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The authors of this post are Diya Agrawal & Muskan Pamnani<\/strong><\/em><\/em><\/em><\/strong><\/em><\/em><\/strong><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/em><\/strong><\/em><\/strong><\/em><\/strong><\/strong><\/strong><\/em><\/strong><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/em><\/em><\/em><\/strong> ,<\/strong><\/em><\/em><\/em><\/strong><\/em><\/em><\/strong><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/em><\/strong><\/em><\/strong><\/em><\/strong><\/strong><\/strong><\/em><\/strong><\/strong><\/em><\/strong><\/em><\/strong><\/em><\/em><\/em><\/em><\/strong><\/strong><\/em><\/em> students at National Law University, Delhi and <\/em>Dr.Ram Manohar Lohiya National Law University, Lucknow.<\/p>\n Introduction<\/span><\/span><\/strong><\/p>\n In February 2020 the Hon\u2019ble Supreme Court (SC) of India in the case of Ministry of Defence v. Babita Puniya<\/a> (\u2018Babita Puniya\u2019) upheld the claim of women Shot Service Commission (SSC) officers to be granted a Permanent Commission (\u2018PC\u2019) in the Indian Army. After a year, on 25th March 2021 in the case of Lt Col. Nitisha v. Union of India<\/a> the SC dealt with the criteria outlined in Babita Puniya for granting of Permanent Commission to women army officers being purportedly neutral but deemed to be indirectly discriminatory.\u00a0<\/p>\n BRIEF FACTS<\/span><\/strong><\/p>\n The Central Govt. according to Babita Puniya, wherein the Court issued several directives concerning the evaluation of female officers set forth the three contentious criteria: firstly, women officers have to clear a certain percentage score, as well as score higher than the lowest-scoring male officer who had previously been awarded a PC; secondly, Annual Confidential Reports (\u2018ACRs\u2019) were to be included in the grading; and lastly, certain medical requirements had to be met. These criteria\u2019s were contended as on the surface they appeared to be neutral and not discriminate between male and female officials but the women officers had been ineligible for PCs for all of these years.\u00a0<\/p>\n CONTENTIONS ON BEHALF OF PETITIONERS\u2019<\/span><\/strong><\/p>\n The petitioners contested that the medical criterion outlined in the General Instructions was arbitrary and unreasonable, because women officers in the age group of 40-50 years were obliged to meet the same medical standards as that of their male counterparts in the age group of 25 to 30 years. They added that medical disorders at a later age were not a hindrance to male officers\u2019 career advancement, because once a permanent commission was awarded, there was no need for medical evaluation. They argued that the reliance on ACRs was incorrect because these reports were frequently made on the spur of the moment given that women were frequently refused access to these courses; the associated benefit was also missing from their ACRs.<\/p>\n CONTENTIONS ON BEHALF OF RESPONDENTS<\/span><\/strong><\/p>\n The respondents argued that the Army took into account physiological changes that occur during childbirth and that time waivers were granted in compliance with existing procedures. Other physiological changes, such as obesity and age, were unrelated to gender; therefore the petitioners were unable to claim an exemption on that basis. They added that no SSC officer had ever been denied a leave of absence due to medical reasons. Furthermore, the SHAPE-1 (Psychology, Hearing, Appendages, Physical Capacity, Eyesight) assessment was performed based on the candidate\u2019s age and height, thus age-related changes would be taken into account anyhow. Respondents at last argued that any statutory grievance should have been filed with the Armed Forces Tribunal, as held in Titaghur Paper Mills Co. Ltd. v. State of Orissa and Ors<\/a>.<\/p>\n JUDGEMENT<\/span><\/strong><\/p>\n The SC in Lt Col. Nitisha observed that systemic discrimination is incompatible with substantive equality by probing into provisions, criteria, or practises that have a disproportionate and adverse impact on members of groups that are constitutionally protected from discrimination under Article 15(1) of the Constitution. As a result, the court ruled that indirect discrimination, even without discriminatory intent, must be prohibited to attain substantial equality.