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2020 (2) TMI 1681
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..... Ajay Singh, Adv., Mr. B. V. Balaram Das, AOR, Mr. Manider Jit Singh, Adv., Mr. Hitesh Kumar Sharma, Adv., Mr. Akhileshwar Jha, Adv., Ms. Beenu Singh, Adv. JUDGMENT Dr Dhananjaya Y Chandrachud, J Index A Background of the dispute B Proposal of the Union of India C Submissions D Consequence of the policy letter dated 25 February 2019 E Stereotypes and women in the Armed Forces F Consequence of non-compliance G Blanket restriction on criteria appointments H Directions A Background of the dispute 1. A quest for equality of opportunity for women seeking Permanent Commissions [PC] in the Indian Army forms the basis of these appeals. The lead appeal originated in a batch of Writ Petitions which were instituted before the High Court of Delhi in 2003 and 2006. 2. A decade and more spent in litigation, women engaged on Short Service Commissions [SSCs] in the Army seek parity with their male counterparts in obtaining PCs. The entry of women in the Army has a chequered history. Section 12 of the Army Act 1950 [1950 Act] contains, in so far as it is material, the following provisions: "12. Ineligibility of females for enrolment or employment.- No female shall....
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.... notified by the notification dated 15 February 1992, 23 January 1993 and 12 December 1996; and (iv) Substantive promotions were to be extended both to men and women SSC officers "as applicable to PC officers". 7. Initially, when the WSES was notified under an Army instruction [SAI NO/1/5/92], it was governed by the Terms of Engagement. [ToE] Para 1 of the ToE stipulated that commission would be for a period of five years in the Army Service Corps, Army Ordinance Corps, Army Education Corps [AEC] and Judge Advocate General Department [JAG]. Para 12 contemplated that on the successful completion of precommission training, "lady cadets‟ would be granted PCs in the rank of second Lieutenant, but they would be placed junior to other candidates passing out from the Indian Military Academy and would be granted regular commission from the same date. Para 19 contemplated that: "19. Disposal on Expiry of Commission: On expiry of contractual period of commission i.e. five years commissioned service from the date of grant of commission, they will be released from the service. The officers granted commission under this Army Instruction will not be granted permanent commission or any....
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.... Writ Petition [WP (C) 1597 of 2003] in the nature of a Public Interest Litigation [PIL] before the Delhi High Court for the grant of PC to women SSC officers in the Army. 13. During the course of the proceedings, two circulars were issued on 20 July 2006, conveying the sanction of the President of India regarding the grant of SSCs both on the technical and non-technical side to women officers. The period of training was stipulated at fourty-nine weeks at par with male SSC officers. The circulars had comprehensive provisions pertaining among other things, tenure, substantive promotions and adjustment of seniority. Serving WSES officers were given an option to move to the new SSC scheme or to continue under the erstwhile WSES. The first batch of women officers under the new scheme entered the Army in 2008. Among the terms and conditions, para 1(a) provided for tenure in the following terms: "(a) Tenure of Short Service Commission: Short Service Commission (SSC) Technical in the Regular Army will be granted for 14 years i.e. for an initial period of ten years extendable by a further of four years." 14. Para 1(c) enabled newly inducted women officers other than those with a specia....
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....s. 17. The Writ Petitions were heard together by the Division Bench of the Delhi High Court. By a judgment dated 12 March 2010, the High Court issued the following directions: "61... i. The claim of absorption in areas of operation not open for recruitment of women officers cannot be sustained being a policy decision. ii. The policy decision not to offer PC to Short Service Commissioned officers across the board for men and women being on parity and as part of manpower management exercises is a policy decision which is not required to be interfered with. iii. The Short Service Commissioned women officers of the Air Force who had opted for PC and were not granted PC but granted extension of SSCs and of the Army are entitled to PC at par with male Short Service Commissioned officers with all consequential benefits. This benefit would be conferred to women officers recruited prior to change of policy as (ii) aforesaid. The Permanent Commission shall be offered to them after completion of five years. They would also be entitled to all consequential benefits such as promotion and other financial benefits. However, the aforesaid benefits are to be made available only to women of....
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....ceedings were initiated by the respondents against the Union of India alleging non-compliance with the judgment of the Delhi High Court. On 2 August 2010, the Solicitor General of India made a statement before this Court that "women SSC officers in service would be considered for grant of Permanent Commission in JAG and Education Branch of the Army within two months..." In view of the statement made before this Court, the contempt proceedings were stayed. By an order dated 4 October 2010, time for compliance with the order dated 2 August 2010 was extended until 1 December 2010. 21. On 11 January 2011, this Court, while issuing notice, acceded to the prayer of the Additional Solicitor General of India for an adjournment of six weeks to enable a "high powered committee‟ constituted by the Union Government to consider the question pertaining to the grant of PCs to SCC women officers and to enable the Chief of Staffs‟ Committee and the MoD to consider the report. During the pendency of the proceedings, applications for impleadment were allowed on 4 March 2011 and the operation of release orders passed by the Union of India on 19 January 2011 was stayed. On 2 September 2011....
