'Having Given Hope To Women To Take Exam In November, We Don't Want To Belie That' : SC On NDA Entrance [Courtroom Exchange]

Update: 2021-09-22 07:50 GMT

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The Supreme Court on Wednesday refused to vacate its interim order allowing women candidates to take the NDA entrance examination scheduled for November.Senior Advocate Chinmoy Sharma, for the petitioner, pointed out that the affidavit filed by Captain Shantanu Sharma, Director (AG), at DMA, Ministry of Defence adds that while the entrance examination for entry into NDA is held twice a year,...

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The Supreme Court on Wednesday refused to vacate its interim order allowing women candidates to take the NDA entrance examination scheduled for November.

Senior Advocate Chinmoy Sharma, for the petitioner, pointed out that the affidavit filed by Captain Shantanu Sharma, Director (AG), at DMA, Ministry of Defence adds that while the entrance examination for entry into NDA is held twice a year, the Government proposes to have the necessary mechanism in place by May 2022 i.e, by the time when UPSC is required to publish the first notification of the year 2, for entrance examination for entry to NDA.

"The NDA holds 2 exams in a year- the first exam for which the notification is issued in January and the exam is held in April; the second notification is issued in June and the exam takes place in September. The process is such that the joining only takes place in the next year. Let us say the notification is issued in May, 2022, then the intake will only happen in June, 2023. The interim order of My Lords was very clear that for this exam which was to happen in September but is now postponed to take place in November, the girls should be allowed to participate and be inducted…", he advanced.

Justice S. K. Kaul observed, "They have to create some element of infrastructure to adjust the female candidates. To that extent, we cannot say anything. But the absorption cannot be postponed by one year. To that extent, we agree with you."

Mr. Sharma continued to submit, "I must also point out there will be two exams which will now take place. The September exam is now going to happen in November and there will be another exam in April also. So in effect, there will be two exams where women will be eligible but they will miss them"

ASG Aishwarya Bhati responded, "April-May is the last by which the notification is to be published by the UPSC for the year 2022 – so young girls between 16 and 19 will be taken in."

Justice Kaul noted that the point is that the females taking the exam in November get the benefit.

"My respectful submission is that Your Lordships may allow us to skip this examination which is going to take place, for which Your Lordships had passed the interim order", prayed the ASG.

"No, Ms. Bhati, we appreciate all your problems, we are not saying the problems are not there. Some things may happen in a phased manner. But I am sure the armed forces are capable of finding a solution. We have said the girls will take the examination…let us see the result which comes, how many will take it, how many women get into it. The planning can go on. We appreciate your endeavour to put before us the different areas you need to work upon- fitness test, accommodation etc. What we are finding difficult to accept is to postpone everything by a year. Having given some hope to the women to take the examination in November, we don't want to belie that hope now and say that somebody will get in in the future", said Justice Kaul

"It is not delaying by a year. My learned colleague did not put it correctly before you. What is going to be held now is the second exam of 2021. What we are saying is that in the very next exam, the first exam of 2022, the girls can participate. Your Lordships will appreciate that there is a fixed number of every course of NDA- the standards will have to be fixed to start with- the medical standards etc. There is a study group which has been set up…", replied Ms. Bhati.

"It is not so complex, what you are saying. The exam has already been directed to be held., that order has already been passed. The armed forces are the people who deal with everything in emergency. They are the best response team we can get in the country. So I don't believe that the armed services response team will not be able to deal with the scenario of whatever may be possible, depending upon the nature of the task. Please appreciate that not many may have enrolled for the exam this time. This is something which is happening for the first time. You may have to make arrangements for large numbers at the next exam. The number will be small this time. Instead of postponing it, try to work something out for them.", said Justice Kaul.

The ASG repeated the bench permit them one 6-month period, saying that they will be fully ready by then.

"We will permit you six months without saying 'no exam'. Once we have passed an order and created hopes in the candidates, what answer do we have for them? Having gone this far, we say you try your luck next time? This is what you are trying to say", said Justice Kaul.

"Your Lordships had indicated on the last occasion that you will allow some latitude", pressed the ASG.

"We are giving you all the latitude. We are looking at all issues. We will record all these issues in order. Don't ask us to effectively vacate the order. You go on with your exercise. You need not disclose it today. But proceed with the exam. We will see the result. We will see how many women get in", said Justice Kaul.

"Your Lordships say that the order to participate in the exam would be subject to the final order. We will be in a very tight and difficult position if you allow them to take the examinations and then we if we are not ready", advanced Ms. Bhati.

