– Ziauddin Sherkar*
In 2019, the Supreme Court of India (‘the Court’) delivered seminal judgments with regard to the role of women in the armed forces. In two landmark rulings, The Secretary, Ministry ofDefencev. Babita Puniya, (‘Babita Puniya’) and Union of Indiav. Lt. Cdr. Annie Nagaraja, (‘Annie Nagaraja’), the Court struck down the discriminatory policy of not allowing permanent commission for women in the Army and Navy. This article argues that the recent judgments in Babita Puniyaand Annie Nagaraja only scratch the proverbial patriarchal surface of institutional roadblocks that the Constitution still preserves. Unfortunately, the directions in both the judgments refrain from addressing the elephant in the war zone — the prohibition on women from serving in combat roles. The incorporation of a specific bar on women from serving in the Army, Navy, and Air Force, (‘discriminatory sections’) gets constitutional legitimacy by virtue of Article 33. These provisions have not been challenged yet. Even the judgments in Babita Puniyaand Annie Nagarajarefrain from addressing them. The sweeping nature of the discriminatory sections still prevents women from enrolling in combat roles. The Indian Air Force has made substantial progress, having opened up combat roles for female fighter pilots. However, the approach of the Army and the Navy leaves much to be desired. This article begins with a critical examination of Article 33 — the constitutional source of the discriminatory sections. In the next section, it lays down three important arguments in favour of equal treatment. Finally, it analyzes the exclusion through the historical prism of caste and concludes with a call for the complete abolition of the prohibition on female combatants.
The Failings of Article 33
In India, the legislative provisions regulating the entry and service of women in the armed forces find constitutional justification in Article 33of the Constitution. Article 33 allows the Parliament to restrict or abrogate the enjoyment of fundamental rights by members of the Armed Forces. One would fathom that a provision as sweeping as Article 33 would have invited a moderate level of deliberation in the Constituent Assembly. Unfortunately, the records of the debates showotherwise. Apart from a procedural amendment moved by Dr. B.R. Ambedkar, it did not attract much dissension. Although, Article 33 does not specifically lay down a restriction on women serving in combat roles, it effectively closes the door on any gender-equality based demand stemming from Part III of the Constitution.
One of the earliest instances requiring the interpretation of Article 33 arose in Ram Sarup v.Union of India(‘Ram Sarup’). A constitution bench led by B.P. Sinha, CJ agreed with the Attorney General’s submission that:
“… the entire [Army] Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to the person subject to that Act.”
This reasoning of the Supreme Court implies that any inconsistency between the Act and the Constitution indicates that the Parliament had simply used its powers under the article to modify fundamental rights. There are three problematic outcomes of this interpretation of Article 33: (a) blanket legitimization of the inconsistency with Part III, (b) no obligation on the Parliament or the Executive to enumerate the rights being restricted along with reasons for such restriction, and (c) no obligation on the Parliament or the Executive to provide compulsory exceptions to the abrogation or restrictions being placed on fundamental rights. As a result of this, if any gender or sexual orientation-based discrimination is practised using Article 33, the extreme burden to prove that it is inconsistent with the purposes of Article 33 would fall on the aggrieved person. It is not surprising then that the sweeping powers under Article 33 have prejudicedfemale soldiers in matters of service.
Very surprisingly, the plethora of judgments after 1973 that rely on Article 33 do not take into account an express restriction read into the provision by Hegde and Mukherjea JJ in the majority judgment in Kesavananda Bharati v.State of Kerala(‘Kesavananda Bharati’). While discussing the abrogation of rights through Article 31C they explained that this restriction cannot “… extend to discrimination in recruitment to the service nor to any other rights possessed by the citizens in the Armed Forces which are unrelated with the proper discharge of their duties and the maintenance of discipline among these forces”.
This observation leads to an obvious question — can the discriminatory sections supported by Article 33 be invoked to deny women an entry into combat roles? From a constitutional perspective, this article answers this question in the negative. It is a given that entry into the armed forces or for particular roles such as combat are governed by elaborateentrance and selection procedures. However, can this entrance or selection procedure be framed in a manner that excludes a clearly identifiable class of persons – in this case women – from its ambit? If Hegde and Mukherjea JJ’s observations in Kesavananda Bharatiare to be taken into consideration, the clear answer is no, as explained in the subsequent section.
Ade factoveto such as Article 33 needs to be debated in light of the cultural and social evolutions in the armed forces over 70 years. The most well-known instance of such a veto power on fundamental rights being specified and demarcated came on the heels of the decision in Romesh Thappar v.State of Madras. A similar demarcation of the state’s veto is required in the case of Article 33. Ending this discriminatory exclusion of women from entry and specific roles in the armed forces will be just one among the many positive outcomes of Article 33’s overhaul.
