The Supreme Court of Indias decision in The Secretary, Ministry of Defence v Babita Puniya and Others (2020) is being widely hailed as a victory for women officers in their fight against gender discrimination as well as an enforcement of their right to equality of opportunity and equal access to appointment and engagement in the Indian Army. The division bench of the Supreme Court comprising Justice D Y Chandrachud and Justice Ajay Rastogi proclaimed in unequivocal terms:

The time has come for a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be tolerated within narrow confines. (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: para 57)

The nature of military institutions in Indiaboth the structures and processesare extremely masculine, having been male-dominated. So much so that it is men who have designed, constituted and operated the military from their own point of view since time immemorial. Simply put, the military as we know it has always been for, by, and of men.

The womens question, with respect to the military, includes crucial matters pertaining to appointments, posts, service categories, cadres, remuneration and criteria for grant of Permanent Commission to Short Service Commission (SSC) officers. These matters invite limited judicial review because they constitute policy decisions and lie exclusively in the domain of executive functions as per Section 12 of the Army Act, 1950 and Article 33 of the Constitution. No wonder, the Union of India contended before the Supreme Court that restrictions on the employability of women in the army were inescapable due to the peculiar operational compulsions of the Army.

The Womens Question

Womens position in the Indian military has been distressing with respect to the availing of the bundle of benefits, facilities, and privileges that were accessible to only men till now. Women had no pension benefits, no ex-service personnel status, no ex-service personnel contributory health benefits, no provision for re-employment, and a meagre encashment of only 90 days leave compared to 300 days for men. Among the 40,825 officers in the Indian Army, there are some 1,653 women officers. Further, there are about 11,500 officer vacancies in the Indian Army, with hundreds of officers being re-employed after retirement, but none of them are women (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: paras 37, 42[iv], 42[viii]). What is the cause and justification for this gross gender mismatch in the officer strength as well as the prevailing shortage of officers in the army?

With this reality before us, two questions arise. How can the typical male standards of the military be used to test the military readiness of females? How can biological standards be used as the sole threshold to exclude females from being inducted to the military fold? For example, as per the Ministry of Defence, the Government of Indias communication dated 25 February 2019, SSC women officers would be considered for the grant of Permanent Commission based on their willingness, suitability, performance, medical fitness and competitive merit (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: para 22). It is pertinent to note that these criteria are extremely subjective in nature, generally construed in light of the image of an ideal male officer as well as masculine standards, and are left to be interpreted by the male officers of the Indian Army. No wonder, women form a minuscule 4% of the total strength of commissioned officers in the army (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: para 38).

Although the womens question is raised from a supposedly neutral standpoint, in reality, the presentation of the womens question in the military, just like the institution itself, is the work product of men. The gender-blind approach of the military is quite problematic because this so-called claim of neutrality is often a cover for the typically male-oriented and discriminatory military policies and practices (Davies 2017: 22397). Then, how do we appropriately raise and present the womens question in the military context?

We cannot erase crucial biological differences that exist between men and women. Also, overlooking substantive differences between men and women would be an incorrect and inappropriate approach. An express acknowledgement, open acceptance, and a careful study of the unique characteristics of womens physiology and psychology should be the starting point. The one-size-fits-all approach cannot work effectively when it comes to the military as an institution. Rather, the prevailing circumstances, biological needs, and social vulnerabilities of women must be studied, and the military policy and practices be rethought, redesigned, and retuned accordingly, to accommodate Her.

Equality of opportunity does not mean invisibilising and completely ignoring differing features and unique characteristics existing among human beings. On the contrary, the concept of substantive equality of opportunity means to acknowledge as well as accept human beings along with their differences; embrace them all without discrimination and accommodate one and all within theinstitutional fold (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: paras 5256; Davies 2017: 230). Ironically, even after a 49-week rigorous training period, same as their SSC male counterparts, female officers have been deprived of their legitimate dues solely based on their physiology (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: para 13).

Transcending Biology

At this juncture, it is pertinent to transcend the realm of biology because, by its understanding alone, we would never be able to answer the womens question properly. As Simone De Beauvoir (1972: Chapter 1) has very aptly reasoned:

We must view the facts of biology in light of an ontological, economic, social and psychological context. The enslavement of the female to the species and the limitations of her various powers are extremely important facts; the body of woman is one of the essential elements in her situation in the world. But that body is not enough to define her as a woman; there is no true living reality except as manifested by the conscious individual through activities and in the bosom of a society.

As such, the state and society in India must realise and understand that physiological traits described in the terminology of weakness and strength are actually representative of social conditioning and patriarchal viewpoints rather than real barriers in the achievement of human potential. Unfortunately, these notions of being male and female and the ideas of the physiological limitations of females are so deeply embedded in us that they are inextricable from our personalities, institutions, and processes. Probably, that is the reason why it has taken years for the male officer brass in the Indian Army to extend the tenure of engagement for women from five years in 1992, to 10 years in 1996, to ultimately 14 years in 2005.

The Supreme Court in the Babita Puniya case observed that through the grant of Permanent Commission as well as leadership roles to women in the Indian Army except in combat roles, the Government of India had recognised that the physiological features of a woman have no significance to equal entitlements under the Constitution.

Womens employability in combat roles has also been the prerogative of males who do not think that women are capable of performing as well as their male counterparts in the Indian Army. No wonder women have been restricted to ancillary categories like Combat Support Arms and Service. Although 30% of all women officers in the Indian Army have been posted in combat zonessensitive places and field areaswhere they have, in the past, performed combat roles when the situation demanded, the institution fails to formally acknowledge their combat readiness and further rejects the proposal of recruiting women in combat operations (The Secretary, Ministry of Defence v Babita Puniya and Others 2020: para 54). The military is following an either/or approach: if steps are taken to induct women in non-traditional roles in which they were not appointed previously, then men in similar roles would be greatly disadvantaged. However, the point is that if the army can equip males to face hazards efficiently, why can it not equip women with the special skills needed to perform effectively in combat roles?

