Article 14 of the Constitution provides for 'Equality Before Law', and Article 15 provides for 'Right To Equality', which includes prohibition of discrimination based on religion, sex or caste. These form the basis of Fundamental Rights. But the question is, are these rights absolute? No, these are not. So let's examine why?
The concept of Equality connotes:
- Equality of treatment under equal circumstances, both in privileges conferred and liabilities imposed.
- Similar application of laws to all persons who are similarly situated.
- The like should be treated alike without any discrimination.
However, the rule of equality is not absolute and there are constitutional and other exceptions to it.
Article 15 provides that the State shall not 'discriminate' against any citizen on grounds 'only' of religion, race, caste or sex. The use of word 'only' connotes that discrimination on other grounds is not prohibited.
Even the Fundamental Rights enshrined in Article 19 are not absolute, since the State can impose reasonable restrictions. For example, in the case of Freedom of Speech and Expression, restrictions may be imposed on the grounds of sovereignty and integrity of India, security of the State, public order, decency or morality etc.
So the inference drawn is:
- Even the Fundamental Rights are not absolute in nature.
- Exceptions have been incorporated to ensure efficiency and smooth functioning of the system.
- Equality of treatment has to be under equal circumstances.
- Where equals and unequals are treated differently, Article 14 does not apply.
- The security and integrity of the nation takes precedence over Fundamental Rights.
Having said that, let us come to the subject of recruitment of women in the Armed Forces. It commenced in 1993, and over a period of time, the scope of their enrolment has gradually been extended to more and more number of departments. However, their training since then has been conducted in Officers Training School, Chennai, and they are granted Short Service Commission, after going through a 49-week training.
Those who wish to leave after 10 years may do so, but those who wish to serve upto 14 years may continue. Earlier, permanent commission was granted after 14 years in two Branches, i.e. in Judge Advocate General (JAG) Branch, and Education Corps, which do not participate in war. But now, permanent commission is being granted in 10 different Branches, based on a Supreme Court ruling of 17 Feb 2020.
However, now a new development has taken place when some ladies filed a petition in the Supreme Court claiming that their denial to be trained at NDA, which involves a three-year training at NDA, followed by another year at the respective Service academies (ie a total of four-year training), amounts to 'Gender Discrimination'. They were right and had a valid point. Based on this, the Supreme Court gave a ruling on 18 Aug 2021, that the women candidates may appear for joining NDA.
However, as long as the Supreme Court does not force its decision to grant them commission in the Regiments directly involved in fighting on the frontline, to further emphasize on gender equality, it would be fully justified. Because the environment in the Fighting Arms, ie Infantry, Mechanized Infantry, Armoured Corps, and a Supporting Arm like Artillery, has not been found suitable for the lady officers.
Though the ladies are being commissioned in other Supporting Arms, like the Corps of Engineers, and the Corps of Signals, yet even in these Corps, they cannot be deployed in frontline duties during war, especially in the Corps of Engineers, since they have an active role in the combat zone. Hence only a limited number can be absorbed there.
Not that the ladies are inferior to men in any manner. In fact, some of them have proved to be exemplary in their dedication, professional competence, as well as personal conduct. Moreover, they have to face a far tougher competition for their selection, as compared to their male counterparts, since the number of vacancies available to them are far too less. Hence the lady officers, selected to join the Defence Forces, are the crème de la crème of the country. But the real problem lies in ensuring their honour and security in the combat zones.
Now the Supreme Court has given a ruling, that to do away with gender discrimination, the women be allowed to join NDA. While the govt, based on the advice of the three Service Chiefs, had opposed the case in the Court, since it involved granting them permanent commission in the Fighting Arms and all Supporting Arms, at par with their male counterparts.
But the Supreme Court's sole focus was on the concept of gender equality, and it overruled the recommendations of the Ministry of Defence. However, there is no problem with the ruling either, as long as it is restricted only to their training at NDA.
The Supreme Court is supreme, not because it has been endowed with unquestionable wisdom, but only because there is no other Court higher than it. Law is purely a matter of interpretation, and even the various benches of the Supreme Court have at times reversed the very Supreme Court rulings. An interpretation of law, therefore, cannot be taken as the absolute and unchallengable truth.
It should simply be accepted as a fait accompli. However, its decision would be fair enough, if it pertains only to training at NDA, and does not compel the Indian Army to grant them commission in the Fighting Arms and a Supporting Arm like Artillery.
