This post is authored by Divya Tiwari 2nd year at Rajiv Gandhi National Univesity of Law, Punjab
Case: The Secretary, Ministry of Defence Versus Babita Puniya
Civil appeal number 9367-9369 of 2011
Citation: (2020) 7 SCC 469
Bench: Justice Dr. D.Y. Chandrachud and Justice Ajay Rastogi
Decided on: February 17, 2020
Breaking the traditional equilibrium of male-female identificatory roles, women officers in Army question the delineation of functions in army that strictly favour the inclusion of only males in the Permanent commission (PC). This case stands as an up-roar against hegemonic masculinity of the organisation and defies the status quoist construction of combat-non combat dichotomy, by shaking the wrongly established notion on “militarization of feminism”. This article analyses and explores the constitutional scheme on equality as set forth by the honourable Supreme Court of India in the case at discussion.
BACKGROUND OF THE CASE
The background of the matter is set in the restricted scope of fundamental rights of Army personnel. In the cases concerning Armed forced, the Court’s fundamental rights jurisdiction is restricted by Article 33, which empowers Parliament to make rules that act as resistance to enforcement of fundamental rights of armed forces officers, “so as to ensure the proper discharge of their duties and the maintenance of discipline among them”. Thus, the case has long drawn history, starting from a quest for equal opportunities in Permanent Commission, in the Delhi High Court. In 2003, Babita Puniya (an advocate) instituted a Writ Petition concerning grant of PC to women SSC (Short Service Commission) officers in the Army. Subsequently, several Writs were filed by women officers regarding certain PC related issues. Finally, in 2010, the Delhi High Court decided to hear all the writ petitions together and substantially upheld the entitlement of the Permanent Commission (PC) to women officers. However, the judgment of the High Court was not
implemented by the Union Government even after several interim orders. Thus, an appeal was filed in the Supreme Court for seeking implementation of the orders of the High Court. The arguments of the case surround the concerning subject of equality of opportunities and the gender dynamics. Although, the women officers in the Armed forces are allowed to pursue services in departments related to non-combat roles but their equal potential is discriminated against, while granting Permanent commission. This stands as a classic exemplar of systematic discrimination, where the regulations and policies of the organisation appear to be neutral at its face but consists of inherent inequality equations working within the system that have discriminatory effects on the individuals based on one or more regulatory grounds. Such discrimination is superficially observed as an objective difficulty rather than as an inherent biased nature of the regulation and policies. Thus, its imperative to delineate the realms of objective difficulties and ideological difficulties or biases held against females. The following sub-sections will analyse the contentions of both parties along with exploration of systemic discrimination against women officials, that forced them to litigate their rights in the honourable Court.
GRANTING PERMANENT COMMISSION TO WOMEN OFFICERS IN THE INDIAN ARMY
The patriarchal construction surrounding the occupational work and stealth bifurcation based on discriminatory practices forms the basis of argument of the petitioners. The petitioners did not duly consider the fundamental rights, forming the basic structure of the constitution. They contended that the enforcement of all the fundamental rights of armed forces members is restricted by Article 33 and there exists inherent dangers involved
while serving in the combat roles like absence of privacy, etc, these issues are not open to judicial review. However, both these arguments fall short of concrete evidence and seem baseless as the women officers are treated equalled with respect to the nature of service, until Short service commission. The inherent dangers along with inherent biased nature come to the surface only when they are eligible for Permanent Commission. Women officers, during their service are posted to sensitive areas and force head-quarters, which pose the same “inherent dangers,” and they are well trained to serve shoulder to shoulder with male counter parts. Moreover, the women officers who serve in the battlefields and experience the realities do not complain of lack of privacy or other considerations as explicated by the petitioners. It is the polarised view of the male counter- parts that make unreasonable justification based on the undefined realm of ‘inherent dangers”. But it is imperative to clear at the outset that the service in armed forces, by its own virtue, is full of challenges, un-forceable difficulties and all the dangers that may come in the path, which includes undefined “inherent dangers”. Thus, it is highly unreasonable to say that the comrades who are provided similar trainings, sent to similar fields, inspected and guided by same officers, are discriminated after a decade of service on the basis of gendered and stereotypical notions. Such discrimination leads to lack of equal promotion, opportunity for professional growth and absence of job security even after proving ones devotion towards services for more than a decade.
