LEGAL BARRIERS ON WOMEN’S PARTICIPATION IN COMBAT ROLES: VIOLATION OF ARTICLE 14?
Updated: Aug 19, 2020
This Article has been authored by Divya Sharma, a second year law student at National Law University, Jodhpur.
Women are participating in almost all the fields and are proving to be as efficient and productive as men. Women, over the years have proved their worth in the professional and occupational realm and have broken the shackles of gender stereotypes. However, despite, proving their abilities and at the time when feminists are making ardent efforts to bring gender rights in the forefront, one issue that stays stagnant and rigid in its approach and applicability is not allowing women in combat roles in Army. Development in this aspect has taken place and women have got roles in armed forces and have been seen compatible for certain combat roles in navy and air force. Army has also witnessed amelioration in women participation and has achievements like the permanent commission of women in army after the judgement given in Secretary, Ministry of Defence v Babita Puniya . Presently, there has been a great debate for women induction in combat roles. This article discusses the validity of the premises given for not inducting women in combat roles, under the issue of reasonable classification under Article 14.
Evolution of women’s participation in Armed Forces
The Indian Armed Forces were earlier considered a male dominated workplace but with time it has seen confident, bold women, moulding into every role and setting examples like Lieutenant General Puneeta Arora, a lady officer from the Army Medical corps and Padmavathy Bandopadhyay, the first woman Air Marshal of the Indian Air Force. The role of women in the armed forces for a long time had been limited to the medical profession in Army medical corps (AMS) and Nurse Military Services (NMS). These women have even served in ‘combat zones’, especially in Forward Hospitals or Field Hospitals in Northern or eastern sectors. Initially under the Army Act 1950 and Navy Act, 1957, women were ineligible for employment in the regular army and navy except in such corps, departments or branches which the central government specified by the way of notifications. It was in 1992 that the doors of opportunities were opened for women’s entry as regular officers in aviation, logistics, law, engineering and executive cadres under ‘Special Entry Scheme’, which later constituted the Short Service Commission (SSC). It was later in 2008, that permanent commission was granted to women only in the streams of Judge Advocate General (JAG) and Army Educational Corps. Adding to these steps of reforms, a landmark step has been taken by the government, last year, to grant permanent commission to women in all branches under Short Service commission: Signals, Engineers, Army aviation, Army Air defence, Electronics and Mechanical Engineers, Army Service Corps, Army ordnance Corps and Intelligence. In this judgment, the SC upheld the 2019 notification, which was in line with the 2010 Delhi High Court judgment in Secretary, Ministry of Defence v. Babita Puniya case given by bench led by Justice D.Y Chandrachud that had extended PC to women SSC officers in 8 non-combative cadres. Government attempted going back on its 2019 notification to grant PC to women officers because of their shorter 24 weeks training against 49 weeks of their male counterparts which was criticised by the SC. Another case where government attempted to deviate from its 1991 and 1998 notifications that had extended women officers practicing rights in various navy cadres; without any stipulation of not extending SSC to them, was Union of India vs. Ld. Cdr. Annie Nagaraja. In this case the SC rejected the central government’s argument that the interpretation of “SCC officers” under its 1999 notification, which extended PC to SCC officers, excluded women.
Article 33 and Reasonable classification: Is barring women from combat roles violative of Article 14 of the Indian Constitution?
Article 14 of the constitution states, “The state shall not deny any person equality before law and equal protection of law”. Under this article the state prohibits class legislation, however, allows reasonable classification for the achievement of specific goals. For any classification following requirements have to be fulfilment to constitute a reasonable classification:
1) It should be based on Intelligible differentia, which differentiates the selected group from the group of people left out.
2) The differentia must have rational relation to the object sought to be achieved.
3) Classification should be based on the principles of reasonableness, devoid of arbitrariness.
As far as permanent commission of women is concerned, not allowing them for the same was definitely not a reasonable classification and was based on the premise of cultural, gender stereotypes. The Union of India appealed the 2010 Delhi HC decision to the Supreme Court. During the pendency of the hearing, it also proposed a separate policy for grant of PCs to women, which was limited to staff positions, imposed different standards, as well as only applying prospectively.
The Union argued, before the Supreme Court that this was a matter of policy – based on a consideration of “the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care” . It also argued that “the Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”. The Union also referred to “pregnancy, motherhood, and domestic obligations, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene”. These arguments were criticised by the court for being based on sexist thinking and gender stereotypes.
In reply to these arguments Justice D.Y Chandrachud held “The arguments given by the government are entirely based on sex stereotypes like gender roles. The arguments like pregnancy, motherhood and domestic obligations being an impediment for women is a strong stereotype that assumes women solely responsible for domestic obligations. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are “too arduous‟ for them.”