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....C women officers will be considered for the grant of PC based on the availability of vacancies and subject to willingness, suitability, performance, medical fitness and competitive merit; (iv) On the grant of PC, women officers will be employed "in various staff appointments only" in accordance with their qualifications, professional experience, specialisation, if any, and organisational requirements; (v) While women officers who are granted PCs will continue to be a part of their parent Army/service, "they would serve on staff appointments only" both within the parent Army/service and in other fields of specialization; (vi) Further career progression in selected ranks will be within the existing authorised strength of officers in the Army and no additional select rank vacancies will be created; (vii) Women officers who fail to exercise the option for PC will be governed by the terms and conditions under which they were commissioned; and (viii) The policy would come into effect prospectively from the date of the issuance of the letter. The communication dated 25 February 2019 is reproduced below: "Policy letter dated 25 February 2019 F. No. 14(01)/2018-D(AG) Governmen....
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....anent commission will be governed by terms and conditions under which they were commissioned. 9. This policy will come into effect prospectively from the date of issue of this letter. 10. Necessary administrative instructions in this regard will be issued by Army HQ. 11. This issues with the concurrence of MoD (Finance) vide their ID No.2(12)/2019(50-PA) dated 22.02.2019. (Poornima Rajendran) Deputy Secretary Tel: 23011593 Copy to: As per standard distribution" 23. During the course of hearing, Mr R Balasubramanian, learned Senior Counsel appearing on behalf of the Union of India has tendered a proposal which envisages that: (i) Women officers of up to fourteen years of service would be considered for the grant of PC with further career progression only in staff appointments in terms of the Union Government‟s communication dated 25 February 2019. Since women officers above four years of service have missed the cut-off stipulated in the communication for exercising their choice to opt for the grant of PC and specialisation, the provisions would be modified for the benefit of such officers; (ii) Women officers with more than fourteen years of service would be pe....
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....ent applies have continued in service beyond the maximum permissible term of fourteen years as SSC officers. 25. Women SSC officers commissioned before 2008 who were parties before the High Court but had been discharged from service secured the benefit of being reinstated in service as a consequence of the judgment of the Delhi High Court. As a result, they have continued after the expiry of the term of fourteen years. The Union of India contends that restrictions on the employability of women in the Army "is inescapable due to the peculiar operational compulsions of the Army". According to the Union Government, measures to eradicate the divide between men and women officers in as many streams as possible are being adopted in an incremental manner. C Submissions Submissions of the Union Government 26. Challenging the judgment of the Delhi High Court, the following submissions have been urged on behalf of Union of India: (a) Grant of PC (i) Prior to the communication dated 25 February 2019, the engagement of SSC women officers was governed by Gazette notifications as amended from time to time. The ToE of WSES officers, later replaced by SSC service was tenure based with a ....
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....ourteen years of service under interim orders. (c) Policy considerations 28. The Union of India has submitted that: (i) Fortified by Section 12 of the 1950 Act and Article 33[1] of the Constitution, questions relating to constitution, recruitment, posts, categories, cadres and criteria for the grant of PCs constitute policy decisions and lie exclusively in the domain of executive functions; (ii) The provisions of the 1950 Act, insofar as they infringe or affect fundamental rights, are protected by Article 33; (iii) The Union Government is entitled to frame a policy regarding the grant of PCs to women officers after accounting for the need for a balanced approach involving military services and national security. The Union Government is entitled to take into account the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care. These considerations are not open to judicial review; and (iv) The scope of judicial review in matters of command/tenure is limited as held by this Court in Union of India v P K Chaudhary [Civil Appeal No 3208 of 2015, decided on....
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.... not a lis in the Writ Petitions before the Delhi High Court. Considering matters of organisational requirement, suitability and performance, women officers granted PC would be recommended only for staff appointments. 33. Finally, it has been urged by the Union of India that it has re-instated all women officers covered by the judgment of the Delhi High Court insofar as it relates to the Army. Those who are not in service either did not join their posts or had sought release despite the grant of an extension in service. Hence, women officers who are out of service or are not covered by the judgment of the High Court cannot seek the benefit of the policy decision dated 25 February 2019. Any extension of the benefit to a woman officer outside the scope of the policy decision would (it is urged) "open floodgates for litigation creating serious administrative issues of cadre management." 34. In emphasising these submissions of behalf of Union of India, Mr R Balasubramanian, learned Senior Counsel has in his written note stressed upon two facets: (i) The need to protect national security and operational effectiveness; and (ii) Non-linear battlefield scenarios in future wars. 35. ....
