'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 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"

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".

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.

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