'Why Is Co-Education A Problem?': Supreme Court Frowns On Army's Policy To Bar Women From NDA [Full Court Room Exchange]

The Supreme Court on Wednesday passed an interim order allowing women to take part in the NDA examination scheduled for September 5, adding that admission in the programme would be subject to the final result of the petitions before it.

The UPSC is also directed to take out a suitable corrigendum in view of the aforesaid order and "give due publicity so that intent of the order is translated into effect"

The bench of Justices S. K. Kaul and Hrishikesh Roy was hearing a plea challenging the policy of the Centre in not permitting female candidates to appear for the National Defence Academy and Naval Academy Examination and train at the National Defence Academy. The petition was filed in February and the notice was issued on March 10. "We have received the counter-affidavit from the Union of India yesterday. In the counter affidavit, what they say is that it is purely a policy decision and should not be interfered with by the court and that because girls are not allowed to enter into NDA does not mean there is any difficulty in their progression or in their career", Senior Advocate Chinmoy Pradip Sharma, for the petitioner, told the bench.

Justice Kaul inquired from ASG Aishwarya Bhati, "Why are you continuing in this direction? Even after Justice Chandrachud's judgment expanding the horizons and extending Permanent Commission in the Army to women? This is unfounded now! We are finding it absurd!"

"Will the Army only act when a judicial order is passed? Not otherwise?

"We will do that if that is what you want! This has been my impression right from the High Court that till a judgment is passed, the Army doesn't believe in doing anything voluntarily!", continued the judge.

When the ASG sought to submit that women have been conferred PC in the Army, Justice Kaul commented, "No thanks to you! You kept on opposing it! And till orders were not passed, you didn't do anything! The Navy and the Airforce are more forthcoming! The Army seems to have a bias to not implement!"

The ASG insisted that "such is not the case here" and that there are 3 modes of entry in the Army- NDA, Indian Military Academy (IMA) and Officers' Training Academy (OTA)- and that women are permitted entry through OTA and IMA.

"Why? Why is co-education a problem?", demanded the bench.

"The whole structure is such...this is a policy decision... it cannot be...", the ASG sought to submit.

"The policy decision is based on gender discrimination. We direct the Respondents to take a constructive view of the matter in view of judgment of this court (in the PC matter)", directed the bench.

The bench then remarked that the ASG may have agreed to argue the matter even though "her heart may not be in it". "In fact, in the PC matter, I was on the other side (for the women SCC officers seeking PC)!", replied the ASG.

"The endeavour is to persuade the army to do things itself! We would prefer if the Army did somethings itself, rather than us passing orders! But there was no success (in the PC matter) either in the HC or even in the SC till brother Justice Chandrachud made all the endeavours and passed all orders!", said Justice Kaul.

"And even if it is a matter of policy, you are allowing women's entry through 2 sources! Why should you say the one more additional source of entry is closed for women? It is not just a gender principle but discriminatory otherwise also!", added Justice Roy.

"Some amount of leeway has to be given...there is a different kind of training...ultimately, it is a matter of national security...", Ms Bhati sought to explain.

"And now you are admitting women even in combat!", commented Justice Kaul

"In combat roles, women are being admitted in the air force, as fighter pilots. In the army, only 10 streams are open for them in army...", replied the ASG

"Normally, we want to leave you to take a call in what manner to introduce women, if you please to introduce them to the army. But to create a bar in the NDA?", continued Justice Kaul.

"The mindset is not changing only. The Solicitor General who was appearing before the HC in the PC matter could not persuade the Army. The SC also gave many opportunities but it did not materialise. In law also, you did regularise them! You kept them for 5-5 years and never gave PC! The airforce and the navy are more liberal!", said the judge.

"You must begin with some tokenism. Don't compel judicial intervention all the time! We, as an institution, must confess that we may not understand all intricate, technical aspects of your structure, you are better situated to appreciate that. But the broad principle of gender neutrality you must understand and adapt it in the backdrop of your peculiarities. Us passing blanket orders does not advance the cause.", reflected Justice Kaul.

Advocate on Record Mohit Paul urged the bench to also pass a direction requiring the UPSC to issue to corrigendum notification to allow the applications by women. The bench agreed to it.