In December 2024, a bench comprising Justices B.V. Nagarathna and N.K. Singh, during a suo-motu hearing concerning the termination of service of two women judicial officers by the Madhya Pradesh High Court, was informed that one of the officers had consistently underperformed. It was highlighted that her case disposal rate was notably low, with only two civil suits resolved over the course of an entire year.
Justice B.V. Nagarathna, upon reviewing the record, noted that the judicial officer had experienced a miscarriage, including a COVID-19 infection and her brother’s battle with cancer.
The case is currently pending but it highlights not just the unique challenges faced by women in the workplace but also the broader, more systemic issues surrounding the treatment of women employees and the need for legal reforms.
The dismissal of the woman judge, particularly after experiencing a miscarriage, reflects the longstanding biases that exist in employment law and workplace policies. Employment law in India, though progressive in many aspects, has often struggled with the effective implementation of gender-equitable practices. This incident underscores the gaps that remain when it comes to addressing women’s health issues, especially those linked to pregnancy, miscarriage, and menstruation, which are still not fully understood or accommodated in professional environments.
Expressing concern, in the matter of Aditi Kumar Sharma v. State of Madhya Pradesh & Ors., WP(C) No. 233/2024, Justice Nagarathna remarked on the lack of gender parity in evaluating judicial performance, questioning whether similar criteria were imposed on male judges.
The Supreme Court’s involvement shows that despite legal protections, enforcement remains inconsistent. Justice Nagarathna further emphasized the physical and emotional toll of a miscarriage and criticized the insensitivity toward the officer’s circumstances, advocating for equal standards irrespective of gender.
The Supreme Court’s remark, “If men had menstruation, they’ll know,” is a powerful statement about the lack of gender sensitization in workplaces, particularly in fields that have traditionally been male-dominated, such as law.
In India, while specific case laws directly addressing gender sensitivity in performance evaluations are relatively limited, several landmark judgments have broader implications for equitable workplace practices, including performance appraisals. These cases emphasize eliminating gender bias, promoting fairness, and ensuring equality in workplace policies.
For instance, in The Secretary, Ministry of Defence v. Babita Puniya, (2020) 2 SCC 354, women officers had been unjustly excluded from certain roles due to preconceived notions about their performance and abilities, the Supreme Court held that the performance evaluations in organizations like the military should not be tainted by gender stereotypes or biases. It ruled that gender should not determine career progression or performance assessment, and that all officers, regardless of gender, should have the same opportunities to demonstrate their capabilities and advance in their careers. In Lt Col Nitisha v. Union of India ([2021] 4 S.C.R. 633), the Supreme Court of India directed the army to ensure gender-neutral standards are adopted for performance evaluations.
The case was filed by five women Army officers, including Lt Col Nitisha, challenging the systemic discrimination in the process of granting Permanent Commission (PC) to women officers in the Indian Army. The petitioners argued that the Army’s evaluation process for granting PC was biased, arbitrary, and discriminatory. The Lt Col Nitisha case serves as a landmark in advancing gender equity within the Indian armed forces, emphasizing fairness in workplace evaluations and organizational policies.
Even in Vishaka v. State of Rajasthan, which is primarily focused on harassment, the judgment’s emphasis on gender equity has implications for performance reviews, urging organizations to adopt fair practices that do not perpetuate gender biases.
The Union Ministry of Labour & Employment in its advisory for employers to promote women workforce participation has categorically directed employers to eliminate gender bias in recruitment, promotion and performance reviews.
The Supreme Court’s intervention in this case is a significant step forward in recognizing the unique challenges faced by women in the workplace, especially when it comes to issues of health.
Even after so many decades of women’s entry into the workplace, the ideal of gender equity has not been fully realized, particularly from an intersectional lens. While legal safeguards for gender equity in performance evaluations exist, there remains a significant gap in their consistent application, particularly in addressing gender-based biases. To rectify this, it is recommended that organizations adopt clear, gender-neutral performance metrics and implement mandatory gender sensitivity training for performance evaluators.
Furthermore, enforcement mechanisms should be strengthened to ensure compliance with gender-equitable policies, and judicial oversight should continue to hold institutions accountable. Just as the Vishaka guidelines set standards for preventing sexual harassment, similar guidelines for gender-sensitive performance evaluations should be established to ensure fair treatment for all employees, irrespective of gender. These measures would promote an equitable and inclusive work environment, fostering fairness and equal opportunity for all genders.