But Article 33 itself being a part of the chapter on fundamental rights, would its amendment contravene the Basic Structure doctrine? Fortunately such an overhaul would not be alien to Article 33. It has been recast at least oncein the past. This was done in 1984 — eleven years after the doctrine came into existence. Article 33 was amended to broaden its ambit and include personnel of allied services such as intelligence agencies.
Arguments For Equal Opportunity
For the sake of brevity, the subsequent arguments will focus more on legality and less on logistical issues. It must also be noted that any argument grounded in the philosophy of Part III is unlikely to materialize without employing the limitations on Article 33 laid down in Kesavananda Bharati’s case and those built into the provision itself.
Limitations within Article 33
The manifest arbitrariness of the discriminatory sections is evident as they do not even confirm to the purposes specified in Article 33 i.e. proper discharge of duties and the maintenance of discipline. This outlook implies that indiscipline would run high amongst the men in the forces in the presence of women, thereby affecting their duties. One of the reactions to the decisions in Babita Puniyaand Annie Nagaraja was that the majority of the soldiers in the army come from rural areas and are therefore unaccustomed to serving under a woman’s command. This argument was reiterated by at least one former deputy Chief of Army Staff who said that jawansare unlikely accept female commanders. There has been opposition on the ground that it would be dangerous to allow female combatants in predominantly male dominated units in conflict postings such as the Siachen glacier. This opposition fails to conform to the purposes of Article 33.
The combat restrictions arise from an interpretation of Article 33 that gives legitimacy to manufactured possibilities of indiscipline, despite long-standing presence of non-combatant female members in forward operating areas. Constitutional guarantees of fundamental rights must take into account contemporary realities and their evolution over time. Even from a purely textualist interpretation, Article 33 holds only two purposes for the need to restrict or abrogate fundamental rights: (a) proper discharge of duties and (b) maintenance of discipline. There is no evidence to indicate that the Constitution drafters saw the recruitment of and equal roles for women as a threat to the discipline of the armed forces. K.M. Munshi initially introduced Article 33 as part of Draft Article XIV in the Constitution Drafting Committee’s Sub-Committee on Fundamental Rights. After being adopted by the Advisory Committee and then the Drafting Committee, Article 33 was passed without much debate in the Constituent Assembly. The minutes of these committees give no indication that Article 33 was incorporated for a single specific reason. Its purpose was general, as reflected in the text of the provision. The interpretation of the Constitution has come a long way from the textualist days of A.K. Gopalan v.State of Madras. As it stands today, the Constitution, and especially Part III, is being interpreted using a more purposive outlook. However, the non-controversial legislative history of Article 33 shuts the door on any historical perspective. Therefore, any future interpretation of Part III must refrain from adopting the blanket restriction approach as seen in Sarup Ram’scase.
Will Article 33 Apply Pre-recruitment?
If women – even those already enrolled in non-combat roles – challenge their exclusion from combat roles, their demand can be acceded to within the existing framework of Article 33. As noted above, discharge of duties and maintenance of discipline are the only two purposes of the restrictions imposed through Article 33. The presence of women in non-combat roles and even in combat-support and combat roles in India, as well as on foreign assignments, has been witnessed since 1991. The presence and active contribution of women officers over the last 29 years has not resulted in any serious breach of discipline and hasn’t been a hindrance in the discharge of duties. Therefore, to deny them equal opportunities is to use the fear of manufactured indiscipline and incompetence — an inherent misuse of Article 33.
In the alternative, a closer look at Article 33 reveals an interesting dichotomy in its application. The language of the provision indicates that it applies to persons who are serving members of the armed and other allied forces. Therefore, they stand to lose their fundamental rights or have them restricted post-recruitment. However, this article argues that this restriction or abrogation of fundamental rights cannot take place beforesuch membership is obtained by virtue of successful selection. Therefore any pre-selection or pre-recruitment restriction on fundamental rights at the entry level will have to pass the test of Part III as any other executive action would. Article 33 cannot be used to restrict or abrogate fundamental rights of persons who are just aspirants but not yet members of the armed forces.
