1. FACTS
In Lt. Col. Nitisha v. Union of India, a petition was filed by eighty-six female Short Service Commission (SSC) officers of the Indian Army, who challenged the discriminatory application of Permanent Commission (PC) policies, post the Supreme Court’s decision in Secretary, Ministry of Defence v. Babita Puniya In Babita Puniya, the Supreme Court held that women officers could not be categorically denied the grant of a PC and gender discrimination in recruiting and promotions in the armed forces is discriminatory under Articles 14 and 15 of the Constitution of India.
Previously, women SSC officers could serve only for 10 or 14 years; male officers could choose PC so they could serve until retirement age. The petitioners noted that even after the Court’s order, the Indian Army applied a discriminatory service condition against women SSC officers who were applying for PC.
After the Babita Puniya ruling, the Army established a Selection Board that used medical fitness and Annual Confidential Reports (ACRs) standards as would be applied to male SSC officers. However, the petitioners argued it fraught structural discrimination. Women were medically tested for fitness at the age which they were now, and after a long period of service putting them usually beyond fourteen years, while male applicants would be medically assessed for fitness prior to their decision about PC. Male officers selecting PC were never going to be medically assessed once they got PC.
Moreover, the petitioners alleged that their ACRs were generated with less scrutiny than men’s ACRs because women had not been given the same chance to compete for PC and supervisors had even less motivation to evaluate women’s performance carefully. Optional training modules that could have been included for merit either were not available to women or they were not motivated to pursue them since they had already lost-out on the opportunity to be PC.
The Army also used a competitive merit system whereby women officers would only be granted PC if their score was higher than that of the lowest scoring male officer in their batch who was granted PC. Even if there were more than 250 officers who scored better than the 60% eligibility cutoff, only the best 250 could be granted PC. Historically and systemically, this proved to be disadvantageous to women SSC officers.
The petitioners asserted that the evaluation system, although claimed to be gender-neutral, indicated indirect discrimination and a contravention of constitutional guarantees of equality and should be remedied.
2. ISSUES RAISED
- Whether the policy and criteria employed by the Indian Army to assess whether to permit Permanent Commission (PC) to women Short Service Commission officers (SSCs) amount to indirect gender discrimination that contravene Articles 14 and 15 of the Constitution of India.
- Whether the General Instructions and medical fitness criteria are considered to have applied discriminatory to women SSC officers, in that it treated their fitness at the current age instead of the time of application for PC, in an arbitrary and discriminatory fashion under Article 14.
- Whether the reliance on Annual Confidential Reports (ACRs) which were submitted without proper consideration for women officers because of previous denial of PC eligibility, violated the principles of fair procedure and equal opportunity.
- Whether benchmarking the eligibility of women officers to the lowest marks of male officers for PC while disregarding the systemic disadvantages confronting women reflects structural discrimination.
- Whether the restriction or limited access to optional training modules amounts to violations of the constitutional expected equality and non-discrimination in service conditions for women SSC officers.
- Whether the actions taken to remedy the gender discrimination inherent in the prior policies after Secretary, Ministry of Defence v. Babita Puniya are adequate.
3. CONTENTIONS
Petitioners Arguments
- Arbitrary Medical Standards: The petitioners argued the medical test standards in the General Instructions were arbitrary and unreasonable. Female officers ages 40 to 50 were subjected to the same medical standards as male officers who had taken the medical test at an earlier age, typically 25 to 30 years old. Recommendations by sponsors and others informative of age were disregarded in the development of medical standards as if they were a matter of deliberate indifference and constituted discrimination based on age.
- Reliance on ACRs: They argued that reliance on Annual Confidential Reports (ACRs) was flawed. Due to history, where women were excluded from key stake holders training courses and leadership posts, the ACRs had benefits provided to officers of merit, which showcases evidence of completion of training on: assess capabilities of women, on lower meritorious ACRs and not judged accurately on capabilities and contributions.
- Absence of Transparency: The petitioners raised concern regarding the opaque nature of the selection process, noting lack of transparency and accountability both in the process of vacancy announcements in respect of Permanent Commission and further lack of clarity further entails systemic inequalities and discrimination towards women officers.
Respondent Arguments
- Gender-Neutral Approach: According to the Union of India, the Indian Army followed a gender-neutral process while adjudicating complaints. They contended that the Army considered physiological changes caused by childbirth, time waivers were given in accordance with the manual. Other physiological changes such as age and obesity were considered unrelated to gender and were not justifications to treat women officers differently.
- Consistent Application of Criteria: The respondents argued strongly that the (mental and physical) SHAPE- 1 classification consisting of five components (Psychology, Hearing, Appendages, Physical Capacity, Eyesight) was applied consistently, based on consideration of an officer’s age and height. They argued that the system took into consideration age aged-related aspects, and that it did not discriminate against gender.
