Lt. Col. Nitisha & Ors. vs Union of India & Ors.

Permanent Commission – Claim of women – Medical criteria prescribed by the Army – Judicial review of – Held: 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 on physical and mental fitness – There can be no judicial review of the medical standards adopted by the Army, unless they are manifestly arbitrary and bear no rational nexus to the objects of the organization – SHAPE criterion is per se not arbitrary – Constitution of India. Constitution of India : Art. 14 – Right to equality – Equal opportunity in public employment and gender equality – Held: Since independence there is continuous endeavor to achieve equal opportunity in public employment and gender equality – Structures of the society have been created by males and for males – Facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint – Thus, adjustments, both in thought and letter, necessary to rebuild the structures of an equal society – These adjustments and amendments are not concessions being granted to a set of persons, but are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women – It cannot be said that the women officers are allowed to serve the Armed Forces, when the true picture of their service conditions is totally different – Superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic. Gender justice:

Antidiscrimination law – Concept of – Formal versus substantive equality – Held: Under the formal and symmetric conception of antidiscrimination law, the law requires is that likes be treated alike – It is premised on the notion that fairness demands consistency in treatment – The fact that some protected groups are disproportionately and adversely impacted by the operation of the concerned law or its practice, makes no difference – On the other hand, under a substantive approach, the anti discrimination guarantee pursues more ambitious objectives – This conception eschews the uncritical adoption of laws and practices that appear neutral but in fact help to validate and perpetuate an unjust status quo – Constitution of India – Art. 14 and 15(1).

Indirect discrimination – Doctrine of – Held: Is closely tied to the substantive conception of equality – Use of the term ‘indirect discrimination’ is not to refer to discrimination which is remote, but is as real as any other form of discrimination – Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion – In evaluating direct and indirect discrimination, it is important to underscore that these tests, when applied in strict disjunction from one another, may end up producing narrow conceptions of equality which may not account for systemic flaws that embody discrimination – Doctrine seeks to broaden the scope of antidiscrimination law to equip the law to remedy patterns of discrimination that are not as easily discernible.

Indirect and direct discrimination – Difference between – Held: As long as a court’s focus is on the mental state underlying the impugned action that is allegedly discriminatory, it is the area of direct discrimination – However, when the focus switches to the effects of the concerned action, it is indirect discrimination – An enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its consequences – In a case of direct discrimination, the judicial enquiry is confined to the act or conduct at issue, abstracted from the social setting or background factsituation in which the act or conduct takes place – In indirect discrimination, on the other hand, the subject matter of the enquiry is the institutional or societal framework within which the impugned conduct occurs.

Systemic Discrimination – Explanation of – Systemic discrimination as antithetical to substantive equality – Held: Emphasis on intent alone as the key to unlocking discrimination has resulted in several practices, under the veneer of objectivity and equal application to all persons, to fall through the cracks of our equality jurisprudence – Indirect discrimination as a tool of jurisprudential analysis, can result in the redressal of several inequities – In order to conceptualize substantive equality, it would be apposite to conduct a systemic analysis of discrimination that combines tools of direct and indirect discrimination – Particular discriminatory practice or provision might often be insufficient to expose the entire gamut of discrimination that a particular structure may perpetuate – Exclusive reliance on tools of direct or indirect discrimination may also not effectively account for multiple axles of discrimination – Therefore, a systemic view of discrimination, in perceiving discriminatory disadvantage as a continuum, would account for not just unjust action but also inaction – Duty of constitutional courts, when confronted with such a scheme, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social redistribution by providing for positive entitlements that aim to negate the scope of future harm – An analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving the constitutional vision of equality and antidiscrimination.

Doctrine of indirect discrimination – Comparative study – Position in India, United States, United Kingdom, South Africa, Canada – Discussed.

Indirect discrimination in India – Analytical framework for – Explained.

Disposing of the writ petitions, the Court

HELD: 1. The evaluation criteria set by the Army constituted systemic discrimination against the petitioners. The pattern of evaluation deployed by the Army, to implement the decision in Babita Puniya’s case disproportionately affects women. 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 Permanent Commission (PC) disproportionately impacts them vis-à-vis their male counterparts. The pattern of evaluation, by excluding subsequent achievements of the petitioners and failing to account for the inherent patterns of discrimination that were produced as a consequence of casual grading and skewed incentive structures, has resulted in indirect and systemic discrimination. This discrimination has caused an economic and psychological harm and an affront to their dignity. [Para 119][768-D-G]

1.2 The following directions are issued that:

(i) The administrative requirement imposed by the Army authorities while considering the case of the women Short Service Commission Officers (SSCOs) for the grant of PC, of benchmarking these officers with the officers lowest in merit in the corresponding male batch is held to be arbitrary and irrational and shall not be enforced while implementing the decision of this Court in Babita Puniya’s case;

