The absolute exclusion of women from all positions, except staff assignments, in the Army is indefensible and their blanket non-consideration for command appointments without any justification cannot be sustained in law, the Supreme Court held on Monday.
The apex court, which allowed permanent commission (PC) to women officers in the Army, said an absolute prohibition of women Short Service Commission (SSC) officers to obtain anything but staff appointments evidently does not fulfil the purpose of granting PC as a means of career advancement in the Army.
A bench of Justices D Y Chandrachud and Ajay Rastogi said an absolute bar on women officers seeking criteria or command appointments would not comport with the guarantee of equality under Article 14 of the Constitution.
"Implicit in the guarantee of equality is that where the action of the State does differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner," the bench said.
"In this sense, even at its bare minimum, the right to equality is a right to rationality. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reason," the bench said.
It said whether a particular candidate should or should not be granted a criteria or command assignment is a matter for the competent authority to consider having regard to all the exigencies of service, performance and organisational requirements.
It noted that Army has not provided any justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments.
The bench said when command assignments are not automatic for men SSC officers, who are granted PC, it would not be automatic for women either.
"The absolute exclusion of women from all others except staff assignments in indefensible. If the Army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities and if necessary, to future courts.
"However, such a justification must take place on a case-to-case basis, in light of the requirements and exigencies of a particular appointment. The blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law," the bench said in its 54-page judgement.
During the pendency of the case, the Ministry of Defence had issued a communication on February 25 last year for grant of PCs to SSC women officers in eight arms or services of the Army, in addition to the Judge Advocate General (JAG) and Army Education Corps (AEC) which was opened up earlier.
The communication had further stipulated that on the grant of PC, women officers will be employed 'in various staff appointments only' in accordance with their qualifications, professional experience, specialisation, if any, and organisational requirements.
It had stated that while women officers who are granted PCs will continue to be a part of their parent Army/service, 'they would serve on staff appointments only' both within the parent Army/service and in other fields of specialisation.
The bench, however, held that the expressions "in various staff appointments only" and "on staff appointments only" in the February 25, 2019 communication "shall not be enforced".
The bench said it has already adverted to the submission which was urged on behalf of the women officers by advocate Meenakshi Lekhi that there are various command assignments in which there would be no reason or justification for excluding women. This is a matter for the determination of the relevant authority, it said.
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