(An excerpt from March to Justice)

Aishwarya Bhati | Babita Puniya, India 

The journey for equal opportunity of permanent commission (PC) for women officers of the Indian Army has been long and arduous. A large part of this battle has been fought and won before the constitutional courts of India. However, the success is unmistakably attributable only to the sheer grit, thorough professionalism, and proven track record of courage under fire of hundreds of extremely intrepid and valorous women officers of the Indian Army in service of the nation. It also makes for a fascinating case study for every law student. 

Women were inducted into the Indian Army under the Women Special Entry Scheme (Officers) from 1992 onwards, on an experimental basis, initially for five years. After that, their tenure was extended from time to time, up to 14 years of service, and they were made eligible for varied branches and streams of the Army, in more and more numbers, over time. The experiment was working, and women officers proved their mettle as professional soldiers and equal stakeholders in the nation’s service. However, the consideration for the grant of PC, at par with male short service commissioned (SSC) officers, eluded them. 

In 2003, a Public Interest Litigation was filed by Babita Puniya, a lawyer, before the Delhi High Court for grant of PC to Short Service Commissioned Women Officers (SSCWOs) of the Indian Army. Some other petitions came to be filed by the affected women officers. They were all heard together and decided by a judgment dated 12 March 2010 of the Division Bench of the Delhi High Court titled Babita Puniya v. Secretary and Another1. The High Court, in emphatic words, held that the SSCWOs were entitled to be considered for PC on a par with SSC Gentlemen Officers with all consequential benefits. The High Court’s judgment also dealt with the grant of PC to a category of then serving women officers of the Indian Air Force who had not been given the option of PC. Though the issues of women officers of the Indian Air Force and Indian Navy are not being discussed in this commentary, it is interesting to note anecdotally that the Air Force and Navy had decided to grant PC to SSCWOs between 2006 and 2008, albeit prospectively, excluding the women officers who had been inducted hitherto. The Army had also decided to grant PC prospectively to SSCWOs in two branches, i.e., Judge Advocate General and Army Education Corps. The rationale of the judgment of the High Court was that in the branches and streams that the defence forces had themselves considered women to be fit for grant of short service commission for 14 years, they had to be given the right of consideration for PC. The logic was uncomplicated – if they were good to serve for 14 years, they were good enough to serve for 20 years and more2. 

A batch of appeals was filed by the Union of India in 2011, before the Supreme Court of India against the Delhi High Court’s judgment dated 12 March 2010. In the preliminary hearings, notice was issued only after the Union assured the top court that it had decided to constitute a high-powered committee to consider the questions pertaining to grant of PC to SSCWOs and for them to be considered by the highest level in the Government. It also added that in the meanwhile, they would not release from service the women officers who had completed their term of 14 years of service. 

Another important interim order was passed by the Supreme Court on 2 September 2011 when the Court stayed the contempt proceedings that the original writ petitioners had initiated for non-compliance of the High Court judgment. However, it specifically directed that the operation of the impugned judgment had not been stayed at all. The appeals were pending for the final hearing and adjudication by the Supreme Court for almost a decade, delayed by the chronic and infamous backlog of cases across all tiers of the Indian judiciary (a problem of mammoth proportions that we, as a country, have been struggling with for over six decades), complicated with the fact that successive governments were dragging their feet in the name of taking well-considered policy decisions and requesting the Supreme Court not to hear the matter for final adjudication every time it was to be taken up for arguments. 

Women officers continued to serve as SSCWOs, but with compromised seniority, promotions, honour, opportunities, pay and perks – everything that is sacred or important for a soldier. History has shown time and again how journeys of women, in hitherto male bastions, is fraught with insurmountable hardships and unparalleled adversity. These women that we are talking about are brave women who unflinchingly tread that path with nothing but sheer grit and determination. They define the path for hundreds, thousands and millions to follow suit till it becomes a normal way of life when nobody bats an eyelid. 

Following an announcement by the then Prime Minister during his speech from the ramparts of the Red Fort on 15 August 2018, declaring that PC would be granted to the women officers of the Indian Army, a communication was issued by the Ministry of Defence on 25 February 2019, conveying the sanction of the President for grant of PC to SSCWOs in all the streams/corps that they had been inducted as SSCWOs. However, even after finally taking a policy decision at the highest level of Government, the modalities prescribed for grant of PC created further roadblocks and obstructions for women to be considered for grant of PC at par with gentlemen officers. The key problems were: 

The grant of PC would only be available prospectively. The proposal was to grant PC only to those women officers who had completed less than 14 years of service and to deny the same to all women officers who had completed more than 14 years of service by couching it in the form of a concession that they could serve till the pensionable service of 20 years, after which they would be released from service.  

