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'Armed Forces Trained To Deal With Emergencies; Women Entry Can't Be Postponed' : Supreme Court Refuses To Vacate Order Permitting Women To Appear For NDA Exam

Shruti Kakkar & Srishti Ojha
22 Sep 2021 6:14 AM GMT
Armed Forces Trained To Deal With Emergencies; Women Entry Cant Be Postponed : Supreme Court Refuses To Vacate Order Permitting Women To Appear For NDA Exam
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Supreme Court Refuses To Vacate Order Permitting Women To Appear For NDA Exam

The Supreme Court on Wednesday refused to vacate the interim order passed by it to allow women candidates to appear for the National Defence Academy(NDA) examinations.The Court turned down a prayer made by the Ministry of Defence to exempt the NDA from the induction of women from the present entrance. The Ministry said that certain infrastructural and curriculum changes are required to allow...

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The Supreme Court on Wednesday refused to vacate the interim order passed by it to allow women candidates to appear for the National Defence Academy(NDA) examinations.

The Court turned down a prayer made by the Ministry of Defence to exempt the NDA from the induction of women from the present entrance. The Ministry said that certain infrastructural and curriculum changes are required to allow the induction of women, and hence it sought time till May 2022 to allow the women to participate in NDA entrance.

However, a bench led by Justice Sanjay Kishan Kaul observed that the admission of women cannot be postponed. The bench took note of the submissions made by Senior Advocate Chinmoy Pradip Sharma on behalf of the petitioner Kush Kalra that two exams are held by the NDA during a year for the admissions to the next year. So, allowing women to take only the 2022 exams will mean that their admissions to the NDA will take place only in 2023.

The bench said that it cannot postpone the absorption of women by one year. The bench observed that the armed forces are well-trained to deal with emergencies, and hence they will be able to come up with a faster solution to facilitate the entry of women soon.

Additional Solicitor General Aishwarya Bhati submitted that a study group has been constituted to examine the changes in curriculum, infrastructure, fitness training, accommodation facilities etc., which are required to be made to facilitate women entry, and the necessary mechanism to facilitate that can be put in place by May 2022. Therefore, she sought for skipping the next NDA entrance examination, scheduled to be held on November 14, from women admission.

"No Ms.Bhati. We appreciate your problems. I'm sure you people are capable of finding solutions. Let us see the results. The planning can go on", Justice Kaul observed.

"The armed forces deal with emergencies. So I don't believe that armed forces response team will not be able to deal with the scenario....not many many have enrolled for the exam this time. So numbers might be smaller. So instead of skipping the exam, try to work out something for them", Justice Kaul suggested.

Don't want to belie the hopes of women, bench says

Justice Kaul said that he has closely read the affidavit filed by the Ministry and has fully understood the difficulties expressed by them. He said that having given hope to the women through the interim order, it does not want to let them down

"I have fully understood your affidavit. We appreciate your endeavor to put before us different areas of concerns. You have referred to fitness test, accommodation, curriculum changes and so on...But what we are finding it difficult to accept is to postpone everything by a year. Having given a hope to women to take exam in November, we don't want to belie that hope"

"We will give you latitude, but don't ask us to vacate the order. Let us see the results. Let us see how many women will get in. We are not disposing the petition", the judge added.

When the ASG said that the interim order will put the forces in a "tight position", Justice Kaul said "armed forces have dealt with far more tighter situations, we are sure you will be able to solution".

On being told that the results will take about two months after the exams, the bench adjourned the next hearing to the third week of January. The bench also told the Ministry of Defence to collaborate with the UPSC by giving them tentative parameters, so that the latter can issue a corrigendum notification to allow women to appear for the November examination in terms with the Court's order. 

Don't want to postpone the transition; looking at the future, says the bench

In the order dictated by the bench today, it termed the stand of the Ministry as "No jam today, jam tomorrow", which was unacceptable.

"...we have given a thought to the matter, and the difficulties expressed by the armed services.  What effectively would mean by the submission of armed forces is "No Jam today Jam tomorrow".

It will be difficult for us to accept that position, the aspirations of women having been arisen in view of the order, albeit subject to the final outcome of the petition.

