Case Commentary

The Secretary, Ministry of Defense vs Babita Puniya and Ors.

In Supreme Court of India

CITATION Civil appeal no. s 9367- 9369 of 2011 With

Civil appeal no. 1127-1128 of 2013 And with
Civil appeal no. 1210 of 2020

APPELLANT The secretary, Ministry of defense

RESPONDENT Babita Puniya and Ors.

BENCH/ JUDGE Justice D.Y. Chandrachud and Justice Ajay

Rastogi

STATUES/ Army act, 1950 Constitution of India Articles

CONSTITUTION
INVOLVED

IMPORTANT Article 14, article 15(1), article 16(1), article

SECTIONS / 21, article 33, article 39, section 10 of 1950
ARTICLES army act, section 12 of 1950 army act.

DATE OF THE CASE 17 February 2020

Introduction

Gender equality in India has always been a fraught and thorny topic. Female
and third gender have faced several scuffles due to ingrained prejudice of the
society about a specific gender. This prejudice creates a barrier between the
genders in the professional workplace and it also leads to gender disparity at
work. One of such biases was ended by the supreme court in the case The
Secretary, Ministry of Defense vs Babita Puniya and Ors where the apex
ordered to grant permanent commission to women in the Indian military.

The armed forces of every country have always been reluctant in inducting
women due to their physical abilities and strength. Women are discriminated
against for non-combat roles of the armed forces too. The most important cause
of this is the perception of women in the minds of the society. The men are
considered strong and the ones who are supposed to be fighting wars in the front
lines but there are a lot more jobs other than front line combat in which
permanent commission can also be granted to women. This article focuses on
the landmark judgement which managed to debunk several myths regarding the
physical and mental capabilities of women but also played a huge part in
safeguarding the constitutional rights which are the heart of our Constitution.

Facts of the case

Before drilling into facts, let us look at the provisions related to this matter.
According to Section 12 of the Indian Army Act 1950, recruitment of women
was prohibited into the army except and to the extent that the central
government allows. Women were only allowed to lay their service in medical,
dental, military nursing service. Further in 1992, government of India issued a
notification which allowed women to get recruited in Short Service
Commission, Intelligence Corps, Corps of Signals, Regiment of Artillery, Army
Service Corps, Education Corps, Judge Advocate General etc. but, here also,
women didn’t get permanent commission. After 11 years i.e. 2003, Babita
Punia who was a practicing advocate in Supreme Court filed a writ petition in
form of PIL seeking permanent commission for women in armed forces like
their male counterparts. Many other women officers (both air and army
officers) separately filed a petition for the same. Their petitions were tagged
with Babita’s petition.

In December 2005, the Defense Ministry again issued a notification which

extended the validity of the previous appointment scheme for the women in the
armed forces. Further, again, in 2006 a notification was issued which allowed
the SSC women officers to serve for the maximum of 14 years and Major Leena
Gaurav also filed a writ petition, on 16 th October 2006, challenging the
conditions led down in the previous notification. In 2007 Lt Col Seema Singh
for the same issue moved to the court.

Then in 2008, the ministry decided to grant permanent commission to women

in some service such as the Army Education Corps, Judge Advocate General,
etc. in the arm and navy. In between 2006 and 2008, many petitions were filed
on this same issue and finally, in 2010 Delhi HC clubbed all the petitions and
directed the center to provide permanent commission to women to SSC women
officers. Centre challenged the order of Delhi HC in the apex court, but SC
upheld the judgement of Delhi HC. Finally, in 2018, the Central Government
told the Supreme Court that it is considering granting permanent commission to
women recruited through SSC in the army.

On February 15 th, 2019, notification was issued by the Ministry of Defense

granting Permanent Commission to SSC female officers in 8-arms or services in
the Army. But it was also mentioned that on the grant of PC, female officers
will be employed ‘in various staff appointments only’.

Issues Before the Court

1 . Whether women should be granted Permanent Commission in the

Armed Forces?
2 . Whether the guidelines issued by the government of India dated 15 th
February 2019 should be considered for implementation?
 3 . What are the conditions governing the Women Officers in The Armed
Forces?

Arguments

The arguments presented before the court can be divided into parts- Respondent
and Applicant.

Applicant -

1 . The major argument from the applicant side was that under the
provision Section 10 and 12 of the Army Act, 1950 which restrict enrolment
of women in the armed forces and also the Article 33 of The Constitution of
India which abolish or limit the fundamental rights of the members of the
armed forces.
2 . The next argument was that women are not capable of handling adverse
situations because the Armed Forces serve in difficult climates and terrains
such as border areas of Rajasthan, Sichachin and many more. So, it is
difficult for them to survive in this kind of atmosphere.
3 . Then, the border area postings take place in the remote areas where
there is lack of basic hygiene and sanitary conditions which is vital for the
convenience for the women.
4 . It was also argued that management of the officers will become very
difficult because then, a lot of factors will come into play like spouse
posting, maternity leaves, child care leaves. It will also affect the structure
of the armed forces.
5 . Then, it is also mentioned in the notification dated 15th February, 2019
that a woman, appointed by SSC, who has served for 14 years in the armed
forces will get pension for the rest of their life.
Respondent -

1 . The women officers majorly argued that the order of the Delhi High
Court was not implemented by the Army as no steps were taken for the
same.
2 . It was argued that border area postings are not new for the women
because already 33% of the women are working in those areas and it is not
difficult for them to survive.
3 . With respect to the application of Article 33 of the Constitution of India,
the same is only applied where there is a requirement of maintenance of
discipline and proper discharge of the duties of the officers and so it should
not be used for any other purpose
4 . The next argument was based on gender discrimination prevailing in
armed forces where women and men do not undergo the same selection
process for the permanent commission.
5 . It was argued that why women officers should be left in the lurch
without incentives like pension or promotion when they are equally
providing their service to the nation as their male counterparts do.

Judgement
The Supreme Court bench led by Justice D.Y Chandrachud gave the judgement
in the favor of the women officers and it was held that all the women officers
commissioned through the short service commission should be considered for
the grant of permanent commission. They should be given equal opportunities
and benefits the same as their male counterparts. Moreover, it is also a clear
violation of Article 14 of the Constitution i.e. Right to Equality. Also, Article 33
which empowers the Parliament to restrict the fundamental rights of the
members of the Armed Forces cannot be invoked in this case as this Article can
only be applied to ensure discipline and the proper discharge of the duties and
not in any other scenario. This case only throws light on the gender inequality
prevailing in the Armed Forces in general and hence, this Article will not have
an application in this matter. Now, the main points of this judgement are -

1 . All the women officers, selected in Short Service Commission, will be

eligible to permanent commission irrespective of year of service.
2 . All the women officers who are eligible and granted PCs through SSC
should be entitled to all consequential perks including pension, promotion,
and financial incentives.
3 . There are some expressions like in various staff appointments only, and
on staff appointments only in the policy by the Government, these should
not be enforced with respect to the PC of women.
4 . All the choices of specialization shall be available to the women
officers at the time of opting for the grant in PCs, on the same terms as their
male counterparts.

Conclusion
This decision by the Supreme court no doubt is commendable and should be
admired by everyone. It ensures the women’s position in the Armed Forces and
also helps in achieving gender justice in the military also. It also removed the
restrictions imposed on the women officers for holding higher rank posts in the
Armed Forces. After this landmark order, the way to gender equality has
certainly been remarkably heralded which shall ensure that women are no
longer denied permanent commission. This judgement shall always be
remembered as one of the best judgments which heralded gender equality in
defense services also which includes all the services – Army, Navy, and Air
Force.