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....e Union of India has spoken of "physiological limitation" on the employability of women officers "accentuated by the challenges of confinement, motherhood and childcare". Finally, the note portends the dangers of a woman officer being captured by the enemy and becoming a prisoner of war. Submissions of the respondents 37. Assailing the above submissions, and in a serious critique of the submissions adopted by Union of India and the MoD in their perception of women officers, Ms Meenakshi Lekhi, learned Counsel and Ms Aishwarya Bhati, learned Senior Counsel have joined issue. The attention of the Court has been drawn to the total strength of and shortage of officers in the Army on date, as reflected in the following table: DETAILS OF OFFICERS IN INDIAN ARMY Auth Officers Held Officers Shortage 50266 40825 including 1653 Women Officers 9441 Besides, 157 male officers between the age group of fifty-four and fifty-eight years have been re-employed after their retirement. The cadre structure of women officers serving in the Indian Army is indicated in the following table: DETAILS OF WOMEN OFFICERS IN INDIAN ARMY Present Holding Above 20 Yrs Between 14-20 Yrs Fate Undecide....
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.... a uniform and equal promotion policy. 40. In other words, women officers have been left in the lurch without pensionary and promotional benefits at par with their male counterparts despite having dedicated prime years of their lives to the service of the nation. Submissions based on the policy letter dated 25 February 2019 41. Ms Meenakshi Lekhi and Ms Aishwarya Bhati have highlighted, during the course of their submissions, the following aspects of the policy letter dated 25 February 2019 which are discriminatory: (i) In response to para 4: Male SSC officers are required to exercise their option for the grant of PC prior to the completion of ten years of service. SSC women officers are required to exercise their option on the completion of three years of service and prior to the completion of four years of service. With comparatively lesser experience at the stage when they are required to exercise an option, women officers lack adequate experience to take a considered decision and the possibility of being granted PC is comparatively lower; (ii) In response to para 6: Restricting SSC women officers only to staff appointments is to prevent their career growth by restrainin....
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....d are posted to all field/peace postings according to their profiles. There is no separate charter of duties for women officers or SSC commissioned male officers and PC male officers. Women officers commissioned in various corps are assigned duties similar to male officers (SSC or PC) and commissioned into the same corps; (iii) The claim of the appellant that there is a probability of women officers being exposed to a hostile environment where there is a grave danger of their coming in contact with the enemy is discriminatory and without any basis. The women officers have been and are regularly being posted by the Indian Army to all possible field units (combat zones) where male officers from the same corps are also serving. Consequently, the Army follows a policy of non-discrimination when it comes to postings but does not follow the same when it comes to granting PC to its women officers. Thirty percent of all women officers are posted in the field (combat zones); (iv) Based on the response to a question raised in the Lok Sabha, as on 16 August 2010, there is an acute shortage of 11,500 officers in the Indian Army out of which approximately 5,115 officers are deficient in the....
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....le after 15 years Yes Yes Yes Paid for 300 days encashed leave SSC Women Officers No pension No ESM Status No ECHS Facility No provision of reemployment Paid only for 90 days encashed leave SSC Male Officers SSC Gentlemen officers are all together in a different category, as they are allowed to opt for permanent commission after 5/10 years of service and once they get permanent commission, they are authorised for all benefits of permanent commission officers. 43. The rival submissions fall for consideration. D Consequence of the policy letter dated 25 February 2019 44. Article 33 of the Constitution empowers Parliament to determine by law the extent to which the rights conferred by Part III of the Constitution shall be restricted/abrogated in their application inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. The impact of Article 33 is to enable Parliament to limit or abrogate the fundamental rights in their application to the members of the Armed forces. But such a restriction or abrogation must be by law. Moreover, the restriction or abrogation must be enacted to ensure....
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....of fundamental rights to members of the Armed Forces. 46. In Lt. Col. Prithi Pal Singh Bedi v Union of India [(1982) 3 SCC 140], the legality of orders convening a General Court Martial and its composition was questioned. It was contended that trial by a Court Martial would result in the deprivation of personal liberty, which can only be done in consonance with Article 21 of the Constitution. It was contended that any restriction must be by procedure established by law and the law prescribing such procedure must satisfy the test prescribed by Articles 14 and 19 of the Constitution. Justice D A Desai, writing for a three judge Bench of this Court noted the competing interests that must be considered in matters concerning the Armed Forces in the following terms: "14. While investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Article 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the court should be vigilant to hold the balance between two conflicting public interests; namely necessity of discipline in armed personnel....
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....ne among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution-makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the armed force personnel and therefore Article 33 empowered Parliament to restrict or abridge within permissible extent, the rights conferred under Part III of the Constitution insofar as the armed force personnel are concerned." (Emphasis supplied) The Court noted that restrictions imposed upon fundamental rights in exercise of the power conferred by Article 33 must be "absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline". The Court held: "...Parliament was therefore within its power under Article 33 to enact Section 21 laying down to what extent the Central Government may restrict the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed Forces... The guidelin....
