The right against discrimination is bestowed by the Indian Constitution and given by people to themselves by respecting and creating a nation of equals. Revering this right, all institutions are urged to develop a gender-neutral and inclusive environment. Armed forces have long fallen back into their patriarchal seats, viewing, controlling, and regulating entry into the armed forces, barring women’s candidacy. This article discusses the interim order passed by the Hon’ble Supreme Court in the case of Kush Kalra v. Union of India, which allowed women candidates to be part of the National Defence Academy (NDA) Examination and the need for gender equality. Further, it provides historical background on women’s exclusion from the Indian armed forces and highlights the discriminatory approach taken by the armed forces towards women. The article also delves into the concept of equality in the Indian Constitution, with specific reference to protective and restrictive laws based on sex as given in Article 15(1) and Article 15(3), and argues that the restriction imposed on women for getting admission into the NDA is not a protectionist policy but a discriminatory approach. It concludes by stating that the quest for justice and equality in the Indian armed forces is ongoing and that the desired result has not yet been achieved.
Keywords: Kush Kalra, National Defence Academy (NDA), Equality, The Armed Forces
“Fight for gender equality is not a fight against men. It is a fight against traditions that have chained them – a fight against attitudes that are ingrained in the society – it is a fight against system – a fight against proverbial Lakshman Rekha, which is different for men and different for women. Society must rise to the occasion. It must recognize and accept the fact that men and women are equal partners in life. They are individuals who have their own identity”.-Dr. Justice A.S. Anand
The Indian Constitution is a legendary document that bestows, recognizes, and provides remedies for rights considered sacrosanct and fundamental to the core of human existence. Indian society is considered male-dominated, owing to the long history of women’s suppression and equality. On August 18, 2021, a division bench of the Supreme Court in Kush Kalra v. Union of India pronounced and passed an interim order permitting women candidates to take part in the National Defence Academy (NDA) Examination. This proclaimed decision of the Supreme Court has been lauded throughout India as an achievement for gender equality, bearing future reverberations for women in defence forces. This order has been a staunch remark on the prejudiced and equity-deficient viewpoint of the Indian Armed Forces.
A quest for equality: Pre Kush Kalra Conditions
A patriarchal-oriented India in the 20th century didn’t view women’s candidacy in the armed forces. Since the Constitution’s inception, they have been barred from serving in the military. “No female shall be eligible…,”, a phrase quite common in Section 12 of the Army Act, 1950; Section 12 of the Air Force Act, 1950; and Section 9 of the Indian Navy Act, 1957, explicitly shows denial of the entry of women into the armed forces. Entry could only be allowed with prior approval of the central government.
Only post 1991 in Indian Navy and Indian Airforce and 1992 in the Indian Army women were allowed employment in the defence, and that too was very restrictive in its ambits.
India has reverbed and reverenced Goddesses such as Kali, depicting strength and valour. We always stand in awe of the Contributions that Rani Laxmi Bai in the 1857 Revolt for Independence. In 1943, Subhash Chandra Bose specially dedicated a Jhansi Rani Regiment entirely consisting of women for women when he formed Azad Hind Fauz, also known as the Indian National Army (INA). In 2018, an all-Indian women’s crew circumnavigated the globe on INS Tarini, breaking the glass ceiling in quest of their Odyessy dream.
On international fora, as many as 22 countries, including the USA, UK, Israel, France, Germany, and Poland, allowed women in combat roles in defence forces. A Canadian study on “operational effectiveness of the armed forces and women recruitment” paved the way for Canada to open its door for women in the armed forces.
The quest for justice and equality began in 2003 when a PIL was filed in the Delhi High Court. Since then, it seems as if judicial intervention is the only motive that directs the Army to ensure women’s rights are exercised. Time is a testament to this inference. In 2018, the Delhi High Court ruled in favour of women to allow their entry into the territorial Army. The Hon’ble Supreme Court had staunchly criticized the stand of the Army and allowed the permanent commission of women in the Army. Later on, in the case of Lt. Col. Nitisha, the Apex Court recognized the doctrine of indirect discrimination and set aside the gender discrimination promotion scheme of the Army. The stance of the Army toward women even prompted the Judge to ask in open court, “Will the Army only act when a judicial order is passed?” Not otherwise?”. Active Army participation and an inclination to ensure gender equality in defence forces are quintessential for the realization of women’s rights. What began in 2003 is still going on, and to confidently quote that the desired result is achieved would be a fool’s word.
