Armed Forces:Permanent Commission (PC) – Claim of women engaged on Short Service Commission (SSC) in the Indian Army – Said claim held to be justified by this Court in Babita Puniya’s case – Thereafter, issuance of directions to the Union Government to grant of PCs to Women SSC Officers in armed services – Petitioners aggrieved by the steps taken by the Union Government to implement Babita Puniya’s case-conduct of special selection procedure to screen WSSCOs for grant of PC on the same terms as their male counterparts; SHAPE-1 Medical criteria; performance in the fifth year of their service; 60 per cent cut-off grade and an annual cap of 250 – Writ petition u/Art. 32 challenging the modalities followed in assessing the 615 WSSCOs for grant of PC after Babita Puniya’s case – Held: Evaluation criteria set by the Army constituted systemic discrimination against the petitioners – Evaluation pattern disproportionately affects women – This disproportionate impact is attributable to the structural discrimination against women – Facially neutral criteria of selective (Annual Confidential Reports) evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-à- vis their male counterparts – Exclusion of subsequent achievements of the petitioners and casual grading and skewed incentive structures resulted in indirect and systemic discrimination – This discrimination has caused an economic and psychological harm and an affront to their dignity – Issuance of directions that requirement of bench-marking women officers with officers lowest in merit in corresponding male batch is arbitrary and irrational and would not be enforced while implementing Babita Puniya’s case; that officers who have fulfilled the cut-off grade of 60 per cent in Special selection Board entitled to grant of PC; that medical criterion to be applied at the time of 5 th year/10th year of their service; that WSSCOs not considered to be eligible for grant of PC, to be extended one-time benefit; and that all consequential benefits including the grant of time scale promotions to be granted – Constitution of India – Arts. 32, 14, 15(1). Permanent Commission – Claim of women – Medical criteria prescribed by the Army – Judicial review of – Held: Physical fitness is crucial for securing a place in the Army – While exercising judicial review, the Court must be circumspect on dealing with policies prescribed for the Armed Forces personnel on physical and mental fitness – There can be no judicial review of the medical standards adopted by the Army, unless they are manifestly arbitrary and bear no rational nexus to the objects of the organization – SHAPE criterion is per se not arbitrary – Constitution of India. Constitution of India : Art. 14 – Right to equality – Equal opportunity in public employment and gender equality – Held: Since independence there is continuous endeavor to achieve equal opportunity in public employment and gender equality – Structures of the society have been created by males and for males – Facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint – Thus, adjustments, both in thought and letter, necessary to rebuild the structures of an equal society – These adjustments and amendments are not concessions being granted to a set of persons, but are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women – It cannot be said that the women officers are allowed to serve the Armed Forces, when the true picture of their service conditions is totally different – Superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic. Gender justice: Anti-discrimination law – Concept of – Formal versus substantive equality – Held: Under the formal and symmetric conception of anti discrimination law, the law requires is that likes be treated alike – It is premised on the notion that fairness demands consistency in treatment – The fact that some protected groups are disproportionately and adversely impacted by the operation of the concerned law or its practice, makes no difference – On the other hand, under a substantive approach, the anti discrimination guarantee pursues more ambitious objectives – This conception eschews the uncritical adoption of laws and practices that appear neutral but in fact help to validate and perpetuate an unjust status quo – Constitution of India – Art. 14 and 15(1). Indirect discrimination – Doctrine of – Held: Is closely tied to the substantive conception of equality – Use of the term ‘indirect discrimination’ is not to refer to discrimination which is remote, but is as real as any other form of discrimination – Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion – In evaluating direct and indirect discrimination, it is important to underscore that these tests, when applied in strict disjunction from one another, may end up producing narrow conceptions of equality which may not account for systemic flaws that embody discrimination – Doctrine seeks to broaden the scope of anti-discrimination law to equip the law to remedy patterns of discrimination that are not as easily discernible. Indirect and direct discrimination – Difference between – Held: As long as a court’s focus is on the mental state underlying the impugned action that is allegedly discriminatory, it is the area of direct discrimination – However, when the focus switches to the effects of the concerned action, it is indirect discrimination – An enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its consequences – In a case of direct discrimination, the judicial enquiry is confined to the act or conduct at issue, abstracted from the social setting or background fact- situation in which the act or conduct takes place – In indirect discrimination, on the other hand, the subject matter of the enquiry is the institutional or societal framework within which the impugned conduct occurs. Systemic Discrimination – Explanation of – Systemic discrimination as antithetical to substantive equality – Held: Emphasis on intent alone as the key to unlocking discrimination has resulted in several practices, under the veneer of objectivity and equal application to all persons, to fall through the cracks of our equality jurisprudence – Indirect discrimination as a tool of jurisprudential analysis, can result in the redressal of several inequities – In order to conceptualize substantive equality, it would be apposite to conduct a systemic analysis of discrimination that combines tools of direct and indirect discrimination – Particular discriminatory practice or provision might often be insufficient to expose the entire gamut of discrimination that a particular structure may perpetuate – Exclusive reliance on tools of direct or indirect discrimination may also not effectively account for multiple axles of discrimination – Therefore, a systemic view of discrimination, in perceiving discriminatory disadvantage as a continuum, would account for not just unjust action but also inaction – Duty of constitutional courts, when confronted with such a scheme, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social re- distribution by providing for positive entitlements that aim to negate the scope of future harm – An analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving the constitutional vision of equality and anti-discrimination. Doctrine of indirect discrimination – Comparative study – Position in India, United States, United Kingdom, South Africa, Canada – Discussed.