Women officers who were granted PC could only serve on staff appointments (as opposed to ‘command appointments’).  

The women officers were required to exercise an option for the grant of PC before completing four years of commissioned service. 

These three roadblocks would have rendered women officers as second-grade citizens in the Indian Army and were more like a consolation. 

The final arguments of the appeals before the Supreme Court were undertaken in this backdrop. The Union of India defended its actions before the Supreme Court essentially on the grounds that grant of PC and the conditions thereof are policy decisions that have been taken after due consideration and could not be interfered with by a court of law. They also claimed that there was no discrimination between men and women SSC officers. The difference was essentially on account of occupational hazards inherent in military service not being suitable for women officers per se. 

The written note and the arguments made on behalf of the Army constituted a classic example of how any attempt to justify a bad decision adds more fuel to the fire and insult to injury! The contentions raised ranged from exigencies of service, where women officers would face a greater challenge owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families; to physical capabilities and lesser physical prowess of women soldiers to engage in combat; to infrastructure constraints in forward posts and small detachments; to physiological limitations of women officers, extenuated by the challenges of confinement, motherhood and childcare; and the fact that the rank and file of the Army consisted only of male soldiers, primarily coming from such a social structure where men would not be amenable to taking command from women officers, in addition to interfering with the inherent dynamics of an all-male environment. 

The lawyers representing the women officers, invigorated with the passion and steel of their warrior clients, attacked each of the submissions advanced on behalf of the Union, on the strength of constitutional guarantees, facts and statistics and examples of how the situation on the ground was completely different than what was sought to be projected before the Court. The energy and environment in the courtroom during the days and weeks when these matters were being heard also needs special mention, as the courtroom comprised not just of regular lawyers appearing on both sides, but the court staff and other lawyers waiting for their matters too. The impeccable wood-panelled temple of justice was bejewelled with a strong strength of uniformed and decorated women officers, who stood in rapt attention during long hours of arguments with the discipline and decorum that is inherent to a professional soldier of one of the most respected armies of the world—the Indian Army. It was unmistakable that the eyes and hearts of these trained professional soldiers were impregnated with hope and aspirations, but there was no negativity or bitterness of a litigant embroiled in litigation for having been handed a raw deal. 

As the word went around the majestic court corridors of the hot debates and fascinating issues being deliberated and considered in this batch of appeals, the hearing started to attract a large audience, seasoned and young lawyers and law interns. It was also interesting that while the bench consisted of Dr Justice DY Chandrachud and Mr Justice Ajay Rastogi, the court staff comprising court masters, stenographers, law clerks, court librarians, etc., were primarily women. Coincidently or otherwise, the charge on behalf of the women officers was also mounted by a team of women lawyers. The energy and vibe of the courtroom proceedings were extraordinary. The submissions and the cross-questions by the bench and arguments travelled seamlessly between constitutional principles, role and performance of women officers for the last almost three decades since 1992 and the stereotypes emanating from a patriarchal mindset. Equally fascinating were the eloquent expressions on the dozens of intent and curious eyes closely following the court proceedings. 

Finally, after a marathon and comprehensive hearing, the arguments were closed, and the matters were reserved for judgment. Equipped with the knowledge of an extremely progressive bent of mind of the bench and a strong belief of the strength of their case, together with the redundancy of submissions made by the Union of India, the women officers were upbeat on the grand finale of the long battle that they had endured in the courts of law. 

The judgment of the bench, authored by Dr Justice DY Chandrachud, titled Secretary, Ministry of Defence v. Babita Puniya and Ors, was pronounced on 17 February 2020, days before the world was to recede into a global pandemic on account of COVID-19. The judgement was a watershed moment, a landmark like no other, a milestone not just for the women officers of the Indian Army and Indian defence forces, but for every woman, wading her way, grappling with the mindset of stereotype and bias. The judgement chronicles the entire evolutionary process of engagement of women officers in the Army. It also noted extensively the arguments raised by either side. 

The Supreme Court completely demolished and discarded the submissions advanced by the Union as being based on gender stereotypes and premised on assumptions about socially ascribed roles of gender which discriminate against women. In no uncertain terms, the Supreme Court declared that the reliance on inherent psychological differences between men and women, rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the weaker sex and may not undertake tasks that are too arduous for them. 

In paragraph 72 of the judgment, the Hon’ble Supreme Court noted some examples of highly meritorious women officers who had brought laurels to the forces. The Army had commended their distinction and celebrated it. These examples were important to demolish the baseless submissions that women had played a less important role than their male counterparts on account of their biological composition and social milieu. 

