For several years, female candidates were excluded from appearing for the National Defence Academy and Naval Academy examination on the grounds of Sex. This exclusion of willing and eligible female candidates, which is a categorical exclusion, is not constitutionally justifiable. The plea filed by Kush Kalra stated that if the eligible and willing female candidates are being turned down the opportunity of entry to the NDA on the basis of their sex then it will become a barrier in the career advancement opportunities for Female officers in the Armed forces. It also stated that the exclusion on the basis of Sex is a violation of the Fundamental right of Equality before the Law and equal protection of the Law.
Also, In the case law of Secretary, Ministry of Defence V. Babita Puniya and Ors., the Supreme Court observed that gender roles or the physiological features of a woman have no gravity to her equal entitlements under the constitution of India. Former CJI SA Bobde raised the concern through Public Interest Petition regarding violation of Articles 14, 15, 16 and 19 of the constitution of India by refutation of opportunity to suitable and inclined female candidates to join the National defence academy and provide them a chance to enrol, train and develop themselves into the future leaders of the India Armed forces.
Central government concluded and conveyed the same to the supreme court that the induction of women will be allowed into the armed forces through NDA. But, the centre pleaded for exemption from the current year NDA admissions so as to make infrastructural changes. Also, an affidavit was filed by Captain shantanu sharma in which he added that the government has proposed to have necessary mechanisms in place by May 2022. Following which , SC passed an interim order in regards to a writ petition filed by Kush kalra asking permission for women to sit for the NDA exam. The supreme court quoted the policy decision as a Mindset problem and criticized the Army for not allowing women to take part in the NDA exam.
Violation of Fundamental Rights
The petition filed by Kush kalra cited the violation of Article 14, 15, 16 and 19 of the constitution of India. It further added that the Men are allowed permanent commission in India’s Armed forces after passing NDA examination while women are appraised at a later time only after being recruited as SSC officers.
Article 14 states that the state shall not deny equal protection of laws or equality before law to any person. Equality before law is a negative concept as it prohibits discrimination and equal protection of laws asks State to give special treatment to persons in different situations. In simple terms it states that equals should be treated equally and unequals should be treated unequally.
Article 15 protects citizens from discrimination by the state on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them. But also this right has an exception as the State can make special provisions for women or children. This exception also allows the State to make special provisions for socially and economically backward classes for their development.
Article 16 guarantees equal opportunity in terms of public employment and prevents the state from discriminating on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them. The state has liberty to provide special provisions for the backward classes, under-represented states, SCs and STs for posts under the State.
Article 19 states that all the citizens have right to practice freedom of speech, to assemble peacefully and without arms, to move freely throughout the T.O.I., to form associations or unions, to reside and settle in any part of T.OI., and to carry on any trade, profession, occupation or business.
In all the above rights discrimination on the basis of sex is common. Thus denying women candidates on the basis of their sex is not only discriminative but also violative of their fundamental rights.
Supreme court’s order
The Defence ministry suggested that the induction of women to appear for NDA exams would begin from May 2022 so that the appropriate infrastructural changes can be proposed. The defence ministry also in its affidavit quoted that “While medical standards for the male candidates exist, appropriate medical standards for women candidates are in the process of formulation. They need to be determined before women join the academy. A body of experts will determine these, taking into account various aspects”. To which the supreme court added that issues regarding gender equality can not be postponed to next year and ordered the centre to permit women candidates to take exams in November 2021. The Supreme court also quoted that UPSC should issue amended notification for the November exams and medical standards should be notified timely.
Women were allowed to join forces but only through SSC which did not grant permanent commission to women. Only male candidates, who joined through NDA, were granted permanent commission. This turned out to be a great hurdle for women officers in armed forces in respect of their career growth and internal development. Hence, the bench led by Justice Sanjay kishan kaul perceived that the admission can not be delayed. Because if women candidates will take the NDA exam in 2022 then they will be admitted in the year of 2023 which according to the SC is a very long time. Justice Kaul quoted that “ The armed forces deal with emergencies so I do not believe that the armed forces response team will not be able to deal with the scenario ….not many have enrolled for the exam this time. So numbers might be smaller. So instead of skipping the exam, try to work out something for them”.
So it is to be concluded that the supreme courts’ order is just and also, this will lead to women empowerment. This is a major step to remove gender disparity and provide opportunities to those women who are willing and eligible.
Author(s) Name: Deepika Budhalakoti (Miranda House, Delhi University)