Case BriefsSupreme Court

Supreme Court: In yet another big verdict on rights of women, a bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has lifted the statutory bar on the engagement or enrolment of women in the Indian Navy to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the Navy Act, 1957.

On the contention that certain sea-going duties are ill-suited to women officers, the Court said that such contention is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are illsuited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

The Court, hence, passed the following directions:

  • By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations;
  • The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced;
  • The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside;
  • All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs.

“The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher”

  • The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts;
  • The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely:
    • availability of vacancies in the stabilised cadre at the material time;
    • determination of suitability; and
    • recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies;
  • SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due;
  • All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;
  • As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and

The Court, further directed that 5 women Commanders, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna, who were not reinstated despite Court’s interim order, shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at ? 25 lakhs each.

Earlier, the same bench had ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

[Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326, decided on 17.03.2020]

Case Briefs

Supreme Court:

“Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court.”

In a major verdict today, the bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. The Court also ordered that after the judgement of Delhi High Court, Centre should grant permanent commission to women officers.

Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

The Court took a strong exception to the following submissions made by the Union of India,

(i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;

(ii) Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;

(iii) A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;

(iv) An all-male environment in a unit would require „moderated behavior? in the presence of women officers;

(v) The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and

(vi) The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”.

Terming the aforementioned submissions ‘disturbing’, the Court said that reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the „weaker? sex and may not undertake tasks that are “too arduous” for them. It said,

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

The Court further highlighted that numerous other commendation certificates and laurels achieved by women officers have been placed on record. Their track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.

The Court, hence, issued the following decisions:

(i) The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:

(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;

(b) The option shall be granted to all women presently in service as SSC officers;

(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;

(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;

(e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;

(f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and

(g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.

(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and

(iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.

[The Secretary, Minister of Defence v. Babita Puniya, 2020 SCC OnLine SC 200, decided on 17.02.2020]

Case BriefsForeign Courts

Supreme Court of Sri Lanka: In this appeal violation of Right to Equality was contended which was even upheld by the bench of Sisira J. De Abrew, A.C.J. and L.T.B. Dehideniya and P. Padman Surasena, JJ.

In the pertinent case, appellant complained that his fundamental rights guaranteed under Article 12(1) of the Constitution has been violated by Respondent 1. His child was not admitted to Grade I in Vishaka Vidyalaya, Colombo in the year 2014 even after the directions of the Respondent 2 to admit his child in the School.

The Court considered the material facts and directed the 1st respondent to comply with the direction within one month from the date of judgment and asked 2nd respondent to undertake the responsibility of informing further.[B.A. Nulara Nethumi v. S.S.K. Awiruppola, 2019 SCC OnLine SL SC 2, Order dated 24-01-2019]

Hot Off The PressNews

On Day 8, Senior Advocate Kapil Sibal continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of Aadhaar being violative of the right to equality as it disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on.

Below are the highlights of Day 9 of the hearing:

Discussion on exclusion of people due to lack of Aadhaar:

