LT. Col Nitisha v. Union of India, 2021 SCC Online SC 261

Introduction

• This case is the landmark case in judicial history for Permanent Commission for Women where Supreme Court recognized indirect discrimination towards women.

Facts

• Implementation of Babita Punia Case:
  • The petition concerned the implementation of the judgment in Secretary, Ministry of Defence v. Babita Puniya (2020) where women in the Indian Army sought Permanent Commission after serving on Short Service Commissions (SSC).
    • The Court recognized their quest for equality of opportunity, addressing a decade-long battle for parity with male counterparts.
  • The journey began with a 2003 writ petition in the Delhi High Court, culminating in the Babita Puniya decision on 17^th February 2020.
• Failure of Government to Implement:
  • Despite no stay on the Delhi HC's judgment, the Union Government failed to implement it.
  • The petitioner filed her writ petition primarily due to the non-implementation of the directives outlined in the Babita Puniya case.
• Contention of Petitioner:
  • She contended that despite the ruling in Babita Puniya case, which mandated the grant of Permanent Commission to Women Short Service Commissioned Officers (WSSCOs) in the Army, discriminatory practices persisted in the selection process.
  • The petitioner argued that the guidelines issued following the Babita Puniya case were not effectively enforced, leading to systemic disparities and unfair treatment towards women officers.
• Key Points of Contention:
  • Key points of contention included the flawed medical evaluation criteria, arbitrary reliance on Annual Confidential Reports (ACRs), and the lack of transparency in announcing vacancies for Permanent Commission by Central Government.
    • The petitioner highlighted discrepancies in treatment between male and female officers, emphasizing how the existing procedures failed to address the physiological changes and career progression of women officers adequately.
• Overall Petition:
  • Overall, the petitioner sought redressal for the persistent gender-based discrimination and urged the court to ensure the faithful implementation of the Babita Puniya judgment to guarantee equal opportunities and fair treatment for women officers in the Indian Army.

Issues Involved

• Whether the criteria provided by Central Government were indirect discrimination?
• Whether there is any difference between direct and indirect discrimination?

Observation

• Verdict:
  • In court’s assessment, the Army's evaluation criteria exhibited systemic discrimination against the petitioner.
  • The medical evaluation method, influenced by Babita Puniya case, unequally affected women due to structural biases.
    • The assessment failed to acknowledge subsequent achievements and perpetuated systemic discrimination, leading to economic and psychological harm.
• Judicial Directions:
  • The administrative requirement imposed by the Army authorities, benchmarking women SSCOs with the officers lowest in merit in the corresponding male batch for the grant of PC, was deemed arbitrary and irrational and was not enforced following the decision in Babita Puniya.
  • Women officers meeting the cut-off grade of 60% in the Special No 5 Selection Board held in September 2020 were entitled to the grant of PC, subject to meeting medical criteria and receiving disciplinary and vigilance clearance.
  • Medical criteria from General Instructions dated 1^st August 2020 were applied at the 5^th or 10^th year of service; failure to meet these criteria at these points meant ineligibility for PC grant.
  • Reconsideration of all WSSCO cases, including petitioners rejected on medical grounds, was mandated within one month, with PC grant orders issued within two months.
  • Previously granted PC to WSSCOs remained undisturbed.
  • WSSCOs ineligible for PC were granted one-time benefits as per Babita Puniya case.
  • Consequential benefits, including time-scale promotions, were to be granted within three months.
  • Evaluation methods and cut-offs for ACRs were to be reviewed for future batches to avoid disproportionate impact on eligible WSSCOs.
  • Serving WSSCOs were assured continued service until court directions were implemented, with entitlement to salaries and other benefits.

Conclusion

• This case finally accepted the indirect discrimination as a major violation of the Indian Constitution.
  • The Court finally held that the criteria provided by the Central Government was indirect discrimination or systematic discrimination with the Women officers and unconstitutional.