In a momentous decision for gender equality, the Supreme Court issued interim directions allowing women to sit for the entrance examination to the National Defence Academy and the Naval Academy Examination to be conducted by the Union Public Service Commission on September 5. It was directed that the admission would be subject to the final order and the Court listed the matter for next hearing on September 8.  

A bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy passed the interim order while hearing the plea filed by Kush Kalra. The arguments on behalf of the petitioner were led by Senior Advocate Chinmoy Pradip Sharma, assisted by AOR Mohit Paul, Sunaina Phul and Irfan Haseib. 

Senior Advocate Chinmoy Pradip Sharma submitted that they had received the counter-affidavit filed on behalf of the Union only yesterday that states that it is a policy issue that should not be interfered with by the Hon’ble Court. 

ASG Aishwariya Bhati, appearing for the Centre, submitted before the Court that it was a policy decision. 

Justice Sanjay Kishan Kaul opined that he is finding this submission absurd and that he does not have a very good impression of the army in this regard. He went on to state, “the Air Force and the Navy are better in this aspect and the Army is a risk averse organisation that ‘does not act unless judicial orders are passed’.”

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Sharma submitted that the matter be listed before the date of the exam, to which the Court promptly said that it will not be necessary as they were issuing interim directions. 

AOR Mohit Paul submitted that the UPSC despite being served has chosen not to appear in the proceedings and that it was necessary for the Supreme Court to issue a direction that they make relevant corrigendum in the examination advertisement. 

In light of this, the Court directed UPSC to make the necessary corrigendum and give it wide publicity. The ASG asked the Court not to interfere in a policy decision. However, the Court opined that such policy was based on “gender discrimination”. 

Background:

In the PIL filed at the behest of Kush Kalra, the issue is that of violation of the Fundamental Rights under Articles 14, 15, 16, 19 of the Constitution which deny the opportunity to eligible and willing female candidates to join the National Defence Academy. In a nutshell the issue is of gender discrimination. 

Earlier, the Bench of Chief Justice S.A. Bobde and Justice A.S. Bopanna and V. Ramasubramanian issued notice in this matter on 10.03.2021. The petitioner seeks appropriate steps to allow eligible female candidates to appear for the National Defence Academy and Naval Academy Examination conducted by the UPSC and train them at the National Defence Academy.

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The opportunity to eligible and willing female candidates to join the National Defence Academy and afford them a chance to enroll, train and develop themselves in the National Defence Academy into future leaders of the Indian Armed Forces, thereby, categorically excluding eligible and willing female candidates to choose joining the Armed Forces as a profession after completing 10+2 education and denying them a chance to train at the premier Indian joint training institute and centre of excellence for the Armed Forces was denied to the female candidates. 

The main grounds raised by the petitioner were that there was a violation of fundamental rights to equality, protection from discrimination by the State on the ground of sex, equality of opportunity in matters of public employment and discrimination by the state on the ground of sex in respect of any employment or office under the state, and the right to practice any profession. 

Thus, it was successfully contended that the systematic categorical exclusion of eligible and willing female candidates to appear for the National Defence Academy and Naval Academy Examination and gain entry into the National Defence Academy is a violation of fundamental rights. 

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The petitioner had submitted that

“The Union Public Service Commission conducts the entrance examination titled “National Defence Academy and Naval Academy Examination” and as per the eligibility criteria, any unmarried male candidate, with the required educational qualification and aged between 15-18 years can sit for the examination and on qualifying the exam and on successful completion of training at the NDA and the subsequent training at the respective Academy of the Service the cadet opts for, gets commissioned into the Service as a Permanent Commissioned Officer by the age of 19-22. This opportunity to take the National Defence Academy and Naval Academy Examination at the age of 15-18 years, with the eligible academic qualifications is not available to eligible and willing female candidates and the sole reason for this categorical exclusion is on the basis of their sex.”

The petitioner had also submitted that the Supreme Court in Secretary, Ministry of Defence v. Babita Puniya and Ors. had taken on record the statement of policy placed on record in the proceeding by the Union Government in the form of a letter dated February 25, 2019 vide which the Union Government had allowed the grant of Permanent Commission to Short Service Commission women Officers in all the 10 streams where women have been granted Short Service Commission in the Indian Army, subject to certain directions laid down by the Court.

The Supreme Court on Friday heard the plea challenging the denial of admission to women in the National Defence Academy. The bench of Justice S.K. Kaul and Justice Hrishikesh Roy has given the Union of India the last opportunity to file a counter-affidavit within 2 weeks.

