JUDGMENT :

Dhananjaya Y Chandrachud, J.

This judgment has been divided into the following sections to facilitate analysis:

A A long and winding road

B Steps for implementing the decision in Babita Puniya

C Criteria for the grant of PCs

C.1 Medical Criteria

C.2 Substantive Assessment for PC

D Evaluation of the credentials of 615 Women SSCOs

E Submissions

E.1 Submissions of petitioners

E.2 Submissions of the respondents

E.3 The petitioners in rejoinder

F Systemic Discrimination

F.1 Theoretical Foundations of Indirect Discrimination

F.2 Position in the United States

F.3 Position in the United Kingdom

F.4 Position in South Africa

F.5 Position in Canada

F.6 Evolving an analytical framework for indirect discrimination in India:

F.7 Systemic Discrimination as antithetical to Substantive Equality

G Analysis

G.1 Selection Process & Criteria set by the Army

G.2 Benchmarking with the Lowest Male Officer

G.3 Reliance on Annual Confidential Reports

G.4 Medical Criteria

G.5 WSSCOs belonging to WSES(O) 27-31 and SSC(T&NT) 1-3 who had not completed 14 years of service as on the date of Babita Puniya

H Conclusion and directions

“I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks”¹[Late Justice Ginsburg quoted Sara Grimké, noted abolitionist and advocate of equal rights of men and women, while arguing before the Supreme Court of the United States of America in Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson, Secretary of Defense, et al., 411 U.S 677.]

-Late Justice Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States of America

A A long and winding road

1. By the judgment of this Court in Secretary, Ministry of Defence v. Babita Puniya, “Babita Puniya”, (2020) 7 SCC 469, the claim of women engaged on Short Service Commissions³[“SSCs”] in the Indian Army for seeking Permanent Commission⁴[“PC”] was evaluated and held to be justified. Addressing the background of the dispute, the judgment described this as “a quest for equality of opportunity for women seeking PCs”. As the Court observed, “a decade and more spent in litigation, women engaged on Short Service Commissions in the Army seek parity with their male counterparts”. The battle for equality has been long drawn, engaging as much with reforming mindsets as with implementing constitutional principles.

2. The path traversed by the Women SSC Officers⁵[“WSSCO”] commenced with a writ petition in public interest before the Delhi High Court in 2003. The judgment of the Delhi High Court which substantially upheld the entitlement of the WSSCOs was rendered on 12 March 2010⁶[WP(C) No. 1597 of 2003 (High Court of Delhi)]. The judgment of the Delhi High Court and its directions⁷[The directions of the Delhi High Court were in the following terms:

“62.***

(i) The claim of absorption in areas of operation not open for recruitment of women officers cannot be sustained being a policy decision.

(ii) The policy decision not to offer PC to Short Service Commissioned officers across the board for men and women being on parity and as part of manpower management exercises is a policy decision which is not required to be interfered with.

(iii) The Short Service Commissioned women officers of the Air Force who had opted for PC and were not granted PC but granted extension of SSCs and of the Army are entitled to PC on a par with male Short Service Commissioned officers with all consequential benefits. This benefit would be conferred to women officers recruited prior to change of policy as (ii) aforesaid. The Permanent Commission shall be offered to them after completion of five years. They would also be entitled to all consequential benefits such as promotion and other financial benefits. However, the aforesaid benefits are to be made available only to women officers in service or who have approached this Court by filing these petitions and have retired during th