New Delhi: The Supreme Court Thursday said the evaluation criteria adopted by the Army to grant permanent commission (PC) to women caused “systemic discrimination” against them.
The bench comprising Justices D.Y. Chandrachud and M.R. Shah analysed the ‘doctrine of indirect discrimination’ and emphasised on the need to look at the effect of the discrimination, rather than the intentions or the motives of the discriminator.
It then asserted that “in the 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 (women SSC officers)”.
The court observed that the “structures of our society have been created by males for males”. It therefore pointed out that “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 clarified.
The court added that “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.”
The court said that Army’s evaluation criteria should not be enforced and laid out other criteria for granting PC to women officers.
On being asked how that the Army seeks to implement the judgment, a senior officer told ThePrint that it has just come and has to be read and discussed first. “The due process will be followed,” the officer said.
Medical criteria ‘arbitrary & unjust’
The Supreme Court had, in February last year, upheld a 2010 Delhi High Court verdict stating that the Narendra Modi government has to give permanent commission to women officers in the Army irrespective of their years in service.
Following this judgment, the Ministry of Defence in July last year initiated steps to conduct a special selection proceeding to screen women Short Service Commission (SSC) officers for grant of PC, “based on existing policy regarding grant of permanent commission…applied uniformly to all SCC officers”.
A total of 615 women SSC officers were considered for grant of PC, out of which 277 were finally granted it. Eighty six officers had approached the Supreme Court, calling into question the modalities which were followed for assessing them.
They had contended that the criteria stipulated for them to qualify for permanent commission was a “mechanical reproduction of the existing procedure for male officers, who are evaluated for PC in their 5th or 10th year of service, without making any modifications”.
The medical criteria, they said, is “arbitrary and unjust as the women officers who are in the age group of 40-50 years of age are being required to conform to the medical standards that a male officer would have to conform to at the group of 25 to 30 years.”
SHAPE-1 category
The government notification for grant of permanent commission to women officers had said that only those officers who opt for PC and fall in the SHAPE-1 category would be granted it.
SHAPE-1 considers an officer’s fitness under five factors: S (Psychological including cognitive function abnormalities), H (Hearing), A (Appendages), P (Physical Capacity), and E (Eye Sight). The functional capacity of officers are graded in these categories, denoted by numerals 1 to 5, with 1 being the fittest and 5 being ‘permanently unfit for military duties’. Officers are required to be in grade-1 in each of the five SHAPE factors, subject to certain relaxations.
The court said that the SHAPE criterion was not per se arbitrary, but noted that these women officers were “being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts”.
It asserted that the “conundrum on the applicability of the medical criterion to WSSCOs who are 40-50 years old, has arisen only because of the Army not having implemented its decision in time, despite the course correction prescribed by the Delhi High Court in 2010”.
The court, therefore, said that their medical evaluation from their 5th or 10th year of service needs to be SHAPE-1 for them to be eligible for PC.
Also read: Female army officers approach SC alleging non-implementation of permanent commission
‘Disservice to the Indian Army’
The court also ruled that the requirement imposed by the Army to benchmark women SSC officers against lowest placed male officers of their corresponding batches, as “arbitrary and irrational”. It said that this criteria should not be enforced.
The court said 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 (women SSC officers).”
At the same time, the court also accepted the submissions of the petitioners challenging the consideration of their annual confidential reports (ACRs) in the entire process. For women SSC officers, the confidential reports, discipline and vigilance reports, if any, and honours and awards as on the 5th or 10th years of service were considered.
The petitioners had contended that considering ACRs as a basis to grant PC to women officers is flawed as in the absence of any provision of PC to women officers, the ACRs were filled “casually” by the reporting officers as compared to ACRs of male officers.
The court also noted that consequently, the qualifications, achievements and performance of women officers after the 5th or 10th years of service have been ignored. In fact, the court noted that several women officers who have been awarded prestigious commendation cards from the Chief of Army Staff were also denied PC because of this criteria.
“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,” the court asserted.
It, therefore, ruled that women officers who have fulfilled the cut-off grade of 60 per cent in the selection process shall be entitled to grant of PC, subject to them meeting the medical criteria and getting disciplinary and vigilance clearance.
The court also ordered that in accordance with pre-existing policies, 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 (women SSC officers) who became eligible for the grant of PC in the subsequent years of their service”. The court directed that all benefits from its 2020 and current judgment need to be granted within three months.
Article 142 invoked
Additionally, the court invoked Article 142 of the Constitution, which allows it to pass any order “necessary for doing complete justice”.
According to the 2020 judgment, women officers with more than 14 years of service who do not opt for PC were entitled to continue in service until they attained 20 years of pensionable service. As a one time measure, the benefit of continuing in service was also given to all existing SSC officers with more than 14 years of service, who are not appointed to PC.
The court invoked Article 142 to apply the benefit of continuing in service till completion of 20th year to complete pensionable service, to women within the 10 to 14 years service bracket as well, if they are denied PC.
(Edited by Neha Mahajan)
Also read: Women Army officers say too little, too late as govt finally sanctions permanent commission