Authored By: Deva Nanda A
Government Law College, Trivandrum
INTRODUCTION
The Supreme Court’s decision in Lt. Col Nitisha v. Union of India (2021) is a milestone judgment considering systemic gender discrimination in the Indian Army. It considered whether the Army’s PC selection criteria for women officers violated constitutional promises of equality under Articles 14 and 15. The case is an extension of the 2020 Babita Puniya judgment, focusing on persistent gender biases in military service and their effects on equal opportunity.
FACTS OF THE CASE
The verdict in Lt. Col Nitisha vs Union of India[1] case 2021 was founded on the implementation of the decision of the Supreme Court dated 2020 in Secretary, Ministry of Defence vs Babita Puniya. The 2020 verdict proved to be a landmark for the cause of gender equality by its decision to mandate the Indian Army to grant PC to SSC women officers at par with their male counterparts. It was intended to ensure that women officers get equal treatment to serve as PCs on par with men, without any discrimination against them on the grounds of sex.
It was after this judgment that the Army started the PC evaluation process of women SSC officers. Hardly any officers could get through the process, with most of the women officers being denied PC on arbitrary and discriminatory grounds. Lt. Col Nitisha, along with other petitioners challenged the fairness and transparency adopted by the Army while considering the case of SSC Women for PC.
The petitioners’ grievances are based on three areas of qualification: medical fitness criteria, ACRs, and subjective tests of merit and performance. It was contended before this Court that these criteria had been discriminatorily applied to women officers, requiring higher or different standards from women officers than from their male colleagues. Furthermore, what the petitioners had submitted was that the evaluation chart of the Army remained impregnated with obsolete and sexist notions of physical fitness and merit to the detriment of women officers.
One specific concern was the application of medical fitness standards. Many women officers were declared medically unfit for PC, whereas conditions did not disqualify male officers. Petitioners pointed out that this reflected a broader issue: institutional bias and failure to take effective steps to remove such biases in execution of the Supreme Court’s mandate.
The Union of India defended the process, asserting uniform application of the evaluation criteria in being necessary for operational efficiency. It was their contention that both medical fitness and other evaluation criteria are the same for all officers, irrespective of gender.
Unpersuaded by these defences, the petitioners are firmly convinced that, despite existing defences, this process of evaluation continues to suffer from systemic gender biases against women officers and continues to perpetuate an unequal military.
LEGAL ISSUES[2]
The Lt. Col Nitisha v. Union of India (2021) case brought several critical legal and constitutional issues to the forefront, particularly concerning gender equality, non-discrimination, and the implementation of judicial directives within the Indian military. The Supreme Court was called upon to address the following key issues:-
Whether the selection-cum-evaluation process of the Indian Army for admission to PC in the case of women officers was discriminatory.
Whether the medical fitness criteria used for women officers were arbitrary and against their interests.
Whether the army evaluation process contravened Articles 14 and 15 of the Indian Constitution.
Whether the implementation of the Babita Puniya judgment by the Indian Army was adequate
Whether persistent institutional bias affected the assessment of women officers.
Petitioners’ Contention: The petitioners, through Lt. Col Nitisha, hereinafter referred to as the petitioner, submitted that the selection criteria of the Army, not limited to medical fitness standards, Annual Confidential Reports, and subjective evaluations of merit, were applied oppressively to women officers. They have pointed out several points based on these contentions:
- Medical Fitness Standards: The petitioners contended that the medically fit standards were much more rigid in the case of women, whereby their exclusion from PC occurred despite them being otherwise qualified. Conditions disqualifying women did not similarly disqualify their male counterparts.
- Subjective Evaluations: They argued that since the evaluation process was subjective, biases against women worked, with concepts of physical fitness and capability that were archaic and hence inappropriate tainting the judgments.
- Arbitrary Standards: The petitioners argued that these standards were applied arbitrarily and violated the gender-neutral principles laid down by the Supreme Court judgment in 2020.
Union of India’s Defence: The Union of India defended the selection process by asserting that it was in accordance with the Supreme Court’s directions. They argued that:
- Uniform Application: The standards applied were uniform for both male and female officers, to maintain operational efficiency.
- Objective Assessments: They kept reiterating that choices were made strictly based on objective assessments of merit and fitness and nothing else that would include gender-based biases.
- Adherence to Directives: What the Union claimed was that the medical standards and other parameters adopted were in consonance with the directions to make the process only fair and absolutely necessary for maintaining the operational preparedness of the armed forces.
Fundamentally, this case is about whether the Army, in its judgment implementation, fulfilled or continued to perpetuate gender systemic bias with respect to the mandate for gender equality.
COURT’S DECISION AND REASONING[3]
Examination of Criteria and Processes: The Court analysed, critically, if the criteria for medical fitness, applied by the Army and adopted for ACRs and subjective evaluations, were applied uniformly to officers of both the genders. It inquired as to whether the standards for being found medically fit were indeed the only real source of arbitrariness in the decision of the Court were such that it would disproportionately disqualify female candidates who might have qualified on almost all other standards to be considered ineligible. The Court looked at whether appraisal processes were based on outdated or sex-discriminatory concepts of physical strength, which worked in a discriminatory way against women officers.
