'Set Your House In Order' : Supreme Court Warns Defence Ministry After Women Army Officers Allege Discrimination in Promotions [Read Full Courtroom Exchange]

The Supreme Court of India on Wednesday (April 5) pulled up the defence ministry over allegations of unfairness and discrimination in rank promotion for women army officers who were granted permanent commission following its landmark Babita Puniya decision. A bench of Chief Justice DY Chandrachud and Justice JB Pardiwala was hearing a couple of applications preferred by women officers alleging various arbitrary and discriminatory policies adopted by the Indian army while considering them for promotion. These applications were filed in the matter in Lt. Col. Nitisha v. Union of India, in which, a bench headed by Justice DY Chandrachud (as he was then in March 2021) recognised that the criteria for grant of permanent commission to women officers, although facially neutral, were, in effect, indirectly discriminatory. The 2020 decision in The Secretary, Ministry of Defence v. Babita Puniya, in which the top court held that the Indian Army's erstwhile policy of absolutely excluding women officers from receiving permanent commission was illegal, spurred a second round of litigation. This ultimately culminated in a declaration that the evaluation criteria adopted for the grant of permanent commission at the time were ‘arbitrary’ and ‘irrational’, as well as the issuance of fresh directions, in accordance with which, the applications of women Short Service Commission officers were to now be considered. Despite these progressive judgements, women officers in the army have had to knock at the court’s door multiple times with fresh allegations of discrimination and institutional resistance. In a previous hearing, Senior Advocate V Mohana informed a bench of the top court that despite it keeping the door open for women officers to receive command appointments, they were unable to reap the benefits of its decisions. The Indian Army, it was alleged, had neither held selection boards for the promotion of women officers nor taken any steps to comply with the ruling of the Nitisha bench. In the meantime, junior batches of male officers were promoted over their female counterparts, the senior counsel said. Only after a bench led by Chief Justice Chandrachud expressed concern over women army officers being treated unfairly and warned the defence ministry that it would pass peremptory orders to ensure their promotion, did the Indian army finally communicate its willingness to conduct a special selection board for its women officers. Accordingly, the selection board started considering the applications of approximately 246 women officers in January this year. Once again, a bench of Chief Justice DY Chandrachud and Justice JB Pardiwala was told that fresh barriers were erected in the way towards women being promoted to or enjoying command postings in the Indian Army. These included the refusal of the selection board to consider the latest Annual Confidential Reports (ACR), or performance evaluation reports, of the women officers, the insistence on filling vacancies on a pro-rata basis, or deliberately assigning women officers who have been promoted to lead contingents that are normally led by officers who are junior by rank. The bench was shocked at these revelations. While directing the Ministry of Defence to file an affidavit in response to these allegations, the bench observed in the order :, “On behalf of the women officers, it has been adverted that according to the judgement, overall service profiles of women officers were required to be considered. The submission is that though the ACRs of the women officers based on their entire service profile were required to be considered, they were pegged at the ACRs for 2011, which is when the corresponding male officers in the batch were considered for promotion. ASG states that he would file a proper affidavit explaining this. List after two weeks.” Notably, the Chief Jstice also orally told Additional Solicitor-General KM Nataraj: “We are putting you on notice. If this is not rectified, we will have to come down heavily on you. Because it appears ex facie that there has been an attempt to go around our order. We will now take it very seriously. Tell the authority at the highest level. We want this to be rectified. Next day, if you tell us a different thing, we will have to issue a notice of contempt. Now, we are giving you a last opportunity to set your house in order. Otherwise, we are going to haul you up.” Courtroom Exchange Senior advocate V Mohana: We are being forced to come before this court. They have frozen the ACRs in 2011 because my male counterparts were considered in 2012. It is 2023 now. CJI DY Chandrachud: What have you done now, Mr Nataraj? This affidavit does not say anything. Only that you have moved the ministry for the release of vacancies, and that the results have been notified. What process did you follow? That has not been disclosed at all. Senior ...

'Set Your House In Order' : Supreme Court Warns Defence Ministry After Women Army Officers Allege Discrimination in Promotions [Read Full Courtroom Exchange]

Awstika Das

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