" The higher you go, the fewer women there are".- Late Kenyan Nobel Peace Laureate Wangari Maathai
The internet boomed with appreciation when Kira Rudik, a member of Parliament of Ukraine posted a photo of herself on Instagram with the caption, " I am a Ukrainian woman, I love colourful tulips, pilates, pink. Plant flowers, walk until night on Andrew's, your cat Michelle. Sniffing your purfumes, laughing out loud, wearing soft socks that are a little slippery on the floor. Wipe glasses, marshmallows with a napkin, lay documents alphabetically.

And now, everything I love needs protecting. Because, it turns out that each of us has to take up arms and do their duty. Not because there are no men around, but because we can. And we will do it". She also tweeted saying "Our women will protect our soil the same way as our men." When Kira Rudik made these powerful statements, it triggers a questionable thought in our minds with regard to woman of India in armed forces. Fighting on the battlefield is also not new to the women of India.

Our women have held the swords up high, defeating the rivals with courage beyond blood and body. Be it Rani Lakshmi Bai or Rani of Kittur, the royal women in history have shed blood, fought for their subjects, won wars and sacrificed lives because of their devotion and vigorous support to their kingdoms and subjects. Women of India are ready, were ready and will always be ready to pick up swords, guns and armours and to fight holding their heads high.

It is the social construct that disabled women by portraying them as unfit for contributing in the area of defence. To quote what late Kenyan Nobel Peace Laureate Wangari Maathai said - " the higher you go, the fewer women there are ''. The Indian patriarchal approach managed to take over our Indian women's unquestionable patriotism. The male dominating society continued to weave a narrative that made other genders appear inferior.

Devi Shakti, also known as Parvati, Durga, and Kali, She's an archetype who you might call upon for strength, fertility, and power, is worshipped. Mythological stories of deities like Goddess Chamundeshwari destroying the demon Mahisasura is empowering and inspiring. Yet, the double standards of our society is evident when it comes to real woman in a combat zone.

Women in today's generation are more aware of their needs and priorities. They now understand the fact that the roots of the psychological limitations are due to the male dominating narrative by the society that favours men in terms of such social opportunities and not because of the choices in their personal life. Our proud member of Rajya Sabha and a boxer, Mary Kom who brought home a silver medal at the 2008 Asian Women's Boxing Championship in India and a fourth successive gold medal at the 2008 AIBA Women's World Boxing Championships in China, followed by a gold medal at the 2009 Asian Indoor Games in Vietnam, all of these, after giving birth to her healthy twin boys.

This proves that the well crafted female bodies cannot be a restraint or physical disability merely because of pregnancy or menstrual cycles. When we take a closer look at the societal arrangement of India, we notice that the patriarchal society has conveniently changed the narrative to make other genders look weaker, less stronger and less useful to the armed forces.

Fortunately, the recent judgements favouring the woman and constitution of all-women 'Durga Fighter' to combat Naxalism in Chhattisgarh, two women officers being selected to train as helicopter pilots at Combat Army Training School, Nashik and many such interesting developments have paved way to break the glass ceiling leading to the reformation of gender roles in the Indian armed forces.

There were two important Orders which made the headlines in relation to women in the Indian Armed Forces. One which was passed on 7th Feb 2020 (granting permanent Commission to women officer's ) and the other on 18-08-2021 ( inducting women cadets in National Defence Academy). No doubt these Orders opened the gates for gender equality but the discussions and deliberations in and around these decisions become important in order to understand the concept of gender equality in the Indian context.

Equality

Gender matters everywhere in the world and India is no exception to it. UNICEF made it clear that equality does not mean that women and men will become the same but that women's and men's rights, responsibilities and opportunities will not depend on whether they are born male or female.

