SC: The notion that women are the weaker sex is constitutionally flawed

The Hon’ble Supreme Court, on 17th February 2020, in the matter of The Secretary, Ministry of Defence v. Babita Puniya & Ors. observed that 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.

The Hon’ble Supreme Court observed that:

Article 33 of the Constitution empowers Parliament to determine by law the extent to which the rights conferred by Part III of the Constitution shall be restricted/abrogated in their application inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. The impact of Article 33 is to enable Parliament to limit or abrogate the fundamental rights in their application to the members of the Armed forces. But such a restriction or abrogation must be by law. Moreover, the restriction or abrogation must be enacted to ensure the proper discharge of duties and the maintenance of discipline. (Para 44)

Section 12 of the Army Act 1950 embodies the principle that a woman would be eligible for enrolment or employment only in such corps, departments, branches or bodies forming part of or attached to the regular Army upon and to the extent notified by the Central Government. In other words, the eligibility of women for enrollment or engagement in the regular Army is conditional on a provision being made by the Central Government in terms of the enabling provision of Section 12. (Para 49)

Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. (Para 53)

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. (Para 54)

Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. (Para 54)

If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets. (Para 55)

Indian Army’s Women Officer’s track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission. (Para 56)

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. (Para 57)

An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. 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. 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. (Para 67)

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. (Para 67)

Copy of judgement: Judgement_17-Feb-2020

-Adv. Tushar Kaushik

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