Case Name: Arshnoor Kaur & Anr. v. The Union of India & Ors.
Case Number: Writ Petition (C) No. 772 of 2023
Date: Monday, the Eleventh Day of August, Two Thousand and Twenty-Five
Quorum: Justice Dipankar Datta and Justice Manmohan
Facts of the Case
- The petitioners in this particular case have challenged the recruitment notification that dated 18th January 2023 for Judge Advocate General (JAG), which allotted 3 vacancies for female candidates against 6 male candidate vacancies.
- Ms. Arshnoor Kaur, petitioner 1, in this case, secured 5th rank with 447 marks in the women’s list, while Ms. Astha Tyagi achieved 4th rank with 477 marks.
- However, despite their high ranking, the petitioners were denied admission in favour of Mr. Himanshu Panwar, who secured 3rd rank in the men’s merit list with only around 433 marks, which is significantly lower compared to several other female candidates.
- The Government Notification provided for two separate merit lists for both male and female candidates, creating a gender-based quota system that was a disadvantage for meritorious female candidates
- During the pendency of the procedure, Petitioner No.2 was selected for the Indian Navy JAG-SCC and ultimately withdrew her claim for JAG admission.
Issues Involved
- Whether the Union of India, after issuing a notification under Section 12 of the Army Act 1950, allowing women in the JAG Branch, could restrict their numbers through administrative policies.
- Whether the practice of having a separate merit list for both male and female candidates with different vacancy seats is in violation of Articles 14,15, and 16 of the Indian Constitution.
- Whether the “gender-neutral” recruitment policy as professed is genuinely gender neutral or creates an indirect discrimination against women candidates.
- Whether there should be a combined merit list for both candidates, considering the fact that the selection criteria for both genders are identical.
Legal Provisions Involved
- Articles 14,15, and 16, which deal with fundamental rights to equality and non-discrimination.
- Article 33, which deals with parliament’s power to make changes or modify fundamental rights for the Armed Forces
- Section 12 of the Army Act, which deals with restrictions on female enrolment in the Army except in the notified corps/branches.
Arguments by the Parties
- Petitioners Arguments
- It was contented by the petitioners that the selection process for JAG for both genders, that is, male and female, is identical and is assessed on the same 15 Officer-like Qualities through a Service Board Selection.
- It was further contended by the counsel for the petitioner that the Ministry of Defence’s own press release stated that the employment in the Armed Forces is gender-neutral, with no distinction in place for testing or deployment and that the Union of India has repeatedly affirmed in the counter-affidavit that the selection for JAG is gender-neutral and purely based on merit.
- It was also submitted that reserving additional seats for men against women is unconstitutional as it violates Articles 14,15, and 16, and according to Article 15(3), seats can be reserved for women only and that the current policy regarding reservation leads to indirect discrimination where males who are less meritorious are selected over highly meritorious females.
- Respondent’s Arguments (UOI)
- The respondents in this case contended that the JAG officers are combatants, which constitutes a reserve for mobilisation during wartime, and women officers are not posted in areas where contact with enemies is likely and are also excluded from Infantry Battalion attachments and counter-insurgency operations.
- It was further contended that the 70:30 ratio is based on the functional capacity and operational requirements of the Army, and gender integration is an evolving process that is computed to operational requirements and is subject to periodical review.
- Further, Article 33 of the Constitution gives parliament the power to restrict fundamental rights for the purpose of the Armed Forces, and Section 12 of the Army Act specifically regulates female induction respectively.
- Respondent No:3’ s Argument
- The respondent no.3 submitted that the petitioner had participated in the selection process, thereby waiving her right to challenge the notification. He also submitted that the respondent participated in the selection process in good faith and is now overage for future recruitments.
Analysis
- Constitutional framework analysis
- The Supreme Court has emphasised that Articles 14,15, and 16 form a “string of constitutional rights” and guarantee equality, while Article 33 of the Constitution empowers the Parliament to make changes to the fundamental rights for the Armed Forces, and such restrictions must be clearly spelt out in the Army Act itself.
- The Court also held that once the government permits the employment of women to any corps through a section 12 notification, it cannot later impose additional restrictions on “extent of induction” through administrative instructions, as the Army Act does not provide for any such limitations.
- The court in this case also set out a differentiation between Gender-Neutral and Gender- Equal Distinction. The court said that hiring the same number of candidates from both genders, that is, a 50:50 ratio, is termed as Gender Equal distinction, while hiring the best candidate regardless of their gender is Gender-Neutral Implementation. The Court further held that the 2023 policy recommended a “gender-neutral” entry; however, it implemented a gender equal entry that is followed by a 50:50 ratio while recruiting.
Judgement
- The court held that the notification reserving double the amount of vacancies for male candidates for JAG, that is, 6:3, violates the constitutional principles of equality guaranteed under Articles 14,15 and 16 and also said that once section 12 permits the entry of women to an army post, the government cannot restrict the numbers through administrative policies and since the selection criteria and the parameters for testing are identical, the court directed to prepare another combined merit list rather than discriminating between male and female candidates.
- The court also found that the current practice conserves the historical discrimination against women despite their top performance and also held that “no nation can be secure, when half of its population (i.e. its women force) is held back”, and directed the government that the policy should recruit the most meritorious candidates regardless of their gender, with minimum 50% allocation to women for compensatory purposes.
Conclusion
The Supreme Court’s ruling on military recruitment policies bolstered constitutional notions of equality and is a landmark ruling. By permitting unrestricted entrance of women into military service, the assertion that their participation could be capped through administrative quotas favouring less deserving male candidates was dismissed.
This landmark Supreme Court judgment is a milestone in gender equality law of our country, especially in strongly male-dominated areas of employment. By enforcing genuine gender neutrality as opposed to the appearance of gender equality, the Court upheld that public service positions would be filled based on merit, devoid of gender considerations.
The constitutional framework of governance and opportunity inclusion was well written by the Court’s statement, “no nation can be secure when half of its population is held back”, rendering this judgment a landmark milestone in India’s journey to gender equality.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
WRITTEN BY: YANA S JACOB
Click here to read more