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.... stayed by this Court at any stage, though there was a direction that no coercive steps would be initiated on the basis of the judgment in appeal. A direction by this Court not to initiate coercive steps is distinct from a stay on the operation of the judgment. There was no reason or justification for the Union Government not to act upon the directions that were issued by the Delhi High Court, particularly, in the absence of a stay on the operation and enforcement of the judgment. The Union Government continued to thwart implementation despite the order of this Court dated 2 September 2011 clarifying that "the operation of the impugned judgment is not stayed at all." Scant regard has been paid to the Delhi High Court and to this Court as well. Eventually, nearly nine years after the judgment, the Union Government has communicated a policy circular dated 25 February 2019 by which a decision has been taken to grant women officers PC in eight Arms/Services, in addition to the existing streams of JAG and AEC. Thus, as a matter of policy, the Union Government has taken a decision to allow for the grant of PCs in all the ten streams in which women officers were currently being commission....
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....om the submissions which were placed as a part of the record of this Court. Repeatedly, in the course of the submissions, this Court has been informed that: (i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty; (ii) Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force; (iii) A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women; (iv) An all-male environment in a unit would require "moderated behavior‟ in the presence of women officers; (v) The "physiological limitations" of women officers are accentuated by challenges of confinement, motherhood and child care; and (vi) The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with "minimal facility for habitat and hygiene". 54. The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially asc....
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....he nation, working shoulder to shoulder with their male counterparts. Yet, that role is sought to be diluted by the repeated pleas made before this Court that women, by the nature of their biological composition and social milieu have a less important role to play than their male counterparts. Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate. Women officers of the Indian Army have brought laurels to the force. These are documented in the course of proceedings and have not been controverted in the submissions. Some of the distinctions which women officers have achieved are catalogued below: (i) Lieutenant Colonel Sophia Qureshi (Army Signal Corps) is the first woman to lead an Indian Army contingent at a multi-national military exercise named "Exercise Force 18‟ which is the largest ever foreign military exercise hosted by India. She has served in the United Nations Peacekeeping Operation in Congo in 2006 where she, along with others, was in charge of monitoring ceasefires in those countries and aiding in humanitarian activities. Her job included ensuring peace in co....
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....aptain Shipra Majumdar (Army Engineer Corps) were awarded the Sewa Medal by the President of India in 2007; and (xi) Women officers from the Indian Army have been participating in the UN Peace Keeping Force since 2004 and have been deployed in active combat scenarios in Syria, Lebanon, Ethiopia and Israel. Numerous other commendation certificates and laurels achieved by women officers have been placed on record. Their track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army - men and women - who serve as equal citizens in a common mission. 57. 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, we have 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 ur....
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....igh 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. This situation of women officers with service above fourteen years has come to pass plainly as a consequence of the failure of the Union Government to comply not only with the directions of the Delhi High Court but also those which were issued by this Court on 2 September 2011. In this view of the matter, we see no reason or justification to deprive SSC women officers of the grant of PCs on the ground that they have crossed fourteen years of service. 60. 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....
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.... The Union Government contended that the recommendations of the AVS Committee were limited to officers in the Combat and Combat Support Arms only and did not extend to the Services‟ Arms. It was further contended that the "Command Exit Model" for allocation of vacancies was neither discriminatory nor arbitrary, but in accordance with the recommendations of the Committee. A two judge Bench of this Court rejected the claim of the respondents. Mr R Balasubramanian sought to rely on the judgment to contend that courts must refrain from questions concerning the Armed Forces as they constitute matters of policy in which courts cannot interfere. 64. It is necessary to observe the rationale underlying the judgment in P K Choudhary. The Court noted that the AVS Committee did not take into account vacancies for Colonels in the Corps of Services. The Court concluded that the Committee did not recommend a reduction in the age profile of Unit Commanders in Army Signal Corps, Army Ordinance Corps and other Minor Corps. Thus, the argument urged by the respondents that the recommendations of the Committee to create vacancies was for the benefit of officers serving in all streams, was reject....
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....as well as this Court, nonintervention in the present matter would be nothing short of a travesty of justice. G Blanket restriction on criteria appointments 67. The next aspect of the policy decision relates to the restriction which has been imposed on women officers being granted PCs save and except for staff appointments. Such a restriction was not imposed when the JAG and AEC branches were opened up for the grants of PCs for women SSC officers in the past. The consequence of this, is an implicit acceptance by the Army that women can, in certain situations, receive criteria or command appointments. An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. Implicit in the guarantee of equality is that where the action of the State does differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner. In this sense, even at its bare minimum, the right to equality is a right to rationality. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify s....
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....pective 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....