A Supreme Court Bench comprising of Justices DY Chandrachud and Ajay Rastogi has concluded the hearing regarding the plea of women officers of the Indian Navy to serve as Permanent Commission Officers.
Senior Advocate Aishwarya Bhati, representing Commander Seema Chaudhary in the JAG Branch, initiated the arguments by submitting that this plea was not merely a welfare measure being sought by women, but was about the holistic approach that was required for Nation Building Roles.
"Indian Armed Forces are amongst the most respected Armed Forces in the world and women officers should be allowed a fair chance to serve as proud officers, in service to the nation. It is about being fair, just and reasonable and allowing the gender equality in true spirit and purport."
CONTENTIONS OF UNION ROOTED IN GENDER STEREOTYPES
The Written Submissions of Bhati, filed by Advocate Archana Pathak Dave, also deliberate upon the reasons that have been provided by the Union of India to oppose the applicability of Permanent Commission to women officers. The reasons provided by the Union of India are as follows:
"1. Cadre Management and Training issues
2. Impracticability to work out the modalities and policies
3. Disturbance to the paramedical structure of Permanent Commission
4. In case Short Service Commission Officers are inducted in Permanent Commission retrospectively, "they will be performing jobs which were to be performed by a fresh recruit since billets at the higher ranks are limited and will lead to cadre saturation'
5. "Young people are required also on account of hierarchy based requirements because there are certain jobs critical to national security, which are not expected to be performed by senior people".
6. The ratio of Permanent Commission to Short Service Commission, i.e. 60:40 as mandated by Ajay Vikram Singh Committee, would get disturbed."
The Written Submissions contend that the contentions of the Union are discriminatory and contrary to the Constitutional guarantees enshrined under Article 15 & 16 of the Constitution of India. It also displays the inherent stereotypical mindset present which disallows fair practices toward women.
"The flimsy and farcical grounds raised by the Union of India in restricting the policy for grant of Permanent Commission to Women Officers of the Indian Navy prospectively, and denying the same to the serving Women Officers of the Indian Navy, who were serving on the date of the policy in 2008, displays a complete disconnection with the government objectives that are sought to be achieved."
RETROSPECTIVE EFFECT OF POLICY OF 2008
The recent judgement passed by the Apex Court in the case of Secretary, Ministry of Defence v. Babita Puniya & Ors was also referred to, wherein similar submissions were made on behalf of the Union. The judgement rejected the submissions and stated that in case of differentiation, the burden squarely fell on the Army to justify the same. In doing so, the judgement allowed Women Officers of the Indian Army to be considered for grant of Permanent Commission retrospectively.
However, the Union's contention in the Indian Navy's appeal states that transition from Short Service Commission to Permanent Commission is not even available for male officers, and therefore, this is not a case of gender discrimination. This contention has been debunked in the Written Submissions as a form of facially neutral discrimination.
SIMILARITY BETWEEN ISSUES FACED BY WOMEN IN THE INDIAN ARMY AND INDIAN NAVY
The Written Submission present the similarity between the issues faced women officers in the Indian Army and Indian Navy on two counts:
1. Reluctance of the Indian Army as well as the Indian Navy for retrospective application of the policy regarding Permanent Commission, thereby effectively excluding serving women officers.
2. Reasons provided for denial of benefits of the policy of Permanent Commission in both the cases stem from age-old stereotypes and mindset.
GENDER DISCRIMINATION IN PUBLIC POLICY
The Written Submissions also contend that when there exists any classification or discrimination on the basis of gender in State law, it would require an "exceedingly persuasive justification to withstand a Constitutional challenge under the Constitutional guarantees enshrined under the Indian Constitution, where women are entitled to not just fairness on equal footing, but the Constitution even enables affirmative and positive action in favour of women in the background of centuries of discrimination."
The root of gender discrimination in policies of the Armed Forces is in the mindset of people. Despite examples of women performing shoulder-to-shoulder with their male counterparts, even in combat roles, there still exist road blocks in the journey of women officers/soldiers.
To illustrate this point, an article dated February 5, 2019 of the Modern War Institute at West Point by Captain Micah Ables has been cited. It states:
"Women can and do bring different skills and perspectives to the table and often approach problems differently. Some women have proven themselves able to demonstrate leadership and articulate new ideas better than some of their male counterparts. Women like Capt. Shaye Haver or Capt. Kris Griest, the first two female Ranger School graduates; or my female executive officer, my highly competent second-in-command; or Rezagul, the Afghan woman who killed twenty-five Taliban fighters; or any of the Army women's rugby players—any of these would undoubtedly make any infantry unit better, stronger, and more lethal. Are they "average" women? No. But they can meet the standard; why ban them from doing so?"
The Written Submissions also goes on to cite judgments of the Supreme Court of India, as well as those belonging to the Supreme Court of the United States, Supreme Court of Israel as well as the Court of Justice of the European Communities. It concludes by stating,
"In the light of the foregoing submissions and overwhelming statistics, the serving women officers of the Indian Navy, most respectfully beseech this Hon'ble Court, to grant Permanent Commission to the Women Officers who have been serving since prior to 2008, without any discrimination and fetters, on the basis of their demonstrated service record, their suitability as already assessed and affirmed at the time of their considerations for extensions and also during their long standing service and experience."
The arguments for availability of Permanent Commission to Women Officers of the Indian Air Force will continue on March 4th, 2020.
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