Evaluation Criteria set by the Army to offer PC to the Women SSCOs are discriminatory: SC

We are of the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners. This disproportionate impact is attributable to the structural discrimination against women, by dint of which the facially neutral criteria of selective ACR evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-à-vis their male counterparts. This discrimination has caused an economic and psychological harm and an affront to their dignity. [Para 119]

LT. COL. NITISHA & ORS VS. UNION OF INDIA & ORS

CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No 1109 of 2020

Decided on March 25th, 2021

The present case was decided by a division bench of the Supreme Court consisting of JusticeDr Dhananjaya Y Chandrachudand JusticeM.R. Shah.

The bench of Justice D.Y. Chandrachud and Justice M.R. Shah has categorically held in the landmark judgment that there are fundamental fallacies in the reasoning given by Army to deny permanent commission (PC) to women officers. They have also stated that the process undertaken to evaluate women officers for the grant of PC was by a belated application of a general policy that did not redress the harms of gendered discrimination that were identified by this Court in Babita Puniya case. There is no justification to exclude women officers based on irrational and arbitrary standards.After the landmark judgment of Babita Puniya pronounced on February 17, 2020, wherein the Apex Court gave directions to consider women officers for grant of permanent commission, promotion and consequential benefits, the Army initiated the procedure to comply with the directions, but the compliance so done was not in tune with the true intent of the directions given by court while passing the judgment.

One of the issues which has been debated in the present case is in regard to the SHAPE-1 qualification for grant of PC. The Army authorities have, in terms of the General Instructions dated 1 August 2020, stipulated that only those officers who are in SHAPE-1 would be granted PC. Officers in a Temporary Low Medical Category14, who are otherwise found fit for PC by the Special No. 5 Selection Board are granted a time period of one year (at the maximum) for stabilization of their medical category.

In addition to the above petitioners, certain other women officers who are petitioners have faced specific circumstances which have been highlighted during the proceedings: The petitioner in Writ Petition (C) 1469 of 2021 has stated that she is being harassed by the respondent only on account of the fact that she had made a complaint against her Commanding Officer, who had allegedly made sexual advances towards her. Although the petitioner’s service was terminated and she was released from service on 14 February 2018, her case was considered for a special review later. On 21 February 2019, she was granted an extension of 4 years in service till 16 March 2021. She has advanced similar arguments against the process for the grant of PC as the other petitioners. [Para 38]

The petitioners in Writ Petition (C) 1223 of 2020, are in the category of women officers belonging to batch 27 to 31, having been in service for 10-14 years. In terms of the General Instructions dated 1 August 2020, they have been placed in the category under Para 1(c), under which in case of non-grant of PC, they would be released on completion of their extension period, without any pension. [Para 39]

The learned counsel of the Respondents stated that the petitioners, on one hand seek parity with their male counterparts. On the other hand, they are seeking special and unjustified treatment in the eligibility criteria for obtaining PC and that the assessment on the medical criteria of a candidate is an intrinsic and inseparable part of the process for grant of PC. It is applicable to men and women alike and that the contention that medical fitness cannot be expected forever in service lacks merits. The Army accounts for physiological changes occurring during childbirth and time waivers are provided in accordance with existing policies. Other physiological changes such as obesity and age are PART E 43 independent of gender and the petitioners cannot seek an exemption on that ground. The criteria of TLMC and PLMC are applicable to serving PC officers as well; [Para 40]

At its heart, this case presents this Court with the opportunity to choose one of two competing visions of the antidiscrimination guarantee embodied in Article 14 and 15(1) of the Constitution: formal versus substantive equality. [Para 42]

To illustrate, in Anuj Garg v. Hotel Association of India, this Court held that laws premised on sex-based stereotypes are constitutionally impermissible, in that they are outmoded in content and stifling in means. The Court further held that no law that ends up perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to validate an unjust status quo. [Para 45]

The decision inThe Secretary, Ministry of Defence v. Babita Puniya required the Army authorities to offer PC to the WSSCOs at par with their male counterparts. Physical fitness is crucial for securing a place in the Army. While exercising judicial review, the Court must be circumspect on dealing with policies prescribed for the Armed Forces personnel in attaining norms associated with physical and mental fitness.

On one hand, the Army authorities are insistent on relying on the medical criteria as a filtering mechanism for grant of PC to WSSCOs. On the other hand, we have WSSCOs who have legally fought for their rights and are additionally suffering due to the untimely implementation of their hard-won rights. [Para 109]

In rendering the decision in Babita Puniya, this Court was mindful of the insidious impact on the generations of women who must have given up on their dreams to serve in the Armed Forces owing to the gendered roadblock on their aspirations, and of the women who must have chosen to opt out of availing an extension to their SSC terms on similar grounds. The WSSCOs before us are not just women who have dedicated their lives to the service of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya have not trickled down into a basic assessment of not subjecting unequals to supposedly “neutral parameters”. [Para 111]

Based on the above analysis, we are of the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners. This disproportionate impact is attributable to the structural discrimination against women, by dint of which the facially neutral criteria of selective ACR evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-à-vis their male counterparts. This discrimination has caused an economic and psychological harm and an affront to their dignity. [Para 119]

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Keerthana R