What we all need to understand is, that the real question is not 'gender discrimination' but purely a case of putting the right person at the right place during the war, especially in the combat zones. The Army has nothing against the lady officers, nor does it consider them inferior to males.
They are undoubtedly as good as their male counterparts; in fact, some of the lady officers have performed better than their male counterparts. In any case, how can one consider one's son superior to one's daughter? Moreover, why would any defence officer like to deprive his daughter, anything in preference to his son ?
So the argument should not be seen in the light of male-domination or gender discrimination. In fact, there is no doubt about their caliber and competence, and the entire nation is proud of them. After all, aren't they our daughters and sisters? We are there, and all out there, to uphold their rights and dignity in nation-building. They are an invaluable asset to the nation, and the nation is proud of them.
Well, if the Army had argued its case, it had some genuine reasons:
- A young lady, just after passing out of school may be too willing to go through the four-year training, do extremely well at NDA; even be adjudged the best cadet there, and get permanent commission. But the problem lies with commissioning them in the Fighting Arms and a few of the Supporting Arms; nothing else.
- And what if she decides to leave after marriage, to bring up her children, which is not only her Fundamental Right, but a Fundamental Duty? Should she be permitted to do so before completion of 20 years of service, even after having gone through a four-year training?
- And would denial of such voluntary discharge be fair to her? If denied, wouldn't she become totally ineffective? In fact that would be the biggest injustice to her.
- She cannot be deployed on frontline duties (ie in combat zones), not only during a war, but even during the normal field postings, in insurgency infested areas, as well as on the LoC or LAC. Combat Zones have not been found suitable for women. Moreover, it involves staying on isolated posts with all male troops, where she could be the lone lady. That is just not desirable.
- Then the high altitude areas, except when she is still a spinster, are not meant for lady officers; and postings on Siachen Glacier are simply not. A lone lady in command of all male troops on an isolated, or an air-maintained post is not safe from any angle. And where do her children go? Well this is not to comment on her capabilities in any manner. Capability-wise, they are as capable.
- Then would it be cost-effective to the nation, if a lady officer decides to leave the service prematurely before 20 years of service, after having gone through a four-year training ? Would that not amount to denial of vacancies to the male candidates, who would invariably be asked to serve for the mandatory period of 20 years.
- Moreover, the units being out on long training periods in deserts and other terrains where one has to stay in tents, and they have to move out at odd hours during day time as well as nights, for considerable periods, are not conducive for lady officers, especially with young children. Imagine, they being put through a five-month plus, long military exercise like 'Excercise Brasstacks' ! And then there are various annual Operational Alerts on our borders.
- The Army is already facing a shortage of officers. The induction of lady officers in the Fighting Arms and Supporting Arms, will further increase the problem due to maternity leaves etc. And even post-maternity leave, she needs to look after the child for quite a few years; you have to consider the same from a humanitarian angle. And the war invariably comes unannounced, so we need to keep that too in mind.
Hence, we should not just come out with hyperbolic and sensitive terms like 'Gender Discrimination', 'Equality Before Law', and 'Equality in Job Opportunities' etc, but see through the larger picture of national interest. They should rather be adjusted where they have the right environment to fit in. Their share of job opportunities should certainly not be denied, and their role in the Defence Forces should also be honoured, and not undermined.
But we must also remember that putting the right person at the right place, can contribute a great deal in the ultimate victory, where Fundamental Rights should not become the first obstacle to be dealt with. One of the primary causes of Napoleon's defeat in the Battle of Waterloo (18 Jun 1815), is attributed to incorrect deployment of his military commanders.
His ablest subordinate, General Davout was left in command of defences of Paris, and General Murat was rebuffed when he requested for a field command, and General Soult, a capable field Commander was miscast as Chief of Staff. So too were brave but fighty General Ney and vacillating Marshal Grouchy selected to command Army's wings. To sum up, the failure of performance of his subordinates to match his superb strategic concept led to his defeat.
The defeat was not due to the lack of professional competence on the part of commanders, but solely because of the fact that the right commanders were not put at the right place. And history repeats itself when we ignore the lessons learnt during the previous wars and campaigns.
After all, the Defence Forces are the final custodian of the nation's security and honour. And the nation's ultimate survival depends upon their efficiency. But there is a conflicting situation as far as 'Employment' and 'Deployment' of lady officers is concerned. And both these terminologies are totally different. Incidentally, it's with a lot of thought that 'Reservation' has not been made applicable in the Armed Forces, which too, as per the law book results in discrimination.
