Karnataka High Court: While considering the reasonableness of Guideline issued by the Directorate of Department of Sainik Welfare and Resettlement, vis-à-vis issuance of dependant identity cards for the wards of ex-servicemen, which were alleged to have discriminated on grounds of gender, the Bench of M. Nagaprasanna*, J., held that exclusion of married daughter for grant of an I-card in terms of Guideline 5(c) of the Guidelines for Issuance of I-cards to dependants of ex-servicemen to be violative of Arts. 14 and 15 of the Constitution and accordingly, struck down the words “till married” in the impugned Guideline. “If any Rule/Policy/Guideline, which would be in violation of the Rule of equality, such Rule/Policy/Guideline cannot but be obliterated, as being unconstitutional”.
Pertinent Facts of the Case: The petitioner is the daughter of one late Subedar Ramesh Khandappa Police Patil, a solder in the Indian Army, who joined on 25.06.1979 and succumbed to a land mine explosion on 31.12.2001, after rendering about 22 years of service. Since the late Subedar died while performing his assigned task, he was categorized as a solder “killed in action” and was to be considered as a “Ward of Battle Casualty”. The petitioner is the second daughter of the said ward who was killed in battle casualty. The ex-serviceman had thus only two children, both of whom are daughters.
The Department of Sainik Welfare and Resettlement notified several welfare schemes pertaining to veterans, widows and disabled soldiers and their wards. In the said scheme 10% reservation for ex-servicemen in any recruitment of the State Government for employment for groups A, B, C and D and relaxation of age are some of the benefits that are conferred.
Later, the State Government issued a notification for appointment to the post of Assistant Professors under the afore-quoted Rules. The notification reserves 10% of the vacancies for ex-servicemen. Under the quota of ex-servicemen, either the ex-servicemen themselves can claim the quota or in their absence, the wards of ex-servicemen would become eligible to apply.
As per the “Eligibility for Dependent Identity Cards” Guidelines, for registration under the ex-servicemen quota, an applicant will have to demonstrate that that applicant is himself or herself an ex-serviceman or ward of such ex-serviceman and for such demonstration particularly in cases of the ward claiming ex-servicemen quota, would require a dependant I- card.
However, the petitioner’s request for issuance of I-card was declined as she was married and failed to demonstrate that she was the ward of an ex-serviceman to claim the benefit of being one. Hence the petitioner approached the High Court.
Contentions: The petitioner contended that the guideline permits issuance of a card both to the daughter or a son of an ex-servicemen, the rider is, that it is issued only till the daughter gets married, which is arbitrary, discriminatory and violative of Art. 14 of the Constitution.
Per contra, the respondents contended that the moment the daughter gets married, she loses the status of being a dependant of the ex-servicemen.
It was submitted that the Guidelines bring about a cap of 25 years of age, both for the daughter and son. Beyond 25 years, no person is given the card for any benefits or even participation in any recruitment process. It was thus argued that there is no discrimination between sons or daughters once they reach the age of 25.
Court’s Assessment: Upon perusal of the facts and contentions, Justice Nagaprasanna made the following analysis-
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It was noted that as per the impugned Guideline, the sons are issued I-card subject to them not attaining the age of 25 years or on ceasing to be dependant whichever is earlier or remains unemployed due to lifetime disability. These are not the conditions for the daughter. Whatever is applicable to the son is applicable to the daughter as well, but till she gets married or is unemployed due to lifetime disability. “Marriage of the daughter takes away the benefit. The guidelines would thus depict gender bias qua the status of the daughter “married and unmarried”.
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The Court reiterated that Art. 14 prohibits the State from denying any person equality before the law or equal protection of the laws. Article 16 is of application as a general Rule of equality as laid down in Article 14, with special reference to opportunity for appointment and employment under the State. “The fundamental right to equality means that persons in like situations, under like circumstances, should be treated alike (…) neither the legislature nor the Rule making Authority can make a law or a Rule, issue any guidelines/circulars/administrative instructions, which would be in violation of Arts. 14 and 15 of the Constitution”.
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The Court relied on plethora of Supreme Court decisions where the Court had strictly observed that discrimination was meted out on the ground that one is a married daughter and held that Rules that would result in discrimination on the basis of gender, would be violative of Article 14 of the Constitution.
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It was pointed out that the instant case concerns a guideline in the form of a policy, which is on a lower pedestal than that of a statute. If statutes are held to be violative of the tenets of Article 14 of the Constitution of India by the Constitutional Courts for discrimination resulting in gender bias, a Guideline in the form of policy would pale into insignificance, if it portrays such discrimination, even to its remotest sense.
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Taking note of the contentions presented by the respondent, the Court strictly observed that—
“Here lies the discriminatory choke, as the guideline portrays bias on the basis of gender; inequality on the basis of gender, as marriage of the daughter takes away her right to get an I-card and marriage of a son does not take away his right to get an I-card”.
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Noting that second daughter (‘Petitioner’) got married before 25, thus, losing the opportunity of securing an I-card and her consideration for appointment in a recruitment by the State Government under the ex-servicemen quota, the Court pointed out that, the very object with which the welfare schemes are created for the benefit of the kith and kin of a deceased ex-servicemen is taken away, because the petitioner is the daughter and is married. It was strictly noted that had the applicant been a son, his marriage would not have made any difference.
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It was thus concluded that the impugned Guideline falls out of sync with the tenets of Art. 14. “The guideline is a depiction of gender stereotypes which were existent decades ago, and if permitted to remain would be an anachronistic obstacle in the march towards women’s equality”
Parting Observations on Gender Discrimination and need for Gender Neutrality:
“It must be remembered that extension of women’s right is the basic principle of all social progress”.
Such was the nature of the case at hand, that Justice Nagaprasanna deemed it appropriate to state some strict observations-
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The Judge observed that beneficiaries of guidelines to be persons who have served the Forces or their kith and kin. It is the nomenclature of the Guidelines that seeks to portray discrimination. The word used in the nomenclature is ex-servicemen.
“The word “men” in the title portrays such discrimination as it seeks to demonstrate that the Forces are still a bastion of the male, while it is not”
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The Judge also noted that long time ago, women had not role in the armed forces, but winds of paradigm change have blown and now women have reached combatant services in supervisory roles as officers and on other responsibilities, be it in the Indian Army; in the Indian Air Force and in the Indian Navy.
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It was pointed out that the word ‘men’ in the title, a part of word ‘ex-servicemen’, demonstrates a misogynous posture of an age -old masculine culture. Therefore, the title wherever reads as ex-servicemen in the annals of policy making of the Government, be it the Union or the State concerned, should be made “Gender neutral”.
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The Court observed that there must be a change in the mindset of the rule making authority or the policy makers, as, “It is only then there could be recognition of commitment of the values of the Constitution, as equality should not remain a mere idle incantation, but has to be a vibrant living reality”.
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Justice Nagaprasanna concluded his observations stating that since policy making is the domain of the Government, thus, it is for the Union or State Government to address this imperative need of change of nomenclature wherever it depicts to be ‘ex-servicemen’ to that of ‘ex-service personnel’ which would be in tune with ever evolving, dynamic tenets, of Art. 14 of the Constitution.
[Priyanka R. Patil v. Kendriya Sainik Board, 2023 SCC OnLine Kar 1, decided on 02-01-2023]
Advocates who appeared in this case :
Petitioner:- Vivek R, Adv.;
Respondent:- H.Shanthi Bhushan, DSGI For R1;
B.V. Krishna, AGA FOR R2;
R-3 SERVED;
A.H. Sunitha Ramesh, Adv. For R4;
N.K. Ramesh, Ad. for R5.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.