Context

SC ruling in favour of women officers in the Army is pathbreaking, extends arc of equality.

What is said in the significance of the judgement?

• The judgement took many constitutional steps further
• First, the judgement said “engagement of women officers in the Army” has been an “evolutionary process”.
  • It acknowledges that the “physiological features of a woman have no significance to her equal entitlements under the Constitution”.
• Second, it indicates “a need for change in attitudes and mindsets to recognise the commitment to the values of the Constitution”.
  • The judgement said that reliance on the “inherent physiological differences between men and women” rests on a deeply entrenched stereotypical and constitutionally flawed notion.
  • The above-flawed notion fails to ignore “the solemn constitutional values which every institution in the nation is bound to uphold and facilitate”.
• Third, this change has to be based on “the right of women officers to equality of opportunity”, which has two “facets”:
  • Non-discrimination on the grounds of sex and-
  • Equality of opportunity for all citizens in employment.
  • State and civil society have to firmly internalise these rights to achieve even the minima of gender justice.
  • Fundamental fallacy: Removal of the “fundamental fallacy” demands non-discrimination and affirmation of the equality of opportunity in public employment. To rule otherwise will constitute “a travesty of justice”.
  • What does this mean for women? This means women now have the same terms of employment as men.
  • No longer will women be forced to retire after 14 years in service, irrespective of their record.
  • They will also have a full pension and other financial benefits.
• Fourth, Article 14 of the Constitution has been pressed into service as prescribing “a right to rationality” that forbids any “blanket” and “absolute”
  • The burden to justify differentiation on Army: The burden to justify the differentiation between women and men falls “squarely on the Army”, which has to “justify such differentiation with reason”

Judicial consciousness of policy consciousness

• Achilles’ heel of the judgement: In fact, the brief remark outlining the judicial consciousness of policy limitations may well prove to be the proverbial Achilles’ heel in future courts.
• One hopes that the stoic and heroic endeavours of the petitioner army officers and their counsel, will not be visited with the constitutional fates in which the judgement is reversed.
  • And this path-breaking judgment will forever vindicate gender equality and justice.

Conclusion

Making gender justice less contingent on the executive’s mood swings is the primary task of the judiciary. Making it immune from judicial re-visitations remains the paramount constitutional duty of all citizens, but more particularly of feminist citizens’ crusade for judicial consistency as a badge for constitutional rights and justice.

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