Justice Chandrachud dismisses as a ‘stereotype’ government’s view that women are physiologically weaker than men.

The Supreme Court on Monday dismissed the Union government’s submissions that women are physiologically weaker than men as a “sex stereotype” and declared that Short Service Commission (SSC) women officers are eligible for permanent commission and command posts in the Army irrespective of their years of service.

“Women officers of the Indian Army have brought laurels to the force… 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. The time has come for a realisation that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be ‘tolerated’ within narrow confines,” a Bench of Justices D.Y. Chandrachud and Hemant Gupta observed in a 54-page judgment.

The verdict came on a nearly 10-year-old appeal filed by the government against a March 12, 2010 decision of the Delhi High Court to grant SSC women officers permanent commission. The Supreme Court ordered the government to implement its judgment in three months.

The order castigated the government for submitting a note containing written submissions portraying women as physiologically unfit for answering the “call beyond duty” of the Army. The note had shown women officers in a poor light, saying isolation and hardships would eat into their resolve and that they would have to heed to the call of pregnancy, childbirth and family. The note had mentioned that women ran the risk of capture by enemy and taken prisoner of war.

Justice Chandrachud, who wrote the judgment, countered that 30% of women officers were deputed in conflict zones. He said the note screamed of the age-old patriarchal notion that domestic obligations rested only with women.

‘Remarks discriminatory’

The court found the remarks in the note not only constitutionally invalid but discriminatory, affecting the dignity of women officers.

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However, on the other hand, the court favourably saw a policy statement filed separately by the government as a letter on February 25, 2019. It noted that the government’s note and the February 2019 policy statement clashed with each other. It wondered how the government had managed to present diametrically opposite positions in court.

The judgment recorded that the policy statement had endorsed permanent commission for SSC women officers in 10 streams of the ‘Combat Support Arms’ and ‘Services’ sections. These are Signals, Engineers, Army Aviation, Army Air Defence, Electronics and Mechanical Engineers (EME), Army Service Corps, Army Ordinance Corps and Intelligence in addition to the existing two streams of Judge Advocate General (JAG) and Army Education Corps.

“The policy decision of the Union government is a recognition of the right of women officers to equality of opportunity,” the court noted.

SSC for women is available only in ‘Combat Support Arms’ and ‘Services’ wings of the Army.

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The exclusion of women from combat operations was not examined by the court as it was not the contested in the appeal.

The court dismissed the government's stand that only women officers with less than 14 years of service ought to be considered for permanent commission, and those with over 20 years service should be pensioned immediately. Applying the judgment retrospectively, the court declared that all serving women officers would be eligible for permanent commission.

The court held that a blanket ban of women SSC officers from command posts cannot be sustained by law. “An absolute prohibition of women SSC officers to obtain anything but staff appointments does not fulfil the purpose of granting permanent commissions as a means of career advancement in the Army,” Justice Chandrachud wrote.

The court held that since command appointments were not automatic for men officers, so would it be for women. It was left to the Army to take a call on a case to case basis.