ARSHNOOR KAUR & ANR. versus THE UNION OF INDIA & ORS.

Summary

The Supreme Court held that once the Central Government has, by notification under Section 12 of the Army Act, 1950, made women eligible for a branch of the regular Army (here the Judge Advocate General branch), the executive cannot, by policy or administrative instruction, cap the number of women or reserve vacancies for men under the guise of 'extent of induction'. The notification for the JAG 31st Course, which fixed six vacancies for men and three for women with separate merit lists, was held violative of Articles 14, 15 and 16 and Section 12; the 50:50 intake policy from 2024, though facially neutral, causes indirect discrimination against more meritorious women. The Court read the 2023 policy as requiring merit-based selection on a common merit list with not less than 50% of vacancies going to women, and directed induction of Petitioner No. 1.

Issues

1. Whether, after permitting induction of women in a corps or branch by notification under Section 12 of the Army Act, 1950, the Union can restrict the number of women inducted by policy or administrative instruction.
2. Whether the notification providing six vacancies for male and three for female candidates in the JAG branch, with separate merit lists, violates Articles 14, 15 and 16 of the Constitution.
3. Whether the 50:50 intake ratio adopted from 2024 is 'gender-neutral' or results in indirect discrimination against women.
4. Whether a combined merit list of male and female candidates ought to be prepared when the selection tests are identical.
5. Whether the petitioners waived their fundamental rights by participating in the selection process.

Provisions considered

• Section 12, Army Act, 1950Section 12 makes women ineligible for enrolment or employment in the regular Army except in such corps, department or branch as the Central Government notifies. Enacted under Article 33, it must be strictly construed: restrictions on fundamental rights can go only as far as Section 12 permits. Once women are made eligible for a branch by notification (JAG was notified in 1992), Section 12 confers no power to limit the 'extent of induction', and no notification fixing any such extent was ever published; a power given to be exercised in a certain way must be exercised in that way or not at all. (¶¶ 38, 41, 42, 43, 44, 45, 47, 49, 50, 111)
• Article 33, Constitution of IndiaArticle 33 lets Parliament, by law, determine the extent to which fundamental rights are restricted or abrogated for members of the Armed Forces; being an exception to fundamental rights, any restriction must be found in the parliamentary law itself (here the Army Act) and cannot be imposed by executive instruction. R. Viswan on Section 21 of the Army Act was applied with equal vigour to Section 12. (¶¶ 40, 41, 42, 43, 52)
• Articles 14, 15(1), 15(3) and 16(1)-(2), Constitution of IndiaThese Articles together guarantee equality of opportunity in public employment irrespective of sex; Article 15(3) permits special provision for women but not for men. Reserving double the vacancies for males is a reservation for men offending the equality guarantee. The Court also drew on Nitisha to hold that a facially neutral 50:50 ceiling that excludes more meritorious women is indirect discrimination, which the Constitution prohibits even without discriminatory intent. (¶¶ 39, 73, 74, 83, 96, 98, 99, 112, 115)
• Article 32, Constitution of IndiaFundamental rights cannot be waived; an aggrieved person may always challenge a policy or notification under Article 32 or 226, and the petitioners could not have known of the illegality before the marks were disclosed in the proceedings. (¶¶ 69, 70, 71)

Held

• Articles 14, 15 and 16 form a string of rights guaranteeing equality of opportunity in public employment regardless of sex; Article 33 is an exception enabling Parliament, by law, to restrict those rights for the Armed Forces, and such a law (the Army Act, 1950) must be strictly construed, so the Union may restrict these rights only to the extent Section 12 permits and no more. (¶¶ 39, 40, 41, 42, 43)
• Once the Service Headquarters decides to induct women officers in a branch by notification under Section 12, it cannot restrict their numbers or reserve vacancies for male officers by policy or administrative instruction under the guise of 'extent of induction'; Section 12 confers no such power, no notification laying down any 'extent of induction' was ever published, and accepting the Union's stand would set the statutory notification at naught. (¶¶ 47, 49, 50, 111)
• The administrative instructions of 11.11.2011 and 14.03.2012 are untenable in law: they contradict the statutory notification, lack backing in the Constitution or the Army Act, rest on sex stereotypes rejected in Babita Puniya, and their ten-year tenure clause is inconsistent with the grant of permanent commission, rendering the whole instruction redundant. (¶¶ 51, 52, 53, 54)
• The contention that JAG officers are primarily combatants forming a reserve for mobilisation is misconceived: the ten streams opened to women (including JAG) are Combat Support Arms or Services, not Combat Arms; accepting the argument would permit 100% reservation for men in every stream on the footing that all Army posts are combatant; and the off-chance of deployment of some of about 285 JAG officers in war is no rationale for excluding women. Field parity has in any case been institutionalised by the 2022-2023 policies bringing women officers' attachments at par with men, and the claim that women are not posted where contact with the enemy is likely has no legislative basis. (¶¶ 55, 56, 57, 58, 59, 61, 62, 66, 68)
• Fundamental rights, in particular the right to equality, cannot be waived; participation in the selection process does not bar a challenge to the notification, particularly where the marks were disclosed only during the proceedings and the violation is egregious. (¶¶ 69, 70, 71)
• The impugned notification, to the extent it provides three vacancies for female candidates against six for male candidates, violates Articles 14, 15 and 16 and Section 12 of the Army Act, as it reserves vacancies for men under the guise of 'extent of induction'. (¶¶ 83, 112)
• The Union's own 2023 study report and counter-affidavit describe JAG entry as 'gender-neutral'. 'Gender-neutral' (hiring the best candidate regardless of sex) is distinct from 'gender-equal' (hiring equal numbers of men and women); gender-neutrality ensures selection of the most meritorious candidate and does not limit deployment in any operational role. The Union had itself undertaken in Gopika Nair to apply a gender-neutral formula. (¶¶ 85, 86, 87, 88, 89, 90, 91, 92)
• Applying the indirect-discrimination framework of Nitisha, the practice of recruiting equal numbers of men and women, though neutral in form, is not gender-neutral in effect: fixing a ceiling on female recruits perpetuates a historically discriminatory status quo and confines women to a gendered category irrespective of merit; the merit lists showed women overwhelmingly outscoring men, with the selected Respondent No. 3 scoring less than the woman at serial no. 10 of the women's list. Indirect discrimination caused by the facially neutral 50:50 criterion is real. (¶¶ 93, 94, 95, 96, 98, 99)
• Since the selection criteria and the fifteen Officer Like Qualities tested are identical for men and women (separate boards being a practical necessity, not separate treatment in law), and male and female JAG officers do not form distinct cadres, a combined merit list ought to be prepared. The 2023 policy, read with the mandate of law, means the Union shall recruit the most meritorious candidates irrespective of sex but, to compensate women for past non-enrolment, shall allocate not less than 50% of vacancies to women; restricting women to 50% despite greater merit violates the right to equality. A merit-based process will improve, not impair, JAG efficiency, the Union having shown no operational reason for gender-based vacancy allocation in a legal branch, and no other Force restricts women in its JAG equivalent. (¶¶ 100, 101, 102, 103, 104, 105, 106, 108, 110, 113, 114, 115)

Result

Writ petition disposed of; notification held unconstitutional to the extent it fixes three vacancies for women against six for men; Union of India and Army directed to induct Petitioner No. 1 in the next available JAG training course, to conduct recruitment henceforth on merit with not less than 50% of vacancies for women, and to publish a common merit list for all male and female JAG candidates with their marks; Respondent No. 3 held not entitled to relief; no relief sought for Petitioner No. 2, who had joined the Navy JAG.