"The armed services have been in more difficult and tight situations than this. We have confidence that you will find a solution", said Justice Kaul.

Passing its order, the bench recorded that, "a report has been filed by the armed services. Some of the areas which will need to be addressed have been set out in its affidavit. These are stated to be preparatory actions for the induction of women in the NDA. Suffice to say that the aspects refer to medical fitness, proposed training standard and curriculum, intake strength, the requirement of infrastructure, accommodation. All these aspects are expected to be addressed by a study group that has been constituted consisting of experts to expeditiously formulate the curriculum for women candidates. The only caveat which is sought to be put is where it has been submitted that the necessary mechanism would be available by May 2022. Senior Advocate Chinmoy Sharma submits the NDA exams are held twice a year and this would amount to postponing the whole process by one year. This is disputed by the ASG who submits that the present exam which is scheduled in November may be permitted to be skipped so far as the women candidates are concerned and for the exam to be held in April, 2022 the recruitment will take place and the complete process will be completed."

"We have given a thought to the matter and to the difficulties expressed by the armed services. It would effectively mean 'no Jam today, jam tomorrow' if we accept this submission. It would be difficult for us to accept such a position in view of the aspirations of the women candidates which have been raised by our interim order, albeit subject to the final outcome of the petition.

"The Armed Services have dealt with very difficult situations on the border and in the country and have conducted themselves admirably. To deal with emergencies is part of their job. We are sure they would be able to deal with this "emergency" too. We would not like to effectively vacate the order which has already been passed but we keep the matter pending for any further directions depending on the position which may emerge after the exam"

The bench further noted that it is informed that the UPSC has still not issued the corrigendum allowing women to participate in the exam and accordingly, directed the same. On the request that the corrigendum be given wide publicity, Justice kaul said, "this is a transition phase. We are not letting them postpone the transition phase. Maybe it is not the best results which will follow in this examination. But we are looking to the future. One thing would be to agree with them and postpone everything. We don't want to do it. Now taking things to the next level should be at the next exam. The idea in this exam is to begin the process."

As regards the request that the candidates be given sufficient time and not just 4-5 days to apply post the corrigendum, Justice Kaul said, "We are not going to get into this. This time, keeping aside the difficulties of the system, we are trying to begin a process. You will get a better process next time. It may not be ideal, but it is a beginning. This is a big step which is the armed services have taken. There are difficulties and I do appreciate the difficulty. I just don't think it will be the right signal to postpone it. But we also don't want to push the agenda too much this time. All things take some time"

The bench further directed in its order that in view of the fact that the issue of medical and other requirements will be examined by the expert committee for this examination, "we would give a little leeway to the defence department to give some tentative requirements subject to finalisation of the same". "But we will not put the change in the reverse gear for even a second", remarked Justice Kaul.

ASG Bhati requested, "Please say in the order that it won't create any equity. Otherwise, there will be further litigation"

"We are keeping the matter pending here. If you have any problems, you can come here. That the candidates will have to accept then", orally observed Justice Kaul.

In the end, the judge reflected, "There is no tentativeness in my mind. We are giving time to iron out creases, but the aspirations which have been raised cannot be whittled down. Please make submissions accordingly".

The ASG clarified, "I am on tentativeness of medical standards. The idea is to build proficient soldiers. The NDA is the building block in the training where students are broken down first and then prepared. While women are equal soldiers, their induction at a later age of 24-25 is different. These are going to be teenagers of 16-19. Their medical standards will have to assured before induction, which standards may be revised later in interest of armed forces."

"It is better to give them a chance at least to participate, even if they may not make it, rather than shut them out. When you talk about standards, are you proposing to get them into combat?", said Justice Kaul.

"I can't answer that now. But the air force does have women in combat roles", the ASG responded.

"What are the terms, what is the physical fitness in air force?" asked the judge.

The ASG replied that it is meant for 24-year-old women while here they are dealing with 16 to 19-year-olds.

"For boys also, you will have different standards for 24 and at 16. So you can work out the same way. It is not very easy but it is not very complex also", said Justice Kaul.

"My elder brother sent me a letter that Mr. Nani Palkhivala had written to Mr. Soli Sorabjee when he became the Attorney General and he had written that the government or the State follows the citizens' will. So we go with that motto", concluded the ASG.

Case Title: Kush Kalra v. Union of India and Others

Click Here To Read/ Download Order

'Having Given Hope To Women To Take Exam In November, We Don't Want To Belie That' : SC On NDA Entrance [Courtroom Exchange]

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