Would the Supreme Court like to do away with this discrimination too ? Hope not ! In fact, they should not even ever consider that. And what if tomorrow Supreme Court gives a ruling for commissioning of LGBTQ category of persons in the Defence Services, to avoid gender discrimination? They shouldn't. Wisdom demands that we should give preference to the spirit of the law, over the letter of the law.
Will the Supreme Court please try and understand the functional requirements of the Army! Well, if the Indian Navy and the Indian Air Force are ready to accept the lady officers in their Fighting Arms, to a greater degree than the Army, there is no objection either, because each Service has a Service-specific requirement. The Indian Army is not against the lady officers by any stretch of imagination. Hence, highlighting of the problems should not be misconstrued to be an argument for male-domination or gender discrimination.
Each Defence Services organizational structure has two definite parts: the Teeth and the Tail. The Teeth element comprises the units deployed in front, which come in direct contact with the enemy. They have the toughest life, both physically and mentally.
An Infantry Battalion, or a Mechanized Infantry Battalion, or an Armoured Regiment in attack; the fighters and bombers in direct operational role; the frigates and submarines in actual deployment are a few examples. And even the Supporting Arms like Artillery and Engineers also get fully involved in the frontline fighting in the combat zone.
While the process of inducting ladies as fighter pilots has already begun, landing in enemy territory, like Wing Commander Abhinandan had, can not be ruled out. Would anyone want his daughter or sister to be in that situation? But if this is acceptable to the nation, it's fine. The same is applicable for the officers and troops operating in combat zones. The chances of falling in enemy hands cannot be ruled out.
None of us would want our daughters and sisters to be in that position. Becoming a Prisoner of War (PoW) is a harsh reality which can not just be wished away, and we all know how Pakistan treats the PsOW. While one may flout all the above suggestions, and yet everything will continue to appear well till a war breaks out, which though could be a rare phenomenon, yet the contingencies and consequences should be well thought of, beforehand.
The 'Tail' element comprises the units providing logistic and administrative support to the frontline fighting units. While they sustain the fighting units with their timely support, they too are not out of the war zone, because the entire Army has to get involved in fighting a war, and their's too is an equally demanding job. In fact, this part of the organization is also as important as the fighting elements, and that's why the Teeth, however strong, cannot sustain without an equally strong Tail.
Hence there is a need to maintain an ideal balance, but the lady officers can be well fitted in the Tail portion, where they would be relatively safer. In Army, there is a continuous ongoing discussion and a process of reorganization, to ensure an ideal 'Teeth to Tail Ratio', because that's another crucial factor in winning a war.
What the Supreme Court needs to understand is that the Defence Forces are fundamentally a different organization, and can not be compared with any other organization. A lady officer leading a male contingent on Rajpath during the Republic Day Parade is only a symbolic ceremonial gesture.
That may inspire public confidence, but to command male troops in the thick of battle is altogether a different game, where ensuring her honour and security becomes the prime responsibility of the Armed Forces, notwithstanding her capabilities and competence, which are unquestionable.
Security of the nation is supreme, and must, therefore, take precedence over the academic concept of Fundamental Rights and Gender Discrimination, before China or Pakistan teaches us a lesson, the harder way. When war breaks out, we can't win the same by showing them the Supreme Court ruling; the enemy will neither accept it, nor respect it.
Hence the Supreme Court should listen to the professional advice of the three Service Chiefs. Because if we lose a war, the Supreme Court can neither accept responsibility, nor come to the rescue of the nation.
About the Author
Brig BL Poonia, VSM (Retd) is an ex-NDA officer, commissioned in 2nd Battalion Brigade of the Guards in Jun 1974. He commanded a Company as well as a Battalion in Nagaland during the peak of insurgency.
Had been a GSO-3 (Intelligence) of a Brigade, GSO-2 (Intelligence) of a Corps in J&K, GSO-1 (Intelligence) of a Corps in Kashmir Valley, and Colonel General Staff (Intelligence) of a pivot Corps during Operation Prakram.
Commanded an Infanty Brigade in the Western Sector, and was the Deputy GOC of an Mountain Division in the Eastern Sector. He has also been Deputy Director General Recruiting (Maharashtra, Gujarat & Goa), and retired after serving the Indian Army for more than 35 years.