In a landmark judgment pronounced by the Supreme Court of India on Monday, a two-judge bench upheld a Delhi High Court judgment of 2010 that directed the Central government to notify permanent commissions in the Indian Army for women — a move aimed at ensuring equality of opportunity for women. The central dispute was brought by women, engaged on Short Service Commissions in the army, who sought parity with male counterparts in obtaining permanent commissions.
This decision by the Supreme Court received tremendous attention in the domestic and international media alike for the watershed moment it has ushered into the history of India's armed forces. Opposition politicians, however, resorted to political mudslinging — plainly dishonest and fact-free attacks.
Rahul Gandhi, former Congress party president, stated that the government had "disrespected every woman", congratulating India's women for "proving the BJP government wrong".
What the Congress forgot, however, is that it was the Congress-led UPA that opposed granting permanent commission to women officers back during UPA-1. To borrow Rahul's phrase, it not only "disrespected every woman" in proceedings before the Delhi High Court which went on between 2006 and 2010, but the UPA immediately filed an appeal in the Supreme Court against the Delhi High Court's 2010 judgment challenging the same and asking for a stay on its implementation.
Monday's judgment is the final one in proceedings started by the UPA as is borne out by the case number — Civil Appeal Nos 9367-9369 of the year 2011 when UPA-II was in power.
In fact, the Supreme Court noted in Paragraphs 20 and 21 of the judgment that, firstly, in August 2010, the solicitor-general at the time promised that women officers would be considered "within two months". More than five months later, the additional solicitor-general asked for an adjournment of six weeks to enable a "high-powered committee" to consider the question of granting permanent commissions to women officers.
File image of Supreme Court of India. Reuters
Essentially, once the UPA filed an appeal in the Supreme Court, it spent seven months to tell the apex court that it would create a 'high powered committee' to decide whether to, in Rahul's words, give "respect to every woman".
The Supreme Court also noted that it was eventually in February 2019 that the Narendra Modi government issued a policy decision permitting grant of permanent commissions to women officers without any ifs or buts. This policy decision, the court noted in Paragraph 52, was "a recognition of the right of women officers to equality of opportunity" — one that "enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the army".
Indeed, the Supreme Court did have scathing remarks for the views which it termed as based on "sex stereotypes". As widely reported in the media and discussed by commentators, these were arguments of the "Centre". As the leader of the "Centre", Modi became the target of the attacks.
The role of women in the armed forces has a long history. Section 12 of the Army Act, 1950, enacted during Jawaharlal Nehru's rule, effectively stated that no female was eligible for enrolment or employment in the regular army except if the Central government notified in the Official Gazette. Since 1992, the Central government issued notifications making women eligible for appointment as officers in specific branches/cadres of the army, a process that evolved over time.
Back in 2012, when the Supreme Court was hearing the appeal filed by the UPA, the army headquarters filed an affidavit in the top court stating reasons similar to the one reported in the news recently why it did not favour women officers being given permanent commission. The affidavit, in particular, stated that most soldiers who were recruited from rural India were not yet ready to accept a woman as their leader.
At that time, Rahul didn't deem the stand of his party's government as well as the army to be "disrespecting every woman".
Having said that, and putting politics aside, it does not help to be in denial that the army has objections — whether right or wrong, justified or unjustified. The army needs its soldiers to follow rigorous discipline in protecting us. Any disgruntlement in the ranks — again, justified or not — directly affects national security.
The Congress-led UPA, however, kept pushing the issue under the carpet, as noted earlier, instead of trying to resolve this issue by holding a dialogue with the army.
It was in 2018 that Modi took this issue up and announced it from the ramparts of the Red Fort during the Independence Day speech which resulted in the official February 2019 notification which, as noted in Paragraph 51, made the UPA's appeal predominantly redundant.
The reason why the issue still persisted resulting in a scathing Supreme Court decision is because the Modi government's notification was interpreted by the army as implying that only women officers appointed on Short Service Commissions after the date of the notification (February 2019) would be eligible to obtain permanent commission. This completely negated the effect of the Delhi High Court's 2010 judgment.
In the Indian system, the army is not an independent unit, but is managed and supervised by the Ministry of Defence. Therefore, the "Centre" in the Supreme Court proceedings was actually the Secretary of the Ministry of Defence. This is borne out by the case title in The Secretary, Ministry of Defence versus Babita Puniya and Others.
Indeed, one can argue that Modi, as the leader of the executive, could have overridden all these layers and put an end to the dispute, particularly since his government issued the 2019 policy decision which made most points in the appeal moot anyways.
It must be remembered that the army consistently opposed this measure. In fact, in 2019, the Supreme Court gave the army the opportunity to apply the measure retrospectively as was always intended. The army refused.
As a responsible leader, Modi avoided a direct head-on rift with the armed forces by riding roughshod over their objections. It made sense to let the apex court — the final arbiter of justice and the institution which was hearing an appeal to the Delhi High Court judgment — to decide the matter with the finality it commands, in particular, when the top court gave the army a chance to "take credit".
What Rahul Gandhi and the Congress missed are two things.
First, it was a BJP prime minister who took that decision despite the army's continuing objections that originated from the time of UPA rule.
Second, it was a BJP Member of Parliament — Meenakshi Lekhi — who fought for the women officers and, that too, without charging any fee while UPA simply squandered the four remaining years of its rule once it filed an appeal in the Supreme Court, preventing women this equality of opportunity.
February 18, 2020 at 01:30PM
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