Punjab and Haryana HC order on joining of pregnant women in Army

Case and High Court Decision

• The woman, who applied in early 2013 for a short service commission in the Army Medical Crop (AMC), was asked to join service in February 2014 after clearing all examinations and medical tests.

• However, between the period of her application and joining, the petitioner woman hides the fact of pregnancy and after which she was not allowed to assume duties. She then approached the Punjab and Haryana court.

• The High Court held that no women can be denied for any employment or service only on basis of pregnancy as it is not a serious medical ill or any disease which declares some person unfit for particular job. It is just a normal reproductive process.

• The High Court came to conclusion that, bearing forcing a choice between bearing a child and taking up employment interferes both with a woman's reproductive rights as well as her right to employment, and that such an action has “no place in modern India”.

• The Court referred to Article (8) and (9) of International Labour Organisation (ILO): Maternity Protection Convention 2000. These provisions are concerned with 'Employment Protection and Non Discrimination'. Article 8 makes it unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave on that account except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. Article (9) requires members to take measures to ensure that pregnancy does not constitute a source of discrimination in employment. 

• Besides these, the Court also looked into several decisions rendered by English Courts and concluded that the action of the respondents was “arbitrary and illegal”, being violative of Articles (14) and (16) of the Constitution of India. 

• The provision in the Army Instructions 75/78 which laid down that pregnancy would render a candidate unfit for commissioning was also illegal and unconstitutional. 

Why is this judgment significant? 

• In its broadest sense, the judgment holds that systems have to move with the times and that rights cannot be denied. The court has held that in such cases, vacancies can easily be kept reserved until a date after childbirth. 

• While establishments such as the Central Armed Police Forces are already flexible with their women employees, the defense establishment is sometimes seen to be resistant to progressive change. Even in forces like the Indo-Tibetan Border Police, uniformed combatant women doctors are allowed to flexibly join service after the birth of a child. 

• The guidelines of the Ministry of Home Affairs, applicable since 1959, too provide that women should be considered fit for reporting for duty even during pregnancy for all services which do not involve physical training; while in cases of services with physical training, the vacancy should be kept reserved along with protection of seniority - and that such women should be able to join service 6 weeks after confinement. 

• With the government clearing 33% reservation for women in the Central Armed Police Forces, and encouraging more women to join, it is being hoped that a similar spirit would be embraced by the defense services as well. 

Women in Defense Forces in India

• Women were trained and inducted in 1992, but over 2 decades later, are still not being permanently commissioned into the army except in 2 branches: education and law.

• Numbers of Percentage of women in Armed Forces of India

        - Army - 4% Women; 

        - Navy - 5% women; 

        - Air force - total 1300 as Air Force did not declare actual percentage of women.

• Majority of women in Armed Forces of India are deployed as doctors and nurses only.

• Women officers made history by leading the military contingent in the Republic Day parade this year, but many of them are still not allowed on board warships. 

• Till recent, women were not allowed permanent commission in armed forces. In other word women were allowed to serve for max period of 14 years. Due to their limited service span, women officers are not eligible for pension, which requires a minimum 20 years of service.

• In 2010, women in the Army and the Air Force were allowed permanent commission by the high court.

• Last year, Delhi High Court said that women can now have full term service in the Indian Navy and enjoy retirement benefits. Allowing women to get permanent commission in the navy, the court said it would “frown upon any endeavor to block progress of women.”

• Only 25 countries in the world which deploy women in combat position and unfortunately India is not among these countries.