<\/p>\n The Court on medical fitness noticed that it should be assessed not at the time of selection, but after 10 or 14 years of service. The Army\u2019s error in delaying inclusion does not imply that women\u2019s medical exams take place later in women\u2019s service than men\u2019s. On ACRs SC ruled that it should be assessed with the understanding that they may not have been filed with diligence and that women may not have had the same opportunity when compared to their male counterparts.\u00a0<\/p>\n Concerning the score criteria for PC the court ruled that the given criterion was an arbitrary and could not be compared to that of men and there was no need to include a component of \u201ccompetitive merit.\u201d PC should be awarded to all women who met the 60 percent cut-off. The ruling stated that, while these restrictions appeared to be neutral on the surface, they were applied in a way that was unjust to women and perpetuated the impacts of previous exclusion.<\/p>\n CRITICAL ANALYSIS<\/span><\/strong><\/p>\n The SC ruling in this case was based on the principle of indirect discrimination, having its origin in the case of Griggs v Duke Power<\/a> wherein the U.S SC took into account not just the discriminator\u2019s intent, but also the policy\u2019s effect. The SC of India previously identified indirect discrimination in the case of Navtej Singh Johar v. Union of India<\/a>\u00a0 and Naz Foundation v. Government of NCT of Delhi<\/a>. But this is the first time the SC has declared indirect discrimination to be unconstitutional and defined what constitutes indirect discrimination and has given a comprehensive interpretation of the doctrine, and also determined the problem and disseminates measures to adequately remedy the problem.\u00a0<\/p>\n The SC avoided an absolutist approach in terms of the form of the evidence that could be used to prove indirect discrimination. The Court reasoned that collecting statistical evidence is one way to check and lack of it cannot be used to invalidate indirect discrimination allegations. The basis behind this reasoning of the SC is the case of Orsus and Ors v. Croatia<\/a> in which the European Commission of Human Rights noted that indirect discrimination might be proven without statistical proof when considering the claims of racial discrimination and segregation in schools with Roma-only classrooms.<\/p>\n The SC should be commended for recognising and defining the \u201cindirect discrimination,\u201d although it has misinterpreted \u201cintention\u201d as the distinguishing marker between the indirect from direct discrimination by stating the \u201cintention versus effects distinction.\u201d The authors believe that the intention should not be a distinguishing factor because it adds an additional burden on the plaintiff to prove intention when considering the artificiality of \u2018intention\u2019 as a marker of distinction, even there is no link between discrimination\u2019s \u201cintention\u201d and the \u201charms\u201d it causes. Given that no account of discrimination law seeks to punish the offender, putting intention at the centre of direct discrimination just serves to divert attention away from the wrong that needs to be corrected and toward the culprit\u2019s moral culpability (or lack thereof). In an instance of direct discrimination, a perpetrator may use a neutrally stated rule, measure, or practise with as much hostile intent as a marker such as race, caste, or gender.\u00a0<\/p>\n When considering how \u2018discriminatory purpose\u2019 has been understood in practise, the difficulty with characterising intention as a required element of direct discrimination comes to the fore. The Supreme Court in future circumstances, Aziz Huq\u2019s research<\/a> should be taken into account which is based on US law that divides discriminatory intent or expressions into five categories. It was explained in his research that in practise, evidence of the semantic content of laws has been prioritised over circumstantial, statistical, or testimonial evidence, with the result that court have effectively reduced disparate treatment actions to an anti-classification approach, ignoring other forms of direct discrimination. The Court may need to reconsider the link between purpose and direct discrimination, or it may need to broaden the definition of discriminatory intent. The additional issue with the concentration on \u201cintention\u201d is the parochial manner in which \u201cdiscriminatory purpose\u201d has often been regarded, or may be construed. By limiting the extent of \u201cintention,\u201d the scope of a direct discriminating action is also limited.\u00a0<\/p>\n