The Constitutional Yardstick to Gender Equality
The Indian Constitution was deviced to administer radical change while ensuring regulation and protection of rights. Above all, the Constitution envisioned a transformation in the position of an individual as the centre point of a just society. The concept of equality has been raised numerous times in Constituent Assembly debates. Dr. B. R. Ambedkar specifically addressed the importance of liberty, stating its necessity to reform our social system, which is full of inequities, discrimination, and other things that conflict with our fundamental rights.
The Hon’ble Supreme Court in Joseph Shine v. UOI clarified protective and restrictive laws based on sex as given in Article 15(1) and Article 15(3). According to the court, protective laws are enacted for the just cause of women and their welfare without any notion of patriarchal stereotypes. These laws are protected under Article 15(3). However, if any law hinders women’s progress or is “grounded in paternalistic and patriarchal notions,” that law will attract the vice of Article 15 (1) and will be considered discriminatory. Article 15(3) is protective discrimination, which means that if any law has been passed for the advancement of women and children, then that law will get protection under Article 15(3), even if it is discriminatory. However, in the name of protection, if any law is advancing any stereotypical approach, as occurred in Anuj Garg and Joseph Shine, then in that condition, the law will not be tested on the principle of Article 15(3) and instead will attract Article 15(1) for its consideration and then must fulfil the essentials of non-discrimination.
The restriction imposed on women for getting admission into the NDA is not a protectionist policy; instead, it restricts them only based on sex. Men are allowed in every field of defence because they are men, which is a discriminatory and highly biased approach. The armed forces believe that due to the ‘inherent risk’ involved, it is not in the best interest of women to perform the duty. This cannot be said to be a protectionist viewpoint, but rather a stereotypical mind advancing their opinions as a just view. The policy of not allowing women in NDA in the name of protection or considering women as the weaker sex is hurting the liberty and dignity of women in the name of protection, clearly an Article 15(1) violation rather than an Article 15(3) exception.
Kush Kalra Paradigm
The Kush Kalra precedent is crucial not just for gender equality in India because it maintains the constitutional right to equality but also because it abolishes gender discrimination in the Indian Army. It underpins the concept that women should have equal access to all societal roles and positions.
The Supreme Court considered gender discrimination in the Indian Army in Kush Kalra v. Union of India, including the policy of banning women from specific combat roles and entry through the NDA examination. The Supreme Court ruled that the policy was discriminatory and violated the constitutional right to equality and passed the interim order that permitted the entry of women through the NDA examination in the national defence academy for graduation.
Prior to this decision, women were barred from entry into the armed forces through the NDA examination, and inclusions were only allowed through the Officers Training Academy (OTA). This resulted in women being deprived of the opportunity to get permanent commissions either through the NDA or Indian Military Academy (IMA). This regulation not only limited women’s chances but also fostered damaging gender stereotypes. The Supreme Court’s decision to overturn this policy and compel the Indian Army to give women entry through the NDA Examination channel and officers permanent commissions is a significant step towards gender equality.
This judgment affirms that women, regardless of gender, are equally capable and qualified to serve in all roles and capacities in the Indian Army. The apex court affirmed the Delhi high court’s 2018 ruling that “it is past time to discard assumptions and biases concerning gender roles and to recognize individual aptitude, performance, and talent, regardless of gender.” “The Indian Army is still a male-dominated institution.” “In today’s world, change is both necessary and unavoidable.” The court also stressed the importance of shifting culture away from damaging gender stereotypes and towards a more inclusive and merit-based approach that respects individual skill and potential regardless of gender.
As of now, following considerable regrettable intervention by the judiciary in armed forces decision-making, a modest but significant change in gender-sensitive approach may be observed.
Shri Ajay Bhatt, Minister of State for Defence, wrote as a reply to Shri N Reddeppa, member of parliament, dated December 9, 2022, recognizing that at present, the women are being commissioned in Indian Army in ten Streams, namely
- Corps of Engineers
- Corps of Signals
- Army Air Defence
- Army Service Corps
- Army Ordnance Corps
- Corp of Electronics and Mechanical Engineers
- Army Aviation Corps
- Intelligence Corps
- Judge Advocate General Branch
- Army Education Corps in addition to the Armed Forces Medical Services as Doctors and Military Nurses which is a women-only entry.
