Proceedings of the 3d International Military Justice Forum

Gwenaël Guyon, Evert Kleynhans, Anna la Grange, Sonja Els, Mariella Terzoli, (eds), Military Justice: Historical Perspectives and Contemporary Developments (RIDP, Libri 15, 2026), now available here. Here is the Preface (by the Editor of this blog):

There is, in English, an old saying that ‘the third time is the charm’. So it is with the International Military Justice Forum, the third iteration of which was held in Paris in 2025. Building on the first two, which were held in Paris in 2021 and Stellenbosch, South Africa, in 2023, the third demonstrated even more compellingly the need for a regular international gathering of experts in both the history of military justice and the issues arising from contemporary state practice in this important field. The third forum also set the stage for the next one, which will be held in London in 2027. All of the forums have been the result of selfless teamwork between scholars at St. Cyr and elsewhere.

The presentations reproduced in this volume of the International Review of Criminal Law reflect a broad range of interests and perspectives and put on display the robust nature of debate surrounding the issues explored at the sessions. Importantly, this is not a choir that sings in unison or expresses a ‘party line’. Some of the contributions generated a good deal of heat, while others covered less controversial ground. Which of the contributions that follow falls in which of these categories I will leave for the reader to speculate on.

The International Military Justice Forum helps to fill a void in contemporary scholarship. While the Law of Armed Conflict receives a great deal of attention in the literature and through professional meetings sponsored by, among others, the International Committee of the Red Cross and the International Society for Military Law and the Law of War (including its national groups, some of which are remarkably active), military justice itself merits greater attention. And it is getting that attention, not only through the International Military Justice Forum, but also through such recent and very welcome developments as the creation of the Forces Law Review and the Commonwealth’s Military Justice Principles and the related Model Law on Military Justice for Smaller Armed Forces. That particular project is among those discussed in the current volume, and, as a non-Commonwealth advisor, it gives me great pleasure to report that the Law Ministers meeting in Fiji has endorsed these groundbreaking efforts.

As for history, I will also note the recent French decision to promote Alfred Dreyfus, who figured in perhaps the most famous court-martial of all time, to the rank of brigadier general—sadly, long after this death. That action dramatically shows how the past and present remain closely linked in the field of military justice.

Much remains to be done, and as you read the papers assembled here, I hope you will think about military justice issues and areas that particularly merit further consideration. What challenges will emerge from events like the conflicts in eastern Europe, the Middle East, and elsewhere? Will the Commonwealth Principles and Model Law spark renewed interest in military justice reform in non-Commonwealth countries? Are the Decaux Principles and related Yale Draft dead, or may we hope that they too will attract new interest? Or, given the current struggle between democratic and autocratic forces playing out in so many places around the world lead to new challenges. Will hard-fought reforms, such as those enacted in the United States in restricting the power of commanders to decide who shall be prosecuted for what, be built upon or unraveled? No one has a crystal ball, but the combination of historical and contemporary scholarship presented in Paris in 2025 cannot help but inform future developments.

Admirals in Court -- summer reading

Ahoy. For summer reading, see Matthew Barrett, "Review of "Admirals in Court: Discipline, Honour and Naval Justice, 1778-1814" by John Morrow," 35 Can. Mil. Hist. 1 (2026). Excerpt:

The controversial execution of Admiral John Byng on 14 March 1757 inspired Voltaire’s oft-quoted remark regarding the British Navy, “in this country it is found good, from time to time, to kill one Admiral to encourage the others." Byng had been court martialled for failing to do his utmost to engage the French fleet at the Battle of Minorca during the Seven Years’ War. He was sentenced to death by firing squad as mandated by the Articles of War. Only an amendment over two decades later would permit alternative lesser punishments for this type of offence before the enemy (p. 10). While no other British admiral suffered the extreme penalty after Byng, nine flag officers were tried by courts martial for offences ranging from military misconduct to personal impropriety during the period between 1778 and 1814. In Admirals in Court, John Morrow of the University of Auckland studies each court martial case in compelling detail and traces how the proceedings and outcomes reveal much about the British Navy’s historical culture and its understanding of duty and discipline. 

