THE GENDER CONUNDRUM: Are we asking the right questions?

By Nishtha Kumar, Advocate on Record

“Man is defined as a human being and a woman as a female — whenever she behaves as a human being she is said to imitate the male.” ― Simone de Beauvoir

I. Introduction

Human beings have been around for thousands of generations on this planet. In the whole time that humans have lived, more specifically thrived, remarkable inventions and discoveries have been made, unlike anything that any other known species has been able to make. Bestowed with a “rational” mind, a thirst for knowledge and curiosity, every day humans are reaching new heights.

Amidst all this “progress”, it is evident that a basic and germane issue has been side-lined. It is very easy for many to pump up their volumes and thump their chests to say, “Feminists have taken over”. The gender debate is not short of rolled eyes and dreary laments. Despite tired eyes and ears, and the risk of being cliché, allow me to throw a slightly different light on the subject.

After thousands of years of feats of progress, why do women still feel the need to be asking for equality, for their fair share, and rightful dues? Why must anyone be defined by their biology, or even their gender identity, after over 10,000 years since the origin of human beings? When women’s movements march forward demanding equivalence, even as we sit in the year 2020, are we asking for the right things? Are the demands leading to only piecemeal solutions or are they comprehensive enough? Are we asking the right questions?

However, before we can even begin to ask the right questions, a little context is necessary. Through the political discourse spanning ages, the 21st century, non-canonical, post-modern, social media blessed, progressive view that has become mainstream finds its roots in the theory of Liberalism. The Liberal philosophy creates the argument of an abstract individual who is an unencumbered self-atomised being. The values of this liberal individual are not a social construct; rather are based on individual judgement deriving its origins from autonomy and rationality. “Individual” is where Liberalism begins, and “rationality” is where it seemingly ends.

In the midst of this individualism, women have come forward demanding recognition along the same rigors and principles of an autonomous rational liberal man. Feminism, as a term, however, is not so simple to define in such absolute terms. Jane Freedman, in her book on the subject, says that it is better to term it as “Feminisms” than “Feminism”. Liberal Feminism has stood somewhat as a pioneer for feminist theory, being the populist view at that. Early feminism was inspired by liberal ideals of dignity, autonomy, equality and self-fulfilment. It inspired writers like Mary Astell, who said, “If all Men are born free, how is it that all Women are born slaves?” History has documented the women’s gradual struggle first for equal natural rights, then for legal rights, for the right to vote, for the right to education, then equal opportunities under the welfare state paradigm, and most recently for equal pay and even freedom over their bodies, as evidenced by the fight for protection against sexual violence, genital mutilation and access to abortion.

This struggle, however, seems to be an unending one. As a woman, and a working professional in an essentially male dominated vocation, I humbly enjoy the freedoms afforded to me by the victories of historical feminists. However, I cannot help but still be pained by the fact that the struggle for these rights is far from over. An examination in context, focusing on one issue, would perhaps serve well, with a case study of a recent Judgment passed by the Supreme Court of India.

II. Case Study on Permanent Commission

Judgment dated 17.02.2020 by the Supreme Court in Civil Appeal Nos.9367-9369 of 2011 and Batch, titled ‘The Secretary, Ministry of Defence vs. Babita Puniya & Ors.’

On February 17th, 2020, the Supreme Court of India in a landmark judgment paved the way for a colossal change in the fate of women in their fight for equality in India.

Re. Facts

The story in this case begins with the provisions of the Army Act 1950, specifically Section 12 therein which elucidated the “ineligibility of females for enrolment or employment”.

It was as recent as 1992 (less than 30 years ago), when by Notification, women were made eligible to be appointed as officers for Army Postal Services, Judge Advocate General’s [“JAG”] Department, Army Education Corps [“AEC”], Army Ordinance Corps and Army Service Corps (Food and Catering). Subsequently, by another Notification in in the same year, women were further allowed in the Corps of Signals, Intelligence Corps, Corps of Engineers, Corps of Electrical and Mechanical Engineering and Regiment of Artillery.

The original Terms of Engagement [“ToE”], under which Women Special Entry Scheme (Officers) [“WSES”] was notified, provided for a contractual period of five years after which women officers were to be released from service.

