Breaking the Glass Ceiling: Constitutional Feminism and the Permanent Commission for Women judgment

Gender has shaped both the legal and cultural landscapes of countries across the globe. Gender equality as an ideal has always eluded the constitutional provisions of equality before law and equal protection of law. The articulation of the feminist ideology is a reverberation of the intensified women’s rights and issues movement across the world.

Anupama Rao in Gendered Citizenship: Historical and Conceptual Explorations speaks of a two-fold classification of the world into public and private spheres. The social roles by gender correspond to the separation of social space into “ghar” (home) and “bahar” (outside). Such division of space also entails division of functions. The outside realm is characterized by politics, economics, combative forces etc, as opposed to domestic expectations of care-giving and child rearing.

At the core of it, role-based gendered differentiation attributes certain natural features to an oppressed group vis-à-vis women to subsequently imprison this group within boundaries of its so-called nature and essence. The role of equality here is to seek active intervention and amend these very social rules that made natural differences salient in fixing social roles and in allocation of rights to men and women.

Feminist narrative in the public sphere

The Indian Armed Forces, a highly revered establishment, has often garnered attention for being one of the largest voluntary armies in the world. However, the forces with employment of women limited to the Short Service Commission (SSC) for a stipulated period, paints a weak feminist narrative of women in the public spheres.

The judgments passed through Dr Justice DY Chandrachud of the Supreme Court highlight the deeply embedded gender stereotypes that have acted as compelling deterrents of women entering the profession. The judgment endeavors to guarantee long-term job security and equal opportunity for women in the Armed Forces. The role of the Supreme Court as the flag bearer of transformative constitutionalism did not spring from vacuum.

The judgments of the Supreme Court dated February 17, 2020 and March 17, 2020 have marked a watershed when it comes to their contribution to contemporary feminist jurisprudence. Employment and treatment of women in the Armed Forces has remained a thorny and particularly fraught topic. However, the said judgments have augmented the growing body of constitutional feminism by focusing upon the anti-stereotyping lens to issues of gender discrimination.

The differential treatment of both men and women in the Armed Forces, as also observed from arguments extended by the Union of India, implored stereotypical perceptions of physical and psychological capabilities through broad generalizations premised on deep-rooted beliefs and assumptions about gender roles in society.

Constitutional Feminism vis-à-vis the provisions enshrined in the Constitution of India

Constitutional Feminism concerns itself with employment of constitutional powers and navigating through its provisions with the sole purpose of ameliorating the condition of women. Therefore, social and individual responsibilities for feminist cases are contemplated to provide for equal opportunities in the decision-making process. The disadvantages of the democratic process and risk of parliamentary majoritarianism make it imperative that a pro-women and anti-subordination interpretation of the Constitution is made. In laws where patriarchy is romanticized, lack of power on the part of women is likely to marginalize their freedom.

The scheme of equality is nestled under Articles 14, which guarantees equality before law and equal protection by law. Under Article 15(1) the state is prohibited from discriminating against any citizen on grounds of religion, race, caste, sex and place of birth or any of them. Simultaneously, it allows for special provisions to be made for women and children under Article 15(3). This evident dichotomous stand of the Constitution of India can be reconciled by the realization that the framers of the Constitution endeavoured to establish gender sensitivity and substantive equality as an extension of their long-term goal of attaining gender equality.

Speaking of fixed notions of roles and abilities of men and women, perhaps a reference can be made to Justice Ginsburg’s observations in United States v. Virginia, wherein the Virginia Military Institute’s male-only admissions policy was struck down. She was of the opinion:-

“Any classification based on sex must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females... "Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity... but such classifications may not be used, as they once were... to create or perpetuate the legal, social, and economic inferiority of women.”

Though Articles 14 and 15 clearly and quite unequivocally rule out such stereotyping and generalization, when it comes to the domain of service law, it was in 2007 in Anuj Garg v. Hotel Association of India that the Supreme Court seriously engaged with the concept for the first time, thereby laying the foundation for a transformative constitutional vision of gender equality.

