Indian Army Can’t Impose Additional Restriction Regarding Extent Of Induction Of Women Officers In Corps: Supreme Court Quashes Quota Policy For JAG
The Supreme Court reiterated that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden.
The Supreme Court while quashing quota policy for JAG (Judge Advocate General) branch, held that Indian Army cannot impose an additional restriction regarding extent of induction of women officers in corps.
The Court held thus in a Writ Petition in which the primary issue was whether the Centre after having issued a Notification under Section 12 of the Army Act, 1950 allowing induction of women in the JAG branch could have denied admission to other women candidates.
The two-Judge Bench comprising Justice Dipankar Datta and Justice Manmohan observed, “Consequently, this Court is of the view that once the Army permits women officers to join any corps, department or branch forming a part of the regular Army, it cannot impose an additional restriction with regard to ‘extent of induction’ of women officers in the said corps, department or branch—as Section 12 of the Army Act, 1950 does not empower it do so.”
The Bench reiterated that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden.
Senior Advocate Gopal Sankaranarayanan appeared on behalf of the Petitioners while Additional Solicitor General (ASG) Aishwarya Bhati and Senior Advocate Rana Mukherjee appeared on behalf of the Respondents.
Brief Facts
In this case, the question before the Court was whether the Respondent-Union of India after having issued a Notification under Section 12 of the Army Act, 1950 allowing induction of women in the JAG branch could have denied admission to Petitioner No.2 (Astha Tyagi), who achieved the fourth (4th) rank with 477 marks and Petitioner No.1 (Arshnoor Kaur), who achieved fifth (5th) rank with 447 marks in the merit list of women candidates in preference to Himanshu Panwar who secured third rank with 433 marks in the merit list of men candidates, but has obtained lesser marks than the female candidate placed at Serial No.10 in the Females Merit List in pursuance to the notification dated January 18, 2023 for the JAG Scheme 31st Course, qua Short Service Commission (SSC) Course for Law Graduates (impugned notification) on the grounds that the said Notification provides for separate merit list for male and female candidates and provides for only three (03) vacancies for female candidates, as against six (06) vacancies for male candidates.
The Petitioners sought not only a declaration that the impugned notification is ultra vires Articles 14, 15, 16, and 19 of the Constitution, but also publication of a common merit list irrespective of sex of the candidate and implementation of a real and effective ‘gender-neutral’ policy of recruitment in the JAG branch instead of the subsequent intake policy of the Respondents of having men and women officers in the ratio of 50:50, which has been branded by the Respondents as ‘gender-neutral’.
Court’s Observations
The Supreme Court in view of the above facts, noted, “Having heard learned counsel for the parties, this Court is of the view that the primary issue that arises for consideration is whether after allowing induction of women in a particular corp or branch under Section 12 of the Army Act, 1950, can the Respondents by way of a policy and/or administrative instruction restrict the number of women candidates joining the said branch.”
The Court was of the view that no women is eligible for employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf.
“Accordingly, there is no basis to say that women can be appointed ‘only up to a certain extent’ in such streams. … Consequently, this Court is of the view that once the Service Headquarters decides to induct women officers in a particular branch or corp by way of a Notification under Section 12 of the Army Act, 1950, it cannot restrict their numbers and/or make a reservation for male officers by way of a policy or administrative instruction under the guise of ‘extent of induction’. Accepting the submission of the Respondents would amount to ‘setting at naught’ the Notification issued under Section 12 of the Army Act, 1950”, it added.
The Court said that any restriction qua the ‘extent of induction’ cannot be imposed by an administrative instruction or policy decision of the executive as Parliament has not conferred this right upon the executive under the Army Act.
“This Court is of the view that the legal position has undergone a substantive transformation pursuant to the Babita Puniya (supra) judgment, which upholds the right to equal opportunity and mandates non-discriminatory consideration for Permanent Commission, irrespective of gender. Also, if reliance is placed on the said policy, any grant of Permanent Commission to women officers under its provisions would stand vitiated, as Clause 2(a) of the policy explicitly limited the induction of women officers to a tenure of ten years. Consequently, not only is Clause 2(a) of the said instruction inapplicable, but all other clauses of the said instruction and policy are redundant and inapplicable”, it further noted.
Argument that JAG branch consists of primarily combatants is misconceived
The Court observed that the argument that JAG branch consists of “exclusively combatant personnel” as they constitute a reserve for mobilisation is misconceived as it runs contrary to the directions of the Court and all policy decisions of the Respondents itself which have crystallised the right of women to form part of all Combat Support Arms and Services, to exclusion of ‘Combat Arms’ and recognised the right of women to be treated as equals in all aspects of their employment in the Army.
“This Court is of the view that the acceptance of the stand of the Respondents would lead to exclusion of women officers from all streams of the Army and have the consequence of allowing 100% reservation for men in all streams on the ground that all posts in the Army are Combatant posts. The same would also be inherently unconstitutional and contrary to Section 12 of the Army Act, 1950 and the Union of India’s stand of ‘evolving process of gender integration of women’, it added.
The Court also said that there is no bar to such an off-chance deployment, but this still does not provide a rationale to prevent JAG women from being inducted.
