Secretary, Ministry Of Defence v/s Babita Puniya on 17 February, 2020 (women discrimination case)

INTRODUCTION

in the case of  Secretary, Ministry Of Defence v/s Babita Puniya,    Supreme court mandates the permanent commission of women official in the army and made them eligible for rank, promotion and pension.

even after the 74 years, the constitution of India was struggling to upliftment of status of women in command authority. But the judiciary made a crucial role to provide an equal opportunity to the women with men by mandating the permanent commission to promote at higher rank. this was  a landmark judgment in the history of Indian democracy to set aside the discrimination against women.

FACTS of  Ministry Of Defence v/s Babita Puniya:-

Babita puniya, an advocate filed a writ petition in the nature of PIL ( public Interest Litigation) to grant women engaged on SSC (short service commission) in the Army seeking parity with their male counterparts to have PC (permanent commission) in 2003

According to section 12 of the Army Act 1950– the Ineligibility of women for enrolment in Army except as the Central Govt. may notify. To that effect, the notification was issued in 1992 making female eligible for appointment as officers in the specific branches/cadre of the Army. SSC were introduced for a period of 10+4 years gradually.

the Ministry of Defence circulated a circular envisaging the grant of PCs to SSC women in the posts of JAG and AEC departments in 2008.

Minister of Defense issued a circular granting Permanent commissions to Short Service Commissions, women officers in eight arms or services of the Army, in addition to the JAG and AEC, had been opened up earlier for PC On 15^th February 2019. But circular also stated that the granting of PC, women officers will be employed “in various staff appointments only”.

https://indiankanoon.org/doc/117198144/

ISSUES of Ministry Of Defence v/s Babita Puniya-:

• Whether women appointed under Short Service Commissions can have equal opportunity in PCs like men counterparts?
• Whether 15^th February 2019 circular circulated by the MoD is arbitrary in nature or not?

ARGUMENTS in Ministry Of Defence v/s Babita Puniya  case

*PETITIONER ARGUMENT

Contentions of Union of India:-

• The UOI (UNION OF INDIA) contended that U/S-12 of the Army ACT 1950 gives power to President to grant commission. Therefore no mandamus can be issued from the court.
• Article 33 of the Constitution of India empowers Parliament to determine by law the extent to which the rights conferred by Part-III of the Constitution of India shall be restricted/abrogated in their application to the staffs/members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Therefore the provisions of the Army Act are protected U/Article-33 of the constitution of India.
• The Union Government has contended that the Army faces a huge management challenge “to manage Women Officers in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station”.

The Army has to rely upon the spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.

• It was contended by the UoI that the Scope of Judicial Review in the relation of Army and its process was limited by this Court in Union of India v. P K Chaudhary.
• It was contended that there is no discrimination between males and females in the process of recruiment in SSC.
• It was argued that the areas in border side are lack of very basic and minimal facilities and thus the deployment of women officers in such areas is not advisable because of habitat and hygiene.

*RESPONDENTS ARGUMENT

• It is contented by the Respondents that the Army consider Women Officers as effective as male officer counterpart until they complete 10+4 years in service.
• It was contended that women officers of all the ages are still being posted to places which are dangerous  and crucial, and where there is no sanitation like field areas, force headquarters, sensitive area, and warfare zone.
• It was contended that women officers undergo the same training as Short service commissions male officers. However, only male officers are entitled to Permanent Commissions.
• It was argued that besides the discriminatory nature of the policy by the Union Government with respect to the grant of PCs to SSC women officers, it also lowers their status to that of a JAWAN.
• It was contended that Article 33 the Constitution of India enable Parliament to limit or abrogate the fundamental rights for the proper discharge of duties and maintenance of disciple and not for discriminatory practices.

JUDGEMENT in Ministry Of Defence v/s Babita Puniya

Justice D. Chandrachud writing for himself and Justice Ajay Rastogi held that

1. All women officers on SSC shall be considered for the grant of PCs.
2. The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 which is in the circular shall not be enforced.
3. Short Service Commissions women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits in parity with male counterparts.
4. The policy decision which has been taken by the Union Government on Feb 25th, 2019 indicates that it is to apply prospectively. It is mandatory for the 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 Short Service Commissions officers after the date of the decision but also women who are currently appointed under SSC.
5. focusing the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations that rest solely on women.
6. Blanket ban restrictions on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14 of the Constitution of India. Where the State, and instance case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reasonability.
7. Upholding the Judgement of Delhi High Court, court-ordered to take mandatory steps for compliance with this judgment shall be taken within three months from the date.

Conclusion in Ministry Of Defence v/s Babita Puniya

Expressing anguish at the Indian Army’s failure to implement the judgment allowing PC for women officers, the Supreme Court said –

it is not sufficient to proudly state that women officers are allowed to serve the nation in the Armed Forces when the true picture of their service conditions tells a different story”.

Article 39 of the Constitution of India directs the state to work towards securing for men and women equally the right to an adequate means of livelihood. The Babita Puniya judgment, though acknowledged for its transformative qualities in ringing constitutional feminism, however, remains silent on the question of whether women can serve in combat units.

This question was particularly excluded from the purview of the judgment, as it was not a subject matter of the appeal before the Court. This is also an issue arising from the stereotypical idea that women are not efficient enough to fight and are incapable of enduring physically arduous situations.

read full case  judgement here – https://main.sci.gov.in/supremecourt/2010/20695/20695_2010_8_1501_20635_Judgement_17-Feb-2020.pdf