In a major step towards gender equality, the Supreme Court on Wednesday allowed eligible women to take the examination for admission to National Defence Academy (NDA) scheduled to be held on September 5.
The top court, however, said that the result of the examination would be subject to final adjudication of the petition.
A bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy passed the interim order on a plea filed by one Kush Kalra, which has sought a direction to the authorities concerned to allow eligible female candidates to appear in the ‘National Defence Academy and Naval Academy Examination' and train at the NDA.
The bench also directed the Union Public Service Commission (UPSC) to take out an appropriate notification in view of its order and give due publicity to it.
During the hearing, senior advocate Chinmoy Pradip Sharma, appearing for Kalra, said they have received the Centre's counter affidavit on Tuesday in which the government has stated that it is purely a policy decision and court should not interfere with it.
The bench told Additional Solicitor General Aishwarya Bhati that why is the government continuing in this direction after the verdicts of this court related to extending permanent commission in the Army and Navy to women.
"This is unfounded now. We are finding it absurd. Will the Army act on after the judicial orders are passed? We will then pass an order, if that is what you want. I have this impression right from the High Court that till an order is passed, the Army does not believe in doing anything voluntarily," the bench said.
Bhati said the Army has conferred Permanent Commission (PC) to many women.
The bench said, "You had kept on opposing it (PC) till the orders were passed by this court. You did not do anything of your own. The Navy and Air Force were more forthcoming while the Army seems to have some kind of bias."
Bhati said that in this case there are several modes of entry into the Army like NDA, Indian Military Academy (IMA) and Officers Training Academy (OTA) and women can enter into the force through OTA and IMA.
The bench said, "Why is it not through NDA. Is co-education a problem?"
Bhati said that this is a policy decision that women are not allowed in NDA.
The top court told Bhati that this policy decision is based on gender discrimination.
It said, "We direct the respondents (Centre) to take a constructive view of the matter in view of the judgements of this court".
Bhati said that she herself had argued the PC matter and appeared for women Short Service Commission officers, who were seeking grant of the PC.
The bench said its endeavour is to persuade the Army to do things by itself rather than on the basis of judicial orders.
"We tried but there was no success in the Permanent Commission matter either in the High Court or even in the Supreme Court till Justice Chandrachud passed the order," the bench said.
The top court told Bhati that even if it is a matter of policy the government was still allowing women's entry through two other ways, then why would it say no to the third way.
"It is not a case of just gender principle but it is a case of discrimination", the bench said, adding that women officers are now admitted even in combat roles.
Bhati said that in the Army women are granted permanent commission only in 10 streams while in the Air Force they are admitted as fighter pilots.
The bench observed that the mindset is to change which is not changing at all and even during hearing of permanent commission before the High Court, the government counsel had tried to persuade the Army but it did not materialise.
"The Air Force and Navy have acted in a more liberal way. However, in the Army, you kept giving them a five-five year’s job and never gave permanent commission till the verdict of the Supreme Court.
If you are introducing women in the Army then why do you create a bar in NDA," the bench said, adding that the government should not compel judicial intervention all the time.
It said, "We, as an institution, must confess that we may not know all the intricacies of the structure of the Army but the broader principle of gender neutrality that you must understand and adapt to in the backdrop of your peculiarities. Court passing blanket orders does not advance the actual cause".
On March 10, the top court had sought responses from the Centre and others on a plea which has raised the issue of exclusion of eligible and willing female candidates from joining the prestigious National Defence Academy (NDA) solely on the ground of sex that it is a violation of fundamental right to equality.
The top court had issued notices to the Centre, the UPSC and others seeking their responses on the plea which said "the categorical exclusion of eligible female candidates from entering the National Defence Academy is not constitutionally justifiable and is simply done on the basis of their sex."
The plea filed by advocate Kush Kalra has referred to last February’s landmark verdict in which the apex court had directed that women officers in the Army be granted PC and command postings.