- Objective Assessment: They insisted that the use of ACRs and medical assessments was part of a consistent standard that was applied to all candidates equally. Any perceived disadvantage according to the participants was in no way discriminatory but the application of objective service based standards.
4. RATIONALE
In Lt. Col. Nitisha v. Union of India, the Supreme Court based its judgment on the principle of substantive equality under Article 14 of the Constitution. It held that identical treatment is not fair when there are structural and historical disadvantages. The Court said that policies must address real world challenges, especially those faced by women officers of the Short Service Commission (SSC) in the Indian Army.
Though the Army claimed its Permanent Commission (PC) selection criteria was gender neutral, the Court found it wasn’t. It said that medical fitness standards requiring women aged 40-50 to match the physical performance of younger men was arbitrary and discriminatory and did not consider natural physiological differences and the impact of childbirth and aging.
The Court also noted that Annual Confidential Reports (ACRs) used to deny women PC were skewed due to lack of access to essential training and opportunities. This resulted in unfair assessment of their capabilities. Comparing women’s performance to male officers and expecting them to outperform the lowest ranking male PC officer was unfair as it ignored systemic barriers and inconsistent standards of merit.
Most importantly the Court said that medical evaluation should be done after a significant service period so that they get a fair chance to prove their eligibility.
Finally the Court held that the Army’s facially neutral policies had a discriminatory impact, and was indirect discrimination. It ordered reforms to eliminate bias and ensure equal and equitable treatment for women officers in career advancement.
5. DEFECTS OF LAW
While the Indian Army maintained a progressive approach to women in the military and formal uniformity in applying selection benchmarks for Permanent Commission (PC) (in this case, women only being offered SSC), the Supreme Court identified multiple legal and procedural defects that resulted in the structural exclusion of women. These flaws necessarily did not entail an express discriminatory law to engage with, but, rather, the implementation of neutral practices that did not take into account an existing history of structural disadvantage to women.
- Facially Neutral but Substantively Discriminatory Standards:
Same criteria—medical fitness and ACRs—for men and women ignored institutional inequalities faced by women. The Army didn’t distinguish between formal equality (treating everyone the same) and substantive equality (accounting for past barriers) and hence indirect discrimination.
- No Anticipatory Policy Framework:
The Army had no forward looking policy to accommodate women for PC. It didn’t acknowledge that women were historically denied leadership training and command roles which are essential for PC eligibility and hence the evaluation system was mismatched.
- Arbitrary Benchmarking and Performance Metrics:
Benchmarking women against the lowest performing male PC officers was inconsistent and had no legal backing. Many male officers were denied PC earlier but women were evaluated by comparing them to flawed standards which undermined the selection process.
- Improper Application of Medical Fitness Standards:
Medical tests designed for new recruits were applied to women with over a decade of service ignoring age related and post pregnancy physical changes. This made the standards unreasonable and discriminatory.
- No Safeguards Against ACR Bias:
Heavy reliance on ACRs without accounting for bias in a male dominated system disadvantaged women further. No corrective mechanism or legal safeguard existed to ensure fairness.
- No Compliance with Constitutional Values:
The Army’s approach didn’t reflect the spirit of Articles 14 and 15. Neutral policies that caused systemic exclusion created a legal vacuum in protecting women officers’ rights.
6. INFERENCE
Lt. Col. Nitisha v. Union of India, (2021) 7 SCC 153 is a historic Supreme Court judgment that is the first direct judgment on systemic and structural discrimination faced by women in the Indian Armed Forces. This is a big moment in Indian constitutional law, not just in military law but in the broader context of gender justice. The judgment recognizes that seemingly neutral policies can hide deep seated gender biases.
It moves from formal equality—treating everyone alike regardless of context—to substantive equality which addresses historical disadvantages and ensures fairness in outcomes. By identifying indirect and systemic discrimination, the Court goes beyond individualistic perspective to a structural critique of inequality.
From an academic perspective, this judgment strengthens the interpretation of Articles 14 and 15(1) of the Constitution, that equality under law has to be context specific and grounded in lived realities and not abstract principles. The Court’s scrutiny of performance evaluations, medical fitness assessments and selection criteria as sites of institutional bias shows a nuanced understanding of how exclusion operates subtly within formal systems.
Personally, this judgment is empowering. It is the highest judicial recognition that gender equality has to extend to spheres of leadership, discipline and national service. It validates the struggles of countless women who have had to overcome systemic obstacles just to serve on equal footing.
At its core, Nitisha goes beyond just the issue of permanent commissions; it represents a significant recognition of women’s dignity, their agency, and their rightful role in the defense forces. This move not only opens doors for future reforms but also establishes an important benchmark for how Indian law can tackle structural discrimination- impacting all sectors and benefiting every citizen.
Name:
Richa Coutinho
NMIMS, Kirit P Mehta School of Law