No waiver of Fundamental Rights
The Court observed, “Consequently, Respondent No.3’s submission that the Petitioners have waived their rights to challenge the impugned Notification is untenable in law and that too when the violation of Fundamental Rights in the present instance is egregious.”
Constitution and Government policy towards women
The Court remarked that the Constitutional mandate and the national as well as international policy of the Government of India is to ensure that women are not discriminated in any manner and a more inclusive society is created by enhancing representation of women in all spheres of life.
Impugned notification is unconstitutional as it reserves double the number of vacancies for males
The Court held, “Accordingly, this Court is of the view that the impugned notification to the extent that it provides for only three (03) vacancies for female candidates, whereas six (06) vacancies have been notified for male candidates is violative of Articles 14, 15 and 16 as well as Section 12 of the Army Act, 1950.”
The professed policy of enrolment is gender-neutral and not gender-specific
Moreover, the Court held that the professed policy of the Respondents of enrolment/recruitment in JAG branch is ‘gender-neutral’ and not ‘gender specific’ as contended by the Respondents during the course of oral arguments.
“Consequently, this Court is of the view that in the present case, indirect discrimination is real and is caused by a facially neutral 50:50 criteria by not taking into consideration the underlying effect of the said criteria”, it added.
As the nature of tests of male and female candidates is similar, a combined merit list ought to be prepared
The Court was of the view that though men and women during the JAG selection procedure appear before separate boards, yet the selection criteria for male and female candidates are not separate and only few indicators such as physical attributes are different.
“The conduct of separate SSBs for men and women are a necessity due to the nature of tests involved, which require close intensive physical interactions. Both male and female candidates are assessed on identical parameters. The mere existence of separate boards, however, does not extend to separate treatment of men and women candidates in law. This is apparent from the procedure and testing parameters of the fifteen (15) Officer Like Qualities considered by the SSB (as extracted hereinabove) for recruitment to the Indian Armed Forces”, it remarked.
The Court, therefore, suggested that similar combined merit list ought to be prepared.
Conclusion
The Court held, “Consequently, the Respondents have failed to establish how a merit-based ‘gender-neutral’ selection process would negatively impact functionality, manpower planning, or operational efficiency of the JAG branch. On the contrary, a merit-based selection process will improve efficiency of the JAG branch.”
The Court also observed that the executive cannot restrict the numbers of women and/or make a reservation for male officers under the guise of “extent of induction” by way of a policy or administrative instruction.
“Further, the impugned notification to the extent that it provides for only three (03) vacancies for female candidates as against six (06) vacancies for male candidates is against the concept of equality as enshrined in the Constitution as it makes a reservation for male officers under the guise of ‘extent of induction’, it said.
The Court remarked that though men and women candidates during the JAG selection procedure appear before separate boards, yet as the selection criteria and testing parameters of the fifteen (15) Officer Like Qualities are identical, combined merit list ought to be prepared.
“Moreover, as held hereinabove, male and female JAG officers do not have distinct cadres with different conditions of service and the true meaning of concept of ‘gender-neutrality’ and 2023 recruitment policy is that Union of India shall recruit the most meritorious candidates in JAG branch irrespective of their sex/gender as the primary job of this branch is to give legal advice and conduct cases, but to ‘correct the past’ and to ‘compensate the women for their previous non-enrolment’, the Union of India shall allocate not less than 50% of the vacancies to women candidates”, it directed.
The Court further held that to restrict the women candidates to 50% of the seats, as argued by the Respondents despite they being more meritorious than the male candidates is violative of the Right to Equality.
“As Respondent No.3 despite having secured third rank with 433 marks in the merit list of men candidates has obtained less marks than the female candidate placed at Serial No.10 in the Females Merit List, this Court is of the view that his selection by the Respondents amounts to indirect discrimination and, therefore, he is not entitled to any relief”, it concluded.
The Court, however, clarified that it is not imposing its own views or predilection on the Army but is implementing the Constitution and the mandate of law. It also agreed with the view held by many that “no nation can be secure, when half of its population (i.e. its women force) is held back”.
Accordingly, the Apex Court disposed of the Writ Petition and directed the Respondent to henceforth conduct recruitment as well as publish a common merit list for all JAG candidates i.e., male and female and make the merit list public as well as the marks obtained by all candidates participating in the selection process.
Cause Title- Arshnoor Kaur & Anr. v. The Union of India & Ors. (Neutral Citation: 2025 INSC 954)
Appearance:
Petitioners: Senior Advocate Gopal Sankarnarayanan, AORs Mandeep Kalra, Advocates Radhika Narula, Anushna Satapathy, Chitrangada Singh, Radhika Jalan, Widaphi Lyngdoh, Gauri Rajput, Vaibhav Yadav, Paras Mohan Sharma, Shefali Tripathi, Vishal Sinha, Ishita Chowdhury, and Musharraf Shrivastava.
Respondents: ASG Aishwarya Bhati, AORs Mukesh Kumar Maroria, Dinesh Rattan Bhardwaj, Vernika Tomar, Advocates Shivika Mehra, Shagun Thakur, and Saurav Gaur.