The bench has listed the matter for interim relief on August 18. The petition, filed by advocate Kush Kalra, said women being not allowed admission to the National Defence Academy (NDA) is a violation of their fundamental right of equality and right to practice a profession.

The NDA is the country’s joint military training institution for producing junior leaders for the armed forces. The petition said eligible women candidates with 10+2 level of education are denied an opportunity to take the NDA examination on the ground of their gender, and the consequence of this denial is that they do not have access to any mode of entry to the armed forces as officers at this level.

The petition said the number of women in the armed forces is extremely low, though over the years the defence services have opened more doors for women, especially after the Supreme Court allowed women to join the Permanent Commission.

The NDA denies admission solely based on gender and does not give any justifiable explanation for it, the petition said.
“The act of categorically excluding eligible and willing female candidates from appearing for the National Defence Academy and Naval Academy Examination over the years, solely on the ground of sex, is a violation of the fundamental right of equality before the law and equal protection of the law,” the petition said.

The petition referred to the apex court’s judgment in February last year which helped women officers gain a level playing ground and compete on a par with their male counterparts for permanent commission (PC).

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The Supreme Court had last year upheld a 2010 Delhi High Court judgment to grant PC for women officers in the Army. It had dismissed as a “sex stereotype” the view that women were physiologically weaker than men.

“Women officers of the Indian Army have brought laurels to the force… Their track record of service to the nation is beyond reproach,” the Supreme Court had observed in the judgment.

The Supreme Court on Wednesday issued notice on a plea seeking appropriate steps to allow eligible female candidates to appear for the National Defence Academy and Naval Academy Examination conducted by the UPSC and train them at the National Defence Academy.

The bench of Chief Justice S.A. Bobde and Justice A.S. Bopanna and V. Ramasubramanian was hearing a plea filed by Advocate Kush Kalra, who submitted that the purpose for filing the petition is to raise the issue of violation of Articles 14, 15, 16 and 19 of the Constitution of India by denying the opportunity to eligible and willing female candidates to join the National Defence Academy and afford them a chance to enrol, train and develop themselves in the National Defence Academy into future leaders of the Indian Armed Forces, thereby, categorically excluding eligible and willing female candidates to chose joining the Armed Forces as a profession after completing 10+2 education and denying them a chance to train at the premier Indian joint training institute and centre of excellence for the Armed Forces.

The petitioner has submitted, “The Union Public Service Commission conducts the entrance examination titled “National Defence Academy and Naval Academy Examination” and as per the eligibility criteria, any unmarried male candidate, with the required educational qualification and aged between 15-18 years can sit for the examination and on qualifying the exam and on successful completion of training at the NDA and the subsequent training at the respective Academy of the Service the cadet opts for, gets commissioned into the Service as a Permanent Commissioned Officer by the age of 19-22. This opportunity to take the National Defence Academy and Naval Academy Examination at the age of 15-18 years, with the eligible academic qualifications is not available to eligible and willing female candidates and the sole reason for this categorical exclusion is on the basis of their sex.”

The petitioners further submitted that an exceedingly persuasive justification is required whenever the state is trying to implement a gender-based governmental action. However, as has been noted in the Judgment passed by the Apex Court in the matter of Secretary, Ministry of Defence v. Babita Puniya and Ors. the gender roles or the physiological features of a woman have no significance to her equal entitlements under the Constitution of India.

Therefore, the systematic categorical exclusion of eligible and willing female candidates to appear for the National Defence Academy and Naval Academy Examination and gain entry into the National Defence Academy is a violation of fundamental rights guaranteed under Articles 14, 15, 16 and 19 of the Constitution of India.

It has further been submitted that though the Court in Secretary, Ministry of Defence v. Babita Puniya and Ors. had taken on record the statement of policy placed on record in the proceeding by the Union Government in the form of a letter dated February 25, 2019 vide which the Union Government had allowed the grant of Permanent Commission to Short Service Commission women Officers in all the 10 streams where women have been granted Short Service Commission in the Indian Army, subject to certain directions laid down by the Court.

However, it has been submitted that such an order is only half a measure to restore equality of opportunity in the Army. Allowing eligible female candidates to appear for the National Defence Academy and Naval Academy Examination in order to train at the National Defence Academy and gain entry into the Indian Armed Forces as Permanent Commissioned Officers, in whichever branch it is permitted will further extend this exercise of restoring equality of opportunity in the Armed forces both in terms of recruitment and in terms of opportunity for career growth in the Armed Forces.

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