  • Kapil Sibal: Just this morning there is a report about how in old age homes across the country, people are being denied pension because of Aadhaar. This is the reality of India.
  • Sikri, J:  Government has claimed that 1.2 billion people have been enrolled, which means that only ten crores are left. If there are so many problems, how have so many people been enrolled?
  • Kapil Sibal: There is a difference between getting enrolled and having to authenticate each time.
  • Bhushan, J: These kinds of problems may not be a ground for holding a statute unconstitutional.
  • Kapil Sibal: The point is exclusion.
  • Chandrachud, J: Exclusion may be because of infrastructure problems or it might be irremediable, like because of old age. On the first point, government may upgrade.
  • Kapil Sibal: The question is that if you’re going to upgrade, what happens in the meantime.
  • ASG Tushar Mehta: Nobody has been excluded because of lack of Aadhaar.
  • Rakesh Dwivedi (explaining the point made by ASG) : According to Section 7 of the Aadhaar Act, 2016, if there is a problem with authentication, you can just show the card and the number. Circulars have been issued saying that if there is authentication failure, nobody should be denied. Also, as per Sections 4 and 31, if biometric information changes, the Aadhaar holder can ask the UIDAI to update the information. (Also, points to the Regulations that say that residents who are unable to provide biometric information, an exception will be made for them.) Law does not permit any exclusion either at the enrolment stage or at the authentication stage.
  • ASG Tushar Mehta (Reading out a cabinet release that says that provisions have been made to handle exceptions):  arrangements have been made in all blocks and talukas to have alternatives available for exceptional cases.
  • Chandrachud, J: This actually indicates a countrywide problem. And the question is whether until mechanisms are placed, nobody should be excluded.
  • ASG Tushar Mishra: These mechanisms are already in place. 96% of the people are already enrolled.
  • Sikri, J: Many people may not be knowing that there is a provision that you can update your data.
  • ASG Tushar Mehta: Aadhaar is citizen friendly and all problems have been taken care of. Nobody is being excluded for lack of Aadhaar.
  • Kapil Sibal: There are serious problems on the ground, and you can’t answer that simply by reading out the provisions.
  • ASG Tushar Mehta: If biometrics and iris scans fail, you are entitled to produce any alternative ID. There is no question of exclusion.
  • Chandrachud, J: Does the Act provides for situations where authentication fails?
  • Rakesh Dwivedi: Section 7 allows for that. (Kapil Sibal disagrees and points to Section 4(3) of the Act)
  • Chandrachud, J: Section 7 contemplates three possibilities – authentication, proof of enrolment, and proof of application. He says that Section 4(3) only applies to the first situation.
  • Sikri, J: Under Section 7, proof being furnished of having an Aadhaar will be sufficient.
  • Kapil Sibal: On that interpretation, people will refuse to authenticate.
  • Sikri, J: We can interpret the section in this way: if authentication fails, then you can show proof of enrolment.
  • Kapil Sibal: That would amount to adding the word “or” in the section.
  • Chandrachud, J: We can interpret the Act in a way to ensure that there is no exclusion. Authentication is at the heart of the statute.

Discussion on UK biometeric identity project that was scrapped in 2010:

  • The UK Act provided for a national identity register. A regulatory impact assessment claimed that the UK bill would achieve less illegal migration, enhance ability to fight terrorism, and prevent identity fraud for welfare. He says that these are the exact arguments that the government is making today.
  • The UK govt insisted that the bill was to ensure that everyone had one ID, and that it would not erode Civil liberties.
  • The opposition Conservative party opposed it on the ground that it was fundamentally changing the relationship between individual and State.
  • The Conservative Party argued that a central database of information was perilous to civil liberties.
  • UK bill introduced to repeal the act, stated that the national identity card represents the worst of government, it is intrusive and bullying, and does not achieve its objectives. The then Home Secretary and now Prime Minister Theresa May said:

                   “Government is a servant of the people, not the master.”

  • Kapil Sibal: This is a recognition of the pitfalls.

Discussion on Section 7 of the Aadhaar Act, 2016:

  • Kapil Sibal:
    • Sections 3, 4, 8 and 57 of the Aadhaar Act are at the heart of the statute. Under 57, you can extend Aadhaar to all other non-welfare service.
    • Section 7 is not key to the Act. If it was not there, the government could have used Section 57 and achieved the same goal by amending the Food Security Act.
    • Section 7 authorises the government to say that Aadhaar can be the only way to get subsidies.
    • My entitlements should depend on my status, not on my identity. I might be a pensioner with a pension card issued by the government, but the government can still deny me.
    • All proofs of identity, which are otherwise acceptable, are excluded by the Act.
  • Sikri, J:  Those alternative forms are acceptable even at the time of enrolment.
  • Kapil Sibal: Yes, exactly. Acceptable for enrolment but not for identification. What’s the basis for this? Why should anyone know, for example, where and when I open a bank account. The only ground is national security, but there’s no link between Aadhaar and that.
  • Chandrachud, J: The Constitution itself postulates multiple identities. Gender, status, religion. The Aadhaar Act doesn’t speak of identity in that sense. Whether the constitutional sense of a plurality of identities is relevant to identity in the sense that Aadhaar envisions identity?
  • Kapil Sibal: The link is that the Constitution allows me to prove my identity in a way that Aadhaar prohibits me. Article 21 of the Constitution guarantees choice, and Aadhaar takes it away.
  • Chandrachud, J: Could the State not argue that Aadhaar only asks you to prove your person, not your identity?
  • Kapil Sibal:
    • There should be a choice in exactly that.
    • Israel has biometric smart cards. Israeli law allows biometric identification and authentication, and the existence of a database. The database doesn’t include identifying information. The smart ID card allows users to identify themselves for services and benefits if they wish to do so. This last bit shows the voluntary character.
    • Yes, we can have an ID card. But authentication should be optional, data should be on the card, there should be no data, and every citizens should have the right to alternatives.

