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Lt. Colonel Nitisha Vs. Union of India

Case Comment, Publications

Citation- (2021 SCC Online SC 261)

(Supreme Court of India)

(Writ Petition (Civil) No 1109 of 2020)

Bench: Hon’ble DR. Justice DY CHANDRACHUD, Hon’ble Justice M.R. SHAH

Advocates for Petitioner (s) – Ms. V. Mohana, Sr. Adv Mrs. Sneha Bdtwe, Adv. Ms. Bhavya Pande, Adv. Mr. Rakesh Kumar

Advocates for Respondent (s)- Mr. R. Venkataramani, AG Mr. R. Balasubramanian, Sr. Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Kartikay Agrawal, Adv. Mr. Arvind Kumar Sharma

Dated- 25-03-2021

  1. FACTS: 
  • Implementation of Babita Punia Case: In this case, they army formed a ‘Special No.5 Selection Board’ in august 2020, to consider female Short Service Commission (SSC) officers for Permanent Commission (PC), implementation of the judgement in Secretary, Ministry of Defence v. Babita Punia (2020). The Hon’ble court recognised their request for equality of opportunity, referring to a decade long battle for equality with male subordinates. The Board assessed 615 officers approving 422 with 277 female officers granted permanent positions. The petitioner, however, were denied commission, and raised few arguments:
  • The Medical Fitness Criteria: the board still applied SHAPE criteria, which were overly strict, especially considering age (45-55 yrs) as it puts them at disadvantage compared to male subordinates.
  • Annual Confidential Reports: female officers were not considered for permanent appointment, leading to less detailed ACRs, additionally, female officers were not allowed to apply for specialized courses, which could have improved their chances for PC.
  • Arbitrary Performance Evolution: Army’s evaluation criteria for female officers arguing it was based on lowest ranked male officer’s standard.
  • The lack of transparency for disclosure of vacancies for permanent commission by the central government. 
  1. ISSUES: 
  • Whether the method used by the army for PCs to women is indirect discrimination?
  • Whether including Annual Confidential Reports in granting PC constitute unfair disadvantages to women officers?
  • Whether this selection process for PC violates Article 15 of the India Constitution?
  • Whether there a lack of transparency by the central government?
  1. CONTENTIONS

Petitioner contentions : the petitioners in numerous writ petitions have raised various issues regarding the medical evaluation, selection process for granting permanent commission (PC) to women officers in Indian Army. Mr P S Patwalia, Ms Meenakshi Arora, learned Senior Counsel appearing on behalf of the petitioner in writ petition, urged the following submission:

  1. Medical Evaluation: The medical evaluation process is deemed unfair, applying the same criteria for women officers aged 40-50 as for younger male candidates, ignoring gender-specific and age-related changes.
  2. Re-evaluation Exemption: The petitioners argued that women officers, who had already undergone medical evaluation during their entrance, should be exempted from re-evaluation when seeking PC.
  3. Annual Confidential Reports (ACRs): The ACRs for female officers were often filled out carelessly, with missing or incomplete entries, particularly regarding medical fitness, negatively impacting their PC applications.
  4. Limited Career Opportunities: Women officers were denied opportunities for certain courses and promotions, leading to an unfair grading system in their ACRs.
  5. Lack of Transparency: The Army did not announce the number of vacancies for women officers seeking PC, making it difficult for them to make informed decisions.
  6. Gender Discrimination: The petitioners argued that women officers faced indirect discrimination due to unequal treatment in evaluations and lack of career advancement opportunities compared to male officers.
  7. Challenge to Fairness: The petitioners challenged the fairness of the medical evaluation process, the handling of ACRs, and the lack of transparency in vacancy allocation, all of which they believe contribute to discrimination and the denial of PC for women officers.