The Supreme Court, in the Babita Puniya judgment, has illustrated as many as 11 instances documenting how women officers of the Indian Army have brought laurels to the force and the nation. They have served in the United Nations Peacekeeping operations in conflict-ridden Congo and Burundi, fought terrorists in Afghanistan, transported and handled convoys in militant-prone areas in Leh, Srinagar, Udhampur and in the North East, and participated in active combat scenarios in Syria, Lebanon, Ethiopia, and Israel.

At this juncture, we must not forget that it took SSC women officers almost two decades of sheer perseverance and patience to achieve this landmark victory inside the courtroom in their fight against a male-dominated Indian Army. It would be grossly incorrect to think that the fight against male domination within the military is over with a legal pronouncement from the ivory towers of justice. The years of continuous struggle by women officers for equality of opportunity will continue outside the courts and within a male-dominated military. After all, the real gap that exists between de jure equality and de facto equality, in this case, is in the mentality of the male brass, in both the institution and its processes, which is where the change needs to happen.

Militaries around the World

It is important to study how other countries in the world have addressed the womens question pertaining to the military, particularly women in combat roles. For example, the United Kingdom (UK), the United States (US) and Australia have opened all combat roles to women without lowering entry standards or exposing them to higher and unmanageable risks by rethinking as well as rewriting the physical employment standards (PES) for military personnel and adopting effective mitigation strategies (Kamarck 2016). The Women in Ground Close Combat Findings Paper noted that the UK Armys physical selection standards were outdated because these standards were based on science and the military context of the 1990s, and that the armed forces equipment, doctrine, and the average weight carried had completely changed since then (Ministry of Defence 2016a). The report acknowledged that a systematic and thorough rehaul of the entire military institution and its processes was required in order to achieve a diverse as well as a multitalented workforce and an optimal jobperson fit and also to ensure that the standards are maintained.

As such, the Interim Report on the Health Risks to Women in Ground Close Combat Roles prepared by the UKs Ministry of Defence (2016b) recommended that:

(1) New optimised Physical Employment Standards for GCC [ground close combat] roles are developed and implemented.

(2) Optimal, progressive physical training strategies, with special consideration for upper body strength and load carriage performance, are delivered through-career for women (and men) in GCC roles.

(3) Interventions to reduce overtraining (e g, excessive distance running) are introduced.

(4) Initial training is undertaken in a single sex manner.

(5) Women in GCC roles are monitored through-career for early signs of injury and/or ill-health by an occupational physician.

(6) Education on injury risk, ill-health, and preventative strategies is provided to all leaders and personnel.

(7) Provision of, and access to, Mental Health First Aid is made available and strongly encouraged at Unit level.

(8) Education on appropriate training, postpartum requirements, and dietary needs for women in GCC roles is provided in an updated Servicewomens Guide.

(9) Research is continued to identify the causes of injuries, mental ill-health, and impaired reproductive health so that that bespoke mitigations can be developed for the UK Armed Forces population.

With these insights, it can be reasonably concluded that a people-centric approach must be adopted by the Indian state and military rather than blindly applying a male-centric approach to address the womens question in the armed forces. In May 2019, Flight Lieutenant Bhawana Kanth became the first woman fighter pilotin the Indian Airforce and in December 2019, SubLieutenant Shivangi became the first woman pilot in the Indian Navy (Joshi 2019; Gurung 2019).

Despite these major achievements, being treated as the other and lesser within the military fold on the basis of a subjective evaluation by male officers and outdated male standards, being deprived of the bundle of benefits and privileges like promotions, ranks, pensions, and other facilities vis--vis their male counterparts is dishonourable, discriminatory, and demotivating for servicewomen. Their fight for equality within the military fold has just begun.

References

Davies, Margaret (2017): Asking the Law Question, Pyrmont: Thomson-Reuters.

De Beauvoir, Simone (1972): The Second Sex, London: Penguin, https://www.marxists.org/reference/subject/ethics/de-beauvoir/2nd-sex/ch....

Gurung, Shaurya Karanbir (2019): Bhawana Kanth Becomes 1st Fighter Pilot to Qualify to Undertake Combat Missions, Economic Times, 22 May, https://economictimes.indiatimes.com/news/defence/bhawana-kanth-becomes-....

Joshi, Shamani (2019): The Indian Navy Just Got Its First Female Pilot, VICE, 3 December, https://www.vice.com/en_in/article/ne8akk/the-indian-navy-just-got-its-f....

Kamarck, Kristy N (2016): Women in Combat: Issues for Congress, Congressional Research Service, United States, 13 December, https://fas.org/sgp/crs/natsec/R42075.pdf.

Ministry of Defence (2016a): Women in Ground Close Combat Findings Paper, United Kingdom, 17 May, https://assets.publishing.service.gov.uk/government/uploads/system/uploa....

(2016b): Interim Report on the Health Risks to Women in Ground Close Combat Roles, WGCC/Interim-Report/10/2016, United Kingdom, https://assets.publishing.service.gov.uk/government/uploads/system/uploa....

The Secretary, Ministry of Defence v Babita Puniya and Others (2020): Civil Appeal Nos 93679369 of 2011, Supreme Court judgment dated 17 February, https://main.sci.gov.in/supremecourt/2010/20695/20695_2010_8_1501_20635_....

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Remaking the Indian Military for Women : Beyond the Babita Puniya Judgment - Economic and Political Weekly