(ii) All women officers who have fulfilled the cut-off grade of 60 per cent in the Special No 5 Selection Board held in September 2020 shall be entitled to the grant of PC, subject to their meeting the medical criteria prescribed by the General Instructions dated 1 August 2020 (as explained in (iii) below) and receiving disciplinary and vigilance clearance;

(iii) For the purpose of determining the fulfillment of direction (ii), the medical criteria stipulated in the General Instructions dated 1 August 2020 shall be applied at the following points of time: at the time of the 5th year of service; or at the time of the 10th year of service, as the case maybe. In case the officer has failed to meet the medical criterion for the grant of PC at any of these points in time, the WSSCO would not be entitled to the grant of PC. It is clarified that a WSSCO who was in the Temporary Low Medical Category (TLMC) in the 5th/10th year of service and subsequently met the SHAPE-1 criterion after the one year period of stabilization, would also be eligible for grant of PC. Other than officers who are “non-optees”, the cases of all WSSCOs, including the petitioners who have been rejected on medical grounds, should be reconsidered within a period of one month and orders for the grant of PC shall in terms of the above directions be issued within a period of two months;

(iv) The grant of PC to the WSSCOs who have already been granted PC shall not be disturbed;

(v) The WSSCOs belonging to WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3 who are not considered to be eligible for grant of PC after the above exercise, would be extended the onetime benefit of direction (c) and (d) in Babita Puniya’s case;

(vi) All consequential benefits including the grant of time scale promotions shall necessarily follow as a result of the directions contained in the judgment in Babita Puniya’s case and the present judgment and steps to do so shall be completed within a period of three months from the date of the judgment;

(vii) The candidature of petitioner No. 3 in Writ Petition (C) 1109 of 2020, would be reconsidered for grant of PC in terms of the above directions. In case the officer is not granted PC, she would be allowed to complete her M.Tech degree course for which she has been enrolled at the College of Military Engineering, Pune and shall not be required to pay or reimburse any amount towards the course;

(viii) In accordance with pre-existing policies of the respondents, the method of evaluation of ACRs and the cut-off must be reviewed for future batches, in order to examine for a disproportionate impact on WSSCOs who became eligible for the grant of PC in the subsequent years of their service; and

(ix) During the pendency of the proceedings, the ASG had assured the Court that all the serving WSSCOs would be continued in service, since the Court was in seisin of the proceedings. There shall be a direction that this position shall continue until the above directions of the Court are implemented and hence the serving WSSCOs shall be entitled to the payment of their salaries and to all other service benefits. [Para 120] [768-G-H; 769-A-H; 770-A-F]

2.1 This Court is presented 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. Under the formal and symmetric conception of antidiscrimination law, all that the law requires is that likes be treated alike. Equality, under this conception, has no substantive underpinnings. It is premised on the notion that fairness demands consistency in treatment. Under this analysis, the fact that some protected groups are disproportionately and adversely impacted by the operation of the concerned law or its practice, makes no difference. On the other hand, under a substantive approach, the antidiscrimination guarantee pursues more ambitious objectives. The model of substantive equality developed by Professor Sandra Fredman views the aim of antidiscrimination law as being to pursue four overlapping objectives. Recognizing that certain groups have been subjected to patterns of discrimination and marginalization, this conception provides that the attainment of factual equality is possible only if we account for these ground realities. This conception eschews the uncritical adoption of laws and practices that appear neutral but in fact help to validate and perpetuate an unjust status quo. [Paras 42- 44][695-E-H; 696-B-C, E-F]

2.2 Indirect discrimination is closely tied to the substantive conception of equality. The doctrine of substantive equality and anti-stereotyping has been a critical evolution of the Indian constitutional jurisprudence on Article 14 and 15(1). The jurisprudence relating to indirect discrimination in India is still at a nascent stage. Indirect discrimination has also been recognized by the High Courts in India.The use of the term ‘indirect discrimination’ is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion. [Paras 45-48][696-F-G; 697-C; 698-B; 699-C]

2.3 In evaluating direct and indirect discrimination, it is important to underscore that these tests, when applied in strict disjunction from one another, may end up producing narrow conceptions of equality which may not account for systemic flaws that embody discrimination. Therefore, this Section will be concluded with an understanding of a systemic frame of analysis, in order to adequately redress the full extent of harm that certain groups suffer, merely on account of them possessing characteristics that are prohibited axles of discrimination. [Para 50][699-F-G]

2.4 As long as a court’s focus is on the mental state underlying the impugned action that is allegedly discriminatory, it is the territory of direct discrimination. However, when the focus switches to the effects of the concerned action, we enter the territory of indirect discrimination. An enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its consequences. In a case of direct discrimination, the judicial enquiry is confined to the act or conduct at issue, abstracted from the social setting or background fact-situation in which the act or conduct takes place. In indirect discrimination, on the other hand, the subject matter of the enquiry is the institutional or societal framework within which the impugned conduct occurs. The doctrine seeks to broaden the scope of antidiscrimination law to equip the law to remedy patterns of discrimination that are not as easily discernible. [Para 53] [700-F-G; 701-A-B]

2.5 A study of the cases and scholarly works in the United States, United Kingdom, South Africa and Canada gives rise to the following key learnings.

