[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
In early 2020, the Supreme Court delivered judgment in Secretary, Ministry of Defence vs Babita Puniya, holding that the Indian Army’s policy of denying women officers a permanent commission [“PC”] was discriminatory. Following this judgment, the Union Government put into place a procedure for the grant of PCs to eligible women officers. The results of this process – that involved 615 eligible women officers – spurred a second round of litigation before the Supreme Court. In a judgment delivered yesterday, Lt. Col Nitisha vs Union of India, the Supreme Court – speaking through a bench of Chandrachud and Shah JJ – held that the implementation of the Babita Puniya judgment had also been discriminatory. In particular, the importance of Lt. Col. Nitisha lies in the fact that the criteria for grant of PCs to women were facially neutral, but found to be indirectly discriminatory. This marks the first occasion that the Supreme Court has categorically held indirect discrimination to violate the Constitution, and set out an account of what indirect discrimination entails.
As in Babita Puniya, the facts of the case are somewhat complicated, and this post must necessarily present a somewhat schematic account. Broadly, there were three contentious criteria of assessment for the grant of PC: first, that the women officers had to clear a certain percentage score, as well as score higher than the lowest scoring male officer who had been awarded a PC; secondly, that Annual Confidential Reports [“ACRs”] were to form part of the grading; and thirdly, certain medical requirements had to be fulfilled.
On the face of it, these criteria were neutral, i.e. they did not, on their face, discriminate between male and female officers. On digging a little deep, however, it was found that the very fact that for all these years, women had not been eligible for the grant of PCs, had a direct bearing on some eligible candidates’ failure to fulfil the criteria. For example, ACRs were prepared with a view to recommendations for the grant of a PC. Given that female officers had not been eligible for PCs, in their case, the reports were more lackadaisical than those of their male counterparts; these were also affected by the fact that women officers had not applied for a range of opportunities, or courses, that were supposed to be considered in the ACRs. This was because their career options had hitherto been blocked – thus, effectively, leading to a cycle of discrimination that now meant that they applied with relatively unfavourable ACRs. Similarly, with respect to the medical criteria, the Court found that male officers took their medical tests at the time they applied for PCs (and once granted PCs, they were not required to maintain the same levels of fitness). However, female officers – who had been ineligible all these years – were now required to prove the very level of fitness that otherwise similarly situated male officers were no longer required to prove (as they had been granted PCs many years before).
Of course, other than the requirement of scoring higher than the lowest-scoring male candidate, none of the eligibility criteria required any facial comparison between women and men. For this reason, the Supreme Court was required to reach further, and articulate an alternative model of equality and discrimination. It did so by drawing a distinction between intention and effect, and discrimination wrought by individual acts on the one hand, and by the impersonal workings of institutions and structures on the other. Chandrachud J. held that the concept of substantive equality – to which the Constitution was committed – required accounting for both systemic and indirect discrimination (paragraph 45). After an extended comparative examination (paragraphs 51 – 65), Chandrachud J. held that the two-step test for discrimination evolved in the Canadian Supreme Court case of Fraser (discussed on this blog here) was the most appropriate. The Fraser test – as set out by the Supreme Court – requires that:
First, the Court has to enquire whether the impugned rule disproportionately affects a particular group. As an evidentiary matter, this entails a consideration of material that demonstrates that “membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group”. However, as such evidence might be hard to come by, reliance can be placed on evidence generated by the claimant group itself. Further, while statistical evidence can serve as concrete proof of disproportionate impact, there is no clear quantitative threshold as to the quantum of disproportionality to be established for a charge of indirect discrimination to be brought home. Equally, recognizing the importance of applying a robust judicial common sense, the Court held: “In some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate” … Second, the Court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.” (para 65)
The Court also noted that while statistical data would aid in establishing a finding of indirect discrimination, it would not necessarily exist in every case (paragraph 68); and that while due deference ought to be accorded to employer arguments around suitability criteria for the job, the Court would have to be vigilant to avoid endorsing the same stereotypes or generalisations that were responsible for the discrimination in the first place (paragraph 70). Effectively, the Court indicated that it would have to check whether the employer had acted proportionately – ensuring, for example, that there were no other measures that could have been taken that did not have the same discriminatory effect. The Court correctly noted, as well, that structural discrimination would often require structural remedies (paragraph 73).
Applying this analytical framework to the case at hand, indirect discrimination was easily made out. It was the very fact that female officers had been formally denied a set of opportunities for all these years, that now ensured that a seemingly neutral set of criteria – neutral in that the same set of criteria was applied to eligible male candidates – was discriminatory in effect (note that the female candidates were not competing against male candidates in this case, so this judgment also shows that a finding of discrimination does not need a comparator group). The quality of the ACRs, the limited consideration of awards or achievements attained only as on the 5th or 10th year of service, and so on, were all indications of this. Thus, as Chandrachud J. pointed out: “A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts.” (para 96). The same was the case with the medical fitness criteria, as explained above: while there was nothing wrong with the criteria per se, it was their application that was indirectly discriminatory. Female officers, who were not eligible for PC for all these years, were asked to pass a medical test now that their similarly situated male counterparts had been entitled to take at a substantially younger age (and then not required to maintain). Thus the Court held:
The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service. (para 112)
While the facts of this case are undoubtedly complex, it will be easy to see what the Court was trying to remedy by looking at another similar case, but with much simpler facts. In Australian Iron and Steel Co v Bankovic, a company imposed a “last in, first out” retrenchment policy (i.e., you got retrenched based on how short a time you spent in the company). It turned out, however, that the company had only recently begun to employ women, and that therefore, the retrenchment policy was much more likely to target women, simply for this reason. This was found indirectly discriminatory. Thus, this was the sequence: first, there was formal and direct discrimination, that put women at a disadvantage. Then, formal discrimination was ended, but criteria were put in place that failed to account for that prior disadvantage – and thus ended up entrenching and perpetuating it, indirectly. In a very similar way, in this case, for the longest time, women faced formal and direct discrimination by not being eligible for the grant of PC. This formal discrimination was struck down by the Court in Puniya – but the policy that was framed for implementing it failed to account for the disadvantage that had been caused (directly) all these years. Thus, by the very fact of its “neutrality”, the policy was indirectly discriminatory.
Of course, not all such examples of indirect discrimination will be as clean-cut – that is, effectively piggybacking off former direct discrimination. Importantly, however, as we have seen above, Chandrachud J.’s formulation was detailed enough to address those more complex cases when they do arise. The proof of the pudding is, of course, in the eating, but for now Lt Col Nitisha’s Case marks an important advance in its acknowledgement, recognition, and articulation of indirect discrimination under the Indian Constitution.