The Secretary, Ministry of Defence vs Babita Puniya & Ors.

HELD: 1. Article 33 of the Constitution empowers Parliament to determine by law the extent to which the rights conferred by Part III of the Constitution shall be restricted/abrogated in their application inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. The impact of Article 33 is to enable Parliament to limit or abrogate the fundamental rights in their application to the members of the Armed forces. But such a restriction or abrogation must be by law. Moreover, the restriction or abrogation must be enacted to ensure the proper discharge of duties and the maintenance of discipline. [Para 44] [865-E-G]

Ram Sarup v. Union of India [1964] 5 SCR 931; Lt. Col. Prithi Pal Singh Bedi v. Union of India (1982) 3 SCC 140 : [1983] 1 SCR 393; R Viswan v. Union of India (1983) 3 SCC 401 : [1983] (3) SCR 60 – referred to.

2. Section 12 of the Army Act, 1950 embodies the principle that a woman would be eligible for enrolment or employment only in such corps, departments, branches or bodies forming part of or attached to the regular Army upon and to the extent notified by the Central Government. In other words, the eligibility of women for enrollment or engagement in the regular Army is conditional on a provision being made by the Central Government in terms of the enabling provision of Section 12. [Para 49] [869-D-F]

3. Following the judgment of the impugned order, the Union Government was under a mandate to grant Permanent Commissions (PCs) to women officers, to the exclusion of the Combat Arms, and at par with the grant of PCs to their male counterparts. Significantly, the impugned judgment was not stayed by this Court at any stage, though there was a direction that no coercive steps would be initiated on the basis of the judgment in appeal. A direction by this Court not to initiate coercive steps is distinct from a stay on the operation of the judgment. There was no reason or justification for the Union Government not to act upon the directions that were issued by the High Court in the impugned judgment, particularly, in the absence of a stay on the operation and enforcement of the judgment. The Union Government continued to thwart implementation despite the order of this Court dated 2 September 2011 clarifying that “the operation of the impugned judgment is not stayed at all.” Scant regard has been paid to the High Court and to this Court as well. Eventually, nearly nine years after the judgment, the Union Government has communicated a policy circular dated 25 February 2019 by which a decision has been taken to grant women officers PC in eight Arms/Services, in addition to the existing streams of JAG and AEC. Thus, as a matter of policy, the Union Government has taken a decision to allow for the grant of PCs in all the ten streams in which women officers were currently being commissioned as Short Service Commission (SSC) officers. [Para 50] [869-G-H; 870-A-D]

4. The decision of the Union Government to allow PCs to women officers in all the ten streams where they are being inducted as SSC officers substantially renders redundant the submission based on the provisions of Section 12 of the Army Act. Even on a textual interpretation of Section 12 as it stands, it is evident that the policy decision dated 25 February 2019 of the Union Government has allowed for the grant of consideration of PCs to commissioned women officers in all the ten streams which have been notified. [Para 51] [870-D-G]

5. The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of nondiscrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognised in the specified streams where women are permitted to seek engagement as equal members of the Armed force that the Indian Army represents. The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. Reliance on the “inherent physiological 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. [Paras 52 and 54] [870-F-H; 871-A-C; 872-B-C]

6. The counter affidavit contains a detailed elaboration of the service which has been rendered by women SSC officers to the cause of the nation, working shoulder to shoulder with their male counterparts. Yet, that role is sought to be diluted by the repeated pleas made before this Court that women, by the nature of their biological composition and social milieu have a less important role to play than their male counterparts. Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate. [Para 56] [873-A-B]

7. Women officers of the Indian Army have brought laurels to the force. These are documented in the course of proceedings and have not been controverted. To cast aspersion on the abilities of the women officers 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 – men and women – who serve as equal citizens in a common mission. [Para 56] [873-A-B; 874-G; 875-A]

8.1 Courts are indeed conscious of the limitations which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the Armed forces. For this reason the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the High Court and which is not in question in the present appeals. The submissions by Union of India detract from the significant role which has been played by women SSC commissioned officers since their induction in 1992. The time has come for a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be “tolerated” within narrow confines. The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women.[Para 57] [875-A-E]

8.2. Courts are conscious of the limitations which questions of policy impose on judicial intervention in matters relating to the Armed Forces. At the same time, faced with a salient decision of the Union Government to extend to all women SSC officers the option for the grant of PCs as well as the situation which has come to pass due to the non-implementation of the binding directions of the Delhi High Court as well as this Court, nonintervention in the present matter would be nothing short of a travesty of justice. [Para 66] [878-G-H; 879-A-B] Union of India v. P K Chaudhary [2016] 2 SCR 426 distinguished.

