CRUX: Lt Col. Nitisha v. Union of India (25th March, 2021) -The present case deals with the issue of discrimination in granting of permanent commission of women Army officers.
DATE OF JUDGMENT : 25th March, 2021.
JUDGES: D.Y. Chandrachud, M.R. Shah.
SUMMARY: The following case deals with the issue of whether or not granting of permanent commission of women Army officers leads to indirect discrimination.
1. The court in the present case sought to refer to the doctrine of indirect discrimination and whether consideration to grant permanent commission for women officers to be arbitrary and irrational.
2. Doctrine of indirect discrimination refers to an apparently “neutral” law which has been applied to everyone equally but it favors a particular group over a disadvantaged group. To determine indirect discrimination, it is important to determine the consequences or effects of a law.
3. The court observed that if there was indirect discrimination, or even sans discriminatory intent, must be prohibited to achieve equality under the provisions of the Constitution.
4. The appellants contended that the procedure laid down in the General Instructions of the Army were arbitrary and unjust to women officers who are in the age group of 40-50 years of age and were required to conform to the medical standards that a male officer would have to conform to at the group of 25 to 30 years.
5. The appellants also contended that owing to the physiological changes occurring due to natural processes, women officers were unable to meet the stringent criteria laid down by the General Instructions.
The following issues were analyzed by the court:
1. The counsel for the appellants contended that the procedure laid down in the General Instructions was a mechanical reproduction of the existing procedure for male officers, who are evaluated for permanent commission in their 5th or 10th year of service, without making any modifications.
2. The counsel contended that the medical criterion laid down in the General Instructions was arbitrary and unjust as the women officers who are in the age group of 40-50 years of age are being required to conform to the medical standards that a male officer would have to conform to at the group of 25 to 30 years.
3. The counsel for the appellants also contended that in comparison to the women officers, the male officers who were granted permanent commission in their 5th or 10th year of service continue to serve in the Army on different ranks, regardless of whether they have undergone any physiological changes. Thus, medical conditions at a later age were not an impediment in the career progression of male officers as once the permanent commission was granted; there was no repeated medical scrutiny.
4. The counsel for the appellants further submitted that owing to the physiological changes occurring due to natural processes, women officers were unable to meet the stringent criteria laid down by the General Instructions.
5. The counsel for the respondents contended that the appellants should have approached the Armed Forces Tribunal with their statutory grievance as has been held by the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa and Ors (1983) 2 SCC 433.
6. The counsel for the respondents also contended that the Army accounted for physiological changes occurring during childbirth and time waivers were provided in accordance with existing policies. Other physiological changes such as obesity and age were independent of gender and the petitioners cannot seek an exemption on that ground.
7. The court held that systemic discrimination as antithetical to substantive equality. Indirect discrimination as a tool of jurisprudential analysis, could result in the redressal of several inequities by probing provisions, criteria or practice that have a disproportionate and adverse impact on members of groups who belong to groups that are constitutionally protected from discrimination under Article 15(1).
8. The court also held that systemic discrimination on account of gender at the workplace would then encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset, including reproduction, sexuality and private choices which operate within an unjust structure.
9. In propounding this analysis, the court held that it was conscious of the practical limitations of every framework to understanding workforces, considering the bulk of litigation against systemic discrimination, would be from members of an organized and formal workforce who would have the wherewithal and evidence of patterns or practices to bolster their claims.
10. Therefore, the court concluded by stating that in order to achieve substantial equality, indirect discrimination, even without discriminatory intent, was to be prohibited.
The issue that the present case deals with is the issue of discrimination in granting of permanent commission of women Army officers.
The court held that indirect discrimination, if there was any, was to be prohibited, even if there was discriminatory intent. The court observed that the distinction between direct and indirect discrimination was to be broadly be drawn on the basis of the former being predicated on intent, while the latter was based on effect.
With regards to indirect discrimination, the court took reference to a judgment given by the Canadian Supreme Court in the case of Fraser v. Canada (Attorney General) (2020 SCC 28), which held that there should be a two-stage test to determine indirect discrimination.
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