Adherence to Judicial Directives: The reason also involved finding out whether in fact the practices of the Army adhered to the precepts of the judgment dated 2020. The Court considered whether the Army had in effect removed institutional bias and put in place an evaluation of relevant and fair women officers. These are sifting through the superficiality of compliance on the part of the Army with the Supreme Court’s directions, substantively situating the action taken as adequate to address the concerns of gender equality.
Gender Equality and Fair Implementation: The Court was to monitor the policies and practices in place, which were to engender equal opportunity to the lady officers and in no way foster the preset gender gaps. The ruling was meant to see to it that the fundamental rights of the women officers are considered valid and not discriminative within their process of assessment and promotion in the army, based on the guarantees of equality and non-discrimination found in the constitution.
CRITICAL ANALYSIS AND CONCLUSION Defects of Law [4]
Arbitrary Medical Fitness Standards: A major defect was the arbitrary application of medical fitness standards. According to the petitioners, standards prescribed for women were much tougher than those applied to men for ascertaining their eligibility for grant of PC. The disparity pulled down qualified women officers from getting PC. It showed a defect in applying uniform standards, betraying gender biases in measuring physical fitness.
Subjective Evaluation Processes: Another important flaw was the reliance upon subjective evaluations like ACRs. Subjective judgment thus opened the doors for biases and stereotypes to get reflected in the decisions, by which women officers stood to lose out. The legal regime eluded any provisions for ensuring objectivity and transparency in evaluation criteria and created scenarios of unfair treatment.
Inadequate Implementation of Judicial Directives: The way in which the Army implemented the very reluctant judgment of the Supreme Court in 2020 in the case of Babita Puniya was less than satisfactory. Despite direction by the Court to address gender equality and remove biases, the Army’s procedures remained steeped in archaic practices and biases. This weak implementation at the level of execution therefore diluted the legal reform potency for ensuring equality.
Institutional Biases: These defects were further aggravated by persistent institutional biases. Well-entrenched gender biases of the Army came in the way of a fair legal framework that addressed these problems, thus affecting the fairness of the evaluations and promotions. This has been a continuing problem and requires drastic reforms in view of the principles of gender equality and to uniformly treat all the officers without any bias.
In-depth analysis
Persistent Gender Disparities: The case demonstrates that even after very excellent legal advancements and dictates from the Supreme Court, wide gender disparities persist within the Indian Army. Random application of medical standards and subjective evaluation procedures go further to prove that deep-seated biases in the institutional set-up still influence the deal with women officers. It proves that mere legal pronouncements will not do much good until proper enforcement and systemic changes are implemented.
Gaps in Implementation: Inadequate implementation of the judgment of the Supreme Court from 2020 regarding Babita Puniya speaks to a gap between the mandate given by the law and how it is applied in real life. The inability of the Army to completely revamp its processes in line with the directions of the Court is representative of the compliance deficit problem. This raises the need for robust oversight and continuing reform for changes in judicial decisions into actual change in institutional practices.
It, therefore, calls for comprehensive reforms within the army’s military evaluation and promotion systems. For real gender equality to be achieved, the Army needs to right the defects identified in terms of medical standards that are biased and subjective appraisal methods and adopt transparent gender-neutral criteria. Systemic biases need to be weeded out, making sure that officers are rated under criteria that are unambiguous and fair.
Implications for Future Policy: The judgment has far-reaching implications for future policies and practices concerning gender equality in the armed forces, more particularly underscoring that continuous efforts at eradicating entrenched biases and inculcating a culture of equality are needed. It offers a serious precedent for reviewing and rectifying gender-based imbalances, hence influencing broader military policies and practices.
What has become clear in this case, more than anything, is the fact that the Indian Army does not easily accept gender equality and, therefore, needs robust measures to ensure implementation and sustenance of legal reforms.
Aside from the military, this case is precedent-setting in terms of gender justice in the workplace and promotion within public institutions. It emphasizes the judiciary’s responsibility to enforce constitutional promises and guarantee that gender-neutral policy does not effectively disempower women.
In the future, the government demands structural changes in evaluation and promotion criteria to eliminate ingrained biases. The Indian armed forces need to actively strive for gender-sensitive policy execution, transparent selection processes, and fraud protection measures to avoid discrimination in the future. Such equality can be attained only when merit, and not gender, decides career advancement.
Reference (s):
[1] Nitisha v. Union of India, (2021) W.P. (C) No. 839/2021, Supreme Court of India (Mar. 25, 2021), available at https://indiankanoon.org/doc/190567716/.
[2] Gauri Kashyap, SCO Explains: Indirect Discrimination in the Army, SC Observer (Apr. 30, 2021), https://www.scobserver.in/journal/sco-explains-indirect-discrimination-in-the-army/.
[3] Kruthika R. & Mihir R., Court Recognises Indirect Discrimination & Strikes Down Army’s Gender Discriminatory Promotion Practices, SC Observer (Apr.12, 2021), https://www.scobserver.in/journal/court-recognises-indirect-discrimination-strikes-down-armys-gender-discrimi natory-promotion-practices/.
[4] Dhruva Gandhi, NITISHA V. UNION OF INDIA: FURTHERING A DISCUSSION ON DISCRIMINATORY INTENT, NUJS Law Review (2021), https://nujslawreview.org/wp-content/uploads/2021/07/14.1-Gandhi-1.pdf.
