The central government’s recent arguments of women’s gendered responsibilities and implied limitations, in the Women Army Officers’ case reflects our society’s deep-rooted sexism
On 17th February and 17th March’20, the Indian Supreme Court (SC) passed two important judgments that advanced the eligibility of Short Service Commission (SSC) women army and navy officers for Permanent Commission (PC). In both cases, the bench comprising of Justices DY Chandrachud and Ajay Rastogi recognized women officers’ fundamental right to equality under Articles 14, 15(1) and 16(1) of the Indian Constitution. In doing so, the Court rejected the central government’s cliché sexist arguments that women due to their maternal and domestic obligations, physical inferiority, work-related occupational hazards, privacy, and safety concerns were unsuited for the job.
Interestingly, a century has passed since the passing of Legal Practitioners (Women) Act, 1923 that overruled the Regina Guha and Sudhanshubala Hazra judgments and identified women as “legal persons” to provide them practicing rights before the Indian courts. But structural barriers, i.e. – written legal impediments, continue to exist against women and prevent their entry into professions traditionally deemed suited for only men. This article analyzes the similarities and differences in the above cases that are divided by time but not society’s patriarchy.
Structural Barriers in Law against Women
All of the above cases had the presence of a structural barrier i.e. – a written law that prevented women’s entry in the respective profession. For women advocates, the Courts had interpreted ‘person’ under Legal Practitioners Act to exclude women because the legislative intent was seen to frame a law for practitioners deemed historically as only men. The existence of women lawyers in the Islamic period, as both lawyers and judges, failed to persuade the judges in the Guha case due to non-following of such practice during the Indian Muhammadan period. The Court had further relied on Bebb v. Law Society, a British case, where women counsels also weren’t allowed to practice as solicitors under the Solicitor’s Act, 1843.
For women army officers Section 12 of the Army Act, 1950, and for women navy officers Section 9(2) of the Navy Act, 1957, is the structural barrier that has made them ineligible for appointment to the regular army/Indian navy; except when otherwise notified by the central government in the Official Gazette. While the 1923 Act lifted the blanket ban over women advocates’ practice, women army and navy officers had to wait until 1992 when a central government’s notification appointed them under non-command positions.
In Babita Puniya’s (army) case, the SC upheld retrospective validity of the central government’s March’19 notification, which was in line with the 2010 Delhi High Court judgment that had extended PC to women SSC officers in 8 non-combative cadres. The SC while reproaching the central government for the delayed implementation of the above Delhi HC judgment, also rejected the government’s argument that attempted a U-turn from its 2019 notification to grant PC to women officers because of their shorter 24 weeks training against 49 weeks of their male counterparts.
In Annie Nagaraja’s (navy) case, as well the central government tried deviating from its 1991 and 1998 notifications that had extended women officers practicing rights in various navy cadres; without any stipulation of not extending SSC to them. The SC by rejecting the central government’s argument that the interpretation of “SCC officers” under its 1999 notification, which extended PC to SCC officers, excluded women.
Concerning command roles, while women navy officers had been performing such roles before the judgment, women army officers still haven’t gained such eligibility. The SC exercised restraint and considered it a policy matter on which only central government could decide.
In my upcoming research paper,  I analyze how historical structural barriers against women in the Indian legal profession have evolved to both written and unwritten forms. I do that by citing examples of- seniority norm for selecting the Indian SC judges, and the transfer policy of the subordinate judiciary, that have emerged as implicitly gender-biased (meaning that the polices aren’t gender-discriminatory prima facie but in the effective implication of their effect). The prime reason for this unintended bias has been policymakers’ and judicial appointment makers’ lack of sensitivity to women’s differential gendered responsibilities of matrimony and motherhood. I supplement this with the interviews of 19 retired Bombay and Delhi High Court judges to highlight how women continue to be on the receiving end of the now implicitly gendered-biased appointment policies.
All-Male Judge Benches- Does it Mean Anything?
Coincidently, benches comprising of all-male judges delivered judgments in all of the above cases. This raises an essential question- whether the judge’s gender, in this case, male, meant that they would necessarily adjudge in a particular manner; that whether they would be biased against women or favored towards men?
A combined understanding of legal realism and intersectionality perspectives helps one understand that the judge’s gender is only one of the factors contributing to their decision-making. A variety of other factors such as- the judges’ upbringing, their personal life experiences, interests, education, religion, political ideologies, caste, etc. together function uniquely to contribute to their decision making. This means that historical context in the 20th- century, where women rights were still gaining traction, played a crucial role along with the judges’ gender when they held against women’s right to practice in the legal profession. The 21st-century judges in the army and navy cases, apart from their personal preferences, have witnessed a more progressive society in terms of both legislation and judgments advancing women’s rights.
Thus, the social context played a vital role in their decision-making apart from their gender. This is to also say, the possible presence of a woman judge on the bench wouldn’t have necessarily meant that would have adjudged in favour of women army/navy officers. As for them as well, a variety of factors apart from their gender would have contributed to their judgment delivering. At the same time, however, the merits of diversity and equitable gender representation upon having women judges can’t be denied.
Are Women Emancipated?
When Ruth B. Ginsburg, a US Supreme Court judge, was asked that when in her opinion would there be enough women on the SC bench she replied “When there are nine”. The above cases narrated women’s battle from proving their mental prowess as advocates to proving their physical strength as army/navy officers.
However, the central government’s recent arguments of women’s gendered responsibilities and implied limitations reflected not just our society’s deep-rooted sexism but also its misplaced priorities. Where rather than raising our children equally, and teaching our sons their equal part in sharing household and childcare responsibilities with their partners, the effort is to constantly police women. Thus, the need of the hour is to reject gender roles and help build a society of mutual respect, diversity, and freedom of choice.
 Aishwarya Chouhan, Structural and Discretionary Bias: Appointment of Women Judges in India, Georgetown Journal of Gender and the Law
The author is a 2020 graduate from the Institute of Law, Nirma University.