# LT. COL. NITISHA & ORS v. UNION OF INDIA & ORS

- **Citation:** [2021] 4 S.C.R. 633
- **Court:** Supreme Court of India
- **Decided:** 2021-03-25
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lt-col-nitisha-ors-v-union-of-india-ors-35243
- **Pages:** 138

## Headnote

Armed Forces:Permanent Commission (PC) - Claim of women
engaged on Short Service Commission (SSC) in the Indian Army -
Said claim held to be justified by this Court in Babita Puniya's case
- Thereafter, issuance of directions to the Union Government to
grant of PCs to Women SSC Officers in armed services - Petitioners
aggrieved by the steps taken by the Union Government to implement
Babita Puniya's case-conduct of special selection procedure to screen
WSSCOs for grant of PC on the same terms as their male
counterparts; SHAPE-1 Medical criteria; performance in the fifth
year of their service; 60 per cent cut-off grade and an annual cap
of 250 - Writ petition u/Art. 32 challenging the modalities followed
in assessing the 615 WSSCOs for grant of PC after Babita Puniya's
case - Held: Evaluation criteria set by the Army constituted systemic
discrimination against the petitioners - Evaluation pattern
disproportionately affects women - This disproportionate impact is
attributable to the structural discrimination against women - Facially
neutral criteria of selective (Annual Confidential Reports)
evaluation and fulfilling the medical criteria to be in SHAPE-1 at a
belated stage, to secure PC disproportionately impacts them vis-àvis their male counterparts - Exclusion of subsequent achievements
of the petitioners and casual grading and skewed incentive
structures resulted in indirect and systemic discrimination - This
discrimination has caused an economic and psychological harm
and an affront to their dignity - Issuance of directions that
requirement of benchmarking women officers with officers lowest
in merit in corresponding male batch is arbitrary and irrational
and would not be enforced while implementing Babita Puniya's case;
that officers who have fulfilled the cut-off grade of 60 per cent in
Special selection Board entitled to grant of PC; that medical criterion
to be applied at the time of 5th year/10th year of their service; that
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WSSCOs not considered to be eligible for grant of PC, to be extended
one-time benefit; and that all consequential benefits including the
grant of time scale promotions to be granted - Constitution of India
- Arts. 32, 14, 15(1).
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
conceptio

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633
 [2021] 4 S.C.R. 633
LT. COL. NITISHA & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No 1109 of 2020)
MARCH 25, 2021
[DR. DHANANJAYA Y CHANDRACHUD
AND M. R. SHAH, JJ.]
Armed Forces:Permanent Commission (PC) - Claim of women
engaged on Short Service Commission (SSC) in the Indian Army -
Said claim held to be justified by this Court in Babita Puniya's case
- Thereafter, issuance of directions to the Union Government to
grant of PCs to Women SSC Officers in armed services - Petitioners
aggrieved by the steps taken by the Union Government to implement
Babita Puniya's case-conduct of special selection procedure to screen
WSSCOs for grant of PC on the same terms as their male
counterparts; SHAPE-1 Medical criteria; performance in the fifth
year of their service; 60 per cent cut-off grade and an annual cap
of 250 - Writ petition u/Art. 32 challenging the modalities followed
in assessing the 615 WSSCOs for grant of PC after Babita Puniya's
case - Held: Evaluation criteria set by the Army constituted systemic
discrimination against the petitioners - Evaluation pattern
disproportionately affects women - This disproportionate impact is
attributable to the structural discrimination against women - Facially
neutral criteria of selective (Annual Confidential Reports)
evaluation and fulfilling the medical criteria to be in SHAPE-1 at a
belated stage, to secure PC disproportionately impacts them vis-àvis their male counterparts - Exclusion of subsequent achievements
of the petitioners and casual grading and skewed incentive
structures resulted in indirect and systemic discrimination - This
discrimination has caused an economic and psychological harm
and an affront to their dignity - Issuance of directions that
requirement of benchmarking women officers with officers lowest
in merit in corresponding male batch is arbitrary and irrational
and would not be enforced while implementing Babita Puniya's case;
that officers who have fulfilled the cut-off grade of 60 per cent in
Special selection Board entitled to grant of PC; that medical criterion
to be applied at the time of 5th year/10th year of their service; that
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WSSCOs not considered to be eligible for grant of PC, to be extended
one-time benefit; and that all consequential benefits including the
grant of time scale promotions to be granted - Constitution of India
- Arts. 32, 14, 15(1).
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
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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
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
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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,
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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
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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
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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
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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]
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(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
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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
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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]
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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
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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
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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
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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
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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]
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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
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meeting the 60% cut-off must be granted PC.