On August 1st, 1996, an amendment was issued to WSES, under which the commission was made further extendable by five years. Women who had been granted commission for an initial period of five years were required to furnish an option for extension by five years or for release.

It was as late as the year 2005 that the Union Government extended the validity of the scheme of appointment of women as officers in the Indian Army. The tenure of women officers inducted under the WSES under Notifications dated February 15th, 1992, January 23rd, 1993 and December 12th, 1996 was extended by five years from 1997. Further, the tenure of Short Service Commission [“SSC”] male officers and WSES officers was extended up to fourteen years. Thereafter, WSES was to cease to apply as a consequence of which women officers were to be inducted only through SSC.

As a consequence of the foregoing, a cap on the length of service was introduced for all women officers.

In the foregoing context, several writ petitions came to be instituted, including Writ Petition (C) No. 1597 of 2003, in February 2003, by one Babita Puniya, an advocate, in the nature of a Public Interest Litigation, before the High Court of Delhi, inter alia, praying for the grant of Permanent Commission to women SSC Offices in the Army.

By its Judgment dated March 12th, 2020, the High Court of Delhi passed a host of directions, inter alia, granting the prayer for Permanent Commission to women in service and eligible for the same as per Rules, equivalent to their male counterparts.

Aggrieved by the decision of the High Court of Delhi, the Ministry of Defence preferred Special Leave Petitions before the Supreme Court.

During the pendency of the Petitions, the Union Government, pursuant to a High-Powered Committee, issued a Policy Decision dated February 25th, 2019, inter alia, granting Permanent Commission to women SSC officers in all ten streams they were currently being commissioned.

Re. Findings

After a detailed hearing process, and extensively considering various aspects the debate, the Supreme Court of India passed the following directions:

(a) The Policy Decision dated February 25th, 2019 which has been taken by the Government allowing for grant of Permanent Commissions to women SSC officers in all the ten streams where women have been granted SSC in the Indian Army is accepted, inter alia, subject to:

i. All serving officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;

ii. Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;

iii. As a one-time measure, the benefit of continuing in service until attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;

iv. The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;

v. SSC women officers with over twenty years of service who are not granted Permanent Commission shall retire on pension in terms of the policy decision; and

vi. At the stage of opting for grant of Permanent Commission, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers.

(b) SSC women officers who are granted Permanent Commission in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits.

III. The Debate

As a consequence of the aforementioned Judgment by the Supreme Court of India, in July 2020, the Union Government, finally, issued an official Letter extending Permanent Commission to women in the Indian Army. As a result of the same, a woman officer, who is successful, could technically rise to the highest ranks of the Army.

Be that as it may, and with due credit to the enormous win, what is glaring in this entire episode is the side-lining and quiet defeat of true equality. At the moment, women officers in India are still not be inducted into the combat arms such as the infantry, artillery or armoured corps.

In fact, out of 195 countries in the world, only 19 countries, as on date, allow women in combat viz.:

(a) Europe: United Kingdom, Denmark, Estonia, Finland, France, Germany, Lithuania, Netherlands, Norway, Poland, Romania and Sweden;

(b) Asia: Israel and North Korea.

(c) Americas: United States of America and Canada;

(d) Africa: Eritrea;

(e) Australia and New Zealand.

This is only 9.7% of the countries in the world, which hold approximately only 8.8% of the world’s population, which is equivalent to only half of India’s population.

The question we need to be asking, therefore, is why are women not being granted unfettered and unconditional parity with their male counterparts in armed forces? The question then needs to be extended to every other profession and aspect of life.

Women in combat is only 1 issue in a host of questions that we need to be asking. Till the day, we, as a species, are not able to look beyond the biology of beings, Feminisms will continue to erupt. We must begin by asking ourselves questions such as, why do we still accord negative values to words like “witch” or “bitch”, whereas their male counterparts of “wizard” and “dog” receive positive affirmations? We must question the derogatory implication of phrases like “throw like a girl” or “boys do not cry” and question every step of the way any biology-based stereotypes. No sex is lesser than the other. There is no fairer sex. Differences ought to be celebrated, and not ridiculed. Women need not have to struggle to take back the night, for the light and dark belongs to us all.

It is only when we ask the right questions, and hopefully answer them with positive solutions, will we truly be a species evolved enough to focus on something else.

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