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Case Summaries

THE SECRETARY, MINISTRY OF DEFENCE v. BABITA PUNIYA & Ors (2020 SCC ONLINE 200)

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This Case Summary is written by Ritika Srivastava, a student at The ICFAI University, Dehradun

SYNOPSIS

The Constitution of India enumerates various provisions for women for their upliftment and to bring gender equality in the society. But it is still a question whether women are treated equally on par with men after 74 years of Independence. The answer is NO. India being one the largest democracy but Gender stereotypes always creates obstacles in the path of women. There is several of gender discrimination from which women are fighting since birth till the date of their death, they are bound in such stereotype but one of the battles ended in the favour of them in the Supreme Court’s landmark judgment namely “The Secretary, Ministry of Defence v. Babita Puniya & Ors. The honourable court ordered to grant Permanent Commission (PC) in 10 non-combat services at three month and further stated that women are now eligible to hold command posts by tire the existing ceiling. This judgment gives women an equal opportunity in the Indian Army by providing them a long-term job security.

BACKGROUND

Section 12 of the Army Act, 1950 defined the Ineligibility of females for enrolment or employment. It says that “No female shall be eligible for enrolment or employment in the regular Army, except in such cops, department, branches or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf:

Provided that nothing contained in this section shall affect the provision of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army or any branch thereof in which females are eligible for enrolment or employment”.

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On 30th January 1992, a notice issued by the Union government in favour of female candidates that they are granted Short Service Commissions (SSC) for five year for the department such as Army Postal Service, Judge Advocate General’s Department, Army Education Corps, Army Ordinance Corps and Service Corps. And after few months in a same year on 31st December, five more department such as Mechanical, Signal and Electrical engineering, Engineers, Regiment of Artillery and Intelligence Corps.

FACTS OF THE CASE

In the year 2003, Babita Puniya, an advocate filed a writ petition in the nature of PIL before the Delhi High Court for granting Permanent Commission (PC) to military women who recruited as Short Service Commission (SSC) officers. And apart from this petition, many other petitions were filed by the women officers for the same and tagged their petition with Babita’s petition.

In the year 2005, the Minister of Defence declared that validity of the appointment scheme of the Indian Army regarding women officers being extended.

On 20th July 2006, a further notification issued which allows the SSC women officers to serve for maximum 14 years. In a same year on 16th October, Major Leena Gaurav again filed a writ petition challenging the terms and conditions issued by the Minister of Defence on 20th July for seeking to grant Permanent Commission (PC) for Women officers. In the next year (2007) Lt. Colonel Seema Singh also filed petition for the same issue of granting PC.

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In the year 2008, the Union Government granted PC to SSC officers in some of the departments such as in JAG and Army Education Corps. Later, Major Sandhya Yadav and others challenged this notification that PC was granted to those who appointed after the date of implementation of this notification and only in two departments.

Delhi High Court flooded with the petition seeking to grant PC to the women officers. In 12th March 2010, Delhi High Court heard all the petition and held that PC should be granted to the women who were already recruited as SSC in all departments after five years of service. In July the Army appeared before the Supreme Court challenging this judgment but Supreme Court upheld the judgment of Delhi High Court.

On 2nd September 2011, again appeal was made in Supreme Court which held the given judgment to be continued. In 2018, the court was asked to review the order of granting PC to women in the Army.

At last on 15th February 2019, the Union Government issued a notification for PC to SSC women in the Army of eight combat support services and women officers were only serve on staff appointments. 

ISSUES RAISED

  • Whether the order issue by the Centre on 15th February 2019 should be implemented?
  • Whether women in the Indian Army should be granted Permanent Commission (PC)?
  • What are the terms and conditions determine the Women officers in the Indian Army?
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CONTENTIONS

The argument advanced by the Petitioner

  1. It was argued that the judgment delivered by the Delhi High Court was unable to consider the relevant provisions under section 10 and section 12 of the Army Act, 1950.
  2. It was argued that the centre has to consider the risk involved in the services of the Army officers especially to the women (child care issues, maternity issues and revolt areas or in any field). As stated in case Union of India v. PK Chaudhary.
  3. It was argued that the border areas have less facilities and posting of women in such areas is not sensible because of hygiene.
  4. It was argued in the Written Note by the Union of India by referring once again domestic obligations, motherhood, pregnancy and differences in the physical abilities as compare to all-male units.
  5. It was argued about the considerable benefits of pension to the women in the army who served continued even after fourteen year notice issued on 15th February 2019.

