“I measure the progress of a community by the degree of progress which women have achieved” – Dr. B. R. Ambedkar
Early this year on February 17, 2020, the Supreme Court (SC) of India in a landmark judgment of two judge bench—Dr Dhananjaya Y Chandrachud and Ajay Rastogi, ordered the Ministry of Defense (MoD), Government of India (GoI), to end gender discrimination in its public employment practices, and thereby grant women entry into the Permanent Commission (PC) and also in the commanding (command) roles in the army. This was earlier reserved only for men. The judgement ended the blanket ban on the appointment of women officers in the army.
In its order, the apex court observed that, “An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14.” (Page: 51)
In pronouncing its judgment, the apex court ordered the GoI to comply with the order within three months from the date of its case disposal, i.e., by May 17, 2020. The deadline for compliance to the landmark judgment of the apex court by the MoD, GoI ended recently. Also, it is very important to note that the compliance of order of the apex court by the GoI has not been followed, and it is still not active in public domain. Even the Live Law and the Bar & Bench have no information of it till date.
So, this article will look into the submissions of both the MoD, GoI and the women respondents who havve suffered a lot of pain throughout their journey in the court rooms and in the public.
This landmark 54-page-long judgment authored by Dr Dhananjaya Y Chandrachud has touched on some of the contemporary problems of state-sponsored sex stereotypes in its institutions, that were submitted by the Government of India in its own affidavits to the SC along with the women respondents. These were submitted by learned Senior Counsel Mr R. Balasubramanian. In submitting to the apex court, the court has highlighted the so-called “sex stereotypes” of the government who in turn couldn’t justify their reasons and rationale to halt the progress of women in the Force.
The appellant i.e., the Ministry of Defense (MoD) which approached the apex court couldn’t rationalise its own policy decisions and the institution was left with nothing but counter affidavits. In analyzing all the submission notes of the GoI and the women petitioners, the apex court has come down heavily on the issue of sex stereotypes of the GoI submissions and these are as stated below:
“E. Stereotypes and women in the Armed Forces:
53. Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court. Repeatedly, in the course of the submissions, this Court has been informed that:
(i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;
(ii) Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;
(iii) A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;
(iv) An all-male environment in a unit would require “moderated behavior‟ in the presence of women officers;
(v) The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and
(vi) The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”. (Pages: 39-40)
In highlighting these sex-stereotype attitude submission of the largest democratic government, i.e., India (MoD), on record, Justice Chandrachud has heavily pointed out the need for those behaviours to change and the gender assumptions that women are weak, less efficient, only child-bearers, etc.
The court observed that the submissions of the GoI were just based on the gender assumptions rather than scientific data and rationality. The apex court has pointed out the data of the women officers who placed it in record stating that the women officers were indeed placed in conflict zones with the male counterparts. To this, the court in its order has observed that, “The women respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas.”
The future 50th Chief Justice of India (CJI), Dr D. Y. Chandrachud couldn’t digest the submissions of the MoD, GoI and their rationality in entirely blocking or a blanket restriction on women appointments in the Army.
In paragraph 52 of the apex court order, it has observed that the Fundamental Right to Equality guaranteed under the Constitution of India in different Articles was taken away by the Union Government policy decisions. Understanding the consequences of the policy decisions of the Union Government, the court has observed that,
“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.” (Page: 39)
After going through all the submissions of the MoD, GoI and the women respondents, the court has directed the MoD, Union Government to grant the women officers Permanent Commission (PC) and Combat roles, and therefore to implement the directions within 3 months as stated below,
“70. Necessary steps for compliance with this judgment shall be taken within three months from the date of this judgment.” (Page: 54)
In conclusion, theories of women as weak, fragile, sad, child bearers, calm and less efficient were completely destroyed by this judgment. And in doing so, it reflected the committed Constitutional goals of this country and its courts for making a reality that women of this country now can be a combat officer and a PC, or anything that is guaranteed under the present Constitution of India.