A selection procedure that excludes women entirely from its ambit is anything but reasonable. The courts have continuously frowned upon such discriminatory mischief elsewhere. Indian women do have legitimate claims about the arbitrariness, inequality, and discriminatory nature of restrictions. Nariman J.’s magnum opuson the doctrine of manifest arbitrariness in Shayra Bano v.Union of India throws this combat restriction into sharp relief. The doctrine includes, “… not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment…,” and a law must, “… conform to norms which are rational, informed with reason and guided by public interest…,” to negate any alleged infirmity in it. Devoid of the protection rendered by Article 33, pre-recruitment restrictions on the right of Indian women to be allowed for combat enrolment smacks of manifest arbitrariness.
The Strength Dilemma
An argument against combat roles is the alleged physical and physiological inferiority of women. Article 14 of the Constitution prevents the promulgation of class legislation— with the exception of reasonable classification most widely used in affirmative action policies. Thestrength-based argument inadvertently ends up creating two classes – men and women – and formalizes conventional Indian stereotypes about male and female strength. It builds on this assumption of inferior female strength, thereby disentitling women from taking part in the selection process ab initio. However, this argument fails to treat the male class similarly. There are no presupposed notions about a type of man or men who are weak. After clearing other eligibility requirements all of them are allowed to compete at the stage of physical evaluation.
Physical and physiological inferiority may disentitle a particular man, but not men as a class from enrolling. An opportunity to prove physical prowess exists for every man, but not women. Even if the discriminatory sections are removed, there is nothing to prevent the armed forces from having specific physical eligibilities based on operational demands. Even in the United States of America, after opening up every position in the armed forces – including combat – for women in 2016, the rigorous selection procedures have been uniform for men and women. Many gender-integrated selection procedures initially had no women reaching the final stages of selection but have seen their results improve over time.
It is nobody’s argument that female aspirants be given comparatively relaxed conditions during recruitment. Such an argument would fly in the face of the long-held demand of equal opportunity. It would also invite valid objections from the armed forces on grounds of operational requirements. The only demand that exists is for an opportunity to compete equally. Being barred from the selection procedure itself is manifestly arbitrary.
Caste, Gender and Social Change
Detractors of progressive changes often argue that societal change must precede institutional acceptance. A similar argument was used by the former deputy Chief of Army Staff in his interview cited above. This approach brings the role of law in social change to the forefront. Such a notion sees the law as a reactive eventuality of social change; something that followssocial change. However, post-colonial societies such as India show that many of the entrenched biases found in law do not find historical backing in this social-change-precedes-legislationsequence in the first place. These biases were the result of colonial interventions — not popular social demands. The British colonization of administrative practices in the 19thcentury introduced changes to the prevailing social order that heavily skewed certain professions in favour of the male upper castes.
In the instance of armed forces, through the racist theory of ‘martial races’, the British encouraged disproportionate recruitment of persons from certain castes and regions. However, this classification sealed the segregation of one more class of persons: women from oppressed castes. The ‘martial races’, as they were known, imported their social hierarchies into the army. Most of these ‘martial races’ came from the regions of north, north-west, and central India. As military jobs became the sole purview of the British Raj and its allied kingdoms, it led to the gradual exclusion of oppressed castes and tribes – and as a consequence, their women – from such roles. Coincidentally, some of the fiercest armed opposition to British rule came from regions where these women participated and led in large numbers. The active involvement and participation of these women in military campaigns in ancient as well as medieval India is well documented. Unfortunately, the end to this great female martial tradition resulted in a legislative perversion that was not grounded in the diverse history of the Indian subcontinent.
Therefore, any direct judicial or even legislative intervention to reopen combat roles to give a chance to these women would not be manufacturing a non-existing social phenomena — it would merely be reverting to the one that existed. Even otherwise, would this social-change-precedes-legislationsequence have allowed for progressive changes to take place in India and the world? Strangely, applying this philosophy of social-change-precedes-legislationto the present instance would require women resorting to the use of force in everyday life. Apart from being socially destructive, it would be in violation of the law.
In 1943, Lyudmila Pavlichenko, a sniper in the Soviet Army, was awarded the Golden Star of the Hero of the Soviet Union, the highest distinction in the erstwhile USSR, for her services in World War II. In 2020 the Indian government argued in the Supreme Court that women couldn’t be allowed to serve on Navy ships as most of the ships were sourced from the USSR. If society in its refusal to evolve has dug its heels into the remaining vestiges of legalized misogyny, nothing short of a judicial and legislative bolt is required to shock it out. The time has come for India to reconsider the bar on women from serving in combat roles and cast the discriminatory sections to the dusty archives of post-colonial history.
* Ziauddin Sherkar is an independent advocate and teaches at the Symbiosis Centre for Liberal Arts as a Visiting Faculty.
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