(i) First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. [Para 66][709-E-G]

(ii) Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). The intention versus effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. Requiring proof of intention to establish discrimination puts an “insuperable barrier in the way of a complainant seeking a remedy. It is this barrier that a robust conception of indirect discrimination can enable us to counteract. [Para 67][709-G-H; 710-A-C]

(iii) Third, on the nature of evidence required to prove indirect discrimination, statistical evidence that can establish how the impugned provision, criteria or practice is the cause for the disproportionately disadvantageous outcome can be one of the ways to establish the play of indirect discrimination. As Professor Sandra Fredman notes, “Aptitude tests, interview and selection processes, and other apparently scientific and neutral measures might never invite scrutiny unless data is available to dislodge these assumptions.” Consistent with the said approach in Fraser’s case, it would not be wise to lay down any quantitative thresholds for the nature of statistical disparity that must be established for a claimant to succeed. Equally, an absolutist position cannot be adopted as to the nature of evidence that must be brought forth to succeed in a case of indirect discrimination. The absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for debunking claims of indirect discrimination. Therefore, statistical evidence demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination. [Para 68][710-C-G]

(iv) Fourth, insofar as the fashion in which the indirect discrimination enquiry must be conducted, the two-stage test laid down by the Canadian Supreme Court in Fraser’s case offers a well-structured framework of analysis as it accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group, as well as the harm caused by such impact. It foregrounds an examination of the ills that indirect discrimination seeks to remedy. [Para 69][710-G; 711-A]

(v) Fifth and finally, while assessing the justifiability of measures that are alleged to have the effect of indirect discrimination, the Court needs to return a finding on whether the narrow provision, criteria or practice is necessary for successful job performance. In this regard, some amount of deference to the employer/defendant’s view is warranted. Equally, the Court must resist the temptation to accept generalizations by defendants under the garb of deference and must closely scrutinize the proffered justification. Further, the Court must also examine if it is possible to substitute the measures with less discriminatory alternatives. Only by exercising such close scrutiny and exhibiting attentiveness to the possibility of alternatives can a Court ensure that the full potential of the doctrine of indirect discrimination is realized and not lost in its application. [Para 70][711-B-D]

Anuj Garg v. Hotel Association of India (2008) 3 SCC

1 : [2007] 12 SCR 991; National Legal Services Authority v. Union of India (2014) 5 SCC 438 : [2014]

5 SCR 119; Jeeja Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4 SCR 638; Vikash Kumar v. Union Public Service Commission 2021 SCC OnLine SC 84; Navtej Singh Johar v. Union of India (2018) 10 SCC 1 : [2018] 7 SCR 379; Naz Foundation v. Government of NCT of Delhi (2009) 111 DRJ 1 (DB); Indian Young Lawyers Assn. v. State of Kerala 2018 SCC OnLine SC 1690; Joseph Shine v. Union of India 2018 SC OnLine SC 1676; Patel Suleman Gaibi v. State of Maharashtra 2014 SCC OnLine Bom 4639; Inspector (Mahila) Ravina v. Union of India Writ Petition (C) 4525 of 2014, Delhi High Court; Madhu v. Northern Railways 2018 SCC OnLine Del 6660; Dr. Jacqueline Jacinta Dias & Ors. v. Union of India& Ors., (2018) SCC OnLine Del 12426 – referred to.

Washington v. Davis 426 U.S. 229 (1976); Coleman v. Attridge Law [2008] IRLR 722; Griggs v. Duke Power Co 401 US 424, 431 (1971); Smith v. City of Jackson

544 US 228 (2005); Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc

135 S Ct 2411 [2015]; R (on the application of E) v. JFS Governing Body [2009] UKSC 15; Essop v. Home

Office (UK Border Agency) [2017] UKSC 27; City Council of Pretoria v. Walker (1998) 3 BCLR 257; Mahlangu and Another v. Minister of Labour [2020] ZACC 24; Ontario Human Rights Commission v.

Simpsons-Sears , [1985] 2 SCR 53; Fraser v. Canada (Attorney General) 2020 SCC 28; Orsus and others v. Croatia, [2010] ECHR 337 – referred to.

Anatole France, THE RED LILY (1898); Sandra Fredman, DISCRIMINATION LAW (Oxford University Press, 2nd edition) 2011 at p.8 (“Sandra Fredman, Discrimination Law”); FOUNDATIONS OF INDIRECT DISCRIMINATION LAW (Hugh Collins and Tarunabh Khaitan (eds), Hart Publishing) 2018 at p.1 - referred to.