HRW: Peru, veto military justice bill

Human Rights Watch has issued the folowing news release:

Peru: Veto Military Justice Bill

Would Open the Door to Impunity for Abusive Police, Armed Forces Personnel

Peruvian President José María Balcázar should veto a bill that would expand the military justice system, Human Rights Watch said today. The bill would effectively open the door to impunity for police officers and members of the armed forces responsible for human rights violations. 

On June 23, 2026, Congress passed a bill that would modify the Military Police Criminal Code, expanding the definition of “service-related offenses,” which are handled by the military justice system. Military courts lack the independence and impartiality to adequately investigate human rights violations by security forces. Judges and prosecutors, appointed by the president, hold military rank. The changes would benefit, among others, police and military officers responsible for the killings of dozens of protesters and bystanders during demonstrations in late 2022 and early 2023.

“This bill is a recipe for impunity,” said Juanita Goebertus, Americas director at Human Rights Watch. “Signing this bill into law would give current members of the police and the military carte blanche to commit new human rights violations.”

Under the Peruvian constitution, President Balcázar has 15 days to decide what to do with the bill after Congress sends it to his office for signing. That period ends on July 17. If Balcázar lets the 15 days pass without either signing or vetoing the bill, Congress is allowed to sign it into law. If he returns the bill to Congress, the legislation would be considered by the newly elected bicameral Congress, which takes office on July 28 and would need an absolute majority to pass the law. 

The bill expands the definition of “service-related offenses” to include any crime committed by the military or the police “in the context of a state of emergency”. 

The bill would also require the Supreme Court to “give preference to the military police jurisdiction” when resolving jurisdictional disputes.

“Welfare provision into a dead letter”, Supreme Court of India awards back wages to CRPF constable who was discharged due to disability

Live Law has reported, that the Supreme Court of India awarded INR 1.25 crore (Indian Rupees 12.5 million) to a Central Reserve Police Force ("CRPF") constable, who was unlawfully discharged on account of losing his eyesight during service due to an ophthalmic condition in 1996. The State submitted that, the constable lost his right to be reinstated under the provisions of the Rights of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 since he opted for grant of Disability Pension. Further, it was claimed that his reinstatement was barred since the application of above Act was exempted for the CRPF in year 2002 by Notification. 

The Apex Court rejected the above submissions. Critical of the apathetic conduct of the State, the Court observed that as a model-employer they should have been aware of their statutory obligations & provided an alternate role to the constable suitable to his disability by themselves. 

Accordingly, the Court directed that the Constable be paid INR 1.25 crore (Indian Rupees 12.5 million) , towards back wages, interest, and costs. The decision affirms Section 47 of the PwD Act, 1995, which forbids discrimination against any government employee based on their disability, acquired during the course of service.

The Tragedy of Master-Corporal Shaun Orton

Sarah Orton’s life changed forever shortly after 9 a.m. on 21 April 2024.

Alarmed by a series of overnight messages from her husband, Master-Corporal Shaun Orton, she contacted the Military Police to request an urgent welfare check. His messages suggested that he was “spiralling out of control and needing help.”[1]

Master-Corporal Orton had previously served with the 2nd Battalion, Princess Patricia’s Canadian Light Infantry before transferring to the Intelligence Branch in Ottawa, where he worked as a defence intelligence analyst. He had also completed a one-year deployment to Kuwait in support of Operation IMPACT.[2]

“A welfare check involves police officers verifying the well-being of an individual when there are concerns about their physical or mental health.”[3]

Ms. Orton alleges that the military police repeatedly dismissed her concerns and unreasonably delayed initiating a welfare check.[4]

“And now he's not answering and I'm just wondering if somebody could do a mental health check on him,” she told the MP sergeant answering her call. Her husband hadn’t responded to any of her messages or phone calls for two hours.[5]

Instead of dispatching military police, the sergeant gave Ms. Orton a phone number for her husband’s unit and told her the unit was responsible for his wellness check. It was Sunday and every call she made went unanswered or directly to voicemail, nor could she reach anyone at any of the other numbers she tried. After exhausting every avenue available to her, she turned to the Ottawa Police Service for help. 

