"The higher you go, the fewer
women there are".- Late Kenyan Nobel
Peace Laureate Wangari Maathai
The internet boomed with appreciation when Kira Rudik, a
member of Parliament of Ukraine posted a photo of herself on Instagram with the
caption, "I am a Ukrainian woman, I love colourful tulips, pilates, pink.
Plant flowers, Sniffing your purfumes, laughing out loud, wearing soft socks
that are a little slippery on the floor. Wipe glasses, marshmallows with a
napkin, lay documents alphabetically. And now, everything I love needs
protecting. Because, it turns out that each of us has to take up arms and do
their duty. Not because there are no men around, but because we can. And we
will do it". She also tweeted saying "Our women will protect our soil
the same way as our men." When Kira Rudik made these powerful statements,
it triggers a questionable thought in our minds with regard to woman of India
in armed forces. Fighting on the battlefield is also not new to the woman of
India. Our woman have held the swords up high, defeating the rivals with
courage beyond blood and body. Be it Rani Lakshmi Bai or Rani of Kittur, the
royal women in history have shed blood, fought for their subjects, won wars and
sacrificed lives for their kingdoms and subjects. Women of India are ready,
were ready and will always be ready to pick up swords, guns and armours and to
fight holding their heads high.
It is the social construct that disabled women by portraying
them as unfit for contributing in the area of defence. The Indian patriarchal
approach managed to take over our Indian women's unquestionable patriotism.
Devi Shakti, also known as Durga, and Kali, She's an archetype who you might
call upon for strength, fertility, and power, is worshipped. Mythological
stories of deities like Goddess Chamundeshwari destroying the demon Mahisasura
is empowering and inspiring. Yet, the double standards of our society is
evident when it comes to real woman in a combat zone.
Women in today's generation are more aware of their needs and priorities. They now understand the fact that the roots of the psychological limitations are due to the male dominating narrative by the society that favours men in terms of such social opportunities. Our proud member of Rajya Sabha and a boxer, Mary Kom who brought home a gold medal at the 2008 AIBA Women's World Boxing Championships in China, followed by a gold medal at the 2009 Asian Indoor Games in Vietnam, all of these, after giving birth to her healthy twin boys. This proves that the well crafted female bodies cannot be a restraint or physical disability merely because of pregnancy or motherhood. When we take a closer look at the societal arrangement of India, we notice that the patriarchal society has conveniently changed the narrative to make other genders look weaker, less stronger and less useful to the armed forces.
Fortunately, the recent judgements favouring the woman and many such interesting developments have paved way to break the glass ceiling leading to the reformation of gender roles in the Indian armed forces.
There were two important Orders which made the headlines in relation to women in the Indian Armed Forces, no doubt these Orders opened the gates for gender equality but the discussions and deliberations in and around these decisions become important in order to understand the concept of gender equality in the Indian context.
EQUALITY
Gender matters everywhere in the world and India is no
exception to it. UNICEF made it clear that equality does not mean
that women and men will become the same but that women's and men's rights, responsibilities and opportunities will not
depend on whether they are born male or
female.
Concept of equality is inscribed in the Indian Constitution
particularly in Article 14 and 15(1). By and large the horizons of equality
have been expanding.
Further, we are aware of the fact that the Legislature is
fully competent to enact legislations which are applicable to particular groups
or classes, but for the classification to be valid it has to pass the twin test
that are (i) that the classification must be founded on an intelligible
differentia (ii) that differentia must have a rational relation to the object
sought to be achieved by the statute in question.
It was in Navtej Singh
v. Union of India, the Court held
that- “Where a legislation discriminates on the basis of an intrinsic and core
trait of an individual, it cannot form a reasonable classification based on an
intelligible differentia and a classification which discriminates between
persons based on their innate nature, would be violative of their fundamental
rights, and cannot withstand the test of constitutional morality.”
Speaking on point of gender discrimination in armed forces, even though the histories of US and India are different, the topic of discussion in this scenario is quite relevant here- The US Supreme Court in Frontiero v. Richardson (case of military service), used the term ‘romantic paternalism’, and observed that "There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage. As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes ". Court in this case held that differential treatment of male and female members of the uniformed services violated the Due Process Clause.
PROTECTIVE
DISCRIMINATION- Indian
courts have recognized the concept of ‘protective discrimination’.
The test to review a Protective Discrimination statute would entail a two pronged scrutiny: (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in a principle (b) the same should be proportionate in measure. The Court's task would be to determine whether the measures furthered by the ‘State’ in form of legislation formulated to protect the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. What is important here is to note that the legislation should not only be assessed on its proposed aims but rather asses its implications and effects too. It was in Joseph Shine v. Union of India, wherein the Court observes that a ‘section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.’
