2020 (2) TMI 1681 - SC - Indian Laws

Equality of opportunity for women seeking Permanent Commissions ( PC) in the Indian Army - HELD THAT - The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognised in the specified streams where women are permitted to seek engagement as equal members of the Armed force that the Indian Army represents - The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. Stereotypes and women in the Armed Forces - HELD THAT - Courts are indeed conscious of the limitations which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the Armed forces. For this reason, it is noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals. At the same time, we have adverted in some detail to the line of submissions urged before this Court. These submissions detract from the significant role which has been played by women SSC commissioned officers since their induction in 1992. The time has come for a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be tolerated within narrow confines - The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women. Consequence of non-compliance - HELD THAT - There is fundamental fallacy in the distinction which has been sought to be drawn between women officers with less than fourteen years of service with those with service between fourteen and twenty years and above twenty years. The judgment of the Delhi High Court was rendered on 12 March 2010. Nearly a decade has elapsed since the date of the decision. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals. However, it failed to do so despite the categoric assertion by this Court in its order dated 2 September 2011 that what was stayed as an interim measure is the action for contempt and not the operation of the judgment. Having failed to enforce the judgment, the Union Government has now informed the Court that it would not consider women officers who have crossed the age of fourteen years in service as SSC officers for the grant of PCs. The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. It is necessary for this Court to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSCs officers after the date of the decision. The Union Government has not applied it in such a manner, which is evident from the fact that the decision contemplates that women officers already in service but with less than fourteen years would be entitled to be considered. We therefore clarify that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them. The failure of the government to implement the judgment of the Delhi High Court has caused irreparable prejudice to the women officers. Over the chequered history of the litigation of the past decade, they have lost the benefit of promotions and the assumption of higher responsibilities as members of the Armed Force. To turn around now and inform them that they will lose the entitlement of being considered for the grant of PCs would be a travesty of justice. We are accordingly of the view that SSC women officers, both within the period of fourteen years‟ service and beyond, should equally be entitled to consideration for the grant of PCs. The courts are conscious of the limitations which questions of policy impose on judicial intervention in matters relating to the Armed Forces. At the same time, faced with a salient decision of the Union Government to extend to all women SSC officers the option for the grant of PCs as well as the situation which has come to pass due to the non-implementation of the binding directions of the Delhi High Court as well as this Court, nonintervention in the present matter would be nothing short of a travesty of justice. The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following (a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; (b) The option shall be granted to all women presently in service as SSC officers; (c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC; (e) The expression in various staff appointments only in para 5 and on staff appointments only in para 6 shall not be enforced; (f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and (g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts. (ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and (iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings. Appeal disposed off.

Summary

Issues Involved:
1. Equality of opportunity for women seeking Permanent Commissions (PC) in the Indian Army.
2. Legal and policy framework regarding the grant of PCs to women officers.
3. Consequences of non-compliance with judicial directions.
4. Stereotypes and gender discrimination in the Armed Forces.
5. Blanket restriction on criteria appointments for women officers.
6. Directions for implementation.

Issue-wise Detailed Analysis:

A. Background of the Dispute:
1. The appeals originate from Writ Petitions filed in the Delhi High Court in 2003 and 2006, seeking equality for women SSC officers in the Indian Army to obtain PCs.
2. Women officers engaged on Short Service Commissions (SSCs) sought parity with male counterparts in obtaining PCs. The entry of women in the Army has a chequered history, with Section 12 of the Army Act 1950 initially restricting their enrolment.
3. Notifications issued from 1992 onwards progressively allowed women to be appointed as officers in specific branches and later extended their tenure.

B. Proposal of the Union of India:
22. The Union Government issued a communication on 25 February 2019 for the grant of PCs to SSC women officers in eight additional arms/services of the Army, in addition to the existing JAG and AEC.
23. The proposal envisages different terms for women officers based on their years of service, including the grant of PCs, continuation until pensionable service, or immediate release with pensionary benefits.

C. Submissions:
Submissions of the Union Government:
26. The Union Government argued that:
(i) The engagement of SSC women officers was tenure-based, with no provision for PCs.
(ii) The grant of commission is at the discretion of the President of India.
(iii) The policy decision communicated on 25 February 2019 is in national interest and applies prospectively.
(iv) The new policy ensures the skills of SSC women officers are utilized in specialized fields.

Submissions of the Respondents:
37. The respondents argued that:
(i) Women officers form a minuscule four percent of the total strength of commissioned officers in the Army.
(ii) The Union Government failed to comply with the judgment of the Delhi High Court, causing prejudice to women officers.
(iii) The policy letter dated 25 February 2019 contains discriminatory provisions, such as restricting women to staff appointments only.
(iv) Women officers have served in various capacities and achieved commendable distinctions, challenging the stereotypes presented by the Union Government.

D. Consequence of the Policy Letter Dated 25 February 2019:
44. Article 33 of the Constitution empowers Parliament to restrict fundamental rights for members of the Armed Forces to ensure proper discharge of duties and maintenance of discipline.
49. Section 12 of the Army Act 1950 allows the Central Government to specify the corps in which women can be enrolled.
50. The engagement of women officers has evolved, with the policy decision on 25 February 2019 recognizing their right to equality of opportunity.
52. The policy decision of the Union Government enforces the fundamental right of women to seek access to public appointment and equality of opportunity in the Army.

E. Stereotypes and Women in the Armed Forces:
53. The Union Government's submissions were based on stereotypes about gender roles, which discriminate against women.
54. Arguments based on physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers.
56. Women officers have achieved significant distinctions and have served the nation commendably, challenging the stereotypes presented by the Union Government.

F. Consequence of Non-compliance:
58. The Union Government's proposal involves a three-stage assessment for the grant of PCs, distinguishing between women officers based on their years of service.
59. The failure to implement the judgment of the Delhi High Court has caused irreparable prejudice to women officers.
61. The policy decision will apply to all women SSC officers currently in service, irrespective of their length of service.

G. Blanket Restriction on Criteria Appointments:
67. The restriction on women officers being granted PCs only for staff appointments is not justified and does not fulfill the purpose of granting PCs as a means of career advancement.
68. The expression "in various staff appointments only" in the policy letter dated 25 February 2019 shall not be enforced.

H. Directions:
69. The policy decision allowing for the grant of PCs to SSC women officers in all ten streams is accepted with specific directions:
(a) All serving women officers on SSC shall be considered for the grant of PCs.
(b) Women officers with more than fourteen years of service who do not opt for PCs will continue until they attain twenty years of pensionable service.
(c) SSC women officers with over twenty years of service who are not granted PCs shall retire on pension.
70. Necessary steps for compliance with this judgment shall be taken within three months from the date of this judgment.
71. The appeals are disposed of with no order as to costs.