By:- Naina Sharma
In the supreme court of India
| NAME OF THE CASE | The Secretary, Ministry of Defence vs Babita Puniya and ors. |
| CITATION | Civil appeal no.s 9367- 9369 of 2011 With Civil appeal no. 1127-1128 of 2013 And with Civil appeal no. 1210 of 2020 |
| APPELLANT | The secretary, Ministry of defence |
| RESPONDENT | Babita Puniya and ors. |
| BENCH/ JUDGE | Dr. Dhananjay Y Chandrachud . J |
| STATUES/ CONSTITUTION INVOLVED | Army act , 1950 Constitution of India Articles |
| IMPORTANT SECTIONS / ARTICLES | Article 14, article 15(1), article 16(1),article 21, article 33, article 39, section 10 of 1950 army act , section 12 of 1950 army act. |
| DATE OF THE CASE | 17 February 2020 |
ABSTRACT
In the present case, the appellant, the Ministry of Defence challenged the order of Delhi high court in supreme court, which asked the ministry to provide permanent commission to SSC women officers of Air Force and Army. However, this benefit was available to women officers who instituted proceedings before the court and retired during the pendency of writ petitions. It is a landmark judgement by the supreme court of India. Basically, Babita puniya, a practicing advocate in 2003 filed a petition in Delhi high court seeking permanent commission for female officers recruited through SSC. Later on, Delhi high court gave the judgement in favour and even the supreme court refused to uphold the order and give directions to implement the order. Finally in February 2019 government-issued guidelines regarding the same.
INTRODUCTION
Gender inequality is something that has been seen in our country in various regards it is even one of the thorny topics. Females are always seen struggling in this patriarchal society whether it’s in the field of education, employment or something else, they are always considered below men and are underestimated generally. Even after having talent and skills, they lack opportunities. In this country where they are treated as goddesses, also here the rates of female feticide are quite high. Gender stereotypes always had created barriers for women and still continue to do so. However, the honourable supreme court of India ended one battle in their favour in the landmark judgement of “ the secretary, ministry of defence vs Babita puniya and others”
In the present case, in 2003 Babita puniya filed a writ petition before Delhi high court for the grant of PC to women SSC officers in the army. Later on, other petitions were also filed by many other women officers separately although their petitions were tagged together. Later on, two circulars were issued conveying the sanction of the president of India regarding the grant of SSCs both on the technical and non-technical side to women officers.[1] Later on, the ministry issued a notification extending the validity of the appointment of women army officers. In 2006, a further order was issued allowing the women to serve for maximum of 14 years.
Apart from the petition which was instituted before the delhi high court a writ petition was filed by Major Leena Gurav in 2006. Primarily to challenge the terms and conditions imposed by government.
The bench of judges, in this case, stated that article 33 of the constitution
“Power of Parliament to modify the rights conferred by this Part in their application etc Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or[2]”
The court said that restrictions imposed upon fundamental rights in exercise to article 33 must be “absolutely necessary for proper discharge and of duties and maintenance of discipline” but the restriction must be by law.
And also in article 14 , “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]”.
And article 21 as well, “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”[4]
Facts of the case
In 2003, Babita Puniya , a practicing advocate filed a writ petition in nature of public interest litigation to allow women to have a permanent commission in the army and air force. Along with her many officers filed the petition separately for the same although later on they were tagged along. For a better understanding of the case and the judgement, we need to study from the complete beginning.
According to section 12 of Army act , 1950 , no female shall be eligible for employment in the regular army except corps, department, branch etc. then later in 1992, the union government issued a notification making women eligible for appointment as officers like judge advocate general, education corps, postal service etc., this remains in force for five years. later in 1996, this notification was extended for another five years.