Judgements like Babita Puniya and Annie Nagaraj bring to light the growing focus of the courts on the Anti-stereotyping principle. In both cases, differential treatment of men and women in the armed forces was sought to be justified by invoking stereotypes about physical and psychological capabilities reflecting deep-rooted beliefs and assumptions about gender roles. However, the question remains whether this differentiation in regards to combat roles is justified or not, whether the classification for combat roles fulfils the three requirements to be a reasonable classification?
Article 33 of the constitution allows restriction on the Fundamental rights in the ambit of armed Forces. However, the restrictions must be necessary for the discharge of duty and maintenance of discipline for achieving the goal. The duty of armed forces is to ensure national security and public order and not to provide employment. Thus, if a distinction is being made on the grounds of gender in order to achieve these ends, it cannot be considered as the violation of Right to Equality. However, it is important to analyse the grounds on which the distinction has been made.
1) Physical Limitations
This distinction is purely based on anatomy. The Journal of marine medical society listed out several physical issues that could be unique to women combatants. Due to lack of testosterone women have low muscle growth even if the muscle repair is faster because of oestrogen. There are certain differences like body composition, musculoskeletal, hormonal, and cardiovascular and respiratory function differences that remain between women and men despite a rapid diminishing of the male to female gap. The physical construction of men and women is different. Women may have unique physical challenges because of overall differences in structure and physiology. For instance, in the early days of the wars in Iraq and Afghanistan the attrition rate from basic training for females climbed to 17%, for a number of reasons, to include musculoskeletal injuries, as females were more likely to develop stress fractures, to include pelvic stress fractures, which are difficult to heal. When female trainees were put in a more graduated fitness program, they were less likely to be injured, and more likely to complete BMT and their first term of enlistment.
These are physical restrictions which are not a result of any unequal cultural structure like patriarchy but a natural distinction between the sexes. The idea is not that this distinction can never be meted out. Instead, the emphasis is on the fact that immediate induction of women is not a plausible solution. However, an opportunity of a training equivalent to that given to men, should be provided in order to allow women to work on their physical strength that allows them to be eligible for being a part of the armed forces. In this way, we can work for future by accepting the realities.
2) Lack of accommodation for sanitary needs and aspect of pregnancy.
The natural processes of menstruation and pregnancy make women particularly vulnerable in combat situations. Lack of privacy and sanitation can result in an increased incidence of genitourinary infections as is evident from a number of studies. Although, it cannot be denied that men also suffer from the possibility of genital infections and problems, however, the probability and sensitiveness of women genital infections is way higher. The biological cycle of menstruation, every month, requires amenities like sanitary napkins, tampons or menstrual cups, along with good diet due to the physical changes a woman faces during menstruation. Although armed forces have medical units to take care of such requirements, however, it is possible that shortage of such needs occur in difficult areas owing to the unpredictable nature of duty. Another aspect under this classification is pregnancy. Pregnancy requires long maternity leaves due to which a woman is unable to do her part of duty, transferring it to someone else. This is a plausible option as far as other occupational or professional duties are concerned. However, Armed forces have a duty which is central for national security and in highly unpredictable, which if coupled with a soldier’s long leave can worsen the situation. Moreover, the extensive and gruelling training of Army can cause problems to the reproductive health of a woman. Due to lack of sanitation or medical services available in some difficult terrains women can face gynaecological conditions like urinary tract infections or bacterial vaginosis.
This dimension stands valid due to the present accounts of women officers in Army. Thus, if induction is to be achieved a complete understanding of this premise is important to form an informed consent.
Women have with time shown their potential and have proved gender stereotypes wrong, beyond doubt. It is undeniable that in order to make India a country free from inequality it is important to break the shackles of cultural notions created by the social structures like patriarchy. As far as women’s induction in combat roles is concerned, the reasons like “women are more sensitive and thus psychologically weak when it comes to leaving families” or “men are not ready to have women with them performing combat roles” or “due to women’s domestic obligations it is difficult for them to perform combat roles” is vehemently denied. These reasons are pure sex stereotype and do not constitute to be a reasonable classification. However, as far as the aforementioned two premises are concerned, it can be understood that they are the current realities, proven by studies, which have to be accepted. This does not mean that women induction in combat roles is a utopian concept. Though presently women are not ready for induction, they have to be the crusaders of change to change this present. Women have to make efforts to fulfil the physical and performance criteria of the armed forces. It might seem a farfetched attempt but it is important to do away with “differential parameters” set for women physical test. In order to seek gender parity and justice for both sexes, women have to work, even if it takes a longer period, through the same physical training as men. Secondly, as far as lack of accommodation is concerned, owing to the unpredictable nature of various posts of army, it can never be promised that all the facilities will be made available at all the times. Therefore, if induction of women in combat roles has to be achieved there has to be sense of understanding this situation. We as crusaders of change have to accept the difficulties we might come across and if we consent to the same, it should be accepted by us, as a nation. If consented to, it should not serve as an impediment to women’s induction in combat roles. Therefore, we might not be in a position for combat duties right now, we must accept it to work for a different tomorrow, and should see it as a practical reality check which can be worked upon rather than an unfair cultural distinction.