Case Details

  • Full name of the Case: The Secretary, Ministry of Defence V. Babita Puniya & Ors.
  • Court: Supreme Court of India
  • Judges: Justice D.Y. Chandrachud and Justice Ajay Rastogi
  • Citation: Civil Appeal No. 1210 of 2020[1]
  • Date of Decision: February 17th, 2020

Introduction

The judgment in the case of The Secretary, Ministry of Defence V. Babita Puniya & Ors., became landmark due to its curious and notable subject matter. Its decision was given by the Hon. Supreme Court of India. This judgment paved the way to gender equality in armed forces by providing Permanent Commissions to female officers in Indian Army, Indian Air Force and Indian Navy.

Article 33 of Constitution of India

This article empowers the Indian Parliament to restrict or abrogate Fundamental Rights of the members of the armed forces, paramilitary forces, police forces, intelligence agencies and analogous forces. The power to make laws under this article is given only to the Parliament and not to any state legislatures.[2]

Section 12 of the Army Act, 1950

This section mentions ineligibility of females for their enrolment or employment in Army except as Union Government may notify. [3]

Facts

In the year 1992, a notification was issued by Central Government permitting females to be appointed in some cadres of the army such as in Short Service Commission (hereinafter SSC), Regiment of Artillery, Intelligence Corps, Corps of Signals, Army Service Corps, Education Corps, the Judge Advocate General’s Department, and so on. Previously, before this notification, roles of female officers were limited only to medical, dental, and military nursing service. Female officers who were involved in these services sought equality with their counterpart-male-officers in obtaining Permanent Commissions (hereinafter PC).

In the year 2003, Babita Puniya (an advocate), filed a writ petition in the nature of Public Interest Litigation (PIL) at Hon. High Court of Delhi, to seek PC for female officers who were recruited through SSC in the army, at par with their fellow male officers. Various other female officers (both in Indian Air Force and Indian Army) separately filed petitions for the same matter, whose petitions were tagged with the petition of Babita Puniya. 

In 2005, a notification issued by the Ministry of Defence (MoD) to extend the validity for the appointment scheme of the Indian Army for the female officers.

Following in 2006, further notification issued, allowing the SCC female officers to serve for maximum 14 years. On October 16th, 2006, Major Leena Gaurav filed a writ petition primarily challenging the conditions for service of maximum 14 years imposed by the notification issued in the same year and seeking for PC for female officers. Also in 2007 Lt. Col. Seema Singh moved to the court for the same matter of concern. 

In the year 2008, the Centre Government granted PC to SSC female officers in few departments such as in the Army Education Corps, Judge Advocate General, and the corresponding branches in the Indian Air Force and Indian Navy. Various other petitions were filed challenging the notifications issued in the year 2006 and 2008. 

Finally, in 2010, the Hon. High Court of Delhi pronounced to club together all the petitions and directed the Central Government and Ministry of Defence (MoD) to provide PC to SSC female officers of Indian Army and Indian Air Force who had opted for the same and not granted. Indian Army challenged this order in the Hon. Supreme Court of India, where upheld the order given by Hon. High Court of Delhi and asked to implement the orders given by the Hon. Supreme Court as well.

In 2018, the Central Government told the Supreme Court that it is considering granting permanent commission to women recruited through SSC in the army. [4]

On February 15th, 2019, notification was issued by Ministry of Defence (MoD) granting PC 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

  • Whether females should be granted PC in the Indian Army?
  • Whether the notification issued by the Ministry of Defence dated February 15th, 2019 should be implemented?

Analysis

Petitioner's Argument

Following was contended by the plaintiff- the Union of India:

  • That section 10[5] gives powers to the President to grant commission. Hence, no mandamus can be issued.
  • That Army faces management challenge as ‘to manage females in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station’. Also Army has to cater to 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’.[6]
  • That submissions were made referring– to ‘pregnancy, motherhood, and domestic obligations, differences in physical capabilities, the peculiar dynamics of all-male units, and issues of hygiene’. And that border areas lacks basic facilities, therefore deployment of female officers in such areas is not advisable due to harsh habitat and hygiene issues.
  • That the committee constituted by the Central Government to enquire into the issues of cadre in armed forces recommended a permanent cadre of officers, which is supplemented by an enhanced support-cadre. Hence, induction into the PC through SSC will disturb the structure of the Army.
  • That referring to the case of Union of India & Anr. V. Lt. Col. P.K. Choudhary & Ors. [7], it was submitted that scope of Judicial Review was limited by the Hon. Supreme Court.

Respondent's Argument

Following arguments were submitted by the respondents:

  • That the female officers of all age-groups are posted to areas which are dangerous and lack sanitation facilities such as field areas, force headquarters, sensitive area, warfare zone, etc. That the female officers like every other SSC male officer undergo a similar training. However, only male officers are entitled to PC.
  • That the policy of the Central Government of India related to granting Permanent Commissions to SSC female officers is of discriminatory nature, and it also lowers the status of those female officers to that of a jawan.
  • That PC to the female officers not granted as well as no steps was taken regarding the order pronounced by the Hon. High Court of Delhi.

Judgement

The Hon. Supreme Court bench led by Justice D.Y Chandrachud held the following:

  1. That it is a clear violation of Fundamental Rights guaranteed under article 14[8].
  2. He said that although article 33 [9] did allow restrictions on Fundamental Rights in armed forces, it is also mentions that it could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and maintenance of discipline.

That the notification issued on February 15th, 2019, allowing the female officers in PCs through SSC are subject to following conditions:

  1. The order given by the High Court of Delhi is to be implemented.
  2. All female officers currently in SSC are eligible to PC irrespective of any of them crossed 14-year of service or, as the case may be, 20-year of service.
  3. Every options of specialization shall be available to the female officers at the time of opting for the grant in PC, on the same terms as their male counterparts.
  4. All the female officers who are eligible and granted PC through SSC should be entitled to all consequential perks including pension, promotion, and financial incentives.
  5. Some expressions such as ‘in various staff appointments only’, and ‘on staff appointments only’ in the notification should not be enforced with respect to the PC of female officers.
  6. Benefits of continuing in the service till the attainment of pensionable service shall be applicable to all the SSC female officers too.
  7. That necessary steps should be taken by the plaintiff for the compliance of the Supreme Court’s decision within 3-month of the pronouncement of this judgment.[10]

Conclusion

The landmark judgment in the case of The Secretary, Ministry of Defence V. Babita Puniya & Ors., delivered by the Hon. Supreme Court of India, was well put together and has successfully sets a benchmark in providing equal opportunity to female in Army and had imparted equal treatment with their male-counterparts.


References


[7] Civil Appeal No 3208 of 2015: https://indiankanoon.org/doc/56768737/

[8] ‘Equality before law and equal protection of law’, Indian Constitution

[9] Indian Constitution

[10] https://main.sci.gov.in/supremecourt/2010/20695/20695_2010_8_1501_20635_Judgement_17-Feb-2020.pdf


About the Author: This Case Brief is prepared by Ms. Arushi Jain, law student at Jagran Lakecity University. She can be reached at arushijain3@yahoo.com 

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