(Guest Post/Commentary by Ananya Sharma and Roopan Atwal on Arshnoor Kaur v. Union of India, the defining recent judgment by the Supreme Court of India on gender discrimination in the JAG of the Indian Army)
Half
of our citizenry continued to face discrimination due to certain skewed, and
perhaps, overlooked policies of an organization that otherwise takes pride in
its fair, unassailable and invulnerable selection process, an organization otherwise
known for its impeccable standards and ethos- the Indian Army. The judgment we
discuss in this article reveals the institutional indirect discrimination
perpetuated over the course of many years in the recruitment process for
officership in the Judge Advocate General’s department, popularly also known as
the JAG Branch.
A
Bench of the Supreme Court of India recently struck down the Indian Army’s
policy on induction of women in the JAG Branch wherein reservation for males
had been introduced, a concept alien to the Constitution of India (See WP(C)772 of 2023 Arshnoor
Kaur & Anr Vs Union of India & Ors decided on 11-08-2025). Not only was the entire selection
process declared to be NOT “gender-neutral” and violative of
fundamental rights of female candidates, but the bench of
Justice Dipankar Datta and Justice Manmohan also directed the
Army to publish a “joint merit list” for both male and female candidates.
The
Petitioners, Ms Arshnoor Kaur,
and Ms Astha Tyagi, challenged the Army’s policy for induction
into JAG 2023 and had approached the Supreme Court for declaration of the said
notification as ultra vires Articles 14, 15, 16 and 19 of the
Constitution. The Army earlier used to reserve vacancies based on gender with
disproportionately high vacancies for men, later the policy was changed to a
50:50 basis with equal vacancies for both males and females. Even with this,
women more meritorious than men were left out since the merit list was prepared
based on gender and not jointly as is expected in any examination wherein both
males and females are eligible to apply. The challenge was based on the ground
that, (a) they were more meritorious, and (b) underwent identical selection
parameters. It was pointed out that female candidates with higher marks were
not selected by citing the 50:50 induction rule, and “operational and
functional requirements” of the Indian Army, leading to indirect discrimination
against them. They also argued that reservation of seats for men is a
practice violative of Article 15(3) of the Constitution of India and
contravenes law laid down by Courts based on constitutional principles that the
State may discriminate only in favour of women.
While
on the other hand, the flag-bearers of “Nari Shakti” (Women Power) - the
Respondents argued that service in the Defence Forces cannot be equated with
any other forms of service as all JAG officers are “combatants”,
and the finalisation of their vacancies is based on war-time operational and
functional requirements, urging the Court to view the JAG branch as not a mere
legal advisory body to the Army but as a force of combatants to be potentially
mobilised as and when required.
The
publication of a common merit list for both men and women was also vehemently
opposed by the Union of India on the pretext that the Services Selection Board
Interviews (SSBs) for both categories were held separately. Citing the
notifications / internal communications of the Army, the Union of India
contended that the previous induction policy of 70:30 (Men: Women) had now been
progressively and graciously liberalized to 50:50 in 2024, based on the
recommendations of a study conducted by “expert members”. It was also submitted
that declaring the said induction policy ultra vires and any
judicial interference therein would undermine the “functioning and command
of the Army”.
The
Respondents argued that the practice of women’s induction in the Army finds its
basis in the provision of Section 12 of the Army Act, 1950 (“Act, 1950”) added
by the Parliament in exercise of its power to limit the fundamental rights for
the Armed Forces of the Union of India under Article 33 of the Constitution.
Section 12 prohibits women’s induction in the Indian Army, except for when
notified by the Central Government from time to time, and thus, the government
was empowered to modify and restrict the induction of number of women in the
Army and the extent thereof under Section 12.
The
Petitioners, however, impressed upon the fact that any notification /
communication issued by the Army cannot be seen to have a force of law or
authority over the provisions of the Indian Constitution, especially when it
was based on archaic views about the nature of war and the attributes required
to qualify for combat roles. Further, it was argued that the eventuality of
combat requirements was a dangerous ground to reject gender-neutrality, as it
could also be used to endanger women’s intake in non-combat arms. The Petitioners
thus, prayed for the Court to interpret the said policy in the context of the
Constitution and the provisions of the Act, 1950.
