By: Vasundhara Mehta
The Supreme Court (hereinafter SC), in Secretary, Ministry of Defense vs. Babita Puniya and Ors. has unequivocally highlighted its quest to bid adieu to entrenched gender inequalities, especially the forms which stem from stereotypical notions. Seen as a feminist victory, the judgment reaffirmed the commitment of the Apex Court toward safeguarding women’s constitutional rights and laid the foundation for recognition of indirect discrimination (Lt. Colonel Nitisha vs. Union of India).
In 1992, in furtherance of the power vested in it under section 12 of the Army Act, the Central Government declared the appointment of women as officers in certain specific cadres, including the Short Service Commission (hereinafter ‘SSC’) for 5 years. In 2003, Babita Puniya filed a Public Interest Litigation demanding Permanent Commission (hereinafter ‘PC’) for women serving in the SSC. Subsequently, the tenure of serving in the SSC was extended to 14 years. In 2008, the Ministry of Defense (hereinafter ‘MoD’) granted PC to women serving in the SSC prospectively, only for the positions of Judge Advocate Generals and Army Education Corps.
The Delhi High Court, in 2010, ruled that the prospective nature of the decision was incorrect and that women SSC officers must be granted PC after 5 years. The Indian Army moved the SC challenging this order in 2011 but the Apex Court upheld it.
In 2019, another circular permitted PC for women serving in the SSC in eight additional arenas prospectively. However, upon the grant of PC, the scope of employment of women officers would be limited to ‘staff appointments’ only. This raised a pressing issue – one which was addressed by the SC in the instant matter – whether women officers could be granted PC and command appointments.
ARGUMENTS ADVANNCED AND THE COURT’S VERDICT
The MoD argued that certain physiological limitations stop women short of being suitable for the army and that prolonged absence of women from service could be attributed to childbirth and other familial responsibilities (para 36). Further, the conditions of employment in the army would negatively affect not only the career of the woman’s spouse but also the educational prospects of her children (para 35). While referring to the case of Union of India vs. PK Chaudhary (para 28), the MoD stated that taking decisions on policy matters is not the judiciary’s prerogative. The MoD contended that the repercussions of women being taken Prisoner of War (hereinafter ‘PoW’) could shock the national conscience. Further, while referring to ‘unit cohesion’, it was stated that taking orders from an individual with ‘inferior’ physiological capabilities will be a challenge for male soldiers, thereby affecting the chain of command. The MoD proposed that women who had served up to 14 years could be granted PC appointments and women who had served more than 14 years would be eligible to receive an extension of tenure up to 20 years, providing them with an opportunity to be released with a pension.
Respondents submitted that women had served in hostile locations. There was no data on record to indicate that owed to any physiological limitations, there had been a hindrance in the manner in which duty was performed by women. It was argued that the MoD was guided by stereotypical opinions. The prevalence of gender bias was mentioned as a reason which blocked the optimal development of women’s careers.
The Court observed that the arguments advanced by the MoD reflected stereotypical assumptions and the Government’s proposal to grant PC only for staff appointments were taken to be violative of Article 14, 15 and 16(1) of the Constitution. Acknowledging that Article 33 of the Constitution provides for certain restrictions on the implementation of fundamental rights in the armed forces, the SC ruled that these limitations are applicable only when they are necessary for upholding discipline and duty (para 44 – 48). Thus, the order of the Delhi High Court was upheld. All women officers serving in the SSC are now eligible for PC and command appointments, not withstanding the number of years they have served. Women shall be given the right to choose from all areas of specialization, on an equal footing with their male counterparts.
Following the judgment, the enforceability of expressions like “staff appointments only” has been nullified. Women officers who are eligible or have been granted PC are entitled to all consequential benefits.
ANALYZING THE GENDERED UNDERPINNINGS
A glance through the gender-sensitive lens uncovers a patriarchal and gendered division of labor in society, which systematically subordinates women. Women are often perceived as ‘homemakers’ while men are the ‘breadwinners’. This is akin to the separate sphere ideology, per which the private domain was ascribed to women and the public sphere belonged exclusively to men. The implications of this theory are so interwoven into the fabric of the society that traits which are rewarded by the military are intricately associated with traditional masculinist notions.
