Citation- 2021 SCC Online SC 261
FACTS
Timeline of Secretary, Ministry of Defence vs. Babita Puniya Case (2020)-
1992- Notification allowing women to Join SSC
2002- Babita Puniya Filed PIL for equal treatment in PC
2005- Circular by MoD to prolong women officers appointment terms
2006- Another notification was released which allowed female SSC officers to serve for a maximum term of 14 years.
2008- women officers were now allowed to hold PCs in the army (but only in specific institutions and bureau)
2020- Judgement
In the Babita Puniya case, it was held that the Indian Army’s policy of denying women officers a permanent commission (PC) was discriminatory in nature and led to further challenges. In response to this ruling, the Union Government created a process for awarding Permanent Commissions (PCs) to qualified female officers, so addressing the demands of women in the SSC and declaring that their pursuit of a PC or a full-time job was now “justified.”
In the Lt. Col. Nitisha v. Union of India (2021) case, it was contended that the Babita Puniya ruling’s application had also been discriminatory because women were only granted PCs if they met the facially neutral requirements. This is an example of indirect discrimination.
Three controversial assessment criteria were generally in place for the award of a PC-
- specific medical requirements had to be met.
- Annual Confidential Reports(ACRs) had to be included in the grading process; and
- Female officers had to meet a specific percentage requirement and score higher than the lowest-scoring male officer who had already received a PC
ISSUES
- Whether the criteria used for the grant of PCs to women officers are indirectly discriminatory.
- Whether requiring women officers to clear a certain percentage score, as well as to score higher than the lowest scoring male officer awarded a PC, constitutes indirect discrimination.
- Whether including Annual Confidential Reports in the assessment for PCs unfairly disadvantages women officers.
- Whether the medical requirements imposed for the grant of PCs are indirectly discriminatory against women officers.
- Whether the implementation of the Babita Puniya judgment was in congruence with Articles 14 and 15 of the Indian Constitution.
CONTENTION
Petitioners-
Due to the fact that female officers between the ages of 40 and 50 were expected to meet the same medical requirements as their male counterparts who were aged 25 and 30, the petitioners contended that the medical criterion in the General Instructions was arbitrary and unjustified. Additionally, they stated that male officers could still advance in their careers despite medical issues they developed later in life because a medical examination was no longer required after a permanent commission was awarded. They said that the use of ACRs was erroneous since these reports were frequently made last minute and thus were carelessly made, they did not have any documentation of transparency.
Respondents-
The respondents contended that time waivers were provided in accordance with established protocols and that the Army considered physiological changes that take place during childbirth. The petitioners could not justify an exemption on the grounds that other physiological changes, such age and obesity, had no bearing on gender. There existed an evaluation tes t known as SHAPE-1 (Psychology, Hearing, Appendages, Physical Capacity, and Eyesight) which was conducted on the basis of the height and age of the candidate and thus the age related changes had to be one of the elements that were to be taken into consideration.
RATIONALE
On the face of it, the criteria of assessment for the grant of Permanent Commission seemed “facially neutral”, i.e., ostensibly, there didn’t exist any form of discrimination between male and female officers. However, on digging deep, it was found that the very face that for years these women were ineligible for the grant of the PCs was a contributing factor in the inability of some eligible candidates to meet the requirements. Article 15(1) of the Indian Constitutions prohibits discrimination on the grounds of race, religion, caste, place of birth, sex, etc. The court in this judgement recognized the concept of “indirect discrimination” and held that even though the policies ostensibly were viewed to be of neutral nature, if it were seen that the policies disproportionately affected a certain group of people, it would be rendered to be discriminatory in nature and thus in violation of Article 15(1). There policies would also be viewed in contravention of Substantive equality that the Indian Constitution promises to it’s citizens. These indirect forms of discriminations can be explained as follows:-
- Regarding Medical Requirement- Courts found that the male officers were required to take their medical tests at the time they applied for PCs which when once granted, were not required to maintain the same level of fitness as when they applied. However their female counterparts who were ineligible to apply for the PCs for all the previous years , were now required to prove their level of fitness now, after 20th year of their service. Thus, to make up for the harm caused by the application’s tardiness, a retroactive application of the alleged standards for the grant of PCs should’ve been modified.
