Two rounds of prolonged legal battle by the women officers of the Indian Army were won on 17 February 2021 and 25 Mar 2021 with Supreme Court Judgements. The actual war is a quest for Equality of Opportunity, which the Government is constitutionally bound to uphold. Unfortunately, its efforts in courts of law, point in the opposite direction. What is glaring in the Judgements, is the continued efforts by the Government to deny justice to women officers. A judgment of the Delhi High Court in 2010 that provided relief on the issue of Permanent Commission has remained unimplemented for a decade. The government’s attitudinal negativity is apparent. That said, it is not that the Government does not have a case. It certainly does.
The overarching legal battle has been between the constitutional entitlement of the Government to impose restrictions on women’s employment in the Army versus the infringement of the Equality of Opportunity based on gender discrimination. National security being supreme, defence policies are an essential instrument of governance controlled by the executive. The Government has been contending that the policies fashioned to exercise its powers of curtailment of Fundamental Rights is the preserve of the executive. They have rightly maintained that the effectiveness of the military Instrument cannot be compromised even if it impinges Equality of Opportunity clause of the Constitution. The courts have upheld this principle. But its implementation in practice has continued to be debatable.
Though courts have acknowledged the above logic, the relevant defence policies considered to be discriminatory, keep falling prey to legal challenges. There are hardly any major instructions regarding woman officers that have not been legally contested. It is apparent that policy makers are not subjecting the policy to an important test – will it stand legal scrutiny? Worse, the Government has not been able to devise any policy that takes the battle out of the court of law and bring it back to the executive, in order to render speedy justice.
It is evident that only a system modification can deliver justice to the beleaguered officers. The change required is obvious. The change must permit women officers entry to any part of the Army, including Combat Arms, as long as they volunteer and meet common minimum standards. The onus of proving equivalence must rest on the women officers and once met, no discrimination whatsoever should be permissible from commissioning to retirement. Gender differentiated policies relating to appointments, promotions, pensions, inter alia, that have been legally contested for decades will fade. The alteration will allow the framing of policies, rules and conditions that preserve the effectiveness of the military instrument.
The policies that also take the validity of logic from the military imagination of the battlespace both present and future should not be outweighed by Equality of Opportunity. Since the principle of Executive Prerogative has been legally upheld, it should be possible to balance organisational requirements and gender differences. The policy makers must not merely make policies to solve immediate messy situations arising from an earlier lack of vision. A system framed on common standards can provide relief more than any other policy initiative.
Without doubt, common standards will be a highly contentious issue but the prerogative for the decision must be exercisable by the military leaders. The decision of the military leaders in 1992 to allow entry to Combat Support Arms like the Artillery, Engineers, Air Defence had partially opened the door for induction to Combat Arms. This is so because for the issue at hand is coupled with the changing character of war that blurs the boundaries of the notion of the front. In the context of gender justice, Combat Arms and Combat Support Arms too have to be considered as inseparable. The approach of policy making has to shift from denial to provision of opportunity and acceptance to the extent feasible. Policy makers must safeguard the legal space for decisional autonomy. But it cannot be achieved without professional opinions outweighing societal norms sans prejudice.
At the root of the issue is the cultural reluctance of males to accept female equivalence in the arena of physical resilience in combat. The males have a point that is mostly based on superior physical capability. But surely this is not a show stopper as long as the females match up to the minimum common physical standards. Differences in physicality of gender should not be, a priori, assumed to be inferior for females in terms of physical performance. Also, physical proximity in combat and peace time activities is inevitable and as long as it is acceptable to an individual, it cannot be the reason for blocking entry. Equivalence of mental capabilities between gender has never been in dispute.
Military leadership must pilot the future course of woman officers by jettisoning the legal stands it has so far preferred to follow which apply different standards and criteria even for promotions and appointments. Women are presently not eligible for Command appointments in the rank of Colonel while male officers are eligible. The problem of solving immediate problems of currently serving women officers should not be allowed to cloud the fashioning of a new system. The existing lot of officers have of necessity to be given whatever is their rightful due in the awareness that they have been deprived of their rights earlier and cannot really be compensated except through a sympathetic outlook and temporary relaxations in policy matters.
A woman as infantry battalion commander may be difficult to imagine but that does not mean that the gate is not kept open for possible achievement of that ultimate combat status. When that transpires, there should be nothing gender-based stopping a woman officer even from becoming the Chief, leave alone taking over other important military appointments. The extant situation of discrimination that exists is a far cry from this ideal. Without doubt, progress has been made despite governmental resistance and judicial delays. The fighting spirit of the woman officers is the only reason for whatever positive changes that have come to pass.
While only the Army has been discussed here, the matter is germane to Navy and Air Force too. What has to change is for the executive to assume charge of acceptable changes relating to the armed forces that is unshackled from judicial activism carrying the flag of gender justice and abstracted from national security context. The ultimate power of the executive decisions dealing with induction, employment and retirement of women in the Armed Forces has to be vested in professional military judgements even as it is subject to judicial scrutiny. The exercise of the power has to be freed from deep rooted gender prejudices and yet, when deemed necessary, hold its professional ground even when the cries of male prejudices rend the air. Ultimately, combat is a brutish dog-eat-dog arena of human activity sans moral compunctions that brooks no weakness even in the name of gender justice.