Though the arguments put forth by the MoD were rejected by the SC, it is interesting to note that they undeniably stem from a notion of militarized masculinity. Feminist scholar Sandra Whitworth points out that undertaking training in the military focuses on the creation of a ‘brotherhood’; and for the initiation of this brotherhood, there is often an emphasis on masculine and heteronormative practices. In other words, as Catherine Lutz puts it, a universal idea of heterosexual male supremacy is glorified in the military as an institution. RW Connell labels the phenomena of this stereotypical image as ‘hegemonic masculinity’, a type of ‘culturally dominant masculinity’ that is a socially constructed idea. Even though it does not resemble the actual personality of most men, it “sustains patriarchal authority and legitimizes a patriarchal political and social order.”
Joshua Goldstein in his book, ‘War and Gender’ highlights the concept of a ‘heroic image of achieved manhood’. Men are thus the ‘protectors’ but when women take to arms, they are called fighters for ‘peace’, and their role is seen as ancillary to that of men. For instance, entry into the US-led war in Afghanistan was justified as a gallant intrusion on behalf of presumably helpless Afghani women. The Taliban retort was also molded by the gendered justification of protecting ‘their’ women from external influence. This ‘myth of protection’ tends to justify war by overlooking the problems inflicted on women and children.
I think that the SC, in Babita Puniya, has refuted token efforts and consolation prizes that were offered by the MoD in the name of gender equity. The SC had previously, in the case of Joseph Shine vs. Union of India struck down a position of law which perpetuated gender stereotypes and discriminated against married women. To deny women positions they desire and deserve under the garb of safeguarding their prospective spouses and children constitutes ‘protective discrimination’, a concept reinstated in Treasa Josfine vs. State of Kerala and Anuj Garg vs. Hotel Association, wherein gender-based stratification was held to be unreasonable, regardless of the potential threats that women face. Thus, the intent may be to protect women, but the results are discriminatory.
Another argument advanced by the MoD pertained to the safety and security of women. Relating women to ‘national pride’ if they are taken as PoW stems from a belief that men must defend ‘their’ women. Deeply rooted in stereotypical notions, ‘paternal romanticism’ has been recognized by the American courts to place women “not on a pedestal, but in a cage…” (Frontiero vs. Richardson). This case was relied upon by the Apex Court in the Anuj Garg case, through which the ‘anti-stereotyping’ principle was bolstered.
On the question of safety, who is to guarantee that women are safe within their own homes? The risk of violence to women often stems from within their own houses with brutal instances of domestic violence and marital rape. Further, the assumption that every woman shall wish to have a child perpetuates societal expectations. The SC acknowledged the pervasive nature of bias emanating from biological determinism in Babita Puniya (para. 54). Notably, the impact of negative stereotyping is extremely harmful as it acts as an impediment in the way of women holding positions of power, as has also been recognized by the Beijing Declaration and Platform for Action, 1995.
Equality of the genders does not mean they are the same, physiologically or otherwise. It means that the differences should not be a ground for denying any gender equal opportunity. Babita Puniya is a laudable judgment, which has reinstated gender equity in a male-dominated establishment, and ultimately led to the landmark victory of women in Lt. Colonel Nitisha vs. Union of India.
There are some who opinion that such measures constitute a superficial involvement of women in the military. Noura Erakat, for example, opines that the exclusion of women from this sphere has traditionally made them perceive the army as desirable. She calls for a ‘critical engagement with the institution of armed forces’. Yet, I believe that providing an equal opportunity to women assures constitutional protection and privilege. This, in my opinion, can never be superficial. Women who are desirous of attaining command positions are cognizant of the ramifications. They do not need policy decisions taken by men, stating what is ideal for them. With respect to the ‘practical aspects’ and concerns that are often raised for national security, let women like Lt. Colonel Mitali Madhumita and Squadron leader Minty Agarwal not be forgotten. Notably, the Apex Court, in Babita Puniya, has recognized the glorious achievements of women officers (para. 56).
(Vasundhara is a law undergraduate from Symbiosis Law School, Pune[2018-2023]. The author may be contacted via mail at [email protected])
Cite as: Vasundhara Mehta, ‘The Case for ‘She’ Roes in the Army: Unscrambling the Gendered Underpinnings Through Babita Puniya’ (The RMLNLU Law Review Blog01 October 2022)