Supreme Court SC against 'perverse inequality' in Armed Forces

SC against ‘perverse inequality’ in Armed Forces

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New Delhi, Mar 25 (ILNS) Coming down heavily on the Indian Army over the evaluation criteria it adopted for considering the grant of Permanent Commission (PC) for women officers, the Supreme Court today directed the Central government to allow PC to women officers, who were excluded from the same on the ground of unequal application of fitness standards.

A division Bench of the Supreme Court comprising of Justices DY Chandrachud and MR Shah, while hearing a batch of pleas filed by women Army officers seeking grant of permanent commission and related benefits (Nitisha and others vs Union of India and others and connected cases), noted that the fitness standards, known as Shape 1 criteria, 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 pursuant to the Supreme Court’s landmark judgement in Secretary Ministry of Defence vs Babita Puniya and were senior in age. Therefore, applying the Shape 1 Fitness rule to them now would be arbitrary.

“Superficial face of equality will not be in consonance with the principles enshrined in the Constitution,” the Court said. While Shape 1 criteria itself is not arbitrary, there was discrimination in its application, it added.

“Army says 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,” the Court observed.

It, therefore, ruled that women officers who were excluded from PC in November 2020 based on non-compliance with Shape 1 Fitness standards are entitled to continue as permanent commissioned force till they fulfil the fitness criteria needed for continuance in service.

The Court noted that the Centre’s stance was based on gender stereotypes and societal notions on gender roles that men are physically stronger while women are weak and submissive.

It turned down the argument of the Central government that such additional standards were set since the usual upper limit of 250 Permanent Commissions a year was not followed this time in view of the Supreme Court’s landmark judgement in Babita Puniya.

“Applying this ceiling is to bypass the route for women officers. Process by which women SSC officers were considered for PC was based on belated application of the Babita Puniya verdict. Finest women officers have been ignored on the specious grounds that their awards and merit was on 5th and 10th year of service,” the Court noted.

The Court further held that societal structures have been “created by males for males”.

“Some look harmless but it’s a patriarchal reflection of our society. It is not correct to say that women serve in the Army when the real picture is different. Superficial face of Equality does not stand true to the principles enshrined in the Constitution,” the Court said.

The Supreme Court, in February last year, had directed that women officers in the Army be granted Permanent Commission on par with their male counterparts. The Court had, in the process, held that the Centre’s stance was based on gender stereotypes and societal notions on gender roles that men are physically stronger while women are weak and submissive.

The Court had found that those arguments were disturbing, apart from being contrary to Central government’s own 2019 policy. It had, therefore, directed the Central government to implement the Court’s ruling within three months.

However, 60 women officers alleged that they were denied Permanent Commission in the Army on the ground of failure to adhere to SHAPE – I fitness and had moved the top court.

During the hearing, the Bench of Justices DY Chandrachud and MR Shah had questioned the Army for denying Permanent Commission to the petitioners by requiring them to have the same fitness standards which are mandated for 25-year-old male officers. The Court said there cannot be a “perverse inequality” in the Armed Forces.

Additional Solicitor General Sanjay Jain, appearing for the Ministry of Defence, had told the Court that the Centre applied the same rules to male officers as well.

He added that the Centre’s intentions were not mala fide.

“We have applied those tests which meet the standards of objectivity and include the maximum possible people, and have kept within the realm of our policy in doing so,” he argued.

He had also contended that though the normal rule is that not more than 250 officers can be granted Permanent Commission in a year, there was no such vacancy benchmark for this year in view of the Supreme Court’s verdict in Babita Puniya. This, he said, was the reason for setting a medical benchmark.

Justice Chandrachud, while hearing an unrelated case recently, had remarked that it was satisfying to have 422 women getting Permanent Commission pursuant to the February verdict. ILNS/SNG/RJ

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