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Equality in Armed Forces Comes with All Its Dues: Revisiting the Judgement of Apex Court
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Harshit Sharma | Date:04 Aug , 2020 0 Comments
Harshit Sharma
NET Holder, graduated from National Law University, Jodhpur and currently pursuing LLM I Year from Mahatma Jyoti Rao Phoole University, Jaipur.

Environmental Stress

In general, women are more sensitive to the effects of thermal stress due to several factors that include lower cardio-respiratory fitness, higher body fat content and lower skin surface area. During marches at a set pace, women exercise at a greater percentage of their aerobic capacity than men, resulting in a higher heart rate, oxygen consumption and heat production. Because of this higher metabolic rate, women experience an earlier onset of fatigue and are at greater risk of heat injury than men during forced marches in a hot environment. Women’s physical advantages are that they are less susceptible to altitude sickness and, normally have a greater tolerance of cold temperature due to their extra body fat[26].

Lack of Infrastructure in Forward/Border Areas

In Siachen, there are posts with only four soldiers. They sleep and share the same cramped post to attend nature’s call. Can one imagine a female soldier there?Soldiers undertake patrols that last for over 20 days at times. During this period, the men sleep and bathe together, and do the morning chores in open, often with another team keeping a watch for a possible ambush. There can be no separate arrangements for women.

The consequences of inserting a few women in an almost entirely male preserve, in cramped quarters, in inhospitable terrain, isolated from civilization, cannot even be imagined at this point in time in India.

In army there is a concept of field and peace postings. Every officer looks forward to a good peace posting to be with his family and sort out family issues when he has done his share of field postings. But a large number of peace postings at junior officers’ level are held by the women because they can’t be deployed in forward areas due to lack of infrastructure, thereby depriving male officers of their due share.

Command Appointments and Permanent Commissions

The whole concept of women’s induction in the services has to be viewed in a holistic and objective manner. The first step should be to ascertain whether the required preconditions exist as to warrant women’s entry into the Indian services. Here is a brief appraisal:

•  India is not short of male volunteers.

•  India is still a second generation technology force which is trying desperately to graduate to the third generation, whereas the US and the Western nations are already well into the fourth generation. Indian defence forces are manpower intensive needing physical ground effort.

•  A major part of the Indian Army is deployed on combat duties at all times. Peace tenures are rare and there are very few periods of comparative lull.

Command of units entails setting personal example and leading from the front and Commanding Officers must do everything that the troops are required to do. Commanding a unit is not 24 x 7 task rather it is 24 x 30.  However, existing physical standards of women officers are distinctly lower than their male counterparts. 

Command Appointments often require sacrifices and commitments “beyond the call of duty” by the entire family of service personnel involving separation, frequent transfers affecting education of children and career prospects of the spouse. As a consequence, it is a greater challenge to Women Officers to meet these hazards of service, owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards children and families, especially when both husband and wife happen to be service officers”.

Employment of Women in Direct Line of Fire and in close proximity with the enemy

According to the Centre, it is advisable to keep women officers from direct combat as their capture as prisoners of war by enemies would be a situation of “extreme physical, mental and physiological stress for the individual, organization and above all the government”.

The reason that appears to be in Centre’s argument is that profession of arms requires both mental and physical prowess. That is the reason why even advanced countries are wary of inducting women in fighting units. They have been taking precautions to ensure that women are neither pitched against enemy in face-to-face direct combat nor exposed to the risk of capture by the adversary

Moreover it is imprudent to replicate the model or path followed by others. Every nation has to weigh its options against the backdrop of its own social and environmental mores. The continuous active border conflicts with Pakistan on one hand and China on other, frequent insurgencies in North Eastern Regions, turbulent conditions in State of J&K itself and Naxalites fighting their own battle against forces in Red Corridor necessarily demands Officers and Troops to be experienced in Combat as well as to be in their peak physical powers. Apart from that types of hostilities encountered in past, level of technology and larger manpower issues also need to be considered.

These points are sufficient enough to show that the classification adopted by Government was not arbitrary rather it was based on principle of reasonableness showing Intelligible Differentia and having a rational nexus with the object sought to be achieved.