2.6 The emphasis on intent alone as the key to unlocking discrimination has resulted in several practices, under the veneer of objectivity and “equal” application to all persons, to fall through the cracks of our equality jurisprudence. Indirect discrimination as a tool of jurisprudential analysis, can result in the redressal of several inequities by probing provisions, criteria or practice that have a disproportionate and adverse impact on members of groups who belong to groups that are constitutionally protected from discrimination under Article 15(1). However, it needs to be emphasized that a strict emphasis on using only one of the two tools (between direct and indirect discrimination) to establish and redress discrimination may often result in patterns and structures of discrimination remaining unaddressed. [Para 71][711-E-F]

2.7 In order to conceptualize substantive equality, it would be apposite to conduct a systemic analysis of discrimination that combines tools of direct and indirect discrimination. A particular discriminatory practice or provision might often be insufficient to expose the entire gamut of discrimination that a particular structure may perpetuate. Exclusive reliance on tools of direct or indirect discrimination may also not effectively account for patterns arising out of multiple axles of discrimination. Therefore, a systemic view of discrimination, in perceiving discriminatory disadvantage as a continuum, would account for not just unjust action but also inaction. Structures, in the form of organizations or otherwise, would be probed for the systems or cultures they produce that influence day-to- day interaction and decisionmaking. The duty of constitutional courts, when confronted with such a scheme of things, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social re-distribution by providing for positive entitlements that aim to negate the scope of future harm. [Paras 72-73][711-G; 712-B-E]

2.8 An analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving the constitutional vision of equality and antidiscrimination. Systemic discrimination on account of gender at the workplace would then encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset, including reproduction, sexuality and private choices which operate within an unjust structure. In propounding this analysis, this Court is conscious of the practical limitations of every framework to understanding workforces, considering the bulk of litigation against systemic discrimination, would be from members of an organized and formal workforce who would have the wherewithal and evidence of patterns or practices to bolster their claims. For the laboring class in India, which is predominantly constituted by members facing multiple axels of marginalization, litigating their right to work with equality and dignity may be a distant dream. However, it is the earnest hope, that a vision of systemic discrimination, would aid members of even informal workforces who, in addition to battling precarity at their places of work, would be able to assert a right to equality and dignity. A framework that would situate their discrimination, against systemic societal patterns of discrimination that are constituted and compounded by social and economic structures, would help in addressing several fractures that are contributing to inequality in our society. [Para 77][716-D-G]

Action Travail des Femmes v. Canadian National Railway Company [1987] 1 S.C.R. 1114; National Capital Alliance on Race Relations v. Canada (Health and Welfare) 1997 28 C.H.R.R.D/179; International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) – referred to.

Marie Mercat-Bruns, Systemic discrimination: Rethinking the Tools of Gender Equality, EUROPEAN EQUALITY LAW REVIEW, Vol. 2 (European Commission, 2018) at p.5-6; Tristin K. Green, The Future of Systemic Disparate Treatment Law, BERKELEY JOURNAL OF

EMPLOYMENT AND LABOUR LAW, Vol. 32(2),

2011, 400-454; The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (February 1999) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.p df#page=375 - referred to.

3.1 There is a fundamental fallacy in the entire line of reasoning which has been advanced by the Army authorities both in the counter affidavit as well as in the written submissions of the ASG. The Policy Letter dated 15 January 1991 indicates that a maximum of 250 SSCOs will be granted PC annually; a minimum cut-off grade 60 per cent is fixed, which is reviewable every two years; in case more than 250 officers fulfill the cut-off grade of 60 per cent, only 250 would be granted PC on competitive merit; and other than non-optees and those unfit for retention, all others would be granted an extension of 5 years.The clear intent of the policy letter is that the issue of applying competitive merit arises only if more than 250 officers fulfill the cut-off grade annually. If the number of officers who achieved the 60 per cent cut-off is less than 250, then evidently there is no requirement of assessing inter se competitive merit among the officers who meet the minimum threshold. [Paras 83, 84][723-C-G]

3.2 The chart as regards details of permanent Commission granted to Male Officers, however, suppresses an important feature which is the number of officers who had not opted for being considered for PC (described in the parlance as ‘nonoptees”). In other words, the percentage of male officers granted PC has been computed in the chart without disclosing the factual details of the number of male officers who had not opted for PC. Only when the number of “optees” is considered against the “nonoptees”, can the percentage of male officers who were successfully granted PC be accurately determined. This is a significant omission on the part of the Army authorities from which an adverse interference must be drawn. However, there is another and more fundamental aspect which emerges from the disclosure which has been made in the above chart by the Army authorities. The chart indicates the number of officers who were granted PC during the course of the selections which took place twice every year. A close reading of the data would show that in a number of years, the male officers who were granted PC was far lower than the ceiling of 250 vacancies prescribed by the policy letter of the MoD dated 15.01.1991. [Para 87][725-C-G]