Kapil Sibal will conclude his submissions on the next date of hearing. The Bench will now hear the matter on next Tuesday.

To read the highlights from Day 8 of the hearing, click here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/gautambhatia88

Hot Off The PressNews

On Day 8, Senior Advocate Kapil Sibal continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of misuse of the Aadhaar Scheme. On Day 7, Senior Advocate Shyam Divan concluded his 6 and a half day long submissions and said

“If this program is allowed to roll on unimpeded, think of the domination the State will have over the individual.”

Below are the highlights from Day 8 of the hearing:

Submissions on misuse of Aadhaar:

  • Kapil Sibal: I am not talking about the State abusing Aadhaar, but how Aadhaar makes everyone vulnerable. He says that vulnerability is where the violation of rights comes in. Why should anyone know where I am flying to?
  • Sikri, J: Most of us our frequent flyers and our flight information is anyway stored by the airlines.
  • Kapil Sibal: But that is only with the airline. It was because of the perils of storage of information that the UK destroyed its national biometric identity program.

Submissions on the technical aspect of Aadhaar: 

  • Kapil Sibal: The first issue is that of centralisation. UIDAI claims it is secure because it is federated. (Cites an RBI report that identified the CIDR as “a single point of attack” and a “single point of failure.”)
  • Chandrachud, J: I agree that theoretically, every centralised database can be hacked. But this is not necessarily a statement of vulnerability, but the acknowledgement that you need to take care.
  • Kapil SIbal: Yes, there need for safeguards that protect the system.
  • Kapil Sibal: Unlike smart cards, most biometric readers in India can be defeated by a child using fevicol and wax. With smart cards, there is no centralised database that can be compromised. Any leakage of biometric data is permanent. If there is no knowledge of when the biometric data is stolen, it will be difficult to trust future transactions.
  • Sikri, J: These days phones have fingerprints and iris authentication.
  • Kapil Sibal: That is only stored on the phone.
  • Sikri, J (Smiling): We understand that distinction.
  • Kapil Sibal (talking about recent Airtel scam involving Airtel payment accounts): UIDAI itself has acknowledged these issues by releasing L0 and L1 security standards, but many machines still don’t meet that standard. In fact, the State Resident Data Hubs have no security of any sort
  • Kapil Sibal (On perils of face recognition):
    • There is an important question of who owns the biometric data, and that there is nothing in the law that defines this.
    • The margin of error increases with the increase in the size of the database. The larger the database, the more the rejections. At 1 billion, it’s 1 in 146 rejections. So basically, the UIDAI will decide who are the ghosts and who aren’t.
  • Kapil Sibal: UIDAI claims that replay attacks will be dealt with like you deal with forged credit cards. He asks “but where will you find the evidence from.”
  • Kapil Sibal: Aadhaar impacts federalism. The exclusions caused due to Aadhaar violates the right to equal treatment. It disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on. This is a specific issue with biometrics, as opposed to smart cards. What might be appropriate for fighting crime and terror is inappropriate for the daily interactions between citizen and State. The Aadhaar Act contemplates breaches.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/gautambhatia88