V VENKATESAN IN THE FRONTLINE
The Delhi High Court grants women in the armed forces the right to permanent commission, so far denied on flimsy grounds.
On March 12, hot on the heels of the vote in the Rajya Sabha on the Women’s Reservation Bill, Justice Sanjay Kishan Kaul of the Delhi High Court delivered a landmark judgment upholding the right of women in the armed forces to gender equality. Although the proximity of the two events was a coincidence, the underlying principles cited by Justice Kaul appear to be relevant even in the discourse on the Women’s Reservation Bill, which aims to take representation a step closer to gender equality. These were rights to substantive equality, and against discrimination on the basis of sex, guaranteed by the Constitution. Paradoxically, while the United Progressive Alliance (UPA) government at the Centre is the proponent of the Bill in Parliament, in the Delhi High Court, it sought to resist the aspirations of women in the armed forces for gender equality, ignoring international trends that favour such equality. The official website of the Indian Army says that the Indian Army also has women officers. The use of the word “also” here may suggest the Army’s commitment to gender equality, but in reality it is a qualified commitment. “You can take up the challenge of Short Service Commission and prove to the world when it comes to courage and leadership, you’re second to none,” the Army tells women on its website. In practice, however, professionally successful women in the Indian Army and the Indian Air Force (IAF) always found themselves passed over when it came to promotion to permanent commission.
Those inducted on a short service commission have the option of joining the Army and serving as a commissioned officer for 10 years. At the end of this period they have two options: either elect for a permanent commission or opt out. Those not selected for permanent commission have the option of a four-year extension. They can resign at any time during this period. A short service commission, according to the Indian Army, empowers one with analytical thinking, planning skills, administrative and organisational abilities – qualities that will make the person an invaluable asset for any organisation that he or she joins after leaving the Army. A permanent commission means a career in the Army until one retires.
Justice Kaul notes in his judgment that there has been induction of women in only certain areas of the armed forces, and that too for short service commission. The government is stated to have carried out studies for the grant of permanent commission to women, but it has not so far considered the option favourably. In the case before the Delhi High Court, women officers who were granted short service commission in the IAF and Army and who sought permanent commission challenged the government’s refusal to consider them for permanent commission. These officers have had long stints with short service commission, extended from time to time to as much as 14 years. The consequence of not being granted permanent commission was that they were deprived of certain benefits and privileges such as pension, “ex-serviceman” status and medical facilities.
However, after the aggrieved women officers filed petitions in the High Court, the Central government, in 2008, decided to sanction the offer of permanent commission prospectively to women officers in the Judge Advocate General’s (JAG) Department at the Army Headquarters in New Delhi, the Army Education Corps (AEC) and the corresponding branches/cadre in Navy and Air Force, the Accounts Branch of the Air Force and Naval Constructor of the Navy, in addition to the current provisions of grant of permanent commission to male officers with short service commission.
The High Court considered this step as a progressive one, but decided to examine why women personnel who were still in service could not get the benefit of the change of policy. Also, the women officers who had approached the court by filing petitions but retired during the pendency of their petitions sought relief.
Indeed, the IAF had initially granted short service commission for women officers for a period of five years, but at the end of that tenure, it promised to offer permanent commission to the willing officers, subject to their suitability. The Air Force had promised in its advertisement for recruitment in 1991 that women officers who were unwilling to serve with permanent commission could be granted extension of the short service commission for six years on making a request for such an extension. Women officers with short service commission received training for a period of one year along with male permanent commission officers in the same classroom with the same tests, and both sets of officers passed out together. Insofar as the male short service commission officers are concerned, the training period was only for three months.
The simultaneous training of women short service commission officers and the male permanent commission officers was envisaged on the understanding that the women officers, if they were willing, were entitled to be absorbed with permanent commission subject to their fitness. Ten batches of male short service commission officers who had undergone training of only three months were granted permanent commission in the same period, whereas women short service commission officers continued to work in that capacity. The petitioners stated that they applied for permanent commission but received only an extension of the short service commission.
Change in policy
Meanwhile, on May 25, 2006, the government changed its policy with regard to the question whether short service commission officers, male or female, should be granted permanent commission. The IAF concluded that it was, therefore, not required to grant permanent commission to short service commission officers, male or female, under the revised policy. The petitioners contended that they had been recruited before this change of policy and that they were entitled to permanent commission as per the original policy. The Central government, on the contrary, maintained that absorption under permanent commission was as per service exigency and that it was a policy matter in which the court could not intervene.
The petitioners from the Army did not seek induction into combat, which is a policy matter. However, in certain fields where women officers had been inducted into short service commission and their performance had been found up to the mark, denying them permanent commission was unjustified, they pointed out. There is some difference in the training period of male and female officers with short service commission; it is nine months for the former and six months for the latter. However, the classes are common for both and the syllabus is the same, and both male and female officers perform exactly the same kind of duties.
The Central government advanced the plea of shorter training period for women officers with short service commission as grounds for not granting them permanent commission. The government also pleaded that if permanent commission was granted to women officers, they would be at risk of coming in contact with the enemy. The High Court rejected this plea since the women officers would not be inducted into combat roles.
The High Court found merit in the argument of the petitioners that their plea for permanent commission was based on the principle of legitimate expectation. The petitioners said that if the short service commission candidates were found fit and if their short service commission tenure was extended despite their request for permanent commission, they expected that such extension would be converted into permanent commission in accordance with the initial terms and conditions of appointment.
A legitimate expectation of a benefit, relief or remedy is not a legal right but ordinarily flows from a promise or established practice. It is grounded in the rule of law as requiring regularity, predictability and certainty in the government’s dealings with the public. The Central government argued that there could be no legitimate expectation since the women officers knew that their induction into the IAF was on an experimental basis for five years, to be reviewed thereafter. The court, however, pointed out that the women officers were both suitable and required. The High Court recognised the fact that recruitment of women in the armed forces had gone through a process of evolution largely dependent on the social norms of the country. In the United States, the strength of women officers in the military rose from 2 per cent in 1967 to 11 per cent in 1993. Almost 90 per cent of the posts have slowly become open to women officers except in the field of infantry, armour and special operations. The judgment noted that in India, there is reluctance on the part of the armed forces to induct women as permanent commission officers.
While noting that there are countries that have given opportunities to women even in combat areas, the court conceded that social and cultural ethos vary from country to country. Therefore, it is not for the court to decide in which areas of operation women should be employed in the armed forces, Justice Kaul said.
The court also rejected the government’s contention that since these women officers accepted the extension of short service commission, they were precluded from raising the issue of grant of Permanent Commission later. The court said that in matters involving gender discrimination, a liberal view on the aspect of delay has to be taken. The High Court thus directed that the women officers of the IAF with short service commission who had opted for permanent commission, and those of the Army, are entitled to permanent commission on a par with male officers with short service commission with all consequential benefits.
Justice Kaul expressed the hope that with increased participation of women in different walks of life, the Central government would be encouraged to allow greater participation of women in more areas of operation.