Authored By: Saumya Giri


INTRODUCTION

Human beings do possess the right to live with full dignity and respect, but this right is very often put at stake in today’s world on the mere ground of sex. Inequality is an unprejudiced concept as it affects everyone equally, be it men, women, transgender, children, without any discrimination. Discrimination against women is deeply rooted in our Indian society, which is very evident from its position in the recent Gender Development Index, which measures a country’s progress or steps taken towards ensuring gender equality. Gender equality is guaranteed when all human beings are given not only equal rights but also equal opportunities and responsibilities.  India even after having highly capable military power is unfortunately captured in the web of gender discrimination. This long drawn inequality that is constructed in the Armed Force bring forth a distinct argument as herein, it’s rather about having an obligation or duty towards one’s nation than about individual rights. It was only in 1991 when against all the odds women got entry into different branches of Armed Forces. With no doubt there falls a lot of criticism against their induction wherein some claimed that this would be a drastic step as it would nonetheless decrease the effectiveness of the force. But years down the line criticism transformed into appreciation though still a lot was left to be addressed.

In this blog, we will discuss about the contribution of two recent landmark judgement of Supreme Court as it brush aside the long drawn discrimination against women in armed forces and critically analysis some still existing challenge which need to pondered upon.

RULING

On February 12, 2020 Hon’ble Supreme Court in its landmark decision in case of Secretary, Ministry of Defence v. Babita Puniya and Union of India v. Lt. Cdr. Annie Nagaraja finally concluded a prolonged quest of women officer seeking permanent commission (Hereafter PC) both in Army and Navy respectively. It would also enable women officers to serve as army commander. The brief of the two cases are stated below:

SECRETARY, MINISTRY OF DEFENCE V. BABITA PUNIYA

This case concerns with the issue of granting PC in army. The fact of the case dates back to 1991, which as per the notification issued by Central Government permitted induction of women in several branches of Indian Army, which was earlier prohibited and left upon the discretion of Central Govt. as per Section 12 of Army Act, 1950. With further notification this order was extended in 1996, 2005 & 2006. The issue arose only in 2006 when Ministry of Defence ordered that permanent commission would be granted to women but only prospectively. Before heading to the SC, a writ petition was filed before the Delhi High Court in 2010, which held in favour of granting PC to women. Further in an appeal before the Supreme Court, the Central Govt. put forth various stereotyped contention, for instance, claiming immunity for such discrimination by adhering to Article 33 of the Constitution, which states that fundamental rights can be restricted when it comes to Armed Forces. It does also lack substance when considered women to be ineffective only after they complete their fourteen year of service under Short Service Commission. Further they put forth issue like “motherhood, pregnancy, domestic obligation, hygiene” for justifying there blanket discrimination against women officers.

These submissions were outwardly rejected by J. Chandrachud and had even rebuked Central Government for its archaic contention and stated that arguments like differentiating between men and women on the basis on their physiological features while dealing with employment matter is based on sex stereotype and is not constitutionally valid. Moreover, while addressing the issue of “minimal facilities for habitat and hygiene”, he paid reliance on report submitted by Respondent, thus, refuting the argument that women officers should not be deployed in conflicted areas which was proven otherwise as report suggested 30% of women are already deployed. Hence, it accepted the policy of 2019 by making it applicable across the board and removing its limited scope to staff appointments.

UNION OF INDIA V. LT. CDR. ANNIE NAGARAJA

This case addressed the issue of granting PC to women in Indian Navy. The present matter came before the SC by two decisions one by Delhi High Court and another by Armed Force Tribunal. The very discrimination that has been created while drafting Navy Act in 1957 has been highlighted in the judgement by J. Chandrachud by referring to interesting piece wherein there was dissenting note presented in Parliamentary Joint Committee objecting the exclusion of women officers done by Section 9 of the Act. Akin to the Babita Puniya case, in 1991 as per notification issued by the Central Govt. women were inducted now in several branches of Indian Navy, though with the regulation of 2008, the demand to grant PCs to women officers was granted prospectively. J. Chandrachud held this prospective application of granting PCs not valid by rejecting the arguments put forth like one under section of “The Stereotypical Sailor” wherein he vehemently asserted that contention like women are ill suited for sea-duties is purely indication of sex stereotypic based on physiological characteristics. Thus, this decision is marked as one liberating the women officers.

CRITICAL ANALYSIS

Quest for Equality Still Exists

Though due to rising focus, gender equality in armed forces was granted yet its only partial as several instances proves that there are still instances wherein women are not in par with their male counterpart. To begin with, SC’s judgement does not give clarity on method of appointment of women officers in PCs. Unlike men, women cannot directly get admitted through NDAs in Permanent Commission after completing 10+2 and even after graduating. Though the proposal in Indian Navy to create women centric facilities are superficially said to have been accepted now still there deployment on ships and submarine is an unmet desire.

Combat Force Unit

“I hate to hear you talk about all women as if they were fine ladies instead of rational creatures. None of us want to be in calm waters all our lives.” – JANE AUSTIN, Persuasion.

Though there is no doubt these decisions are welcoming one and has definitely broken many misogynist and archaic notion regarding women, there do exist some logical questions like why women are still not admitted in combat forces. Though this matter has not been addressed in these judgements and was left on sheer discretion of expert committee considering it as a matter of policy, yet we need to ponder about this alarming question as when this idea is proposed the major issue is “Whether women can fight as efficiently as men?” To this, one should refer our valiant history which is crammed with women like Razia Sultan, Rani Laxmibai, Joan of Arc , Rani Durgavati, wherein they picked arms to defend their nation. Arguments like induction of women in combat unit would threaten the culture is baseless as in no way demanding equality and a life full of dignity without any special treatment , also only induction in this unit would have impact stands no ground. The decision to be a frontline warrior should be theirs and theirs alone, the spirit of comradeship is equally present in women as this is essential requirement even in non-combat unit in which women proved to be as effective as men. So it’s high time these policy makers must ponder upon their decision as through this they are keeping plenty of eligible and efficient women out of the unit.

Brazen Masculinity in Armed Forces

Military personnel across the world in order to survive toughest of the situation are ingrained with hyper masculinity, aggressiveness, wherein they created a new bond of brotherhood and torn away the old one and also a space bereft of all traces of femininity as rightly portrayed by renowned Scholar Sandra Whitworth. So in order to get the actual benefit of these pronouncements the underpinning notion of masculinity prevalent in armed forces need to be addressed. These military women are forced to work out of box so as to be taken seriously by male counterparts and training often as claimed by women officer killed their femininity completely. Another alarming situation that arose due to this sense of entitlement and aggression deep seated in male counterparts is sexual harassment and abuse. In India in 2018, a report highlights about a dozen of complaints lodged in last two years. Yet another report of 2015 suggests that this sexual harassment is rampant in Indian Army. This entrenched hyper masculinity, sense of supremacy and violence as a means to extract obedience often resulted in domestic violence in military couple to be three to five time higher than a civilian couple as per a study in 2004. Hence this illusionary sense of gender progressiveness won’t serve the purpose until these inner battles comes to an end.

CONCLUSION

These landmark judgements now leaves no room to believe that war is solely a male activity. Yet, this definitely needs to be corroborated by putting down other obstacle that is within the institution of Armed Forces, only then this decision will go beyond the definition regal notion of “gender equality”.


The author is an undergraduate student at Dr. Ram Manohar Lohiya National Law University, Lucknow.


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