The judgment proclaimed that the track record of service to the nation by women officers is beyond reproach and to cast aspersions on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army where men and women serve as equal citizens in a common mission. 

The Supreme Court agreed with all the submissions made on behalf of the women officers and held that the decision of the Union to grant the benefit of PC prospectively and blanket restrictions on criteria and command appointments (confining the grant of PC to women only in staff appointments) suffered from grave legal infirmities and were in the teeth of fundamental constitutional guarantees strongly protected by the Indian Constitution. The judgement found that the proposal the Union had submitted to the Court to grant PC only to women officers who had completed less than 14 years of service and to deny the same to all women officers who had completed more than 14 years of service by couching it in the form of a concession that they could serve till the pensionable service of 20 years, after which they would be released from service, was farcical. 

The judgement also declared that an absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14 of the Constitution and that whether a particular candidate should or should not be granted criteria or command assignment is a matter for the competent authority to consider, having regard to exigencies of service, performance, merit and organisational requirement, and the absolute exclusion of women from all others, except staff appointments, is indefensible. 

Finally, the Court directed all serving women officers on SSC to be considered for grant of PC, along with all consequential benefits, including promotion and financial benefits. The Court also held that all the choices for specialisation should be available to women officers on the same terms as for men SSCOs, and they shall be entitled to exercise their options for being considered for the grant of PC on the same terms as their male counterparts and for all appointments, including staff, criteria and command appointments. The Court went on to pass certain additional directions for women officers who had completed more than 14 years of service, on account of the long delay that had occasioned for no fault of theirs, but due to inaction by successive governments in not granting them PC, even after the judgment of the Delhi High Court in March 2010.

The matter was not to reach a culmination point so soon. Due to the inordinately long period taken by the Government to implement the original decision of the Delhi High Court on which there was no stay, there emerged some grey areas while considering SSCOs for PC essentially in the context of the criterion for annual confidential reports (ACRs) and medical categorisation standards. Aggrieved that while implementing the landmark decision, again, there were traces of tacit discrimination, many affected officers had to go back to the Supreme Court for relief. 

The issue was finally decided in a recent judgment dated 25 March 2021 of the Supreme Court titled Lieutenant Colonel Nitisha & Ors v. Union of India & Ors etc.,4 where the Court examined the serious anomalies that had vitiated the implementation of the judgement in Babita Puniya. In this judgement, the Court employed the principle of indirect and facially neutral discrimination, where the intention (or the lack of it) is inconsequential. The following lines from the much-detailed dicta would provide a gist of its essence and its umbilical relationship with Babita Puniya: 

…In rendering the decision in Babita Puniya (supra), this Court was mindful of the insidious impact on the generations of women who must have given up on their dreams to serve in the Armed Forces owing to the gendered roadblock on their aspirations, and of the women who must have chosen to opt-out of availing an extension to their SSC terms on similar grounds. We must not forget that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. It is also important for us to bear in mind that a career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, caregiving and childcare exclusively on the shoulders of women. The SSCWOs before us are not just women who have dedicated their lives to the service of the Army but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly neutral parameters… 

 This judgement, too, would go a long way in demolishing the gender barriers and obstructions from the nooks, crevices and fringes of our world. 

What a splendid victory and inspirational journey! Being one of the lead lawyers in this significant case, I believe that many such journeys of inspiring women are like relay-races. Every generation has to run its part well and pass on the baton equally well to the future generations. None of us is in this alone. It is also largely agnostic of the geographies, nations, continents, forms of government, measures of development, et al. It is a universal journey, singing a universal tune. 

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1 Babita Puniya v. Secretary and Another WP (C) No 1597 of 2003 (High Court of Delhi), can be accessed at https://www.casemine .com/judgement/in/56090d17e4b0149711178d98 2 Under Short Service Commission, an officer can only serve for a maximum of fourteen years. However, under Permanent Commission, an officer has the right to serve as a career army officer till the age of superannuation. Twenty years is the minimum qualifying service required to earn a pension, which can only be attained under permanent commission. 3 Secretary, Ministry of Defence v. Babita Puniya and Ors, Civil Appeals Nos. 9367-69 of 2011 with Nos. 1127-28 of 2013 and 1210 of 2020, can be accessed at https://indiankanoon.org/doc/117198144/ 4 Nitisha v. Union of India, Writ Petition (Civil) 1109 of 2020 (along with other similar cases), decided on 25 March 2021, can be accessed at https://indiankanoon.org/doc/190567716/