9.1. The proposal which has been submitted before this Court by the Union Government involves a three-stage assessment of women SSC officers for the grant of PCs. A distinction has been made in the proposal between women officers who have been in service for a period of less than fourteen years and those beyond. The proposal envisages that only those women officers with less than fourteen years of service would be considered for the grant of PCs. Under the terms of this proposal, women officers with more than fourteen years of service but less than twenty years of service would continue until they attain pensionable service of twenty years, without the grant of PCs. Women officers who have crossed twenty years’ service would be discharged from service immediately subject to receipt of pension. The proposal has been commended for acceptance to this Court on the ground that it allows women officers who have crossed fourteen years of service to receive pensionary benefits, where such benefit would otherwise not be available to them. [Para 58] [875-E-H]

9.2. There is fundamental fallacy in the distinction which has been sought to be drawn between women officers with less than fourteen years of service with those with service between fourteen and twenty years and above twenty years. Nearly a decade has elapsed since the date of the decision of the High Court. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals. Having failed to enforce the judgment, the Union Government has now informed the Court that it would not consider women officers who have crossed the age of fourteen years in service as SSC officers for the grant of PCs. This situation of women officers with service above fourteen years has come to pass plainly as a consequence of the failure of the Union Government to comply not only with the directions of the High Court but also those which were issued by this Court on 2 September 2011. In this view of the matter, there is no reason or justification to deprive SSC women officers of the grant of PCs on the ground that they have crossed fourteen years of service. The failure of the government to implement the judgment of the High Court has caused irreparable prejudice to the women officers. To turn around now and inform them that they will lose the entitlement of being considered for the grant of PCs would be a travesty of justice. Therefore, SSC women officers, both within the period of fourteen years’ service and beyond, should equally be entitled to consideration for the grant of PCs. [Paras 59 and 60] [876-A-G]

10. The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. It is necessary for this Court to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSCs officers after the date of the decision. The Union Government has not applied it in such a manner, which is evident from the fact that the decision contemplates that women officers already in service but with less than fourteen years would be entitled to be considered. Therefore it is clarified that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them. [Para 61] [876-F-H; 877-A-B]

11. The next aspect of the policy decision relates to the restriction which has been imposed on women officers being granted PCs save and except for staff appointments. Such a restriction was not imposed when the JAG and AEC branches were opened up for the grants of PCs for women SSC officers in the past. The consequence of this, is an implicit acceptance by the Army that women can, in certain situations, receive criteria or command appointments. An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. Implicit in the guarantee of equality is that where the action of the State does differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner. In this sense, even at its bare minimum, the right to equality is a right to rationality. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reason. An absolute prohibition of women SSC officers to obtain anything but staff appointments evidently does not fulfill the purpose of granting PCs as a means of career advancement in the Army. Whether a particular candidate should or should not be granted a criteria or command assignment is a matter for the competent authority to consider having regard to all the exigencies of service, performance and organisational requirements. In the present case the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either. The absolute exclusion of women from all others except staff assignments in indefensible. If the army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities and if necessary, to future courts. However, such a justification must take place on a case-to-case basis, in light of the requirements and exigencies of a particular appointment. The blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law. Therefore, the expression “in various staff appointments only” in paragraph 5 and that “on staff appointments only” in paragraph 6 of the communication dated

25 February 2019 shall not be enforced. [Paras 67 and 68] [879-B-H; 880-A-B]

12. The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted, subject to: (a)All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; (b) The option shall be granted to all women presently in service as SSC officers; (c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC; (e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 of communication dated

25 February, 2019 shall not be enforced; (f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and (g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts. SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings. [Para 69] [880-D-H; 881-A-E]