3.3 The statistics advanced by the Army authorities disclose two things, firstly, in a number of years between 1994 and 2010, the ceiling limit of 250 had not been crossed. If the ceiling limit of 250 had not been crossed, the justification which has been offered for benchmarking women officers against the lowest male officers of the corresponding batch turns out to be specious and a red-herring. Evidently, in their anxiety to rebut the submission of the petitioners in regard to the disparity in the percentage of male and female officers granted PC, the statistics which have been placed on the record, completely demolish the case for benchmarking. It is also necessary to understand is that in many years the ceiling of 250 officers was not met and the number of officers that were granted PC were below 250, the question of evaluating officers on the basis of inter se competitive merit did not arise. The second important aspect is that in certain years such as 1999, 2000, 2001, 2004, 2005, 2006 and 2007, the ceiling of 250 was crossed for the male officers. This again belies the claim that benchmarking is crucial to maintain the integrity of competitive merit for grant of PC, as envisaged by the Policy Letter dated 15 January 1991. The data, in fact, shows that in several years, the ceiling was crossed, which is an indicator of the fact that it has not been applied as a rigid norm. [Para 88][726-F-H; 727-A-C]

3.4 The submission of the ASG that for the present year, while implementing the judgment of this Court in Babita Puniya’s case the ceiling of 250 vacancies was not applied as a one-time measure, demolishes the so-called rationale for benchmarking which has been offered by the ASG. There can be no manner of doubt whatsoever that the attempt to apply the benchmark of the lowest selected male officer is a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs. This benchmarking becomes particularly problematic, when coupled with the manner in which the reliance on ACRs was made. [Para 89][727-C-D]

3.5 The process by which WSSCOs, were evaluated 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’s case. Additionally, its belated and formal application causes an effect of indirect discrimination. The petitioners submitted that Special No. 5 Selection Board appears to have been more a Board for rejection of candidates, than for selection. Some of the finest women officers who have served the Indian Army and brought distinction by their performance and achievements have been excluded by refusing to consider their achievements on the specious ground that these were after the 5th/10th year of service. They have been asked to benchmark with the last male counterparts from the corresponding batches. The benchmarking criterion plainly ignores that in terms of the MoD Policy Letter dated 15 January 1991 a cut-off of 60 per cent was prescribed and a cap of 250 officers who would be granted PC annually was laid down. Competitive merit was required to be assessed only where the number of eligible officers exceeds the ceiling of 250. As the figures which have been disclosed by the Union of India indicate, for the period from 19942010, there were years when the ceiling of 250 officers had not been reached. Then there are other years where the total number of male officers granted PC was well in excess of 250. For years during which the ceiling of 250 had not been reached, there is absolutely no justification to exclude the WSSCOs who had fulfilled the cut-off grade on the basis of the benchmarking criteria. Moreover, it is evident that the ceiling of 250 was not regarded as an absolute or rigid criterion. [Para 94][753-F-H; 754-A-C]

3.6 The evaluation process which has been followed in the case of the WSSCOs has clearly ignored that the writing of their ACRs was fundamentally influenced by the circumstance that at the relevant time an option of PC was not available for women. Even as late as October 2020, the authorities have emphasized the need to duly fill in a recommendation on whether or not WSSCOs should be granted PC. The manner of allocating 20 marks or 5 marks as the case may be, in the subjective assessment has been found to be flawed since male counterparts of the WSSCOs were assessed by an entirely distinct Special No. 5 Selection Board. To make a comparison in regard to the award of subjective marks ranging between 5 and 20 by different sets of boards would be completely unfair and arbitrary. It does not fulfill the avowed purpose of benchmarking which was to compare like with like. [Para 95][754-C-F]

3.7 The impact caused by the evaluation of ACRs, particularly on the marks for performance of courses is a stark representation of the systemic discrimination that pervaded the structures of the Army. A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts. Their ACR evaluations made no difference to their careers, until PC was granted by a court mandate in Babita Puniya’ case. Accordingly, some women’s failure to opt for courses in the past that would strengthen their chances and reflect positively on their ACRs is not a vacuous exercise of choice but a consequence of a discriminatory incentive structure. [Para 96][755-C-E]

3.8 There has been a flawed attempt to peg the achievements of the WSSCOs at the 5th/10th years of service thereby ignoring the mandate that the last ACR ought to be considered and the quantitative performance for the entire record of service must be assessed. Considering the ACRs as on the 5th or 10th year of service for grant of PC would have been appropriate, if the WSCCOs were being considered for PC at that point of time. However, the delayed implementation of the grant of PC to WSSCOs by the Army and considering of ACRs only till the 5th/10th year of service has led to a situation where, in effect, the Army has obliviated the years of service, hard work and honours received by WSSCOs beyond their 5th/10th year of service and relegated them back to a position they held, in some cases, more than 10 years ago. The lack of consideration given to the recent performance of WSSCOs for grant of PC is a disservice not just to these officers who have served the nation, but also to the Indian Army, which on one hand salutes these officers by awarding them honours and decorations, and on the other hand, fails to assess the true value of these honours when it matters the most - at the time of standing for the cause of the WSSCOs to realise their rights under the Constitution and be treated on an equal footing as male officers who are granted PC. [Para 97][755-E-H; 756-A-B]

