While there is no dearth of warrior goddesses in the pantheon of Hinduism, historically, the presence of women in the armed forces of India has primarily been limited to a few actresses, such as Lakshmi Sahgal and Rani Laxmi Bai. Although it has been the norm for women to not take combatant roles in a war effort, this disparity is now slowly being chipped away, and a significant chisel blow was delivered with the judgment in the case of Lt. Col. Nitisha v. Union of India. In this judgement, the Supreme Court, for the first time, has held “indirect discrimination” to be violative of the right to equality. It follows the 2020 judgement of Secretary, Ministry of Defence v. Babita Puniya, where the Court dismissed the Centre’s appeal against a Delhi High Court judgement which removed the disparity in the grant of permanent commission between male and female officers.
Section 12 of the Army Act, 1950 prohibited the recruitment of women in the army, except when the central government released a notification for recruitment in such corps, departments or branches. The Centre issued such notification in 1992, which allowed the recruitment of women in certain branches of the armed forces in “non-combatant” roles for a period of five years. Subsequently, this period was extended in the years 1996, 2005 and 2006. It is pertinent to note that the recruitment of women was limited to the Short Service Commission (“SSC”), and they were still prohibited from being granted Permanent Commission (“PC”) in the armed forces. In light of the same, Advocate Babita Puniya filed a PIL in 2003, seeking PC for women as well. The Ministry of Defence issued a circular in 2008, allowing women to be granted PC. However, women were prospectively granted PC only in certain cadres. Subsequently, writ petitions were filed in the Delhi High Court, deeming this difference between the grant of PC to male and female officers to be discriminative and violative of Article 14 of the Constitution.
The Delhi High Court delivered a judgement in favour of the petitioners and held that female officers were entitled to permanent commissions on par with the male officers. The Union Government appealed against this decision, and this appeal was dismissed in Secretary, Ministry of Defence v. Babita Puniya. During the pendency of this case, in February 2019, the Ministry of Defence brought forward a communication under which they were willing to grant PC to women SSC officers, limited only to staff appointments. The Court dismissed the appeal and upheld the order of the Delhi High Court, and allowed female officers to be granted PC on par with male officers. The provisions in the 2019 order by the Union Government were accepted but made applicable across the board, and the limitation to only staff appointments was removed. All-female officers had to be granted PCs “based on existing policy regarding grant of permanent commission…applied uniformly to all SCC officers”.
Lt. Col. Nitisha v. Union of India
The present case, Lt. Col. Nitisha v. Union of India, followed the enforcement of the judgement of the Babita Puniya case. Following this judgment, the Union Government put into place a procedure for the grant of PCs to eligible women officers. The petitioners in Nitisha were challenging this procedure, claiming that it was discriminatory.
Primary Contentions raised by the Petitioners:
First, that the women officers had to clear a specific percentage score, as well as score higher than the lowest-scoring male officer who had been awarded a PC; Second, the selection procedure involved the Annual Confidential Reports that were made in the fifth and tenth years of service. The superiors officers responsible for making these reports were often casual in making the reports for female officers, as they were not eligible for permanent commission. These casually made reports were disadvantageous to the applying officers, and third, specific medical requirements had to be fulfilled. However, as these requirements were to have an effect retrospectively, many applicants would fail to fulfil these since they were around 45-55 years old, and the criteria were designed for 25-30-year-old men.
A total of 615 officers were considered, with 422 women being accepted by the Board based on medical and discipline criteria. 247 female officers received permanent commissions in the end. In this process, the petitioners were refused the commission.
Analysis of Nitisha v UOI:
Considering the above-mentioned contentions, it can be gleaned that prima facie, these conditions may not seem discriminatory; however, the fact that over the years, women had not been eligible for the grant of PCs had a direct impact on some eligible candidates’ failure to fulfil the criteria. For e.g., with respect to the medical criteria for selection, it was found that the male officers took their tests at the time they had applied for PC, which was around the age of 25-30. However, female officers who were ineligible for PC for all these years were now required to prove that level of fitness which the similarly situated male officers were no longer required to prove since they had already been granted PC at the time of applying. It is pertinent to note that, first, there was formal and direct discrimination, i.e., denial of rights to female candidates for PC. Subsequently, as the formal discrimination was ended, the criteria which were put in place put the female candidates at a disadvantageous position, thus ensuing indirect discrimination.
The Court held that the administrative requirements imposed by the government for the grant of PC are arbitrary and irrational. This marks the first occasion that the Supreme Court has categorically held indirect discrimination to violate the Constitution and set out an account of what indirect discrimination entails. The Court noted that the fact that female officers had been denied the opportunity for PC for all these years meant that a neutral set of criteria for male and female candidates would be discriminatory in effect.
Justice Chandrachud articulated an alternative model for discrimination and equality, drawing parallels from the Canadian Supreme Court case of Fraser v. Canada (Attorney General), which ordered that there should be a two-stage test to determine indirect discrimination. First, the court has to enquire whether the impugned rule disproportionately affects a particular group. Second, the court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantages. Such disadvantage could be in the shape of economic exclusion or disadvantage, social exclusion, psychological harms, physical harms or political exclusion and must be viewed in light of any systemic or historical disadvantages faced. It drew a difference between intention and effect, how discrimination occurred due to an individual’s doings and how it was portrayed through the impersonal workings of an institution. Justice Chandrachud stated that the need for substantive equality, which the Indian Constitution is an advocate of, required reviewing both systemic and indirect discrimination.
The Doctrine of Indirect Discrimination refers to a “neutral” law applied to all equally but favouring a particular group over a disadvantaged group. In Nitisha v UOI, the Court recognized that the criteria for the grant of PCs to women were facially neutral but were found to be indirectly discriminatory. Thus, this judgement holds importance since it marks the first instance where indirect discrimination has been held to be violative of the Right to Equality.
One must remember that the Constitution does not proclaim the equality of all citizens merely as a formality. The purpose of our right to equality is not just to ensure that we are all equal on paper but also in substance. If equality is not achieved in real-world practical terms, then it is as good as having no equality at all. Formal equality is equality only in name is of little benefit to the billion-strong citizenry that the constitution governs.
With this significant judgement of the Apex Court, a path for a more equitable future is paved where true equality of opportunity is closer than it previously was. The doctrine of indirect discrimination can be the tool that will take us to such a future. One can hope that the judgment in Lt. Col. Nitisha ushers in a new era of claims from women challenging the patriarchy in ways that were heretofore ignored by the courts and State alike.
Views expressed are personal.
*Ayush Mehta is a fourth year student at National Law University Jodhpur (India) and Akshay Tiwari is a second year student at National Law University Jodhpur (India).