Dispelling Rhetoric’s: Gender equality in the Armed forces, another asymmetrical war won

Dispelling Rhetoric’s: Gender equality in the Armed forces, another asymmetrical war won

Introduction

“Where women are worshipped there is the existence of god, but where women are not worshipped all-action result in the failure”- Manusmriti

The verse is from Hindu religious text which was written by Manu and Bhrigu which have put forth the ideas of equal rights, duties and responsibility of each and every person in the society.  It was in this century that the idea of equal status and respect of women was envisioned. Women have always been considered as the real architects of the civil society. A woman is in itself is always the precious gift of god to this mankind in the form of daughter, wife, mother or teacher. But the status of women has always remained as the burning issue. The whole world has been fighting for the gender equality and empowerment of women. We the people of India have witnessed Indian women have made the country proud by their numerous achievements while on the other hand exploitation, brutal rapes, a crime against the women has been increasing which has put a blot on the society. In the era of 21st century where humans have invented technologies and reached to Mars but are unable to put a complete stop button on crimes against women in the society. On one hand, Tania Shergill has become the first Indian women to lead the parade of all man contingent on republic day but on the other hand, our country has not come out of traps of increasing crime rates against women in India.[1]

Women in the Armed forces

A woman feels as keenly thinks as clearly as a man. She in her sphere does work as useful as man does in his. She has many rights to her freedom in order to develop her personality to the full as that of a man. When she marries she does not become the husband’s servant but his equal partner with equal rights and responsibility. If his work is more important in the life of the community she is more important of the family. Neither can do without the other. Neither is above or under to each other. They both are equals.”- Lord Denning 

The claim of the Indian women with the right to serve in the armed forces has always been a matter of controversy in India.  The denial of such a right is still a case of gender equality. Public Interest Litigation was filed under Article 226 of the Constitution of India before the Honourable High court of Delhi for issuing the Union of India and the Indian army the writ of mandamus so as to allow female candidates to be recruited in Indian Territorial Army at par with the man. Earlier to this petition the Territorial Indian Army allows only male citizens of India who are medically fit to apply for the Territorial Army as per the recruitment rules of the Indian army leaving no scope for the Ex-Service female officers. Thus this eligibility criterion was a clear case of gender inequality as service in the Territorial Army was only offered to males but was denied to women.  This denial of recruitment is against the principle of equality guaranteed by the Constitution of India under Article 14 which talks about equality.[2] The said article states, State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. The concept of equality cannot be achieved unless equal opportunities are provided to every person equally.  If women are to be denied to enter into any profession on the basis of physiological factors then it is impossible to conceive the principle of equality. But the apex court of India i.e. Supreme Court in its landmark ruling has upheld the right of short service commissioned women officers also to be entitled to the permanent commission in the Indian Army.[3] The verdict of the Supreme Court upheld the right of equality as guaranteed under the Constitution of India and this spirit of order is the principle of non-discrimination.[4]  The jurisprudence related to women rights has taken a de route in India.[5]

Judicial Precedent (Women: The rising Phoenix)

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.” [6]

The concept of equality has been held basic to the rule of law and is regarded as the most important postulate of republicanism. The Supreme Court has held that the right to equality conferred by Article 14 is a basic structure of the Constitution and an essential feature of democracy and rule of law.[7] It has been held to be right which more than any other is a basic postulate of our Constitution. The equality clause embodied under Article 14 does not speak of mere formal equality before the law but also embodies the concept real and substantive equality which strike at inequalities arising on account of vast social and economic differentiation and thus is consequently an essential ingredient of social and economic justice.[8] The essence behind Article 14 is a basic structure in abstract and formal sense.[9]

Justice P.N Bhagwati[10] observed that “The law always frown on unanalysed and unfettered discretion conferred on any instrumentality of the state.[11] Where power granted is open to the disproportionate use of power, in the absence of any guidelines and principles which are essential for the exercise of such power there it is invalid.”[12]

The Supreme Court was of the observation that “If power conferred by the statute is vagrant and unconfined or no standards have been laid down by the statute to guide the exercise of such power it would be inconsistent with the equality clause because it permits the arbitrary exercise of power which is the antithesis to the equality before the law. [13]

The Supreme Court while upholding that the rule prohibiting the women make-up artist from becoming the member of the registered make-up artist and hairdresser association was violative of Article 14 and Article 15 of the Constitution of India as discrimination was based on sex which is opposed to gender Justice.[14]

