Supreme Court Directs Permanent Commission for Women Officers, Addresses Systemic Discrimination: Lt. Col. Nitisha & Ors. vs. Union of India & Ors. (25 March 2021)

Date of the Judgment: 25 March 2021
Citation: (2021) INSC 157
Judges: Dr Dhananjaya Y Chandrachud, J, M R Shah, J

Can the Indian Army’s evaluation process for granting Permanent Commission (PC) to women officers be considered fair when it uses benchmarks that inherently disadvantage them? The Supreme Court of India addressed this critical question in a landmark judgment, focusing on the systemic discrimination faced by women Short Service Commissioned Officers (WSSCOs) in their quest for equal opportunities. The judgment highlights the long and arduous journey of women officers seeking parity with their male counterparts, emphasizing the need to reform mindsets and implement constitutional principles.

The bench, comprising Justices Dr Dhananjaya Y Chandrachud and M R Shah, delivered a unanimous verdict, authored by Justice Chandrachud. The judgment not only provides relief to the petitioners but also lays down crucial principles for understanding and addressing indirect discrimination in the Indian legal system.

Case Background

The legal battle for equal opportunities for women in the Indian Army began with a public interest litigation in the Delhi High Court in 2003. The High Court ruled in favor of the women officers on 12 March 2010, directing the grant of PC to women Short Service Commissioned officers (WSSCOs) on par with their male counterparts. Despite this ruling, the Union Government did not implement the decision, leading to further litigation. The Supreme Court’s judgment in Secretary, Ministry of Defence v. Babita Puniya (2020) on 17 February 2020, affirmed the rights of women officers to be considered for PC, directing the government to grant PC to all eligible women officers.

The current batch of petitions before the Supreme Court questioned the manner in which the Babita Puniya judgment was implemented, specifically challenging the criteria and methods used to evaluate women officers for PC. The petitioners argued that the evaluation process was discriminatory and did not provide a level playing field for women officers.

Timeline

Legal Framework

The judgment refers to several key legal provisions and policy documents:

• Special Army Instructions dated 30 April 1970 (SAI 3/S/70) and Army Order 110 of 1981 (AO 110/1981): These documents govern the grant of PCs to SSC officers, including medical criteria.
• Army Order 9 of 2011 (AO 9/2011): This order defines the SHAPE medical classification used to assess the fitness of army officers.
• Ministry of Defence (MoD) Policy Letter dated 30 September 1983: This letter specifies the criteria for granting PC to SSC officers, emphasizing the role of the Member Data Sheet (MDS).
• Army Order 18 of 1988 (AO 18/1988): This order formulates the system for selection for the grant of PCs, including the composition of the Selection Board.
• MoD Policy Letter dated 15 January 1991: This letter introduced a cap of 250 SSCOs for the grant of PC per year and a minimum cut-off grade of 60%.
• MoD Policy Letters dated 20 July 2006: These letters revised the terms and conditions of service for men and women SSCOs, including the tenure of service.
• MoD Policy Letter dated 24 February 2012: This letter revised the weightage for the selection process, increasing the weightage for computerised MDS and reducing the weightage for the Selection Board.
• Article 14 and 15(1) of the Constitution of India: These articles guarantee equality before the law and prohibit discrimination on the basis of sex.

Arguments

The petitioners, represented by Senior Counsel Mr. P.S. Patwalia, Ms. Meenakshi Arora, and others, raised several arguments:

• Medical Evaluation: The medical criteria for PC were arbitrary and unjust, requiring women officers in the 40-50 age group to conform to standards applicable to younger male officers. They argued that the medical criteria did not account for physiological changes due to age and childbirth, and that they should be exempted from medical scrutiny at this stage, as they have already been medically examined at the time of their extensions.
• Reliance on Annual Confidential Reports (ACRs): The petitioners contended that the reliance on ACRs was flawed because reporting officers did not seriously evaluate women officers, as they were not eligible for PC. The ACRs were filled out casually, and there was no provision for PC recommendations for women officers.
• Lack of Announcement of Vacancies: The respondents failed to announce the number of vacancies for PC, which was necessary for officers to make informed choices.
• Systemic Discrimination: The petitioners argued that the Army’s evaluation process was not a level playing field, as women officers were never given the same opportunities as their male counterparts.

The respondents, represented by Additional Solicitor General (ASG) Mr. Sanjay Jain, argued:

• Medical Yardsticks: The medical criteria were the same for men and women, and the SHAPE-1 standard was essential for the grant of PC. The respondents also argued that the Army accounts for physiological changes during childbirth and other age-related factors.
• Number of Vacancies: The respondents claimed that the cap of 250 vacancies was relaxed for the Special No. 5 Selection Board, and the benchmarking of women officers against the last selected male officer was a rational policy.
• Process of Evaluation: The respondents stated that ACRs were only one component of the evaluation, and the Selection Board was aware that the recommendation for PC would be blank for women officers.