Concept of equality is inscribed in the Indian Constitution particularly in Article 14 and 15(1). Article 14 outlaws discrimination in a general way whereas Article 15 prohibits discrimination against citizens on specific grounds such as religion, race, caste, sex or place of birth. By and large the horizons of equality have been expanding. It is the duty of every individual to live, work and stay in accordance with the law of equality and must not violate it's provisions.

Further, we are aware of the fact that the Legislature is fully competent to enact legislations which are applicable to particular groups or classes, but for the classification to be valid it has to pass the twin test. To pass the test of permissible classification two conditions must be fulfilled:

1. that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and
2. that differentia must have a rational relation to the object sought to be achieved by the statute in question.

It was in Navtej Singh v. Union of India, AIR 2018 SC 4321, the Court held that- "Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia and a classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality."

Speaking on point of gender discrimination in armed forces, even though the histories of US and India are different, the topic of discussion in this scenario is quite relevant here- The US Supreme Court in Frontiero v. Richardson (case of military service), 411 U.S 677 (1973), used the term 'romantic paternalism', and observed that "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. As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes ". Court in this case held that differential treatment of male and female members of the uniformed services violated the Due Process Clause of the Fifth Amendment.

Protective Discrimination

Indian courts have recognized the concept of 'protective discrimination', a policy of granting special privileges to the downtrodden and the underprivileged sections of the society but have often reinforced oppression through an extensive reliance on gender stereotypes and constructed notions of protective discrimination.

The test to review a Protective Discrimination statute would entail a two pronged scrutiny:

1. the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in a principle
2. the same should be proportionate in measure.

The Court's task would be to determine whether the measures furthered by the 'State' in form of legislation formulated to protect the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. What is important here is to note that the legislation should not only be assessed on its proposed aims but rather asses its implications and effects too. It was in Joseph Shine v. Union of India, AIR 2018 SC 4898, wherein the Court observes that a 'section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.'

In Anuj Garg's case Section 30 of the Punjab Excise Act of 1914 was challenged which prohibited employment of any woman in any part of premises in which liquor is consumed by the public. What the court observed here is that the classification must be founded on some rational criteria having regard to the societal conditions as they exist presently, and not as they existed in the early 20th century or even earlier.

So having no rational basis, section 30 was struck down. In para 43 of the judgment court observed that instead of prohibiting women employment in the bars altogether the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated.

Transformative Constitutionalism

We consider the Indian Constitution as a Transformative one. A Transformative Constitution is nothing but the constant development of constitutional ideals of liberty, equality and fraternity and it is expected from the 'State' to remove all the barriers to the enjoyment of such ideals. Transformation is not a temporary phenomenon rather a permanent ideal, transformative Constitution envisions a society that will always be open to change and contestation, as rightly pointed out by Former Chief Justice Pius Langa of South Africa.

In Navtej Singh Johar's case the opinion authored by Justice AM Khanwilkar for then Chief Justice Dipak Misra and himself states:
"The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism."

It becomes imperative to again cite Anuj Garg v. Hotel Association of India and others., AIR 2008 SC 663, Para 8 of the judgment- Changed social psyche and expectations are important factors to be considered in the upkeep of law. Primacy to such transformation in constitutional rights analysis would not be out of place. It will be in fitness of the discussion to refer to the following text from "Habits of the Heart: Individualism and Commitment in American Life" by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S. Tipton, 1985, page 286 which suggests factoring in of such social changes.

"The transformation of our culture and our society would have to happen at a number of levels. If it occurred only in the minds of individuals (as to some degree it already has) it would be powerless. If it came only from the initiative of the state, it would be tyrannical. Personal transformation among large numbers is essential, and it must not only be a transformation of consciousness but must also involve individual action. But individuals need the nurture of crops that carry a moral tradition reinforcing their own aspirations. These are commitments that require a new social ecology and a social movement dedicated to the idea of such a transformation."

Indian Courts have time and again referred to the term Transformative Constitutionalism in series of cases, recent ones are:

• Navtej Singh v. Union of India,
• Indian Young Lawyers Association v. The State Of Kerala,
• Joseph Shine v. Union of India.