The division bench comprising of Justice D.Y. Chandrachud and Justice Ajay Rastogi ordered the government to consider the eligible women officers for grant of PC and all consequential benefits including promotion and financial benefits. The judgment comes as a new ray of hope, limiting the scope of Article 33 that restricts the fundamental rights of armed forces personnel. This decision has re-inforced the fact that Article 33 cannot supercede the fundamental rights granted to every citizen (civilians and armed forces members). The granting of PC stands as an epitome of equality based treatment even at the highly strategic positions where the interference of judiciary is limited. The most critical observation of the court is much celebrated as it has set a new rule of law related to “systematic discrimination”. It was clarified that the intention of Article 33 was to impose restrictions to the extent of maintaining discipline and discharging of duties. However, in the present case legislative intent was manipulated and utilised by the petitioner, to include “only male-social grouping in PC” as discipline. Hence, the court rightly recognised the commitment to the constitutional values and held that the reliance on the “inherent
physiological differences between men and women is solely due to a deeply entrenched
stereotypical, constitutionally flawed notion that women are the weaker sex” and the assumption that domestic obligations solely rest on women forms another indication of the same stereotype. Thus, the argument based on the comparative physical strength of men and women, assumption of sole duty of familial obligation, and the apprehension of disturbance of peculiar dynamics of an all male unit were held to be constitutionally invalid rationale to deny equal rights and opportunities to women officers. The decision speaks volumes about the intention of the courts to reinstate “be you not so high, the law is above you”. The judgment transcended the boundary of the pre-established rules of the precedent which limited the scope of judicial review and ruled in favour of justice, equality and equity.
The Babita Puniya judgment, re-affirms the transformative character of our constitution. The judgment provides an opportunity to remember Justice Ginsberg, a feminist activist and former judge of Supreme Court of United States, who once said “ I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks”. Similarly, in the present case, the women officers did not ask for any positive discrimination in the form of leniency in physical or medical qualifications, but all they asked for, was to end the systematic discrimination against them and let them face the ‘inherent dangers’, challenges and difficulties, as a part of their service, at par with male counterparts. If the challenges, criteria and trainings are equal then let the opportunities too, be served equally as male- female officers stand as counter-parts and not supreme and sub-ordinate relatives. Thus, the case delivered at par with the expectations and brought the first ever alteration to the social stability founded on the parameters of gendered division of work in armed forces. It rightly transgressed from the superficially visible objective difficulties to the ideological difficulties faced by the women officers in attaining PC.
Since, the case dealt with the issue of “systematic discrimination” also, therefore, in the times to come, the judgement can prove its utility in providing justice to female workers from not only armed forces but also from different walks of life and occupations, facing similar systematic discrimination on the grounds of protocols and rules, at the hands of hegemonic patriarchal assumptions. Thus, it is imperative to laud the judicial rationale and the commendable decision in the case. The observations of the court will hopefully prove to be seminal for Indian jurisprudence and widen the vault of hope for furtherance of discourse in regard to gender equality.
 Article 33, The Indian Constitution.
 Para 12 of the judgment, available at https://main.sci.gov.in/supremecourt/2010/20695/20695_2010_8_1501_20635_Judgement_17-Feb-2020.pdf
 Para 15.
 Para 17.
 Para 21.
 What is “discrimination?”, Ontario Human Rights Commission, 2008, third edition, available at
http://www.ohrc.on.ca/en/iii-principles-and-concepts/2-what-discrimination (last accessed October 18, 2021).
 Para 28 (1).
 Ibid, clause (3).
 Para 69 (1) (a).
 Supra note 29, clause (g) (3).
 Para 54.