The argument advanced by the Respondent

  1. It was argued that there is nothing new about the concern regarding to privacy, women of all ages are still recruited on such post where risk factors is high, no sanitation in force headquarters, field areas, warfare areas and so on.
  2. It was argued that the Centre promotes the discriminatory policy regarding granting of PC to SSC women officers and also lower their position to that of a jawan.
  3. It was argued that the Centre claimed the presence of women establish a negative effect on the unit cohesion. Women should provided equal opportunity as men, added.
  4. It was argued that women served the nation same as the male counterparts do then why they are left in the lurch without pension and promotion.
  5. It was argued that it about 30% of the women officers is exposed to combative environment and aware about risk factor present in war zone.
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RULES

  • Article 14 of the Indian Constitution (Equality before Law).
  • Article 15 (1) of the Indian Constitution (Principle of non-discrimination on the basis of sex.
  • Article 16 (1) of the Indian Constitution (Equality of opportunity for all the citizen of India in the matters of public employment).
  • Article 33 of the Indian Constitution (Power of the Parliament to modify the right conferred by this Part in their application).
  • Army Act, 1950.

FINDINGS 

On the basis of the facts and arguments advanced by petitioner and respondent, the court held the following:

  1. The option shall be given to all the women officers currently recruited as SSC officers.
  2. All the women officers serving as SSC shall be considered for granting PCs regardless whether any of them crossed fourteen years or twenty years of service.
  3. The considerable benefits shall be granted to the SSC women officers who are in service and even after as pensionable service.
  4. The specialization choice shall be available to all the women officers during they are opting for the grant in PCs alike male counterparts.
  5. The judgment delivered by the Delhi High Court is affirmed.
  6. The term “in various staff appointments only” and “on staff appointment only” mentioned under para 5 and para 6 of the order issued on 15th February 2019 respectively shall not be enforced with respected to PC of women.
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REASONING

The Supreme Court headed by Justice D.Y Chandrachud challenged the issue presented by the Union government and stated that they have ingrained in stereotypical assumptions that domestic works are the responsibilities of women only and added that such order against a specific gender clearly violates their fundamental right guaranteed under Article 14 of the Indian Constitution. And not granting PC to the women officers clearly violated their Fundamental Rights provided under Article 14, 15 and 16. Justice Chandrachud said although Article 33 of the Indian Constitution permits restriction on Fundamental Right in armed forces and it is mentioned that it could be restricted up to the extent that it is essential to maintain the adequate discharge of duty and discipline. There are certain conditions laid down granting PCs to SSC women officers. Justice Chandrachud also said that “Constitution is itself feminist, as the main function off feminism is to distort social Hierarchies and so is of constitution.”

CRITICAL ANALYSIS

Indian Court has always come forth to protect the rights of women and this judgment again proven that our court stands up for the right of the women which were not granted to them. It is genuinely a progressive judgment and literally safeguards its place as a guardian of the constitution.

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The fundamental rights guaranteed under Indian Constitution would granted to us if not followed by the quotes in letter and spirit. There were number of cases where the courts have extended fundamental right such as in Chairman Railway Board and others v. Chandrima Das (Mrs) and others and C.B. Muthamma v. Union of India to Anuj Garg v. Hotel Association of India. 

CONCLUSION

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces when the true picture of their service conditions tells a different story”. Supreme Court on Indian’s Army failure to enact the judgment which allows PC for women officers. This judgment undoubtedly appreciatable and commendable but it still left us with a question whether do we the holder of right. There is a need to ask our right from other institutions.

Article 39 of the Indian Constitution empowers the state to work for securing equality for men and women and a right to proper means of livelihood. This whole issue arises from the stereotypical idea against women that they are physically weaker than men, not enough efficient to fight and are not capable to face such situations. This mindset should be needed to change because it violates firstly their rights and also break them mentally and emotionally.

Case Summaries

Secretary, Ministry Of Defence V. Babita Puniya And Ors.

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This Case Summary is written by Apoorva Singh & Ananya Singh, students of Galgotias University

SYNOPSIS

Gender equality has always been a point of discussion. In this case, we talk about gender equality in the armed forces. This case discusses granting permanent commission (hereinafter PC) to female officers who were enrolled via Short Service Commission in the year 1992. The bench of the Supreme Court consisting of Justice DY Chandrachud and Ajay Rastogi gave a rebuff to the contention raised by the army for denying PC to women. They criticized the army’s assumption about the ascribed role of women and labelled them as highly stereotypical. The judgement delivered by the bench is laudable, and have become an illustration of the equal outlook of our judiciary. 

BACKGROUND

The case commences from section 12 of the Army Act, 1950 which restricted the enrolment of women in the army, except in selected branches. This leads to the Union government releasing a notification wherein women were allowed to join certain branches for five years. The period which at the initiation was 5 years, was extended to 10 years and later on to 14 years. 

