permanent Commissions (hereinafter PC).

Section 12 of the Army Act 1950 states the Ineligibility of females for enrolment or employment in Army except as the Central Government may notify. To that effect, notification was issued in 1992 making women eligible for appointment as officers in the specific branches/cadres of the Army. Short Service Commissions were created for a period of 14 years gradually.

In 2008, the Ministry of Defence issued a circular envisaging the grant of PCs to SSC women in the posts of JAG and AEC departments.

On 15^th February 2019, MoD issued a circular granting PCs to SSC women officers in eight arms or services of the Army, in addition to the JAG and AEC which had been opened up earlier for PC. But circular also stated that on the grant of PC, women officers will be employed “in various staff appointments only”.

Issues

1. Whether women appointed under SSCs can have equal opportunity in PCs like men counterparts?
2. Whether 15^th February 2019 circular issued by the Ministry of Defence is arbitrary in nature or not?

Arguments

Petitioners Arguments

Contentions of Union of India:-

1. The Union of India contended that Section 12 of the Army Act gives power to President to grant commission. Therefore no mandamus can be issued from the court.
2. Article 33 of the Constitution empowers Parliament to determine by law the extent to which the rights conferred by Part III of the Constitution shall be restricted/abrogated in their application to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Therefore provisions of the Army Act are protected under Article 33.
3. The Union Government has contended that the Army faces a huge management challenge “to manage Women Officers in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station”.

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”.

4. It was contended by the Union of India that the Scope of Judicial Review in the matters of Army and its process was limited by this Court in Union of India v. P K Chaudhary[2].
5. It was also contended that there is no discrimination between males and females in recruitment in SSC.
6. It was argued that the border areas lack very basic and minimal facilities and thus the deployment of women officers in such areas is not advisable because of habitat and hygiene.

Respondents Arguments

1. It is contented by the Respondents that the Army consider Women Officers as effective as male counterparts until they complete 14 years.
2. It was contended that women officers of all the ages are still being posted to places which are dangerous and where there is no sanitation like field areas, force headquarters, sensitive area, and warfare zone.
3. It was contended that women officers undergo the same training as SSC male officers. However, only male officers are entitled to Permanent Commissions.
4. It was argued that besides the discriminatory nature of the policy by the Union Government with respect to the grant of PCs to SSC women officers, it also lowers their status to that of a jawan.
5. It was contended that Article 33 enable Parliament to limit or abrogate the FRs for the proper discharge of duties and maintenance of disciple and not for discriminatory practices.

Judgement

Justice D.Y Chandrachud writing for himself and Justice Ajay Rastogi held that

1. All serving women officers on SSC shall be considered for the grant of PCs.
2. The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 in the 2019 circular shall not be enforced.
3. SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits in parity with male counterparts.
4. The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. It is necessary for this Court to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSCs officers after the date of the decision but also women who are currently appointed under SSC.
5. 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.
6. Blanket ban restrictions on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. 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 reasonability.
7. Upholding the Judgement of Delhi High Court, court-ordered to take necessary steps for compliance with this judgment shall be taken within three months from the date of this judgment

Conclusion

Expressing anguish at the Indian Army’s failure to implement the judgment allowing Permanent Commission for women officers, the Supreme Court said –

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces when the true picture of their service conditions tells a different story”.

Article 39 of the Constitution of India directs the state to work towards securing for men and women equally the right to an adequate means of livelihood. The Babita Puniya judgment, though acknowledged for its transformative qualities in ringing constitutional feminism, however, remains silent on the question of whether women can serve in combat units.

This question was particularly excluded from the purview of the judgment, as it was not a subject matter of the appeal before the Court. This is also an issue arising from the stereotypical idea that women are not efficient enough to fight and are incapable of enduring physically arduous situations.

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[1] Full Judgment Text, Available Here

[2] Civil Appeal No 3208 of 2015, decided on 15 February 2016.

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