In a pathbreaking verdict, the Supreme Court has directed the Centre to allow permanent commission (PC) to women army officers who were earlier excluded on grounds of unequal application of fitness standards, reported Bar & Bench.
The top court held that the evaluation criteria adopted by the Indian Army to consider the grant of permanent commission for women officers is “arbitrary and irrational”, causing women officers “systemic discrimination”. Accordingly, the court directed the Army to reconsider the pleas of approximately 650 Short Service Commission women officers for grant of PC within two months in accordance with the fresh directions issued by it.
LiveLaw reported that the Division Bench of Justices Dr. DY Chandrachud and MR Shah said, “We must recognize here, that the structures of our society have been created by males for males. Therefore, certain structures which may appear to be facially harmless are an indication of insidious patriarchal system. A facially equal application of laws to unequal parties is farce when law is structured to cater to male standpoint. Superficial face of Equality does not stand true to the principles enshrined in the Constitution.”
The Indian Army was further reprimanded for not taking into account the qualifications of women Short Service Commission officers beyond their 5th or 10th year of services which directly resulted in the exclusion of “some of the finest women officers who have served the Army”.
LiveLaw quoted the Bench remarking, “Some of the finest women officers who have served the Indian army have been excluded on the specious ground that these have been achieved after 5/10 years on the ground that the benchmark of lower credentials of male counterparts were not met. It is not enough to proudly state that women officers are allowed to serve the Indian Army, when the true picture is different.”
According to a report in Bar & Bench, the top court noted that the fitness standards, known as Shape 1 rule, were applicable to male officers at the time when they were granted Permanent Commission in the early years of service. However, the aggrieved women officers before the Supreme Court were granted PC only last year in accordance with the Supreme Court’s judgment in Secretary Ministry of Defence v. Babita Puniya and were therefore, senior in age. So, applying the Shape 1 Fitness rule to women now would be arbitrary, said the court.
While noting that the Shape 1 criteria was not unjust but the application of it is, the Division Bench said, “Army says the 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,” reported Bar & Bench.
The judgment noted, “Serious hardship has been caused to the women officers by the Army by not considering their application for PC at the relevant time….The Army wants to apply medical criteria as on today, but it is insisting on freezing their ACR (annual confidential report) as on 5th/10 year, resulting in discrimination.”
To do away with the arbitrary application of this fitness criteria for women officers, the court reportedly said, “We are of the view that the evaluation criteria adopted by the Army constituted systemic discrimination against women. Facially neutral criteria of ACR and medical criteria disproportionately affected women, resulting in indirect discrimination. This has caused them economic and psychological harm.”
According to LiveLaw, the court issued 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 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-obtuse 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.
In Babita Puniya, the Supreme Court had ruled that the notions that women are the “weaker” sex and may not undertake tasks that are “too arduous” for them, are constitutionally flawed, holding up a judgment that the absolute exclusion of women from Command Appointments in the Army is illegal.
The two-judge bench of Justices DY Chandrachud and Ajay Rastogi had ordered that Permanent Commission should be granted to women in the Army regardless of their service in all the ten streams where the Union government has taken a decision to grant Short Service Commission to women.