TRANSFORMATIVE
CONSTITUTIONALISM
Indian Constitution is considered as a Transformative one. A
Transformative Constitution is nothing but the constant development of
constitutional ideals of liberty, equality and fraternity and it is expected
from the ‘State’ to remove all the barriers to the enjoyment of such ideals.
Transformation is not a temporary phenomenon rather a permanent ideal,
transformative Constitution envisions a society that will always be open to
change and contestation, as rightly pointed out by Former Chief Justice Pius
Langa of South Africa.
It becomes imperative to cite Anuj Garg v. Hotel Association
of India, Para 8 of the judgment- Changed social psyche and expectations are
important factors to be considered in the upkeep of law. "The transformation
of our culture and our society would have to happen at a number of levels. If
it occurred only in the minds of individuals (as to some degree it already has)
it would be powerless. If it came only from the initiative of the state, it
would be tyrannical. Personal transformation among large numbers is essential,
and it must not only be a transformation of consciousness but must also involve
individual action. But individuals need the nurture of crops that carry a moral
tradition reinforcing their own aspirations. These are commitments that require
a new social ecology and a social movement dedicated to the idea of such a
transformation.”
Justice DY Chandrachud says that the transformative vision of our Constitution underlines its working and interpretation.
Coming to
the Orders passed by the Supreme Court:
1) Granting Permanent Commission to
women officers passed on 7th Feb 2020
“Section 12 of the Army Act 1950
speaks about the Ineligibility of females for enrolment or employment” this
provision evolved with changing times including in it more number of corps and
departments. Later on, the provision for the induction of women for an initial
period of five years was also extended by a notification dated 12 December 1996
issued by the Ministry of Defence. But it was in 2003, that a Writ Petition in
the nature of a PIL before the Delhi High Court for the grant of Permanent
Commission to women SSC officers in the Army.
In Ministry of Defence
v. Babita Puniya, , Supreme Court
pointed out the stereotypes that were made during the submissions: "Stereotypes
and women in the Armed Forces" The profession of Arms is a way of life
which requires sacrifice and commitment beyond the call of duty; 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; 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; An all-male environment in a unit
would require "moderated behavior" in the presence of women officers;
and The deployment of women officers is not advisable in areas where members of
forces are confronted with “minimal facility for habitat and hygiene”
The submissions made in this case naturally takes us towards
the mindset of the society we live in. Having pointed out these stereotypes -
court emphasised the need for change in mindsets to bring about true equality
in the Army. Court has also stated that women officers who volunteer for combat
action should comply with the standards, or else this will compromise the
“Operational Effectiveness” of the force. Having said so, it also placed on
record that, 30% of total women officer's are already deputed to conflict
areas. Also when we see, the 1st batch of women officers were given commission
in the Navy in 1992, and it literally took nearly 30 years to give Permanent
Commission to the women officers.
It also becomes imperative to state what Commander Prasanna Edayillian (rtd) said: "The idea is to groom someone from a young age. A young male is not born an admiral. If the same opportunities are given to women, suppose from now, in 30 years India could have its first women Navy Chief"
The second Order passed on 18-08-2021 allowed women candidates to appear for NDA examinations.
The SC, keeping in mind the concept of gender equality in Kush Kalra v. Union of India, allowed the women candidates to take part in the examination. Though the Interim Order being criticized on the ground that it was policy decision, but I believe the policy decision of not inducting women cadets in NDA being a discriminatory one required judiciary's interference.
CONCLUSION
Serving in the Indian Army is not seen as a fundamental
obligation on citizens, it is a pure voluntary act. Nor do Indians consider it as their means of
employment it is more of a service to the nation that you join with a strong
sense of emotion, devotion and pride. Having considered it as such, this act of
patriotism and service should never be confined to any gender. Patriotism must
always prevail over society's patriarchal mindset in every aspect of the
society. It is then that we can achieve the goal of what the International
Women's Day theme dictates; Gender equality today for a sustainable tomorrow.
Let us enable our strong women to build strong nations that make stronger
impacts at the global level.
About the Author: This Legal Article is prepared by Ms. Aishwarya Pawar, Research Assistant at High Court of Judicature at Karnataka. She can be reached at aishumanisha8@gmail.com and co- authored by Sahana S B, law student at JSS Law College, Mysore. She can be reached at ssbsahana@gmail.com
MyLawman is now on Telegram (t.me/mylawman) Follow us for regular legal updates. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter or join our whats app group .You can also subscribe for our Newsletter for Email Updates.
0 Comments