Respondent contentions : counsels of the respondents Mr. Sanjay Jain, learned ASG, assisted by senior counsel Mr. Balasubramaniam addressing three main issues medial yardsticks, number of vacancies, and third process of evaluation on bases of ACRs   

  1. The respondents argued that time waivers were granted based on established protocols.
  2. The Army takes into account physiological changes, including those occurring during childbirth.
  3. The petitioners failed to justify an exemption for other physiological changes such as age and obesity, as these are not gender-specific.
  4. An evaluation test called SHAPE-1 (Psychology, Hearing, Appendages, Physical Capacity, and Eyesight) is used, which considers a candidate’s height and age.
  5. Age-related changes are a key factor in the SHAPE-1 evaluation.
  1. RATIONALE 

Initially, the criteria for granting Permanent Commissions (PCs) appeared neutral, with no clear discrimination between male and female officers. Though, a deeper examination revealed that the ancient exclusion of women from eligibility for PCs was a key factor as to why some eligible candidates struggled to meet the requirements. Article 15(1) of the Indian Constitution prohibits discrimination on the basis of race, religion, caste, place of birth, sex, and other factors. The court in this case recognized the concept of “indirect discrimination,” acknowledging that while policies may seem neutral on the surface, they can still disproportionately impact certain groups. Such policies were seen as discriminatory, violating Article 15(1) and conflicting with the principle of substantive equality guaranteed by the Constitution. This form of indirect discrimination can be broken down as follows:

  1. Medical Requirements: The court pointed out that male officers were required to meet medical standards when they applied for PCs, but once granted, they were not required to maintain the same level of fitness. In contrast, female officers, who had been excluded from applying for PCs for years, were required to demonstrate their fitness later in their careers. The court suggested that the medical standards should have been adjusted for women, given their delayed eligibility to apply.
  2. Annual Confidential Reports (ACRs): ACRs were meant to evaluate officers for PC eligibility. For male officers, these reports were filled out early in their careers. However, for female officers, who were previously ineligible for PCs, the reports were often completed hastily or carelessly, leading to negative assessments.
  3. Comparing with the Lowest Male Officer’s Merit: For male officers, those who scored above 60% and ranked among the top 250 were eligible for PCs. For female officers, the Army adopted a similar system but used the lowest-performing male officer’s score as the benchmark for granting PCs to women.

The Supreme Court stated its judgement as systematic discrimination in how PCs were granted to female officers in the Army. Justice Chandrachud explained that while formal equality calls for treating everyone the same, substantive equality involves looking deeper at how policies might indirectly disadvantage certain groups. Even if a policy appears neutral, it can still be discriminatory. The judgment outlined several important points about indirect discrimination in Indian law:

  1. Discrimination can arise from both intentional bias and unconscious prejudices or from systems that perpetuate existing injustices.
  2. Indirect discrimination occurs when a policy impacts a group unfairly, regardless of the intent behind it.
  3. Evidence of indirect discrimination doesn’t have to be strictly statistical or quantitative.
  4. When assessing whether a policy disproportionately affects a group, the court must consider if it “reinforces, perpetuates, or worsens disadvantage.”
  5. Any challenge to indirect discrimination must be based on whether the policy is “necessary for effective job performance” and whether less discriminatory alternatives are available.

5.  DEFECTS OF LAW

  • One main issue was the medical evaluation requirement, which put women officers at a disadvantage by not accounting for factors like aging and gender-specific physiological differences.
  • The use of Annual Confidential Reports (ACRs) for evaluating women officers was found to lack transparency, resulting in arbitrary and biased assessments.
  • The policies, though appearing neutral, disproportionately discriminated against women officers, especially those already disadvantaged by historical biases.
  • The law did not recognize the unequal impact of these supposedly neutral policies, which left women underrepresented in leadership roles and limited their career advancement opportunities.
  • While the court acknowledged the historical and structural challenges faced by women officers, it ultimately failed to create equality.

6. INFERENCE: 

In the case of Lt. Colonel Nitisha vs Union of India, the Supreme Court overturned the decision in the Babita Puniya case, tackling the ongoing gender discrimination in the Indian Armed Forces regarding the granting of Permanent Commissions (PCs). By recognizing “indirect discrimination,” the Court took a significant step toward creating a more equal environment for male and female officers, promoting substantive equality. Substantive equality goes beyond formal equality, ensuring not just equal treatment but also addressing the systemic disparities. Although the policies in question were intended to be neutral and non-discriminatory, they ultimately had a discriminatory effect on female officers. To realize true equality, this ruling is crucial in addressing these inequities.

In conclusion, while the judgment represents a positive move toward gender equality, its true impact will depend on its effective enforcement within the Army. To ensure substantive equality, measures such as age-appropriate standards, a transparent evaluation process, affirmative action, and proportional reasoning must be applied. As one said that, ‘it is not just about welfare – ‘the idea is to give women a chance at nation-building’. The ruling marks an important step in creating a merit-based and equal environment.

Author name: Anurag Ogale
College name: Symbiosis Law School Pune