On 17 February, the Supreme Court guaranteed women in the Armed Forces (AF) – in particular, the Army – the right to permanent commission (PC) in The Secretary, Ministry of Defence v. Babita Puniya (hereafter ‘Puniya’). Upholding a 2010 Delhi High Court judgment, the Court held that the State should provide equal opportunities to both women and men for lifelong service in the Army (not including in combat roles). In delivering the judgment, the Court has substantively expanded the right to equality of female Army officers and further cemented the idea that ‘sex’ isn’t merely a biological category.
The judgment reinforces that policies governing AF members can be tested against the non-discrimination provisions under Articles 15(1) and 16(1). Usually, policies governing members of the AF enjoy relative immunity under Article 33 of the Constitution from fundamental rights challenges. Article 33 allows Parliament to draft laws that restrict the fundamental rights of AF members to ensure ‘the proper discharge of their duties and the maintenance of discipline among them’. Curiously, in Puniya, the policies under review did not aim to restrict women’s equality of opportunity, but rather the opposite. The Union’s 25 February 2019 circular was a direct result of the Delhi High Court’s judgment and explicitly granted female Army officers the right to PC. Given this, the Supreme Court held that the circular could be tested against the non-discrimination provisions in the Constitution. After all, if the circular aims to realise women’s equality, it surely can be tested for discriminating against women. The Court upheld the circular (subject to certain conditions), but nevertheless used the judgment as an opportunity to observe that the Indian Army continues to perpetuate the stereotype that sex determines entitlements.
In reviewing the Union’s submissions, the judgment authored by Justice D.Y. Chandrachud substantially relies on the Court’s relatively novel interpretation of ‘sex’, famously evolved in the NALSA and Navtej Singh Johar judgments. Historically, the Court has understood sex-discrimination in physiological terms. In NALSA and later Navtej Johar, the Court established that ‘sex’ must also be understood in terms of socially-constructed gender. This allowed the Court to recognize that laws and policies that assume stereotypical gender roles, like the notion that a woman’s primary obligations are domestic, can be held to be discriminatory under Articles 15 and 16. Given that this is jurisprudentially rather new, it is important to see it being reinforced in high profile cases such as Puniya.
While the Puniya judgment is undoubtedly worth celebrating, the question remains whether it will carry any significance beyond the sphere of the AF. As the Sabarimala and triple talaq judgments have illustrated, the contemporary challenge to gender equality primarily comes in the sphere of religious freedom cases – especially, cases involving religious personal law. Issues relating to public employment inhabit arguably a less important battleground, as the Court has historically always guaranteed women equal opportunity in Article 16(1) and (2) cases (see Indira Jaising’s Gender Justice and the Supreme Court, pg. 297, 315). Is then the Puniya judgment merely an unimportant reiteration of well-established precedent? Perhaps not. While it may carry little jurisprudential weight beyond the sphere of the AF, it sends a strong symbolic message that the Court is dedicated towards guaranteeing substantive equality to women in India.