3.9 While implementing the judgment in Babita Puniya’s case, the Army authorities attempted to demonstrate the application of a facially neutral standard as between WSSCOs and their male counterparts.The fact that there was no pre-planning to exclude women from the grant of PC is irrelevant under an indirect discrimination analysis. The Court has to look at the effect of the concerned criteria, not at the intent underlying its adoption. In light of the fact that the pattern of evaluation will in effect lead to women being excluded from the grant of PC on grounds beyond their control, it is indirectly discriminatory against WSSCOs. [Paras 98, 99][756-B, F-G]

3.10 The structures of the society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system. At the time of Independence, the Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, there is continuous endeavor to achieve the guarantee of equality enshrined in our Constitution. A facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint. Presently, adjustments, both in thought and letter, are necessary to rebuild the structures of an equal society. These adjustments and amendments however, are not concessions being granted to a set of persons, but instead are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women. It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic. [Para 100][756-G-H; 757-A-C]

Catharine A. MacKinnon, TOWARDS A FEMINIST

THEORY OF STATE (Harvard University Press 1989) at p.220

3.11 The respondents must remove the requirement of benchmarking the WSSCOs with the last male officer who had received PC in their corresponding batches and all WSSCOs meeting the 60% cut-off must be granted PC. Additionally, the calculation of the cut-off at 60%, which must by army orders and instructions be reviewed every 2 years, must be re-assessed to determine if the casual completion of their ACRs is disproportionately impacting the WSSCOs ability to qualify for PC even at that threshold. In light of the systemic discrimination that women have faced in the Army over a period of time, to call for the adoption of a pattern of evaluation that accounts and compensates for this harsh reality is not to ask for ‘special and unjustified treatment’. Rather, it is the only pathway for the attainment of substantive equality. To adopt a symmetrical concept of equality, is to empty the antidiscrimination guarantee under Article 15, of all meaning. [Para 101][757-D-F]

4.1 The medical criteria for assessing officers for the grant of PC have been specified in Army instructions and Army Orders. While dealing with the application of the criteria to the WSSCOs in pursuance of the judgment in Babita Puniya’s case, the salient features are revisited. [Para 102][757-G]

4.2 The singular aspect of the medical requirements that must be noticed at the outset is that there is a broad consistency of policy on the norms, which have to be fulfilled in order for an officer to qualify for the grant of PC. Another important facet which needs to be emphasized is that SHAPE-1 has a specific meaning which is assigned to it under AO 9/2011. ‘S’ donates the physiological features including cognitive function abnormalities, ‘H’ stands for hearing, ‘A’ for appendages, ‘P’ for physical capacity and ‘E’ for eye-sight. The requirement of being in grade-1 in each of the five factors of SHAPE is subject to relaxation in terms of exceptions which are clearly spelt out. The policy provides a concession to such candidates who may not have suffered injury on the line of duty as a result of which their medical categorization has been lowered. But this should not be lower than S1 or H2 or A3 or P2 or E2 or A2E2 or H2A3 or H2P2 or E2A3 or E2P2. The exception which has been provided is available if an injury (as distinct from a disease) has been suffered while on the line of duty, irrespective of whether it has been incurred during peace time or in field operations. Officers in the PLMC who fulfill the terms of the exception are granted PC, if they are otherwise found fit on merits. The requirement of fulfilling the SHAPE criteria is a pre-requisite even in such arms or services where both men and women join up to the age of 45 years, as in the case of the Army Medical Corps. The Army follows and adopts the TLMC norm which allows an officer placed in that category to return to SHAPE 1 within the stabilization period of one year. By this, an opportunity is granted to the officer to return to the SHAPE-1 category within one year. [Para 104][759-F-H; 760-A-D]

4.3 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. In the instant case, out of the initial 87 petitioners contesting the proceedings in 7 writ petitions, 55 are SHAPE 1 going up to the age of 52 years, 23 have been assigned to PMLC, while 9 are placed in TLMC. The material which has been placed on record in the form of AO 9/2011 indicates a classification range of minimum and maximum permissible parameters for each of the five factors comprised within the SHAPE norm. The submission of the respondents is that these parameters have been fixed, keeping in mind the inevitable advancement of age of both men and women officers. Moreover, in refusing to consider the SSC extensions as sufficient evidence of fitness, it has been submitted that an unsaid concession is made in terms of medical requirements where an officer has been considered for extension as opposed to when they are considered for grant of PC. Another important aspect which has been emphasized is that out of 615 WSSCOs officers, 422 were found fit on merits for PC subject to fulfillment of medical and discipline parameters. Out of these 422,

