In an important step towards achieving substantive equality for women in India, the Supreme Court held that female Naval officers have the right to Permanent Commission (PC). PC guarantees officers a life-long career (until the age of retirement) in the Armed Forces, which also comes with various benefits such as pension. In contrast, Short Service Commissioned (SCC) Officers are only given ten (or fourteen) year appointments and do not enjoy most of the benefits given to PC Officers.
Undoubtedly, the judgment is worth celebrating as an important ruling in favour of gender equality. This is especially true as it follows last month’s judgment on 17 February, which granted women in the Indian Army the right to PC. However, it is important to recognise that the initiative to grant women roles in the Armed Forces, including PC, comes from the Union itself, not the judiciary. The Union had already made women eligible to become officers in the Armed Forces back in 1991. Therefore, it would be a misunderstanding to think that the Supreme Court had completely of its own accord determined that women should have the right to PC. Rather, it delivered these latest judgments in the context of interpreting the Ministry of Defence’s various policy decisions on allowing women to serve in the Armed Forces, dating back to 9 October 1991.
The Court’s fundamental rights jurisdiction over Armed Forces matters is restricted. Article 33 of the Constitution empowers Parliament to make laws that restrict the fundamental rights of Armed Forces members, ‘so as to ensure the proper discharge of their duties and the maintenance of discipline among them’. In other words, central legislation can limit the fundamental rights of members of the Armed Forces, so long as it is done for the restricted purpose of ensuring the proper discharge of duty and maintenance of discipline.
Article 33 of the Constitution gave rise to Section 9(2) of the Navy Act, 1957, which specifies that women are not eligible for appointment or enrolment in the Navy. The section clarifies that the Union Government may by notification make exceptions to this bar on women.
On 9 October 1991, the Union Government did precisely this. Pursuant to its powers under Section 9(2), it issued a notification making women ‘eligible for appointment as officers’ in three cadres/branches: Logistics, Law and Education.
There are four branches in the Indian Navy: Executive, Electrical, Engineering and Education. Each branch is composed of various cadres. For example, the Logistics and Law cadres fall within the Executive branch.
Following the October 1991 notification, on 20 December 1991, the Union Government communicated the terms and conditions of service for female officers. Paragraph 4 of the letter contemplates women being granted PC in 1997. In effect, this meant that women only became elligible for SCC officer positions in the early 1990s.
Despite the promise of PC proposed in 1991, no women were ever granted PC roles in 1997. However, on 6 November 1998, the Union Government made women eligible for appointment as officers in all four branches of the Indian Navy, once again exercising its power under Section 9(2).
Following the 1998 notification, on 25 February 1999, the Union Government sent a letter to the Chief of Naval Staff, specifying which regulations would govern the grant of PC for female Naval officers. Thereby it clearly opened the possibility of granting female officers PC. It stated that any grant of PC must be made in accordance with Regulation 203 of Chapter IX of the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963. Regulation 203 stipulates that PC is subject to three conditions: (i) availability of vacancies, (ii) consideration of suitability and (iii) recommendation of Chief of Naval Staff.
Ultimately, none of the female officers from the 1990s were offered PC upon completing their SCC. Instead, they were at best offered extensions of their SCC. Finally, in 2008, anticipating a pending Delhi High Court judgment, the Union Government granted female officers in all of the Armed Forces (Army, Navy, Air Force) the opportunity to obtain PC. However, it was a restricted guarantee.
The 2008 policy document was restrictive in two ways. First, it was only prospective. Meaning despite the original plan to give women PC back in 1997, the 2008 policy only envisioned PC for future batches of SCC officers (post 26 September 2008). Second, it was restricted to specific cadres and branches. Unlike the 1998 notification that makes women officers eligible in all four branches of the Navy, the 2008 policy restricts women officers to: Judge Advocate General cadre, Naval Constructor cadre, Education branch.
It is within this historical backdrop that the current set of cases arose.
This case was a set of appeals by the Union to a Delhi High Court judgment and an Armed Forces Tribunal (AFT) order.
In 2015, the Delhi High Court granted PC to the litigants in six Writ Petitions, who were serving as SCC officers in the Indian Navy. The lead petitioner was Lt. Cdr. Annie Nagaraja. A year later in 2016, the AFT delivered a similar order. Hearing a batch of six Original Applications, the AFT directed the Navy to reconsider the applicants’ request to be granted PC. Again, these applicants had been serving as SCC Naval officers. The lead applicant was Cdr. Priya Khurana.
The Union appealed both sets of cases to the Supreme Court. Ultimately, the outcome in the Supreme Court was contingent on the Babita Puniya case. Babita Puniya was identical in all aspects, except it applied to the Army instead of the Navy. In 2010, the Delhi High Court in Babita Puniya granted female SCC officers in the Army and Air Force the right to PC. The Air Force complied with the judgment, however the Army appealed to the Supreme Court.
Just last month, on 17 February, the Supreme Court upheld the Delhi High Court’s judgment granting PC to women in the Army, quashing the Union’s appeal. This strongly foreshadowed that the Supreme Court would extend the same right to female Naval officers. And on 17 March, it did precisely this.
What the Court held and directed
On 17 March, Justice DY Chandrachud held that serving female Naval officers should have the same opportunity obtain PC as their male counterparts. He found that the Union’s notifications in 1991 and 1998 had lifted the restriction on women entering the Navy under Section 9(2). Hence, he concluded that serving female officers will be granted PC as per the conditions in Regulation 203 (see above).
Justice Chandrachud agreed with the AFT’s finding that the 2008 policy was invalid. While the 2008 policy granted female officers PC, it did so only prospectively and was limited to few cadres/branches. The AFT had found that the 2008 policy had entirely failed to consider the 1999 policy and therefore was arbitrary. Justice Chandrachud added that the 2008 policy contradicted the 1991 and 1998 notifications. In particular, he found that the 2008 policy envisioned different restrictions on the grant of PC than those in Regulation 203.
As a result, Justice Chandrachud issued the following directions (detailed directions can be found in the judgment on pages 61 through 63):
Observations on sex stereotypes
Significantly, Justice Chandrachud observed that the Indian Navy suffers from ‘deeply entrenched’ stereotypes about the role of women in society. Echoing his reasoning from his Babita Puniya judgment last month, he said that dominant mindsets in the Armed Forces must undergo change. He held that the Union cannot restrict women’s opportunity to serve in the Navy merely due to discriminatory assumptions about their prescribed role in society.
In particular, Justice Chandrachud found fault in the Navy’s submission that women are ill-suited to ‘certain sea-going duties’. Analysing the written submissions, he stressed that ‘sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women’ cannot dictate policy.
Part of what is notable about Justice Chandrachud’s observations is that they are not limited to discrimination against women on the basis of physiological characteristics. He also extends his observations to include discrimination on the basis of sex stereotypes. Thereby, he applies the recently developed jurisprudence (see NALSA, Navtej Johar) on ‘sex’ being understood not only as a physical characteristic, but also in terms of socially-constructed gender. Thereby, the constitutional prohibition against sex-based discrimination (see Articles 15 and 16) applies also to sexist assumptions about gender.
In including these observations, Justice Chandrachud has likely insured that future disputes involving gender equality and the Armed Forces will apply the principles established in NALSA. A policy restricting a woman's role in the Armed Forces cannot by justified only by assuming that the role conflicts with her prescribed place in society. With this being said, it is important to recognise that Article 33 ultimately gives wide powers to Parliament (and thereby the Government) to restrict the fundamental rights of female officers.