Conclusion-Women themselves have to be the Crusaders of Change

The underlying principle of the Supreme Court judgment is that so long as women meet the desired physical, intellectual and performance standards, they should have parity with their male colleagues in the armed forces. And therein lies the challenge for women to change the existing realities by performing at par with their male colleagues if not better in all the fields.

Firstly, this performance must come in the physical fitness standards. However, both the military and the women officers are to blame for this. In the initial stages, the induction of women in the armed forces was seen as a cosmetic appendage and very low physical fitness standards—barely 50 per cent of male standards—were laid down. This is something women officers should have protested against. Women remained complacent and thus could not cope up with the physical rigours of soldiering.

Greek philosopher Euripides (480-406 BC) said 2,400 years ago: “The daughters of Sparta are never at home. They mingle with young men in wrestling matches….” Physical fitness standards are fundamental.

Women must understand that if they cannot measure up to the physical fitness standards set for various services, they have no right to seek gender parity. There is no separate battlefield only for Amazons.

These standards have since been revised, but are still 25-30 per cent lower than men with no tests for upper body strength. Equal rights and opportunities imply equal physical standards. The standards have to be role-specific, and not gender- or age-specific. The military must revise the physical fitness standards for women to make them at least up to the minimum standards laid down for the men. For combat arms and special forces, these must be at par with the standards laid down for men. Standards would also have to be laid down for post-pregnancy fitness recovery in terms of time.

If the problem with regard to physical standards still persists it can be solved by the practice of gender norming as is the practice in the United States and other Armies. Under gender normed standard, the tests remain the same and only the scores and requirements are lowered and adjusted to accommodate women. The main objective of any standards whether for men or women, or according to age, should be to ensure physical fitness as physiologically determined. This would result in far greater acceptance of women by their male counterparts.

Secondly, gender parity also implies no concessions with respect to terms and conditions of service. Of course, physiological gender-specific concessions like maternity leave will be encoded in rules and regulations. Women officers must set an example by adopting measures similar to those taken by women sportspersons. The experience so far has been that the performance of women officers declined post marriage and after bearing children. There was a marked tendency to request for peace tenures to take care of children and to be with the spouse. The problem was manageable due to the small numbers and short service tenure of 10+4 years. With grant of permanent commission, women will have to cope with school going children and related domestic issues.

The problem will become more acute with induction of women as soldiers (in Military Police) due to tougher conditions of service. Women also have to be prepared for 50 per cent of their service tenures to be in field or operational areas away from their families as it is for men. Facilities in field and operational areas are primitive and rudimentary. Women will have to bear the same privations as male soldiers[27].

The Possible Solution

Their talent needs to be effectively harnessed in the best interest of the organization. Keeping in view the design of the future battlespaces and the operational readiness of other Armies ofthe world, certain specialist roles can be identified and suitable women candidates can beinducted to meet the requirements of these roles. Some of these roles can be:Computers and Information Technology, Electronics and Communication, Forensics, Bomb Disposal, Nuclear, Biological and Chemical warfare, Radiodiagnosis, Biometrics, Psychologists, Intelligence, Explosives, Tactical questioning, etc.

The whole purpose of this paper is not to undermine or demean the exceptional courage, valour and determination shown by our respected women from time to time. Rather it tries to advocate that in certain commands which involves leading from the front and where reliance on physical power is more, till the time women officers reach the physical standards set by their male colleagues and army prepares the necessary infrastructure which the ladies rightfully deserves, permanent commissions in criteria and command appointments shouldn’t be given to them. It will be in the best interests of woman as a person and nation as a whole.

Even someone like myself who thinks women should be able to serve on the front lines applies the caveat:

“If she’s physically capable of passing the physical requirements”. This doesn’t mean “the female requirements” it means the same ones a man has to pass. Not all women are capable of this, but some are.

Summing up my paper in conformity with what retired Indian General HS Panag said[28]:

“While some can argue that women, in general, may not be able to cope with the rigour of combat due to the sheer physical strength required, why deny the opportunity to those who can? In my view, the right of a woman to serve in any role in the armed forces must be equal to a man’s as long as the physical and qualitative standards are not compromised.