57 were non-optees. From the remaining 365, 277 women officers were found fit on merits as well on medical parameters and have been granted PCs. Of the remaining 88, 42 are TLMC and have the opportunity to upgrade this to the required medical parameters within one year. Out of the remaining 46, only 35 were found not to meet the medical criteria. These 35 officers constitute less than ten per cent of the 365 who had opted for the grant of PC and were found fit on merits. Even in the remaining 193 officers (615 minus 422 found fit) that were not considered fit for PC, it was submitted that 164 of these officers fulfilled the SHAPE-1 criterion. This tabulation indicates a significant proportion of WSSCOs, irrespective of their belated consideration, are able to presently meet the prescribed criteria. With respect to the medical criteria prescribed by the Army, there can be no judicial review of the standards adopted by the Army, unless they are manifestly arbitrary and bear no rational nexus to the objects of the organization. The SHAPE criterion is per se not arbitrary. [Para 105][760-D-H; 761-A-C]

4.4 Having come to the conclusion that the medical criterion is per se not arbitrary, it is the Court’s responsibility to examine whether it has been equally applied. This Court cannot eschew the fact that these 615 WSSCOs are being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts. By the judgment of the High Court, specific directions were issued for considering the women SSC officers for the grant of PC. This was a decade ago. During the pendency of the appeal from the judgment of the High Court before this Court, there was no stay on the application of the judgment of the High Court. This was specifically clarified by the order of this Court on 2 September 2011. The intent of the clarification was that implementation of the directions of the High court must proceed. The WSSCOs have submitted with justification that had they been considered for the grant of PC then, as the respondents were directed to do by the decision of the High Court, they would have met the norms of eligibility in terms of medical parameters. Their male counterparts who were considered for and granted PC at that time are not required to maintain SHAPE 1 fitness to be continued in service. Serious hardship has been caused by the Army not considering the cases of these WSSCOs for the grant of PC at the relevant time, despite the express clarification by this Court. Though the contempt proceedings against the respondents were stayed, this did not obviate the obligation to comply with the mandate of the judgment of the High Court especially after a specific clarification that no stay had been granted. Consideration for PC was not just a legitimate expectation on the part of the WSSCOs but a right which had accrued in their favour after the directions of the High Court, which were issued about a decade ago. The WSSCOs who have been excluded on medical grounds in November 2020 have a legitimate grievance that whether they fulfilled the SHAPE 1 criterion has to be determined from their medical status on the date when they were entitled to be considered, following the decision of the High Court. Such of them who fulfilled the criterion at the material time are entitled to PC and can continue in service so long as they continue to meet the medical standards prescribed for continuance in the Army. In other words, there is no challenge to the criteria for medical fitness prescribed. These WSSCOs do not seek a special dispensation or exemption for themselves, as women. The essence of the dispute is when the SHAPE 1 criterion has to be applied in the peculiar circumstances. [Para 106][761-C-H; 762-A-C]

4.5 SHAPE-1 is not a requirement for continuation in service. The ASG had sought to bolster his submission of SHAPE1 as a threshold requirement for PC, by relying on the recruitment process for the Army Medical Corps, where even a 45 year old person seeking recruitment, must comply with SHAPE-1 medical criteria. However, a critical assumption that undergirds the grant of PC is the approximate age of persons who would be under consideration. The WSSCOs in this case are not fresh recruits who are due to be considered in their 5th or 10th year of service, nor are they seeking exceptional favors on account of their sex. [Para 108][762-G-H; 763-A]

4.6 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, WSSCOs who have legally fought for their rights and are additionally suffering due to the untimely implementation of their hard-won rights. The Army authorities have stated that the medical criterion has been sufficiently adjusted to take into account age related factors. However, the Army authorities are insistent to apply the medical criteria as of today, while simultaneously attempting to freeze the ACRs of the WSSCOs at the 5th or 10th year of service. Indirect discrimination coupled with an exclusionary approach inheres in this application. An enhancement in the qualifications of WSSCOs from their 5th/10th year of service till today, as would be reflected in their recent ACRs, would demonstrate them as an experienced pool of human resource for the Indian Army. However, a reduction of medical fitness below the SHAPE 1 norm at present as a consequence of age or the tribulations of service is not a necessary detriment to the Army when similarly aged male officers with PC (invariably granted in the 5th or 10th year of their service) no longer have to meet these rigorous medical standards for continuing in service. This is further bolstered by the fact that the WSSCOs who are no longer in SHAPE-1, have been meaningfully continuing in service, even after 14 years of service, till the declaration of results of the PC in November 2020. [Para 109][763-B-F]

4.7 Anguish is expressed at the respondents’ failure to implement the judgment rendered by the High Court in 2010, whose operation was specifically not stayed by this Court in 2011. The conundrum on the applicability of the medical criterion to WSSCOs who are 40-50 years old, has arisen only because of the Army not having implemented its decision in time, despite the course correction prescribed by the High Court in 2010. The WSSCOs, a few of whom are petitioners, have persevered for over a decade to gain the same dignity of an equal opportunity at PC. The fact that only around 35 women who are otherwise fit for PC, and 31 women who do not qualify in addition to not meeting the medical criteria, is irrelevant in determining whether each of these women is entitled to equality of opportunity in matters of public employment under Article 16(1) and (2). “The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment.” Similarly, the percentage of women who have suffered as a consequence of the belated application of rigorous medical criteria is irrelevant to the determination of whether it is a violation of Articles 14, 15 and 16 of the Constitution. [Para 110][763-F-H; 764-A-C] Justice KS Puttaswamy v. Union of India (2017) 10 SCC

1 : [2017] 10 SCR 569 – relied on.