Furthermore, the articulation of the anti-stereotyping principle and the acknowledgment that the constitutionality of discriminatory laws must be tested by their systemic and institutional effects rather than by their intentions were constitutional reformulations of this transformative tradition of thinking.

Juxtaposing the judicial approaches followed in the United States and India, it can be concluded that the approach followed by the Indian judiciary till 2007 has been erroneous. Anuj Garg challenged the constitutional validity of Section 30 of the Punjab Excise Act, 1914 which prohibited employment of women in such premises wherein liquor or any intoxicating drug was consumed. The Court held the provision to be unconstitutional against the bedrock of Articles 14 and 15 of the Constitution of India, 1950. The Court was of the view that:

“It is to be borne in mind that legislation which pronounced “protective discrimination”, such as this one, potentially serve as double-edged swords. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.”

The Supreme Court drew from American jurisprudence while exploring and developing the “anti-stereotyping principle”. The judgment of the United States Supreme Court in Frontiero v. Richardson, which marked an end to “romantic paternalism” approach, was cited. The case stood had immense foundational impact upon the creation and consolidation of a transformative approach to sex determination. In that case, the Court had held,

“There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim: "... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother”... As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes... [and consequently] statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members”."

The Permanent Commission judgments

The Supreme Court through Justice Chandrachud in The Secretary, Ministry of Defense v. Babita Puniya and Ors, paved way for transformative constitutionalism by reinforcing the anti-stereotyping principle.

The Court opined that while Article 33 did allow for restrictions upon fundamental rights in the Armed Forces, it also made it clear that these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and the maintenance of discipline. On a similar basis, the Court also rejected the blanket prohibition upon the grant of Permanent Commission to women in command appointments (and restricted only to staff appointments), noting that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case to case basis.

In sum, therefore, it accepted the 2019 Policy, but (a) made it applicable across the board, and (b) removed its limited scope to staff appointments.

The Court also underscored an inherently regressed mindset in the submissions made by the Ministry of Defence. The submissions advanced were fraught with gender stereotypes based on socially ascribed assumptions, which discriminate against women. Restricting their roles to motherhood and domestic obligations and challenging their physiological vagaries based on anatomical/biological differences only furthers the role of women as the “weaker sex”, deeming them incapable of undertaking tasks which are perceived to be too “arduous” for them.

What becomes a moot point is that citing such frivolous reasons in the social context of marriage and family do not constitute a constitutionally defendable basis for denying equal opportunity to women. The Court even remarked,

“...if society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere it is unlikely that there would be a change in mindsets."

In para 56, the Court even went on to document the positions of distinction that commissioned women have brought to the Indian Armed Forces. The Court vehemently held that

“...to cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.”

Concluding remarks

Our constitutional guarantees of individual freedoms are not static but are expressions of basic human values. They transcend day-to-day shifts in majority wishes and hence require redefinition from time to time to meet narrowly recognized, if not narrowly created human needs.

Article 39 of the Constitution of India directs the state to work towards securing for men and women equally the right to an adequate means of livelihood. The Babita Puniya judgment, though acknowledged for its transformative qualities in ringing constitutional feminism, however, remains silent on the question of whether women can serve in combat units. This question was particularly excluded from the purview of the judgment, as it was not a subject matter of the appeal before the Court. This is also an issue arising from the stereotypical idea that women are not efficient enough to fight and are incapable of enduring physically arduous situations.

In light of the decision in Babita Puniya, one could hope progressive measures will be taken in the near future in such matters. Though this marks a positive step towards realizing the fundamental constitutional commitment to the equality and dignity of women, it does leave the question of combat operations open for another round of litigation.

The time is indeed ripe for actuating a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be “tolerated” within narrow confines. The salient decision of the Union government to extend Permanent Commission to women SSC officers in all ten streams in which they are commissioned is a long-awaited stride in recognizing and realizing the right of women to equality of opportunity in the Army.

The author is a Senior Advocate and President of the Supreme Court Women Lawyers Association.