FACTS OF THE CASE 

On 30th January 1992, the Centre released a notification wherein women candidates were granted Short Service Commission. They were allowed to join selected branches of the army. Women who were appointed through SSC demanded equal status as their male counterparts and thereby seek PCs in the army.

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In 2003, a writ petition was instituted before Delhi High Court by practising advocate, Babita Puniya for enabling PC to women officers. Many women raised the same issue so their petition was later on attached with Babita’s petition.

In 2006, in a policy revision Centre allowed women officers to serve for a period of a maximum 14 years as SSC officers. Later, Major Leena Gaurav and Lt. Col. Seema Singh challenged the court for the issue which came previously in the same year.

In 2008, the Ministry of Defense issued a circular enabling grant of PCs to women, but only prospectively. 

In 2010, Delhi High Court assembled all the petitions and administered the centre to grant PC to SSC women officers. Army moved Supreme Court challenging this order but Supreme Court upheld the order of Delhi HC.

In 2019, Centre brought notification granting PC to women officers of eight combat support services but only prospectively. The permanent commission applied to only those females who were employed after this request. 

ISSUES

  • Whether women should be granted Permanent Commission in the Indian Army?
  • Should the guidelines given by the Government of India dated 15th February 2019 be implemented? 
  • What are the conditions governing the Women Officers in the Indian Army?
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CONTENTIONS

ARGUMENTS BY APPELLANTS

Appellant i.e. the secretary and ministry of defence’s contentions were taken forward by the Union of India.

  • According to the Union of India, the Delhi High court successfully slipped up sections 10 and 12 of the Army Act, 1950. These sections clearly state that the grant of PC is at the hands of the President of India and no women can seek employment apart from in areas government may seem fit. Therefore, no mandamus can be adduced in the court.
  • Under Government Policy dated 15th February 2019, the benefit of pension is to be bestowed to those women officers who have completed fourteen years of service.
  • Strengthened by section 12 of the Army act and Article 33 of the Constitution, query concerning recruitment and grant of PC is termed as policy considerations and are governed by the executives. The scope of judicial review in command and tenure has been limited as held in the Union of India and anr. V. Lt. Col. P.K. Choudhary and Ors.
  • Union of India believes that army work is unfit for women as it carries “inherent risks” but ironically it has opposite thoughts for males.
  • They cited that women already have to deal with pregnancy, motherhood and childcare, they won’t be able to do justice with their job as a soldier.  
  •  The employment of more women officers into PC’s would disturb the organizational structure, as per the contention of the Union of India.
  • The submission note of the Union of India has stated “physiological limitations” on the employability of Women Officers which comes with the challenges of motherhood, confinement and childcare. 
  • The placement of Women Officers in border areas is not preferable because the area lacks elemental hygiene.
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ARGUMENTS BY RESPONDENTS 

  • Despite there being no stay order against the judgment of the Delhi High Court, no steps were taken to grant PCs to lady officials in the army.
  • Bashing on above submissions, respondents furthered that only 4% women are employed in army whereas male holds a total of 96% employment in the army. Will this not count as prejudicial?
  • Union of India stated that the existence of women in the army will destruct unit cohesion. The respondent in return said it would not happen only if the army treats women equally.
  • Women officers have been left high and dry without any kind of pensionary privilege in comparison to their male equivalent.
  • Even though there are vacancies of officers in support services, they are not allotting to women but those are filled by Retired Male officers of colonel rank.
  • Appellant professes that woman officers are posted to those areas where the probability of conflict is almost a zilch while conversely 30% of all women officers are exposed to the warzone.
  • Despite qualifying every mandatory course as their male equivalent, they are not able to seek PCs. This biased nature lowers the status of women to that of a jawan. 
  • The army does not have a rule on which officers seeking PC imperatively allotted troops. If women officers meet qualifying criteria they must be promoted to the next rank just as their male equivalent.

FINDINGS

  • Centre asserted that it is the woman who has the domestic duties on them. This deep-seated stereotype approach of the appellant infringes Art.14 of the women.
  • Court dissented with the appellant on the hygiene and sanitization argument by stating that already 30% of women are exposed to minimal hygiene and warzone area.
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REASONING

  • Justice Chandrachud detected those dominant mindsets who suffer from a deep-seated stereotype about the role of women in society. While criticizing this opinion of the appellant, Justice Chandrachud held that women should not be deprived of opportunities merely because dominant mindsets of the army have a discriminatory approach towards them. 
  • Art.33 permits parliament to restrict fundamental rights of armed forces only to the extent that it ensures the proper discharge of duty and discipline within them. However, the partitioning in giving the PC status to female officers cannot be called a proper discharge of duty. Thus, the army could not take the protection of Article 33.
  • Not granting PC to female officers is their infringement of Art.14, 15 and 16.
  • The Court held that the policy decision of the Union of India dated 25thFeburary 2019 that allows Permanent Commission to women officers in 10 streams is as per sec.12 of the Army Act, 1950.