4.8 In rendering the decision in Babita Puniya’s case, 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. It must not be forgotten that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. A career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women. The WSSCOs 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 for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya’s case have not trickled down into a basic assessment of not subjecting unequals to supposedly “neutral parameters”. [Para 111][764-C-G]

4.9 The submission on the medical criteria being modulated to account for advancement of age cannot be accepted. The timing of the administration of rigorous standards is a relevant consideration for determining their discriminatory impact, and not just an isolated reading of the standards which account for differences arising out of gender. The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service. [Para 112][764-G-H; 765-A-C]

5.1 As regards the interpretation of the direction in Babita Puniya’s case mandating WSSCOs who have completed 14 years of service as on the date of the judgment to be considered for PC, in the event of their non-approval or non-option, these officers are to be continued in service for 20 years, with benefits of pension. In Babita Puniya’s case, the directions issued by this Court, were while accepting the policy decision of the Union Government. The policy decision of the Union Government for the grant of PCs to WSSCOs in all the ten streams where women were granted SSC in the Indian Army was accepted, subject to several conditions spelt out in clauses (a) to (g) of direction (1) in paragraph 69 of the judgment. Direction (d) refers to “existing SSC officers with more than 14 years of service”. This expression is clearly intended to encompass those WSSCOs who had completed 14 years of service on the date of the judgment. It is important to note that these officers were also granted the benefit of continuing in service until the attainment of pensionable service. [Para 113][765-C-E; 766-C]

5.2 This Court, as a consequence of the constraint of information being provided to it by the parties arraigned before it in Babita Puniya’s case, was not alive to the full extent of the cadres who were denied a timely opportunity for PC in their 5th or 10th year of service. Direction (c) and (d), as a one-time measure, attempted to correct the gross injustice that was meted out to women officers who had completed over 14 years in service, and were being considered for PC at a belated stage. The onetime benefit of continuation in service until their 20th year was provided as a corrective exercise for women who have devoted their careers to the Army, in spite of the dignity of PC being elusive to them, merely as a consequence of their gender. The Court’s objective in providing for such a cut- off was to compensate for the impact of the discrimination which had denied them timely opportunities and to account for the significant risk and commitment they demonstrated by their continuation in service. [Para 117][767-D-F]

5.3 The women officers in the batches of WSES(O) - 27 to

31 and SSCW(T&NT) 1 to 3 face a similar predicament as they are being considered for PC beyond their 10th year in service (in the best case). Similar to the women in the older cadres who were denied opportunities, career progressions and assurances owing to the respondents’ failure at the relevant time to ensure gender equality in the forces; the women in the batches who were between 10-14 years of their service were meted the same insecurity. The WSES scheme has been discontinued and the WSES(O) 31, commissioned in 2008, is the last batch to have gained entry in the scheme, rendering it a ‘dying cadre’. The expression ‘dying cadre’ is deployed not in a pejorative sense. The expression has a specific meaning in service jurisprudence to denote a dwindling class of officers in service. The officers in the consequent batches of SSCW (T&NT) 1 to 3, although part of the new scheme that replaced WSES, will be the only batches who will face an adverse impact of the respondents’ failure to implement the High Court judgement before the 10th year of their service. In exercise of the constitutional power entrusted to this court under Article 142 to bring about substantial justice, this Court is compelled to extend the benefit of directions (c) and (d) in Babita Puniya’s case to the officers of the abovementioned batches, as a one-time benefit. This one-time extension, would bring parity inter se between officers who were discriminated by their non-timely consideration by the respondents. [Para 118][767-F-H; 768-A-C]

Secretary, Ministry of Defence v. Babita Puniya, (2020)

7 SCC 469; Ministry of Defence v. Babita Puniya, 2011 SCC OnLine SC 87; Babita Puniya v. Ministry of Defence, 2010 SCC OnLine Del 1116 : (2010) 168 DLT 115; Titaghur Paper Mills Co. Ltd. v. State of Orissa and Ors. (1983) 2 SCC 433 : [1983] 2 SCR 743; Brig. Nalin Kumar Bhatia v. Union of India 5 Civil Appeal No 5629 of 2017 decided on 11 February 2020–

referred to.

Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson, Secretary of Defense, et al., 411 U.S 677 – referred to.