The Supreme Court has held that the policies to grant permanent commission for women officers in the Army constituted ‘systemic discrimination’. Combining principles of indirect discrimination and systemic power hierarchies, the judgment calls for substantive equality in anti-discrimination law. Justice Chandrachud pronounced the judgment for the two-judge bench of the Court, with Justice MR Shah on 25 March 2021.
Case Background and Facts
The case, Lt Col Nitisha & Ors v Union of India, dealt with the claims of 86 petitioners, who were women short service commission (SSC) officers in the Indian Army. SSC positions can only be taken up for 10 or 14 years, as opposed to Permanent Commissions (PC) that allow officers to work until the age of retirement. In February 2020, the Supreme Court held that women officers in the Indian Army to be granted PCs.
Following this decision, the Army constituted a ‘Selection Board’. It applied criteria which was almost identical to the one applied to male SSC officers when granting them PC. This includes, in particular, criteria on medical fitness and reliance on annual confidential reports (ACRs).
While the medical fitness criteria was suitably adapted for women, the fitness was tested at their current age. Male officers had their fitness tested either 10 or 14 years into their service, when they chose to opt for PC. Women SSC officers, after the Delhi HC decision in 2010, were allowed to serve as SSC officers beyond 14 years. When the Board finally evaluated them for PCs in 2020, many of them were tested for fitness after more than 14 years of service. Male PC officers did not undergo fitness testing once they had received PC status.
ACRs are evaluation reports of SSC officers that are a factor in determining whether an officer is worthy of being granted PC. Since women did not have the opportunity to get a PC until 2020, the petitioners argued that ACRs were not completed by supervisors with the same diligence. Further, various optional training modules were not open to women. Where they were, women did not have the incentive to apply for them since the option to apply for PC was not open to them.
Further, the rules stated that if there more than 250 officers crossed a 60% cut-off, then the officers with the top 250 marks would get PC on competitive merit. The Army sought to apply a similar competitive merit principle for women SSC officers. It granted PC to those who exceeded the mark granted to the male officer who had attained PC with the lowest mark in their batch. They made male officers’ mark a ‘benchmark’ for women, to ensure competitive merit.
Indirect and Systemic Discrimination
Justice Chandrachud highlighted the difference between formal and substantive equality. Formal equality only requires that like be treated like. So, if an act classifies people without good reason, then it would be discriminatory. Substantive equality requires a deeper understanding of equality and discrimination such as indirect discrimination. This is when an action has a disproportionate impact on a certain community, even if it is seemingly ‘neutral’ and treats all alike.
The judgment provides a comprehensive review of theory and comparative jurisprudence on indirect discrimination. It also points out that while the concept is nascent in Indian jurisprudence, it has been applied in some recent judgments, such as Anuj Garg, Navtej Johar and Vikash Kumar. Justice Chandrachud then arrives at five principles to apply indirect discrimination in Indian law.
First, discrimination can be a consequence of not just intent, but unconscious biases and existing structures that perpetuates an unjust status quo. Second, indirect discrimination occurs when there is an effect of unfair treatment, irrespective of intent. Third, the evidence required can, but need not necessarily be, statistical or cross a particular quantitative threshold. Fourth, borrowing from Fraser v Canada, a two-step enquiry should be conducted. In addition to whether there is a disproportionate effect on a particular group, the Court must look at whether the law has an effect of ‘reinforcing, perpetuating or exacerbating disadvantage’. Fifth, the test to assess a challenge based on indirect discrimination should check whether the measure is necessary for ‘successful job performance’ as well as whether less discriminatory alternatives exist.
Justice Chandrachud then goes further. He states that indirect discrimination must not be viewed alone. Instead, it must be seen as a conceptual tool, along with direct discrimination, to understand systemic discrimination. This calls for an understanding that discrimination is situated within how structures are organised. This means that remedies cannot stop at compensation, and the law cannot stop at striking down actions that discriminate. The Court should be able to go beyond and provide for positive change that can change these structures.
The Verdict
Consequently, the Court held that the grant of PCs to women SSC officers was constituted indirect and systemic discrimination. Medical fitness should be tested 10 or 14 years into service, not at the time of selection in 2020. The mistake of the Army in delaying inclusion does not mean their medical test takes place later into their service than men. ACRs should also be evaluated keeping in mind that they may not have been filled with diligence and women may not have had the same opportunities.
The mark required for PC could also not be benchmarked to men. It was an arbitrary standard. In most years, more than 250 male officers had not been granted PC anyway. In other years, more than 250 had. It was clear the rule of 250 PCs a year was not seriously followed and there was no need to introduce an element of ‘competitive merit’. All women who had passed the 60% cut-off mark should be granted PC
The verdict pointed out that while these rules were facially neutral, in their application, they were unfair on women and perpetuated the after-effects of the same exclusion done in the past.
How far can Systemic Discrimination Go?
Justice Chandrachud has been self-aware in recognising that indirect discrimination is ‘nascent’ in India. This case is one of the first that applies a test of indirect discrimination as a doctrine. More conservative lawyers and judges might refuse to carry forward the doctrine in this case.
Justice Chandrachud develops a convincing case for applying indirect discrimination from a theoretical perspective, however the effort to ground this Indian constitutional jurisprudence is very brief. The extensive citation of foreign jurisprudence can only have persuasive and comparative value. Justice Chandrachud cites 9 Indian cases- 7 from the Supreme Court and 2 from the Delhi High Court.
The first case is Anuj Garg. While the case can be read as taking a ‘systemic’ approach to analysing the law, the case can be read as applying only direct discrimination. The law challenged there did classify based on sex. The Court took a systemic understanding of sex-based stereotypes, but it did not necessarily go beyond the unreasonable ‘intent’ of the law and state that the provision was indirectly discriminatory in effect alone. The cases of NALSA and Navtej Johar are both landmark human rights cases in India. However, while both undertake a ‘systemic’ analysis of oppression, the tests they apply do not necessarily look at the effect, save one of the five judgments in Navtej Johar by Justice Chandrachud. Jeeja Ghosh and Vikash Kumar took forward the conversation on disability rights in India and systemic oppression, but similarly do not address indirect discrimination. Two cases, Indian Young Lawyers Association and Joseph Shine, are mentioned in the footnotes. However, they too merely recognise in passing comment that oppression occurs systematically.
The two Delhi High Court cases cited, Inspector (Mahila) Ravina and Madhu v Norther Railways, however, both do apply a test of indirect indiscrimination. However in Dr Jacqueline Jacinta Dias, the same Court was reluctant to apply indirect discrimination since there was no legislation to guide the Courts as there was in the EU and the UK. Systemic discrimination, even when found in the above judgments, has been used more often as a description rather than a legal doctrine.
Ultimately, the judicial method of developing a doctrine of indirect or systemic discrimination will rest on shaky foundations. It requires judges to buy into the concept, and requires us to rely on the better wisdom of Courts to recognise the concept. Chandrachud recognises that for the labouring class in India ‘facing multiple axels of marginalisation, litigating their right to work with equality and dignity may be a distant dream’. Academics and activists have pointed out that a framework for equality will be more stable from legislation such as an Equality Act that envisions a radical change in duties, obligations and rights in society at an individual level.
A part of this article was edited, co-written and originally posted on the Supreme Court Observer.
Mihir Rajamane 
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