Permanent Commission for women Army officers: Supreme Court pulls up government for flawed process, says “superficial” equality against Constitution

Published : Mar 26, 2021 19:05 IST

A women’s contingent of the Indian Army during a reahearsal for the Republic Day parade. A file photograph.

A women’s contingent of the Indian Army during a reahearsal for the Republic Day parade. A file photograph.

The Supreme Court on March 25 directed the Union government to award permanent commission (PC) to eligible women officers who were excluded from the same on the grounds of unequal application of fitness standards. The court held that societal structures had been “created by males for males” and noted in the judgment: “Some look harmless but it's a patriarchal reflection of our society. It is not correct to say that women serve in the Army when the real picture is different. Superficial face of ‘equality’ does not stand true to the principles enshrined in the Constitution.”

Allowing a batch of petitions from around 80 women short service commission (SSC) officers seeking grant of PC in the Army, the Supreme Court held that the annual confidential report (ACR) evaluation process adopted by the Army in the case of these women SSC officers was flawed and discriminatory in nature. Declaring the ACR evaluation process as “arbitrary and irrational”, a bench of Justice D.Y. Chandrachud and M.R. Shah directed the Army to reconsider the pleas of these SSC officers for grant of PC within two months in accordance with the fresh directions issued by the court. The court said in its ruling: “We allow these petitions with a number of directions. Officers will be considered for permanent commission subject to disciplinary and vigilance clearance.” The aggrieved women SSC officers in their plea had also sought a direction from the court to initiate contempt proceedings against those who had failed in their duty to comply with the court’s earlier judgment.

Noting that the ‘SHAPE 1’ fitness standards were applicable to male officers when they were granted PC in the early years of service, the court said, applying the same exacting fitness standards to the aggrieved SSC women officers, who were granted PC in February 2020 pursuant to a landmark Supreme Court judgment (in Secretary Ministry of Defence vs Babita Puniya ) and were therefore senior in age, would be arbitrary. “Superficial face of equality will not be in consonance with the principles enshrined in the Constitution,” the bench said.

While the ‘SHAPE 1 criteria’ itself was not arbitrary, there was discrimination in its application, the bench said. It noted: “(The) Army says medical category has been applied by taking age related factors into account. However, discrimination and exclusion is there in this application. Similarly, aged male PC officers do not have to maintain ‘SHAPE 1’ fitness now when granted PC earlier.” The court ruled that women officers who were excluded from PC in November 2020 based on their non-compliance with ‘Shape 1’ fitness standards were entitled to continue as permanent commissioned officers until they fulfilled the fitness criteria needed for continuance in service.

Appearing for the Defence Ministry, Additional Solicitor General Sanjay Jain, informed the court that the Centre applied the same rules to male officers as well, adding, “the Centre’s intentions were not mala fide”. Said Sanjay Jain: “We have applied those tests which meet the standards of objectivity and include the maximum possible people and have kept within the realm of our policy in doing so.” He argued that the reason for setting a medical benchmark was the Supreme Court’s judgment in the Babita Puniya case. He also contended that though the normal rule was for not more than 250 officers to be granted PC in a year, there was no such vacancy benchmark for this year in view of the Babita Puniya judgment.

Turning down the Additional Solicitor General’s argument the court said: “Applying this ceiling is to bypass the route for women officers. Process by which women SSC officers were considered for PC was based on the belated application of the Babita Puniya verdict. Finest women officers have been ignored on the specious grounds that their awards and merit was on 5th and 10th year of service.”

On the medical criteria, the court said it should only be seen if the women SSC officer’s fitness levels in their fifth or tenth year of service met the requisite standards. It ruled that those who were rejected on medical grounds shall be reconsidered within a month and that orders for the grant of PC shall be issued within two months.

The court held that the Army’s pattern of evaluation would, in effect, lead to women being excluded from PC “on grounds beyond their control” and directed that there be a review of the method of evaluation of annual reports for future batches. The bench held that the evaluation process “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”. Said the Court: “Evaluation criteria of Army constitutes systematic inequality…. It disproportionately impacts them vis-a-vis their male counterparts.”

The bench stressed that a superficial sense of equality was not the goal. Justice Chandrachud, writing the judgment for the bench, said: “We must recognise here that the structures of our 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, our Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, we have continuously endeavoured 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”.

In the Babita Puniya judgment delivered in February 2020, the Supreme Court held that the Government of India’s contention that women had physiological limitations was based on “sex stereotypes” and “gender discrimination against women”, and directed that women officers in the Army be granted PC. The court ruled that women SSC officers had to be considered for PC irrespective of them having crossed 14 years or, as the case may be, 20 years of service.

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