'Not Enough To Proudly Say Women Are Allowed To Serve Army When Their Service Conditions Tell A Different Story' : Supreme Court In Permanent Commission Case


25 March 2021 3:26 PM GMT

  • Not Enough To Proudly Say Women Are Allowed To Serve Army When Their Service Conditions Tell A Different Story : Supreme Court In Permanent Commission Case

    Expressing anguish at the Indian Army's failure to implement the judgment allowing Permanent Commission for women officers, the Supreme Court said -"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".The judgment authored by Justice DY...

    Expressing anguish at the Indian Army's failure to implement the judgment allowing Permanent Commission for women officers, the Supreme Court said -

    "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".

    The judgment authored by Justice DY Chandrachud criticized the evaluation criteria adopted by the Indian Army to consider the applications of Women Short Service Commission Officers seeking Permanent Commission based on the landmark judgment in the Babita Puniya case, which recognized their entitlement for PC. The administrative requirements adopted by the Army in this regard were declared as "arbitrary and irrational".

    The Court noted that the Annual Confidential Reports(ACRs) of the applicants for the purposes of PC were prepared belatedly, as they were not entitled to PC at the relevant time. However, the performances and achievements of women officers beyond 5th year of service, and in some cases the 10th year of service, were not considered in the ACR.

    "...the delayed implementation of the grant of PC to WSSCOs by the Army and considering of ACRs only till the 5th/10th year of service has led to a situation where, in effect, the Army has obliviated the years of service, hard work and honours received by WSSCOs beyond their 5th/10thyear of service and relegated them back to a position they held, in some cases, more than 10 years ago", the judgment observed.

    "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"

    Some of the finest women officers excluded

    The Supreme Court noted with dismay that the decision of the Army to not take into account the qualifications of women Short Service Commission officers beyond their 5th or 10th year of services resulted in the exclusion of "some of the finest women officers who have served the Army".

    "Some of the finest women officers who have served the Indian Army and brought distinction by their performance and achievements have been excluded by refusing to consider their achievements on the specious ground that these were after the 5th/10th year of service".

    It noted that even women officers who have brought laurels to the nation, who have been awarded prestigious national awards, who have served in the United Nations and international assignments, or who have displayed excellent performances in sports were ignored on the ground that such achievements were beyond their 5th or 10th year of services.

    The evaluation process which has been followed in the case of the WSSCOs 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.

    The Court mentioned the names of some of such officers as follows :

    "As an example it has been stated that Lt. Col. Shikha Yadav (as well as several other women officers) have been denied PC though they have been awarded the COAS commendation. Lt. Col. Tashi Thapliyal was awarded the Vishisht Seva Mandal. Several women officers who have served in UN Missions overseas have been denied PC. There are women officers who have excelled in national sports events, exemplified by Major Pallavi Sharma who has a proven track record inter alia in shooting championships which has been ignored"

    Army's criteria caused affront to dignity of women

    The Court noted that the army subjected the women officers to a rigorous medical criteria of SHAPE-1. SHAPE1 is an acronym with S' denotes the physiological features including cognitive function abnormalities, 'H' stands for hearing, 'A' for appendages, 'P' for physical capacity and 'E' for eye-sight.

    The WSSCOs who have been excluded on medical grounds in November 2020 have a legitimate grievance that whether they fulfilled the SHAPE 1 criterion has to be determined from their medical status on the date when they were entitled to be considered, following the decision of the Delhi High Court.

    It was submitted by the petitioners that while being in SHAPE 1 is the requirement at the induction or entry level, it is not the requirement for continued service in the Army. Many of their male counterparts who are granted PC in their 5th or 10th year of service are entitled to continue in service, irrespective of whether they continue to be compliant with SHAPE 1 criteria.

    The Court observed that this anomaly occurred because the Indian Army did not consider the claim of women officers for PC at the relevant time. Though the Delhi High Court had upheld the entitlement of women SSC officers for PC around ten years ago, the Army did not implement the HC directions, although there was no stay by the Supreme Court on the judgment.

    "Serious hardship has been caused to the women officers by the Army by not considering their application for PC at the relevant time", the Court said.

    It went ahead to underscore that the Permanent Commission was not just a legitimate expectation for women but a right accrued to them after the Delhi High Court judgment.

    While the Court held that the SHAPE1 medical criteria was not arbitrary, it added that such criteria has to be applied to the women officers on the basis of date when they were entitled for consideration.

    "The Army authorities are insistent to apply the medical criteria as of today, while simultaneously attempting to freeze the ACRs of the WSSCOs at the 5th or 10th year of service. Indirect discrimination coupled with an exclusionary approach inheres in this application", the judgment noted the anomaly in the stand of the Army.

    "The conundrum of application of medical criteria to women in the age group of 45-50 arose only because the Army did not apply the decision(of HC & SC) in time", the Court noted.

    The judgment further observed that the 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".


    The Court in conclusion observed :

    "...we are of the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners. The pattern of evaluation deployed by the Army, to implement the decision in Babita Puniya (supra) disproportionately affects women. This disproportionate impact is attributable to the structural discrimination against women, by dint of which the facially neutral criteria of selective ACR evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-à-vis their male counterparts. The pattern of evaluation, by excluding subsequent achievements of the petitioners and failing to account for the inherent patterns of discrimination that were produced as a consequence of casual grading and skewed incentive structures, has resulted in indirect and systemic discrimination. This discrimination has caused an economic and psychological harm and an affront to their dignity"

    It passed the following directions.

    1. The administrative requirements adopted by the Army Authorities is 'arbitrary and irrational" and shall not be enforced

    2. All women officers who have satisfied the 60% cut-off are entitled to PC subject to satisfaction of medical criteria as given below and satisfaction of vigilance and disciplinary clearance.

    3. 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.

    4. All officers other than non-optees officers to be considered for grant of permanent commission as per terms, within 2 months

    5. The decision already taken to grant permanent commission to some of the women officers in terms of the Babita Puniya judgment shall not be disturbed.

    Court acknowledges the perseverance of women officers

    Acknowledging the perseverance and tenacity of the petitioners, the judgment said :

    "We must not forget that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. It is also important for us to bear in mind that a career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women".

    "The WSSCOs before us are not just women who have dedicated their lives to the ervice of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly "neutral parameters"."

    Facially neutral but discriminatory in effect

    The judgment discussed the concept of indirect discrimination, and said that the Army's policies were discriminatory in its effect on the women officers.

    "We must recognize 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 endeavored 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"

    "A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic", the Court added.

     Case Details

    Case Title : Lt Col Nitisha and othes v Union of India and others

    Coram : Justices DY Chandrachud and MR Shah

    Citation : LL 2021 SC 181

    Click here to read/download the judgment

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