History of the Lt.Col Nitisha Vs Union Of India, 2021 case
Babita Punia case In early 2020, the Supreme Court delivered judgment in Secretary, Ministry of Defence vs Babita Puniya, holding that the Indian Army’s policy of denying women officers a permanent commission was discriminatory. Secretary, Ministry of Defence vs Babita Puniya, 2020. • The case concerned the grant of Permanent Commissions in the Army. Section 12 of the Army Act prohibits the recruitment of ” females ” into the army except were – and to the extent that the Central Government might allow.
In Lt.Col Nitisha Vs Union Of India, 2021 case The Supreme Court bench of Js. D.Y Chandrachud and Js . Hemant Gupta challenged the notions given by the Union and stated that they are entrenched in stereotypical assumptions of ascribed gender roles for women. Moreover, it is a clear violation of their fundamental rights guaranteed under Article 14 of the Indian Constitution. The court held that although Article 33 of the Indian Constitution did allow for restrictions on Fundamental Rights in the armed forces it is also clearly mentioned that it could be restricted only to the extent that it was necessary to ensure the proper discharge of duty and maintenance of discipline.
Facts of the Lt.Col Nitisha Vs Union Of India, 2021 case
On the face of it, these criteria were neutral, i.e. they did not, on their face, discriminate between male and female officers. On digging a little deep, however, it was found that the verification act that for all these years, women had not been eligible for the grant of PCs, had a direct bearing on some eligible candidates ‘ failure to fulfill the criteria.
Broadly, there were three contentious criteria of assessment for the grant of PC
1. that the women officers had to clear a certain percentage score, as well as score higher than the lowest-scoring male officer who had been awarded a PC
2. that Annual Confidential Reports ( ACRs ) were to form part of the grading
3. certain medical requirements had to be fulfilled.
ACRS was prepared with a view to recommendations for the grant of a PC. Given that female officers had not been eligible for PCs, in their case, the reports were more lackadaisical than those of their male counterparts ( as earlier there was no need for these reports ); these were also affected by the fact that women officers had not applied for a range of opportunities, or courses, that were supposed to be considered in the ACRs. ( again, because there was no end to be achieved from them )
In case of comparative merit, The total marks for each woman officer were compared to the lowest marks achieved by the male officer who was granted PC, for determination of whether the woman officer would qualify for grant of PC. After this, the women officers were considered against each other on merit and the grant of PC was determined. Thus, the women officers first, had to meet the benchmark of the lowest qualifying male officers and second, compete with inter-women officers. This is in stark contrast to the male officers who had to meet no external benchmark and were only required to compete among themselves, in the event that they were in excess of 250 candidates. ( the ceiling )
Lt.Col Nitisha Vs Union Of India, 2021
Discriminatory criteria=
Similarly, with respect to the medical criteria, the Court found that male officers took their medical tests at the time they applied for PCs ( and once granted PCs, they were not required to maintain the same levels of fitness ) . However, female officers – who had been ineligible all these years – were now required to prove the very level of fitness that otherwise similarly situated male officers were no longer required to prove ( as they had been granted PCs many years before ).
Judgment
The bench ruled that there is indirect discrimination in the present case named Lt.Col Nitisha Vs Union Of India, 2021.
A situation in which a rule or a practice that is seemingly ” neutral ” or “colorblind”, nonetheless has a disproportionately adverse impact upon a set or group of people. The court said that if there is indirect discrimination also, that should be prohibited to achieve equality under the constitution.
The court undertook an elaborate study of the evolution of the subject in the constitutional courts of the United States, the United Kingdom, South Africa, and Canada, before deciding what indirect discrimination means.
Consistent with the Canadian Supreme Court’s approach in Fraser v . Canada ( Attorney General ) 2020 SCC 28, the court held that an absolutist position cannot be adopted as to the nature of the evidence that must be brought forth to succeed in a case of indirect discrimination. And that the two-step test for discrimination evolved in this case is most appropriate
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. ( the disadvantage can be economic exclusion, social exclusion, etc. )
Judgment of Lt.Col Nitisha Vs Union Of India, 2021
Medical Criteria
Directed that the medical criteria adopted by the Army in August 2020 shall be applied at the 5th or 10th year of their service as the case may be, i.e when they should have been given the PC.
The court said that this reeks of Indirect discrimination coupled with an exclusionary approach. This discrimination has caused economic and psychological harm and is an affront to the WSCCOS dignity.
Comparative Merit:- The court held 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 and thus is set aside.
ACR evaluation
The court held that the evaluation criteria adopted by the Army to benchmark the women officers with the lowest credentials of their male counterparts and to freeze their ACR evaluation at the 5th or 10th years of their services to be ‘ arbitrary and irrational ‘, causing women officers ‘ systemic discrimination ‘. { Systemic discrimination (systematic/institutionalized discrimination ), refers to a method of discrimination that occurs regularly in the workplace as an inherent part of the company through interactions and processes creating a disadvantage for people with common set characteristics such as race, gender, and disability over a long period of time. It is not apparent at first sight but is actually systematic in its application of policies and practices.
This Lt.Col Nitisha Vs Union Of India, 2021 case marks the first occasion wherein Supreme Court has categorically held indirect discrimination to violate the Constitution and set out an account of what indirect discrimination entails.