Also, new avenues such as the grant of permanent commission to SSC women officers, the induction of women cadets in the NDA, and the recruitment of women as provost JCOs or other ranks were added post-judicial intervention.
The judiciary’s active role in guiding and directing the armed forces toward gender inclusivity is commendable. Even with the avenues open to women desiring to be part of defence forces, gender inclusivity in the armed forces can only truly be achieved when the realization and assimilation of equality occur between the comrades on the battlefield.
“When women join the military, they join groups whose terms, premises, and behavioural norms are already defined in terms of the masculine values that they have prized before the inclusion of women.”
One of the key measures to building gender-inclusive armed forces is instilling a change in mindset to be more accepting and respectful. It is essential as the entry of women into the NDA is still through an order of the Supreme Court and not a suo moto action taken by the government on its own accord. It is apparent that there is an infrastructural gap and a lack of conducive environments for the training of the female cadets in the NDA.
The Army is still inclined toward one gender. The mentality of the Army can be seen by the fact that all the training cadets are still addressed as “gentlemen cadets” after women’s entry was permitted. Not only this, but the other problem that will be faced by the female candidates will be infrastructure. Because of different body structures and different biological needs, female cadets need special treatment, especially women. In addition to that, the Army needs to specifically take a decision on “open living conditions and a close-knit cadet environment” and will require separate barracks and different bathrooms for women.
The Army should consider conducting some gender sensitization workshops and promoting the acceptance of women into the services as a priority. How essential a gender-inclusive mindset is can be witnessed when the Tailhook scandal occurred and the US government employed creative policies to instil change in mindset.
Another policy decision on which the government needs to focus is the implementation of a gender policy for the armed forces. This is necessary to establish a standard, scientific, and gender-sensitive approach for training, recruiting, planning, and budgeting. India’s commitment to the United Nations Peacekeeping Forces also reinforces the necessity for the same. It is high time that the government act in accordance with Resolution 1325 of the United Nations Security Council (UNSCR). Resolution 1325, titled Women, Peace, and Security, “urges all actors to increase the participation of women and incorporate gender perspectives in all United Nations peace and security efforts.” Even though India contributed immensely to United Nations peacekeeping operations, India is yet to implement the National Action Plan as recommended by Resolution 1325.
Since Babita Puniya, a lot has changed, including the approach of the armed forces. The armed forces have made efforts by allowing the entry of females into Sainik schools and permitting the induction of women into the Military Police. The training of the first batch of women has already started. For the first time in 100 years, the Dehradun Rashtriya Indian Military College (RIMC) allowed the entry of women. Women are also being recruited for sailors’ entries under the Agnipath Scheme in 2022 for the first time in history. 20% of the vacancies in 2022 are reserved for women in the Indian Air Force, and officer recruitment in the air force is being made gender-neutral by inducting women officers into all the branches and streams of the air force. The experimental scheme to induct women officers in all combat roles, initiated by the Indian Air forces in 2015, has now been regularized into a permanent scheme.”
There is still a long way to go. Constant and deliberate efforts would be required by the government to ensure that the institution of the military becomes gender-neutral, sensitive, and inclusive at its core, crashing the patriarchal barrier imposed in the mindsets of cadets to truly ensure gender mainstreaming in the armed forces.
Equality is a vision of an ideal world—a world where socially, politically, economically, or mentally created hurdles don’t exist. In reality, they do. To truly achieve the dream of equality, especially gender equality, it is essential to tackle the latent problem of mindset, the structural problem of a conducive environment, and the existing framework of laws and the institutional system. The armed forces are an institution of strength and valour, where the brave dedicate their lives in service of the nation. But this institution turned a deaf ear to the pleas of women who wished to be part of such a service. With efforts in the form of judicial intervention and actions of the government’s own accord, the status of women in the armed forces has changed to some degree. A true sense of gender equality is still not achieved. It is necessary that we struggle and pave the way for a change in perspective and make the conditions for women suitable for holistic development in the forces; otherwise, equality will remain a far-fetched dream, even an utopia.
Senior Editors at SLJ DNLU