By Dilip Bobb
Last week, while ruling in favour of granting Permanent Commission to women officers in the Indian Army, the Supreme Court asked the centre not to release from service Short Service Commission women army officers challenging the denial of Permanent Commission to them asking not to “bring their morale down” in “the prevailing situation”. A bench of Justices Surya Kant and N Kotiswar Singh, which posted a batch of pleas filed by 69 officers for hearing, said they should not be released till the next hearing.
“They are brilliant officers; you can use their services somewhere else. This is not the time that they be asked to roam around in the Supreme Court. They have a better place to be and serve the country,” Justice Kant said.
Additional Solicitor General Aishwarya Bhati, appearing for the centre, said it was an administrative decision based on a policy to keep the armed forces young. She urged the top court not to grant any stay on their release and said the Indian Army needed young officers and every year only 250 personnel were granted Permanent Commission. Senior advocate Menaka Guruswamy, appearing for Colonel Geeta Sharma, referred to the case of Colonel Sofiya Qureshi and said even she had to approach this Court for a similar relief related to Permanent Commission and now has made the country proud.
Guruswamy was referring to another Supreme Court case in 2020 when, while ruling in favour of granting Permanent Commission to women officers in the Indian Army, the Court had acknowledged the achievements of Colonel Qureshi and said in its judgment that absolute exclusion of women from all positions, except staff assignments, in the army was indefensible, and their blanket non-consideration for command appointments without any justification cannot be sustained in law.
In its February 17, 2020 judgment, the top court ruled that women could serve as army commanders, describing the government’s stance that male soldiers were not ready to accept orders from female officers as “disturbing”. The top court, which allowed Permanent Commission to women officers in the army, said an absolute prohibition of women Short Service Commission officers to obtain anything, but staff appointments evidently did not fulfil the purpose of granting Permanent Commission as a means of career advancement in the army. That was when the Court laid out the achievements of Colonel Qureshi as an example of women being as capable as men in command roles.
“Lieutenant Colonel Sofiya Qureshi is the first woman to lead an Indian Army contingent at a multi-national military exercise named, ‘Exercise Force 18’, which is the largest ever foreign military exercise hosted by India. She has served in the United Nations Peacekeeping Operation in Congo in 2006, where she, along with others, was in charge of monitoring ceasefires in those countries and aiding in humanitarian activities. Her job included ensuring peace in the conflict affected areas,” the Supreme Court had said.
In its 2020 judgment, the top court had said that the counter affidavit contained a detailed elaboration of the service rendered by women Short Service Commission officers to the cause of the nation, working shoulder to shoulder with their male counterparts. Dismissing arguments made by the central government against giving women command appointments in the army on grounds of their “physiological limitations and domestic responsibilities”, the Supreme Court ruled that the exclusion of women is illegal.
The 2020 landmark judgment is a victory for gender equality guaranteed by Article 14 of the Constitution. “Implicit in the guarantee of equality is that where the action of the State does not differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner,” noted the judgment delivered by a two-judge bench of Justices DY Chandrachud and Ajay Rastogi. “It is an insult to women as well as the army when aspersions are cast on women, their ability and their achievements in the army,” noted the 54-page judgment.
The observation came while the apex court was hearing an appeal filed by the central government against a 2010 Delhi High Court decision that held that Short Service Commission women officers are entitled to Permanent Commissions at par with men. Appealing against that decision, the central government told the Supreme Court about the possible unwillingness of male troops, drawn from predominantly rural backgrounds, to accept a woman in command of their units. Serving in the armed forces requires sacrifices and commitments “beyond the call of duty”, the centre had argued. Women, it said, might not be able to meet these commitments owing to their responsibilities towards their families. Moreover, the capture of women as prisoners of war would put the women, their organisation and the government under “extreme stress”.
The Supreme Court did not buy into what it called a “baseless” submission. “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,” noted the judgment. In fact, the judges said that 30 percent of women officers are already deployed in conflict areas, belying the centre’s own argument.
It was this “baseless submission” that was, in fact, a turning point in the case, said advocate Aishwarya Bhati who along with Meenakshi Lekhi appeared for the women officers. “The [central government] justification for why women should be kept out of command positions and Permanent Commissions made it clear to us that we needed to fight a mindset. After 28 years of serving in the army, this was an argument that went contrary to the Constitution and to women’s own exemplary role in the army.” Part of the legal strategy included bringing over 50 serving women officers to Court. “It was not easy for a serving officer to come to Court, but it was important for us to show the numbers and the exemplary women officers whose bravery has been awarded by the army itself.” The judgment too calls for a “change in mindset”. “If society holds strong beliefs about gender roles—that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere, it is unlikely that there will be a change in mindset.”