The armed forces having dealt with very difficult situations admirably, both in the border and in the country, to deal with emergencies is part of their training. We are sure they can deal with this "emergency" if it is so perceived...

We would thus not like to the effectively vacate the order passed, but keep the manner pending", the bench noted in its order.

After this order was dictated, Mohit Paul, Advocate on Record in the matter, submitted that the UPSC is yet to issue the corrigendum notification.  The UPSC's counsel Naresh Kaushik told the bench that the authority is awaiting certain instructions from the Defence Ministry.

The bench directed that the needful be done by the Defence Department in this regard by collaborating with the UPSC.

"This is the transition phase, we don't want to postpone the transition. This exam may not give the best results. But we are looking at the future", Justice Kaul orally said after the order was dictated.

Background

A Division Bench comprising Justice SK Kaul and BR Gavai was hearing a writ petition filed by Kush Kalra seeking directions for necessary steps to be taken to allow eligible female candidates to appear for the National Defence Academy and Naval Academy Examination.

On the last date of hearing, the Central Government had told the Supreme Court that a decision has been taken to allow the induction of women into the armed forces through the National Defence Academy. The Centre had however requested the Court to exempt the current year NDA admissions from women entry, citing the need to make infrastructural changes.

A bench led by Justice Sanjay Kishan Kaul, expressed appreciation with the the submission of ASG Bhati regarding the Centre's decision to induct women to NDA and had allowed her to place future plan before it by 20th September, 2021.

This was followed by the Ministry of Defense filing an affidavit before the Supreme Court informing the Court that women candidates shall be considered for entry in the three defence services, in the existing streams, through the National Defence Academy.

The affidavit filed by Captain Shantanu Sharma, Director (AG), at DMA, Ministry of Defence further added that while the entrance examination for entry into NDA are held twice in a year, the Government proposes to have the necessary mechanism in place by May 2022 i.e, by the time when UPSC is required to publish the first notification of the year 2, for entrance examination for entry to NDA.

The Ministry has informed the Court that deliberate planning and meticulous preparation is being undertaken to ensure smooth induction and seamless training of such women candidates. Accordingly, a few preparatory actions have also been placed for the kind consideration of the Court.

On August 18, the Court had passed an interim order allowing women to appear in the NDA exams on a provisional basis. The order was passed in a writ petition filed by Kush Kalra, who argued that exclusion of women from NDA was arbitrary, discriminatory and unconstitutional.

Details of petition:

A Bench headed by former CJI SA Bobde had in March issued notice in the public interest petition which has raised the issue of violation of Articles 14, 15, 16 and 19 of the Constitution of India by denial of opportunity to eligible and willing female candidates to join the National Defence Academy and afford them a chance to enrol, train and develop themselves in the National Defence Academy into future leaders of the Indian Armed Forces

According to the plea filed by Kush Kalra, the eligible and willing female candidates are being denied the opportunity of entry to the National Defence Academy on the basis of their sex, thereby systematically and categorically excluding eligible female candidates the opportunity to train at the premier joint training institute of the Indian Armed Forces which, at a later point of time, becomes a hurdle in the career advancement opportunities for Female Officers in the Armed Forces.

The plea has stated that the act of the respondents to categorically exclude eligible and willing female candidates from appearing for the National Defence Academy and Naval Academy Examination over the years, solely on the ground of sex, is a violation of the Fundamental Right of Equality before the Law and Equal Protection of the law. The categorical exclusion of eligible female candidates from entering the National Defence Academy is not constitutionally justifiable and is simply done on the basis of their sex. However, the Supreme Court in the matter of Secretary, Ministry of Defence v. Babita Puniya and Ors., clearly observed that the gender roles or the physiological features of a woman have no significance to her equal entitlements under the Constitution of India.

The petition has also stated that the categorical exclusion of women to train at the National Defence Academy and get commissioned into the Armed Forces of the Country as Permanent Commissioned Officers solely on the basis of their sex is a denial of the Fundamental Right to Practice any Profession and it is not justifiable within the contours of the Indian Constitution

Case Title: Kush Kalra v. Union of India and Others

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