Why don’t Supreme Court itself be the Harbinger of Change

In Babita Puniya’s Case Supreme Court came down heavily upon centre for having lack of will and retrograde mindset with regard to appointment of women officers. Whether this mindset doesn’t apply to Supreme Court itself. The reality is that, as of today out of current strength of 33 Judges we find only 3 lady judges. It doesn’t even make 10% of total judges. Is Collegium not finding competent lady judges out of 25 High Courts in the country to be elevated to the Apex Court or it is itself having a retrograde mindset. Supreme Court needs to understand that it is an institution of National Character and reflects the aims and aspirations of people. So in order to bring a change throughout the country Supreme Court itself need to step up first.

Reference:

[1]Secretary, Ministry of Defence v. BabitaPuniya and Others, Civil Appeal Nos. 9367-9369 of 2011 with Civil Appeal Nos. 1127-1128 of 2013 and with Civil Appeal No. 1210 of 2020.

[2] Government of India, Ministry of Defence, Permanent Commission to Women (Mar 5th 2019).

[3]Snehesh Alex Philip, “Women in combat roles: India can romanticise it but here’s why we are not ready yet”, (The Print, Feb 14th, 2020).

[4]Akhil Bharat GosevaSangh (3) v. State of A.P.(2006) 4 SCC 162.

[5]K. Narayanan v. State of Karnataka1994 Supp (1) SCC 44 : AIR 1994 SC 55.

[6](1981) 1 SCC 568; (1981) I LLJ 193 SC.

[7](1981) 1 SCC 568, 584, para 35; (1981) 1 LLJ 193.

[8] (1994) 2 SCC 691; (1994) 1 SCR 579.

[9](1994) 2 SCC 691, 714, para 54; (1994) 1 SCR 579.

[10] 2003 QB 728; (2002) 3 WLR 344; 2002 EWCA 158 (CA).

[11] Court of Sessions, Times, 8-8-2002.

[12] 1968 SCC OnLine US SC 87; 20 L Ed 2d 312; 390 US 747 (1968).

[13](1986) 4 SCC 566, 605, 606, para 34; (1987) 1 SCR 1.

[14]Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289; AIR 2003 SC 1344.

[15]McGraw K, Koehlmoos TP, Ritchie EC,‘Women in combat: Framing the issues of health and health research for America’s servicewomen’,Vol. 181, Military Medicine, 7–11, (2016).

[16]DorianeLambelet Coleman, Sex in Sport, Vol. 80, Law & Contemporary Problems, 63-126, (2017).

[17]CaptDeepanjaliBakshi (Retd.), ‘Training of Women Cadets in the Army – Some Issues and Challenges’, USI, 2005.

[18]Maj Gen MrinalSuman, “Women in the Armed Forces: Misconceptions and Facts”, Vol 25 Issue 1, Indian Defence Review, (Mar 9th, 2015).

[19]Anwar Ali Sarkar vs State of West Bengal, 1952 AIR 75, 1952 SCR 284

[20]Maneka Gandhi vs Union of India, 1978 AIR 597, 1978 SCR (2) 621

[21]Sheila S Mathai, Ravi Kalra, ‘Medical challenges of women combatants: Looking to the future’, Vol. 20 Issue 1, JMMS, (2018).

[22]Robin Nixon, “5 Myths About Women’s Bodies” (Live Science, April 4th, 2011).

[23]Robinson Meyer, “We Thought Female Athletes Were Catching Up to Men, but They’re Not” (The Atlantic, August 9th, 2012).

[24]World Athletics, Senior Outdoor 2018: 100 Metres Men.

[25]Evidence-based Synthesis Program (ESP), Center West Los Angeles VA Medical Center, Health Effects of Military Service on Women Veterans (May 2011).

[26]‘Induction: Qualitative Requirements’, Shodhganga.

[27]GulPanag “If Women Can’t Match Physical Fitness Standards, They Have No Right To Seek Gender Parity In Armed Forces” (Outlook, Mar 9th, 2020).

[28]Soutik Biswas, “India’s soldiers ‘not ready for women in combat” (BBC News, Feb 8th, 2020).

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