- JUDEGMENT SUMMARY: The Secretary, Ministry of Defence versus Babita Puniya & Ors
- DATE OF JUDGEMENT: February 17, 2020
- JUDGES: Justice D.Y. Chandrachud and Justice Ajay Rastogi
- PARTIES: Secretary, MoD(Appellant) and Babita Puniya & ors (Respondent)
Subject
The judgement concerns itself with the permanent commission of women in the Army, subsequently looking into sections of the Army Act, 1950 relating to the case.
An overview and background
1. The quest for equality of opportunity for women seeking Permanent Commissions in the Indian Army forms the basis of these appeals. The appeals originated in a series of Writ Petitions which were put forth before the Delhi High Court in 2003 and 2006.
2. In February 2003, Babita Puniya, an advocate instituted a Writ Petition like a Public Interest Litigation before the Delhi High Court for the grant of PC to women Short Service Commission(SCC) officers in the Army.
3. On 26 September 2008, the MoD issued a circular envisaging the grant of PCs prospectively to SSC women officers in the JAG department and the AEC. The circular was challenged before the Delhi High Court by Major Sandhya Yadav and others on the ground that it granted PCs only prospectively and only to certain specified cadres.
4. Contempt proceedings were initiated against Union of India for non-compliance towards Delhi HC judgement.
5. The court directed to form a high power committee to consider the question of granting PC to SCC women officers.
Important provisions and reference articles
- Section(12) of the Army Act, 1950
- Army Act, 1950
- Article 33 of the Indian Constitution
Issues
- Can women be granted PC in the Army?
- If no, why not?
- Provisions for PC in the Army for women officers.
- Why the disparity in treatment between male and female officers?
- Right to equality.
Analysis of the judgement
The issue of disparity among women and men serving officers of the Indian Army has served a greater discussion, majority of the Army in different parts of the world have somewhat solved the problem of gender-based commissioning in the roles of Armed forces. It is imperative to look at the landmark judgement in the Indian context of paving way towards a more equal society.
1. With reference to the provisions made in the Army Act, 1950 Section(12) which states-
" Ineligibility of females for enrolment or employment.- No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf."
With further notifications issued women were allowed in various branches of the Army.
During the course of proceedings in 2006 (concerning the Writ Petition filed by Babita Puniya) President of India had assented to a new scheme of SCC wherein women had the opportunity to take up SCC for a tenure of 14 years with 10 years intially being extendable by a further of 4 years.
2. Another Writ petition was filed by Major Leena Gurav challenging the terms and conditions of service imposed by the circulars and for the grant of PC to women. On 26 September 2008, the MoD issued a circular envisaging the grant of PCs prospectively to SSC women officers in the JAG department and the AEC. The circular was challenged before the Delhi High Court by Major Sandhya Yadav and others on the ground that it granted PCs only prospectively and only to certain specified cadres.
With respect to the judgement of Delhi HC in the above petitions Union of India was in appeal.
3. After the direction to form a high power committee, and the counsel appearing for Union of India tendered the following proposal-
Women officers with more than fourteen years of service would be permitted to serve for up to twenty years without being considered for the grant of PC and would be then released with pensionary benefits subject to meeting of service would be released with pensionary benefits immediately upon the conclusion of the present appeal.
4. Under Section 10 of the 1950 Act, the grant of commission is at the discretion of the President of India. The absence of a fundamental right to claim PC is reinforced by Section 12 of the 1950 Act by reason of which, no woman is eligible for employment except in such corps and departments as the Government of India may determine. The power to grant commission belongs to the President and no mandamus can be claimed from a court.
5. The provisions of the 1950 Act, insofar as they infringe or affect fundamental rights, are protected by Article 33.
The rationale behind the government's decision of not allowing women in combat roles is the hazardous nature of work during combat duties.
6. The respondents were joined by Ms Lekhi who addressed the court of the inherent discrimination towards women in the Army.
The submissions were that of irrational suggestions of UoI pertaining to battlefield scenario, unit cohesion, and national security.
7. Ms Lekhi urged that women officers on SSC have suffered from serious discrimination comprising of:
- Lack of opportunity for professional growth;
- Absence of job security due to the ambiguous status of the cadre; and
- Rendering service under Junior Officers due to the lack of a uniform and equal promotion policy.
After major contentions and arguments, the SC gave the verdict of granting PC to women irrespective of whether they served 14 years or 20 years. The order subjected, Union of India to comply with the provisions granted in the judgement.
Conclusion:
The judgement after these many years of hard work and struggle seems welcoming by the majority population in the country. This judgement upheld the right of women to have PC in the Army thereby making them stand shoulder to shoulder with their male counterparts. What could have or should have happened years ago was made possible in this decade.