In rejoinder, the petitioners argued that the benchmarking criteria were unfair, as women officers had to meet an external benchmark and also compete among themselves, unlike male officers.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court considered the following key issues:

1. Whether the procedure followed in evaluating women SSCOs for the grant of PC was in accordance with the law.
2. Whether the medical yardsticks for the grant of PC were discriminatory.
3. Whether the reliance on ACRs was flawed.
4. Whether the benchmarking of WSSCOs with the lowest male officer was justified.
5. Whether WSSCOs who had not completed 14 years of service as on the date of the judgment in Babita Puniya (supra) were entitled to the same benefits as those who had completed 14 years of service.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court relied on the following authorities:

Judgment

The Supreme Court analyzed the submissions of both parties and the authorities relied upon. The court found that the Army’s evaluation process for the grant of PC to WSSCOs was discriminatory and did not provide a level playing field.

The court specifically highlighted the following:

• The benchmarking of women officers against the lowest-ranked male officer was a “ruse to deviate from the judgment of the Court.”
• The reliance on ACRs from only the first 5/10 years of service was “a disservice” to the women officers.
• The court noted that the Army authorities had attempted to demonstrate a facially neutral standard, but this was not sufficient to address the systemic discrimination faced by women officers.

The Court also made the following observations on the authorities:

• The Court relied on Griggs v. Duke Power Co to highlight that indirect discrimination can arise from practices that are fair in form but discriminatory in operation.
• The Court used Essop v. Home Office to understand the features of indirect discrimination in UK law.
• The Court referred to Ontario Human Rights Commission v. Simpsons-Sears to expound the doctrine of indirect discrimination (adverse effects discrimination).
• The Court used Action Travail des Femmes v. Canadian National Railway Company to analyze systemic discrimination in the workplace.

Key quotes from the judgment include:

• “The battle for equality has been long drawn, engaging as much with reforming mindsets as with implementing constitutional principles.”
• “The law, in its majestic equality, prohibits the rich and the poor alike from sleeping under bridges, begging in the streets and stealing bread.”
• “Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion.”
• “Systemic discrimination posits the need to conceptualize discrimination in terms of workplace dynamics rather than solely in existing terms of an identifiable actor’s isolated state of mind.”

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by several factors, as indicated by the sentiment analysis of the reasoning portion of the judgment. The court emphasized the need to address systemic discrimination and ensure substantive equality for women officers.

The court also considered the balance between fact and law:

This ratio indicates that while the court considered the factual aspects of the case, the legal considerations and interpretation of constitutional principles were the primary drivers of the decision.

Logical Reasoning

The court’s logical reasoning for each issue is presented below:

Final Order

The Supreme Court issued the following directions:

1. The results of the Special No. 5 Selection Board were quashed.
2. The Union Government was directed to reconsider the grant of PC to all WSSCOs.
3. The medical criteria for the grant of PC were to be applied in a manner that accounted for the belated consideration of WSSCOs.
4. The Union Government was directed to constitute a new Selection Board to reconsider all WSSCOs for the grant of PC.
5. The Selection Board was directed to consider the performance of WSSCOs based on their entire service record, not just the initial 5/10 years.
6. The court clarified that all WSSCOs who were in service as on the date of the judgment in Babita Puniya were entitled to be considered for PC, irrespective of whether they had completed 14 years of service.
7. The Union Government was directed to comply with the judgment within a period of two months.

Implications

The judgment in Lt. Col. Nitisha & Ors. vs. Union of India & Ors. has significant implications for gender equality in the Indian armed forces:

• It reinforces the principle that facially neutral policies can be discriminatory in their application and that the law must address systemic inequalities.
• It ensures that women officers are given a fair opportunity to be considered for PC, without being subjected to arbitrary and discriminatory benchmarks.
• It sets a precedent for addressing indirect discrimination in other areas of employment and public service.
• It emphasizes the importance of reforming mindsets and implementing constitutional principles to achieve true gender equality.

Conclusion

The Supreme Court’s judgment in Lt. Col. Nitisha & Ors. vs. Union of India & Ors. is a landmark decision that addresses systemic discrimination against women officers in the Indian Army. The judgment highlights the importance of ensuring substantive equality and the need to critically examine policies and practices that may appear neutral but have discriminatory effects. By quashing the results of the Special No. 5 Selection Board and directing the Union Government to reconsider the grant of PC to all eligible WSSCOs, the Supreme Court has taken a significant step towards achieving gender equality in the armed forces. The judgment serves as a reminder that the battle for equality requires not only legal reforms but also a change in mindsets and a commitment to implementing constitutional principles.