The judgment is particularly significant because it marks a growing mindset shift in the approach of the Supreme Court towards gender justice itself.

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news Opinion Friday, February 21, 2020 - 19:07

On Monday, the Supreme Court delivered a judgment that affirms women’s right to equality of opportunity in the Indian Army on par with their male counterparts with the exception of combat arms. It also removed the restriction on serving only in staff appointments, a significant move which will render women officers eligible to apply to all command appointments, with future promotions to higher ranks.

This legal battle began in 2003 in the Delhi High Court with petitions seeking Permanent Commission for women Short Service Commission officers in the Indian Army. In 2010, the Delhi High Court gave its decision mandating the Union government to grant Permanent Commissions to women officers on par with their male colleagues in combat support arms and services. The Union government appealed against this order in the Supreme Court and nine years after this order, in 2019, came out with a policy, with several restrictions, to grant Permanent Commissions to women officers in eight additional streams.

Reading the Union government’s policy decision as a recognition of the right to equality of opportunity for women, the SC opined that women officers were “not adjunct to the male dominated establishment whose presence must be ‘tolerated’” and framed it as a step for realising the fundamental constitutional commitment to women’s equality and dignity. 

Women and the Indian Army 

At the heart of this issue was Section 12 of the Army Act 1950 which holds that women are not eligible for enrolment in the army except in those areas specified by the Central government. Within the streams women have already been serving in, they had to put up with differential treatment compared to their male counterparts that impacted their opportunities for professional growth, pensionary and promotional benefits, combined with an absence of job security.

The Union government’s policy in 2019 offered Permanent Commission to women officers prospectively, restricting it to only staff appointments (where they cannot go beyond the rank of Colonel) and unequal terms for being considered for grant of PCs compared to their male counterparts. The government’s submissions in this regard comprised of starkly sexist and patriarchal rhetoric making arguments rooted in outmoded notions of gender stereotypes and social roles.

Some of the arguments of the Union government justifying women’s unsuitability included: women officers have to deal with pregnancy, motherhood and domestic obligations towards their children and families; inherent physiological differences between men and women will involve lowering of physical standards; that women officers threaten unit cohesion and the all-male environment of army units will require a change of culture. These arguments reflect a deeply ingrained institutional sexism that is alarming and have no place in the present time and context.

The SC was correct in finding that each of these submissions are based on sex stereotypes that are discriminatory against women. The notion that women are default primary caregivers and owe greater domestic responsibilities is deeply sexist and seems to echo the sentiment that the woman’s role, first and foremost, is in the home. Furthermore, as other army officials have noted, these were the same arguments extended 30 years ago when women were first being inducted into the army, and since then women officers have been serving in the army with an irreproachable track record, as noted by the court.

The SC found that an absolute bar on women from seeking command appointments “did not comport with the guarantee of equality under Article 14”. Command appointments are not automatically granted to even male SSC officers and are granted based on criteria of service, performance and organisational requirements. This decision would only allow women to apply to be considered on the same parameters as their male colleagues, with no change in terms.

The argument about unit cohesion and male dominant culture seems to reflect an institutional problem that needs the Indian Army’s urgent attention and it was rightly rejected by the SC as it casts an undue burden on women officers. The ground of physiological differences was rejected as stereotypical and constitutionally flawed. The ground of “minimal facilities for habitat and hygiene” in conflict zones was also soundly discredited, as the SC noted that 30% of the total women officers were already deputed to conflict areas presently.

Gender justice and the Supreme Court

One of the most important things to emerge from this judgment is the utter rejection of regressive arguments justifying discriminatory practices against women. The SC conclusively held that arguments rooted in biological determinism, i.e., a concept that uses ‘inherent’ characteristics to account for male superiority, and patriarchal notions of gender roles “does not constitute a constitutionally valid basis for denying equal opportunity to women officers”. This is particularly significant because this marks a growing mindset shift in the approach of the Supreme Court towards gender justice itself.

The Supreme Court has a chequered history in securing justice for women. Post-independence, the Court in early decades adopted a ‘protective approach’ to women’s issues, a misguided approach that compromised women’s agency and autonomy which often focused on ‘formal’ equality rather than ‘substantive’ equality. Even in cases where the order favoured women, the arguments put forward were often paternalistic, encoded in patronising language. The Court has been repeatedly criticised by both academics and activists over the years for its failure in securing justice for women. Some feminist legal academics in the country even undertook the Feminist Judgments Project to write alternate judgments for several Indian cases involving legal issues having a significant bearing on women from a feminist lens.

Within the limited context of this case, Justice Dhananjaya Chandrachud and Justice Ajay Rastogi certainly seemed to have drawn on feminist thinking which is evidenced in their outright and conclusive rejection of arguments rooted in patriarchal and paternalistic ideas about women’s gender roles. They emphasised, appropriately, a need for a mindset change to bring about equality in the army. This order certainly marks a qualitative shift in the discourse on gender justice towards an approach rooted in securing women’s constitutional rights to equality and dignity on equitable terms. It bodes well for future constitutional challenges against gender discrimination in our country.

Sneha Visakha is a Research Fellow at Vidhi Centre for Legal Policy, Bengaluru.