Justice DY Chandrachud says that the transformative vision of our Constitution underlines its working and interpretation.

Coming to the Orders passed by the Supreme Court:

1. Granting Permanent Commission to women officers.
   Section 12 of the Army Act 1950 says:
   "12. Ineligibility of females for enrolment or employment.- No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf."
   This provision evolved with changing times including in it more number of corps and departments.
   
   Later on, the provision for the induction of women for an initial period of five years was also extended by a notification dated 12 December 1996 issued by the Ministry of Defence. But it was in February 2003, that Babita Puniya, an advocate instituted a Writ Petition in the nature of a Public Interest Litigation before the Delhi High Court for the grant of Permanent Commission to women Short Service Commission officers in the Army.
   
   In Ministry of Defence v. Babita Puniya, 2020 (7) SCC 469, Supreme Court pointed out the stereotypes that were made during the submissions:
   "Stereotypes and women in the Armed Forces" The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty; Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force; A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women; An all-male environment in a unit would require "moderated behavior" in the presence of women officers; The "physiological limitations" of women officers are accentuated by challenges of confinement, motherhood and child care; and The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with "minimal facility for habitat and hygiene"
   
   Looking at the submissions made in this case naturally takes us towards the mindset of the society we live in. Having pointed out these stereotypes - court emphasised the need for change in mindsets to bring about true equality in the Army. Court has also stated that women officers who volunteer for combat action should comply with the standards, the standards should in no way be lowered for women officers; or else this will compromise the "Operational Effectiveness" of the force.
   
   Having said so, it also placed on record that, 30% of total women officer's are already deputed to conflict areas. Also when we see, the 1st batch of women officers were given commission in the Navy in 1992, and it literally took nearly 30 years to give Permanent Commission to the women officers.
   
   Major General S B Asthana, who is a strategic and defence analyst and a veteran General with 40 years experience puts it in a brief that: "It, therefore, implies that if every male infantry officer has to go through a commando course, every women officer opting for infantry must go through the same. If every other combat arms officer has to go through Commando/Counterinsurgency/Mountain warfare course and serve in Rashtriya Rifle or Assam Rifle for at least one tenure, the same yardstick must apply to women officers".
   
   It also becomes imperative to state what Commander Prasanna Edayillian (rtd) said: "The idea is to groom someone from a young age. A young male is not born an admiral. If the same opportunities are given to women, suppose from now, in 30 years India could have its first women Navy Chief"
    
2. The second Order in 2021 Allowed women candidates to appear for NDA examinations conducted by UPSC.

The Supreme Court, keeping in mind the concept of gender equality in Kush Kalra v Union of India, Writ Petition(s) Civil No. 1416 of 2020, allowed the women candidates to take part in the examination. Nearly 8K women candidates appeared for the examination which was conducted in the month of November 2021 and out of which nearly 1k women have cleared. Though the Interim Order being criticized on the ground that it was policy decision, but I believe the policy decision of not inducting women cadets in NDA being a discriminatory one required judiciary's interference.

Conclusion
Serving in the Indian Army is not seen as a fundamental obligation on citizens, it is a pure voluntary act. Nor do Indians consider it as their means of employment, it is more of a service to the nation that you join with a strong sense of emotion, devotion and pride. Having considered it as such, this act of patriotism and service should never be confined to any gender.

Patriarchy must not win over the patriotism of our proud Indian women. Patriotism must always prevail over society's patriarchal mindset in every aspect of the society. It is then that we can achieve the goal of what the International Women's Day theme dictates; Gender equality today for a sustainable tomorrow. Let us enable our strong women to build strong nations that make stronger impacts at the global level.

Written By:

1. Aishwarya Pawar, Research Assistant at High Court of Karnataka, Bengaluru
2. Sahana S Basavannour, 4th year, JSS Law college, Mysuru