In February 2003, Babita Puniya, an advocate instituted a Writ Petition15 in the nature of a Public Interest Litigation before the Delhi High Court for the grant of PC to women SSC officers in the Army.[5]
In 2005, the government extended validity of the “scheme of appointment of women as officers in Indian army” , this scheme was originally of 1992 which was extended in 2005. and instead of extending it like five years, its tenure was extended up to 14 years. That notification came in 2006
A Writ Petition, later on, was filed by Major Leena Gurav on 16 October 2006 to challenge the terms and conditions of service imposed by the circulars dated 20 July 2006 and for seeking the grant of PCs for women officers[6]
In 2008, the centre decided to give permanent commissions to women in some departments such as the army education corps, judge advocate general and many others.
Then, finally, in 2010, the Delhi high court decided to join all petitions and asked the ministry of defence to provide permanent t commission to SSC women officers of air force and army. After that ministry of defence appealed in the supreme court but hearing the case and looking at the judgment honorable court very rightly refused to uphold the order and directed the ministry to implement the orders.
In 2018, the central government told the supreme court that it is considering granting a permanent commission. In February 2019 the government issued guidelines about the same and all serving women shall be considered for the grant of commission irrespective of them have crossed 14 years or even 20 years of service. It granted the commission to new SSC officers in eight combat rules.
Issues raised before court
The major issues that were raised in the supreme court were
- What are the rules and regulations governing the women officers in Indian army ?
- Whether women officers should be granted permanent commission in Indian army ?
- The guidelines issued in February ,2019 should be implemented or not ?
Arguments from appellant side
The appellant, ministry of defence challenged the judgment of Delhi high court
- The union government argued that the judgment of delhi high court failed to take notice of some statuary provisions and orders of government of india as section 10 of 1950 army act “ 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[7].” And section 12 of same act “no women shall be eligible for enrollment in regular army except such corps and departments as government of india may determine”[8]
- The union government argued that women are not employed on duties which are hazardous in nature as they cant be appointed to areas of risk like borders and all.
- The union government argued that there is no discrimination between men and women SSC officers as female are provided with a 180 days of child care leave and male officers are not eligible to opt for M tech. The Union Government has submitted that the Army faces a huge management challenge “to manage WOs in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station”.
- The union government argued that the new policy is a oraganisational interest, the benefits given in the policy cannot be granted to women who have passed 14 years as they will be left with a little time to be trained.
- The union government argued that the provision of of 1950 act, in so far as they affect fundamental rights are protected by article 33.
- The union government argued that the committee constituted by union The committee constituted by the union to enquire into cadre issues in the Armed Forces favoured a lean permanent cadre of officers, supplemented by an enhanced support cadre. Thus, induction into the Permanent commissions through SSC will disturb the structure of the army.[9]
- The submission note of union of india had spoken of “physiological limitation” on employability of women officers accentuated by challenges of confinement , motherhood and childcare.
Arguments from the respondent side
Even after the judgement of the Delhi high court, the permanent commission was not granted so and no steps were taken so the respondent argued as follows:
- The respondent argued that the nature of duties assigned to female officers is same as that of males until their fourteen years of service. Hence, union of india lacks substance in this argument.
- Union of india said that presence of women had negative impact on unit cohesion, the respondent said its high time they start accepting women.
- Respondent argued that female officers have suffered serious discrimination of lack of opportunity of professional growth.
- The respondent argued that the female officers undergo training just like male still only male officers are eligible to seek permanent commission.
- The respondent argued that due to gender discrimination and not granting permanent commission to women, the Indian army is letting go of trained women officers which made women representation very less and is giving re employment to retired male officers.
- The respondent argued that besides the discrimatory nature the union government with respect to grant of permanent commission to SSC women officers , it lowers their status to that of jawan.
- The respondent argued that the court have dealt with article 33 of constitution in many cases and they would not be declared void to the extent they restricted the guranntee of fundamental rights to members of armed forces.
