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SOURCE : DHNS

Two rounds of a prolonged legal battle by women officers of the Indian Army were won through Supreme Court judgements on February 17 and March 25. The actual ‘war’ is a quest for ‘Equality of Opportunity’, which the government is constitutionally bound to uphold. Unfortunately, its efforts in the courts point in the opposite direction. The continued effort by the government to deny justice to women officers is glaring. A 2010 judgement of the Delhi High Court that provided relief on the issue of Permanent Commission has remained unimplemented for a decade. The government’s negative attitude is apparent. That said, it is not that the government does not have a case. It certainly does.

The legal battle is between the government’s prerogative to impose restrictions on women’s employment in the Army versus the infringement, in the form of gender discrimination, of such restrictions on ‘Equality of Opportunity’. National security being supreme, defence policies are an essential instrument of governance controlled by the executive. The government has been contending that the policies fashioned to exercise its powers of curtailment of Fundamental Rights is the preserve of the executive. They have rightly maintained that the effectiveness of the military instrument cannot be compromised even if it impinges on the Constitution’s ‘Equality of Opportunity’ clause. The courts have upheld this principle. But its implementation in practice has continued to be debatable.

Though courts have acknowledged the above logic, the relevant defence policies considered to be discriminatory keep facing legal challenges. There are hardly any major instructions regarding women officers that have not been legally contested. It is apparent that policymakers are not subjecting the policy to an important test – will it stand legal scrutiny? Worse, the government has not been able to devise any policy that takes the battle out of the courts and brings it back to the executive in order to be able to render speedy justice.

It is evident that only a system modification can deliver justice to the beleaguered officers. The change required is obvious. It must permit women officers entry to any part of the Army, including Combat Arms, as long as they volunteer for it and meet common minimum standards. The onus of proving equivalence must rest on the women officers and once met, no discrimination whatsoever should be permissible from commissioning to retirement. Gender-differentiated policies relating to appointments, promotions, pensions, etc., that have been legally contested for decades, will fade away. It will allow the framing of policies, rules and conditions that preserve the effectiveness of the military instrument.

Policies that take validity from the military imagination of the battlespace, both present and future, should not be outweighed by ‘Equality of Opportunity’. Since the principle of executive prerogative has been legally upheld, it should be possible to balance organisational requirements and gender differences. Policymakers must not merely make policies to solve immediate messy situations arising from an earlier lack of vision. A system framed on common standards can provide relief more than any other policy initiative.

Without a doubt, ‘common standards’ will be a highly contentious issue, but the prerogative for the decision must be exercisable by military leaders. The decision of the military leaders in 1992 to allow entry to Combat Support Arms like the Artillery, Engineers and Air Defence had partially opened the door for induction into Combat Arms. This is so because the issue at hand is coupled with the changing character of war. In the context of gender justice, Combat Arms and Combat Support Arms have to be considered as inseparable. The approach of policymaking has to shift from denial to provision of opportunity and acceptance to the extent feasible. Policymakers must safeguard the legal space for decisional autonomy. But it cannot be achieved without professional opinions outweighing societal norms sans prejudice.

At the root of the issue is the cultural reluctance of males to accept female equivalence in physical resilience in combat. The males have a point that is mostly based on superior physical capability. But surely, this is not a showstopper as long as the females match up to the minimum common physical standards. Differences in the physicality of gender should not be, a priori, assumed to make females inferior in terms of physical performance. Also, physical proximity between the genders in combat and peacetime activities is inevitable, and as long as it is acceptable to an individual, it cannot be the reason for blocking entry. Equivalence between the genders in terms of mental capabilities has never been in dispute.

The military leadership must pilot the future course of woman officers by jettisoning the legal stands it has so far preferred to follow, which apply different standards and criteria even for promotions and appointments. Women are presently not eligible for Command appointments in the rank of Colonel, while male officers are. The need to resolve the immediate problems of currently serving women officers should not be allowed to cloud the fashioning of a new system. The existing lot of officers have, of necessity, to be given whatever is their rightful due, in the awareness that they have been deprived of their rights earlier and cannot really be compensated except through a sympathetic outlook and temporary relaxations in policy matters.

A woman as an infantry battalion commander may be difficult to imagine but that does not mean the gate should not be open for the achievement of that ultimate combat status. When that comes to pass, there should be nothing gender-based to stop a woman officer from even becoming the Army Chief. The extant situation of discrimination that exists is a far cry from this ideal. Without a doubt, progress has been made despite governmental resistance and judicial delays. The fighting spirit of the woman officers is the only reason for whatever positive changes have come to pass.

The matter is germane to the Navy and Air Force, too. The executive must assume charge of acceptable changes, unshackled from judicial activism carrying the flag of gender justice and abstracted from the national security context. The ultimate power of the executive decisions dealing with induction, employment and retirement of women in the Armed Forces has to be vested in professional military judgement, even as it is subject to judicial scrutiny. The exercise of the power has to be freed from deep-rooted gender prejudices and yet when deemed necessary, hold its professional ground even when the cries of male prejudice rend the air. Ultimately, combat is a brutish dog-eat-dog arena of human activity sans moral compunctions that brooks no weakness even in the name of gender justice.