DISPOSITION/ JUDGMENT

The Supreme Court judgment is subject to certain conditions that are listed below:-

  • All-female officers of SSC are eligible to PC putting aside the fact they have crossed 14 or 20 years of service. 
  • The statements stating “in various staff appointments only” and “on staff appointments only” in both Para 5 and 6 shall not be enforced. 
  • Female officers from now on receive privileges like pension or promotion benefits like their male equivalent.
  • Women who crossed 20 years of service and have not granted PC shall retire on pension terms.
  • Women SSC officers shall have the choice of opting for PC just as their male counterparts.
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CRITICAL ANALYSIS

The union in submissions asserted that Art. 33 of the Indian Constitution empower Parliament to restrict fundamental rights of armed forces but the argument was rejected by Justice Chandrachud. In lieu, he said that Art. 33 are not intended to restrict someone’s fundamental right up to the time proper discharge and discipline is maintained.

While evaluating Union submissions, Justice Chandrachud inferred the judgment by reckoning the interpretation of sex, understood regarding socially constructed gender, in NALSA and Navtej Singh Johar judgments. Herewith, the court stated that traditional gender roles, such as that a woman’s primary responsibility is domestic, can be considered biased under articles 15 and 16. 

The judgment should be applauded as it has resulted in gender equality and simultaneously shattered gender stereotypes and discrimination prevailing in the dominant mindsets of the Union. But will it have any influence outside the purview of the armed forces? Judgments like Triple Talaq and Sabrimala have gained an important battleground as it involves religious personal law. While affairs on public employment like the Puniya case may carry a small weightage but it surely depicts a word that Court will always work against gender stereotypes.

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CONCLUSION

India, i.e. Bharat, cannot only be formed on the shoulders of her ‘Shiva’ but also on the shoulders of her ‘Parwati’ and then only Bharat can be a ‘Shakti’:

The Indian Army holds a prestigious reputation in the eyes of the public. An equal gender ratio will enhance the reputation of the Indian army. Many countries are changing their attitude not just to promote equality, but also because they need the skills that women have. It’s been a long fight, dating back to 1992, but it finally paid off when the Supreme Court granted permanent commission status to women officers in the Indian armed forces and made them eligible for command positions, allowing them to perform all types of military roles – full combat, combat support, and combat command. This verdict will serve as a milestone in curbing the gender ratio in our Armed forces. But has this verdict cured all intricacies women face in society? We are farfetched from the real battle, but we can put our feet up as the difference has initiated. This verdict will surely boost the confidence of women to chase their dreams instead of bothering about the patriarchal society. In the end, the judgment is undoubtedly laudable but we have a long way off.

 

Case Summaries

Hadiya Marriage Case

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Facts:-

The petitioner (father )filed a case on the ground that Hadiya (originally Akhila Ashokan) was deceived into marrying her husband, Mr. Shafin Jahan and forcibly converted to Islam. I.e, He alleged that Hadiya had been misled and forced to become a Muslim.

Question of law:- 

  • Does the High Court have the power to annul the marriage of an adult under Article 226?
  • Does marriage being the most crucial decision of life, can be taken only with the active involvement of her parents, and no legal adult consent is necessary?

Held:- 

  • The writ of habeas corpus is ‘a great constitutional privilege’ or ‘the first security of civil liberty.’ It is a remedy against illegal detention, which affects the liberty and freedom of the detainee. In this case, the High Court misused the habeas corpus. When Hadiya appeared before the High Court, she stated that she was not under illegal confinement. The High Court has no power to decide the ‘just’ way of life or ‘correct’ course of living for Hadiya. 
  • Parens patriae is the power of the State to intervene against an abusive or negligent parent or guardian. The State acts as the parent of such an individual. The courts can invoke this role only in exceptional cases where the individual is either mentally incompetent, underage, or has either no parent/legal guardian or abusive one.
  •  The right to marry a person of one’s choice is integral to Article 21. The High Court was wrong in using its powers under Article 226 to annul Hadiya’s marriage with Shafin Jahan.

Submitted By: Priya Singh

https://lawmentor.in/2022/03/13/hadiya-marriage-case/