Related provisions
- Constitution of india
- Article 14, 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.[10]
- Article 21, Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law[11]
- Article 33, Power of Parliament to modify the rights conferred by this Part in their application etc Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counterintelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them[12]
- Article 15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.[13]
- Article 16 (1) Equality of opportunity in matters of public employmet, There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State[14]
- Article 39 Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood;[15]
- Section 10 of 1950 act 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.,[16]
- Section 12 of 1950 act 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: Provided that nothing .
JUDGEMENT
The supreme court bench led by justice D.Y Chandrachud challenged the points presented by the union of India and stated that they are stereotypical notions of gender discrimination and it is a clear violation of fundamental rights guaranteed under article 14 of the Indian constitution. Although, article 33 allow some restrictions on fundamental rights in armed forces but it should be restricted to an extent and necessary to ensure proper discipline and duty. The policy decision was taken by the union giving the women officers permanent commission was subject to some conditions.
- All the women officers on SSC should be considered for permanent commission irrespective of their years of service that is both 14 or 20 years.
- SSC women officers who served for more than 20 years and not given PC will be given pension on terms of policy decision.
- The benefit of continuing the service also apply to existing SSC officers with more than 14 years of service.
- All the choices of specialization shall be available to women officers on same terms as male officers.
- The order given by delhi high court will remain affirm.
- Necessary steps for compliance with this judgement shall be taken within 3 months from date of judgement that is 17 february, 2020.
CONCLUSION
The landmark judgement given by Delhi high court and the supreme court is a landmark judgement and very appreciable. It acts as an important step in changing the patriarchal thinking of society, it ensures gender equality and females’ position in the Indian army and show a way ahead to move independently. I, as individual support this decision.
It set an example in society. Not only the army but the air force and navy will also be benefitted from this.
[1] The secretary ,ministry of defence vs babita puniya and ors.,
[2] Indian kannon, https://indiankanoon.org/doc/829916/ (last visited January 15,2022)
[3] Indian kannon, https://indiankanoon.org/doc/367586/ (last visited January 15,2022)
[4] Indian kannon, https://indiankanoon.org/doc/367586/ (last visited January 15,2022)
[5] Indian kanoon, https://indiankanoon.org/doc/117198144/ (last visited January 15,2022)
[6] Indian kanoon, https://indiankanoon.org/doc/117198144/(last visited January 15,2022)
[7] Indian kanoon, https://indiankanoon.org/doc/1996924/, (last visited 16 january ,2022)
[8]Indian kanoon, https://indiankanoon.org/doc/1805862, (last visited 16 january ,2022)
[9] [Harshit Bhimrajka], [the secretary, ministry of defence vs Babita puniya and others: a case study], [blog I.pleaders] https://blog.ipleaders.in/secretary-ministry-defence-vs-babita-puniya-ors-case-study/ [date of access- 16 january,2022]
[10] Indian kanoon, https://indiankanoon.org/doc/367586/, . [ last visited 16 january, 2022]
[11] Indian kanoon, https://indiankanoon.org/doc/1199182/. [ last visited 16 january, 2022]
[12] Indian kanoon, https://indiankanoon.org/doc/829916/. [ last visited 16 january, 2022]
[13] Indian kanoon, https://indiankanoon.org/doc/609295/. [ last visited 16 january, 2022]
[14] Indian kanoon, https://indiankanoon.org/doc/211089/. [ last visited 16 january, 2022]
[15] Indian kanoon, https://indiankanoon.org/doc/555882/
[16] Indian kanoon, https://indiankanoon.org/doc/1996924/#:~:text=Section%2010%20in%20The%20Army%20Act%2C%201950&text=10.,officer%20of%20the%20regular%20Army. [ last visited 16 january, 2022]
[17] Indian kanoon, [last visited on 16 january,2022] https://indiankanoon.org/doc/1805862/#:~:text=No%20female%20shall%20be%20eligible,this%20behalf%3A%20Provided%20that%20nothing [last visited on 16 january ,2022]