The Supreme Court was also of the opinion that the present law ends up victimising its subject in the name of protection. In that regard, the interference prescribed by the state prescribing by the state for pursuing the ends of protection should be proportionate to the legitimate aims.[15]

The Supreme Court was of the opinion that a practice which is solely based on the physiological factors and therefore neither serves any valid object nor satisfies the test of reasonable classification under Article 14 of the Indian Constitution is against the norms of gender equality.[16]   

The Supreme Court of India has recognised the right of women to enter the Sabrimala Temple by considering the age-old custom as violative of Article 14 of the Constitution of India. The exclusionary practice was held inconsistent with the concept of morality and public health.[17]

Another judgment of the Supreme Court has upheld the dignity of women, where it was held that women are not being treated as the property of men and have their own individual dignity.[18]

Conclusion

Nature has given women too much power but the law gives them too little” -Will Henry

In the 72 years of independence women in India have gained entry in all spheres of public life. Women in India today are the part of a democratic society, employed as drivers in heavy transport vehicles, pilots, etc. But in spite of such development Indian women was not granted permanent commission in the Territorial Indian army because the government counsel was of the opinion that “Underlying the statement that it is a greater challenge for the women officers to meet the hazards of service owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. But the landmark judgment of the Supreme Court of India has broken down this stereotype thinking of gender inequality of women in the armed services and granted them permanent commission as same as that of man in the Army.     

India would not empower to become the developed nation if her daughters are not empowered in the true sense. In order to have real and substantial gender equality, it is necessary to get away from patriarchal norms.

“There is no chance for the welfare of the world unless the condition of women is improved. Women have suffered from aeons and that has given them infinite patience and perseverance. The perfect independence can be achieved only when the woman gets perfect womanhood. There is no hope for the rise of the family or a country where there is no respect for women or where women live in sadness.”

References

[1] Lt. General D.S Hooda, “Now it’s up the army to create gender-neutral gender, Times of India (March 08th 2020 08:24 AM) https://timesofindia.indiatimes.com/blogs/generals-jottings/now-its-up-to-army-to-create-gender-neutral-standards/

[2] Contributors,” Women in the armed forces” The Economic Times, (February 17, 2020, 11:34 PM) https://economictimes.indiatimes.com/news/defence/women-in-the-armed-forces-the-other-asymmetrical-war-won/articleshow/74181464.cms?from=mdr

[3] Secretary, Minister of defence v. Babita Puniya and Others  (2020 S.C.C. Online 200).

[4] Union of India v. Lt. Cdr. Annie Nagaraja 2020 S.C.C Online S.C. 326.

[5] Editorials, “Finally Gender parity in the Indian Army”, Hindustan Times, (February 17, 2020, 18:01 PM) https://www.hindustantimes.com/editorials/finally-gender-parity-in-the-indian-army/story-4kJw5iMMgnl7uDWU9uULUJ.html

[6] Prachi Bhardwaj, “Grant Permanent Commission to all the women Officer in Army who opt for it” Supreme Court Cases February 17, 2020, https://www.scconline.com/blog/post/2020/02/17/grant-permanent-commission-to-all-women-officers-in-army-who-opt-for-it-within-3-months-sc-to-centre/

[7] Indira Nehru Gandhi v. Raj Narain, A.I.R 1975 S.C. 2299

[8] Secretary HSEB vs. Suresh, A.I.R 1999 S.C. 1160.

[9] I.R Colheo v. State of Tamil Nadu, A.I.R. 2007 S.C. 861.

[10] SheoNandanPaswan v. State of Bihar, A.I.R. 1987 S.C. 877, 895

[11] Ajit Kumar Nag v. GM Indian Oil Ltd., A.I.R. 2005 S.C. 4217.

[12] Distt.Registrar and Collector v. Canara Bank, A.I.R. 2005 S.C. 186.

[13] RaichurmathamPrabhakar v. RawatmalDugar, A.I.R. 2004 S.C. 3625.

[14] Charu Khurrana v. Union of India  (2015) 1S.C.C. 192

[15] Anuj Garg v. Hotel Association 2008 (3) S.C.C. 1.

[16] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1

[17] Indian Young Lawyers Association v. State of Kerala and Ors. 2018 S.C.C Online S.C 1690.

[18] Joseph Shine v Union of India 2018 S.C. 1676

About the Author

Pranav Kaushal

Pranav Kaushal

Pranav Kumar Kaushal is a B.A.LL.B. 5th Year Student of Law, Bahra University, Himachal Pradesh. He is passionate about puting his views on social issues.

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