- Regarding ACRs- Annual Confidential Report (ACR) were prepared with a view to recommendations for the grant of a PC. These reports were made on a very early stages for the male officers and given that the female counterparts had been ineligible for the grant of PCs for the all the years, these reports were made very carelessly.
- Regarding benchmarking with the lowest male candidate (competitive merit)- it was seen that the officers with the 250 marks were to receive PC on the basis of the merit if more than 250 officers met the 60%. However, For female SSC officers, the Army attempted to implement a comparable competitive merit concept. PCs was to be awarded to the officers who performed better than the male officer who received the lowest mark in their batch. Thus the male officer’s performances were set as “benchmarks” for the women officers.
The SC held that systematic discrimination existed in the grant of PCs for the women officers in the Army. In the judgement, J.Chandrachud highlighted that while formal equality required all to be treated in the like manner, substantive equality elaborated upon a deeper meaning of equality and discrimination. Even if any policy were facially neutral and seemed to treat all alike, there always existed a possibility of these policies to be indirectly discriminatory. Justice Justice Chandrachud provided the principles for the application of indirect discrimination in Indian Law.
First and foremost, discrimination may result not only from intentions but also unconscious bias and existing structures that perpetuate a status-quo injustice. Second, indirect discrimination refers to when there is an effect of unfair treatment, irrespective of intent. Thirdly, the evidence to be required may, but does not need to be, statistical or meet any given quantitative threshold. Fourthly, when examining if a disproportionate effect on a group exists or not, the Court has to see whether the law causes an effect of ‘reinforcing, perpetuating or exacerbating disadvantage’. Fifth, the test to consider a challenge on indirect discrimination grounds must be tested against the measure, if it is ‘necessary for successful job performance’, and whether less discriminatory alternatives do exist or not.
DEFECTS OF LAW
In the case of Lt. Col. Nitisha vs UOI, the SC identified several defects in the laws concerning the grant of PCs to women officers. One of the primary issues that was highlighted was the requirement of medical evaluation, which created an unfair advantage against the women officers as it failed to recognise factors like the aging process and physiological differences particularly those which women experienced. In light of the ACRs which were used to evaluate women officers, the processes lacked transparency leading to arbitrary and biased evaluation processes. This “opaque” system of evaluation further led to gender based disparities and hinderance of fair assessment. Thus, these ostensibly neutral policies disproportionately discriminated against disadvantaged women officers due to systematic biases. The law failed to recognize these “neutral” policies and their unequal effects of certain groups. Moreover, the criteria failed to ensure that women were at a disadvantaged position and were unrepresented for leadership roles which limited them in career advancement opportunities. The court although acknowledged the historical and structural disadvantages faced by women officers in the Army, however, they failed to create a level-playing field which thereby conflicted with achieving substantive equality.
INFERENCE
By overturning the judgement of Babita Puniya case, the SC in Lt.Col. Nitisha vs UOI has addressed the persisting gender discrimination within the Indian Armed Forces when it comes to the grant of Permanent Commission. The SC’s acknowledgement of “indirect discrimination” has not only been proved a way forward of creating a level playing field between male and female officers, but has also been a step towards substantive equality. The concept of substantive equality goes far beyond than formal equality in promising treatment of all the like, alike. Although the intention of these policy makers was not to discriminate and were theoretically viewed to be facially neutral policies, these policies in practice proved to be discriminatory against the female officers. Thus in order to ensure substantive equality, this approach has been a vital step in addressing structural disparities.
In conclusion, while the judgment can be viewed to be a commendable step towards gender quality, it however, it won’t be as progressive as intended to be if these rigorous enforcement aren’t implemented in the Army. Age appropriate standards, transparent evaluation process, effective implementation of laws, affirmative action and proportional reasoning are just a few ways to ensure substantive equality. The landmark judgement has proved to be a progressive stance in fostering an environment which is based on merit and equality.
AUTHOR
TEESTA ITILEKHA
OP Jindal Global University