India, with one of the largest armies in the world, has long resisted including women in combat roles, citing concerns over women’s vulnerability if captured and over their physical and mental abilities to cope with frontline deployments. India’s air force and navy offer Permanent Commission to women as well as select combat roles. Most countries employ women in various roles in their armed forces, but only a handful, including Australia, Germany, Israel and the United States, allow them to take on combat roles.
India began recruiting women to non-medical positions in the armed forces in 1992, yet they make up less than four percent of the army’s more than one million personnel, according to the latest data. They were inducted into the army, but only in certain branches and on short commission basis, initially for a tenure of five years. In 2006, their tenure was extended to 14 years. In 2008, women officers became eligible for Permanent Commissions, but only in the army’s legal and education wings. With women being granted Permanent Commissions at par with men, the next gender battle was allowing women in frontline combat roles in the army. Women have been inducted into the fighter stream in the air force since 2015, but combat roles in the army have largely remained off-limits, with some rare exceptions.
A bench of Justices Surya Kant and Ujjal Bhuyan said the issue of promotion required an in-depth consideration of individual cases by the Armed Forces Tribunal. It granted liberty to women officers to approach the Tribunal with their pleas and directed the Tribunal to dispose of their petitions within four months as the issue of promotion of these officers was pending for over a decade.
During the hearing, the counsel appearing for the women officers said in March 17, 2020 that the top court’s verdict stated that the consequential benefits, including promotions would be granted to the aggrieved officers, but it was not given. The Court also said that these adjustments and amendments are not concessions for a category of people, but are remedies to compensate the years of suppression of opportunities which should have been granted to women. Permanent Commission allows officers to serve in the armed forces till they retire. This is different from Short Service Commission which is for a specific period.
The 2020 judgment allowed women Short Service Commission officers to become eligible to get Permanent Commission in the army, which was previously only granted to male officers. The Court criticised the denial of Permanent Commission based on flawed reasons of physiological differences between men and women, which portray women as the weaker sex. The Court held that differentiating women’s abilities based on gender is against the fundamental right of equality and dignity under the Constitution. Due to the judgment, women serving as Short Service Commission officers are eligible for the grant of Permanent Commission.
Women Short Service Commission officers can apply for Permanent Commission after the same period of service as male officers. Women officers on Short Service Commission who don’t want to be considered for Permanent Commission, or who do not get Permanent Commission, can continue in service till their term comes to an end, or till they reach the age of pensionable retirement. At the stage of opting for Permanent Commission, women officers also have all the choices for specialisation on the same terms as male Short Service Commission officers. The consequential benefits, including promotion and financial benefits, are available to Short Service Commission women officers who get Permanent Commission.
The Supreme Court on December 9, 2024, exercised its extraordinary powers under Article 142 of the Constitution to grant Permanent Commission to a woman army officer with a distinguished service record who was wrongly excluded from the consideration when other similarly placed officers were given the benefit. A bench of Justices BR Gavai and KV Viswanathan, while illustrating, observed that thoughts on conditions of service and job perquisites would be last in the minds of valiant Indian soldiers bravely guarding the frontiers at Siachen or in other difficult terrains. “Will it be fair to tell them that they will not be given relief even if they are similarly situated, since the judgment they seek to rely on was passed in the case of certain applicants alone who moved the Court? We think that would be a very unfair scenario,” Justice Viswanathan, who authored the judgment, observed.
The apex court delivered its verdict on an appeal filed by a woman officer, who was posted as Lieutenant Colonel in the Army Dental Corps at Agra, challenging a January 2022 order of the Armed Forces Tribunal Regional Bench, Lucknow. “We direct that the appellant’s case be taken up for grant of Permanent Commission and she be extended the benefit of Permanent Commission with effect from the same date the similarly situated persons who obtained benefits pursuant to the judgment dated January 22, 2014”, the bench directed.
Last week’s judgment reinforces the apex court’s pro-active position and if any doubts of women’s role in combat still persist, they only have to look at the achievements of Squadron Leader Shivangi Singh, India’s only female Rafale pilot, who was involved in air strikes during Operation Sindoor.
—The writer is former Senior Managing Editor, India Legal magazine