Ottawa police arrived 10 minutes later and tried to resuscitate him, but MCpl Orton was later pronounced dead at the hospital.[6]

Just before 2 p.m. that same day, Ottawa police Constable Parsons called the MP sergeant to ask why a wellness check had not been conducted earlier. He was told that there were only two officers on duty covering the entire National Capital Region, "so we’re very limited," according to the call transcript. Parsons said police were "definitely concerned," and a crisis worker who was by then involved in the case wanted to "go out and do a door knock."[7]

Constable Parsons’ call to the Military Police took place about five hours after Ms. Orton’s first call to the MPs at nine a.m. for a wellness check on her husband.  It took more than six hours for military police to finally conduct the wellness check.[8]

Ms. Orton asserts that military police "repeatedly dismissed her concerns."[9]

Military Police Complaints Commission chief Tammy Tremblay, in her explanation for convening a public interest hearing, alleges that when they finally agreed to check on her husband, military police stood outside his house for 45 minutes before going inside.[10]

MCpl Orton’s welfare check became a race against time in which the military police seemed unwilling to leave the starting line. The machinery of the military police slowed to a stop, ignoring that a person’s life hung in the balance.

"[Ms. Orton] also noted that the military police detachment commanding officer sent a priest to provide her spiritual support without asking her permission and even though she had made known that she was Jewish," MPCC chief Tammy Tremblay wrote in her decision.[11]

Ms. Orton found her husband’s 10-page suicide note that military police had misplaced while removing his body. The MPs did not accompany her husband to the hospital nor notify her of his death. Neither did they take a noose or pills from the house as evidence. She had difficulty in obtaining information and updates from the military police.[12]

On 11 June 2024, Mrs. Orton filed a conduct complaint with the Canadian Forces Provost Marshal (CFPM). On 30 July 2024, the CFPM decided to close the file without investigating the complaint in favour of conducting a criminal investigation of the responding military police by the Canadian Forces National Investigation Service.[13]

The criminal investigation concluded in March and no criminal charges or service discipline charges were laid, according to the Provost Marshal's office. A Military Police Professional Code of Conduct investigation has now been launched to decide if administrative action should be taken against responding military police, the office said.[14]

In response to an inquiry, The Observatory was told: "A Military Police Professional Code of Conduct investigation was initiated on 18 March 2025 and concluded in September 2025. The subject of the Code of Conduct investigation was subsequently referred to the Military Police Credential Review Board. Consideration by the Board was held in abeyance pending the conclusion of the Military Police Complaints Commission Public Interest Hearing, which concluded on or about 15 May 2026.

"The Military Police Credential Review Board will now proceed with its review and will make a recommendation to the Canadian Forces Provost Marshal regarding whether the member should retain their policing credentials. A date for the Board’s review has not yet been established."[15]

Ms. Orton's complaint also said when military police found MCpl Orton's body, they called civilian police who discovered he was still alive and began first aid. 

Complainants may request an MPCC review of a conduct complaint if they are not satisfied with the disposal of the complaint by the CFPM. On 25 September 2024, Ms. Orton took her concerns to the MPCC to review her complaint.[16]

On 30 April 2025, M^e Tremblay rendered a decision to hold a rare Public Interest Hearing. The Chairperson cited the following important factors that motivated her decision: 

     The seriousness of the allegations, which, if substantiated, could amount to a failure in performing a timely and effective welfare check—potentially preventing a tragic loss of life.

         The broader systemic implications and public interest regarding welfare checks and suicide response by police.[17]

“The allegations in this case are very serious. Given the significant public concern surrounding the proper handling of welfare checks, suicide interventions, and risk assessments by military police, I determined that a public hearing would be the most effective, transparent, and appropriate means of conducting this investigation—ensuring accountability and addressing broader systemic issues,” said M^e Tremblay.[18]

In her complaint, MCpl Orton’s wife claims that delays in conducting a welfare check on her husband, in entering the home, and in administering first aid after his body was found, may have contributed to his death. She further claims that the military police mishandled critical evidence: MPs misplaced her husband’s ten-page suicide note which she found, and failed to collect other evidence in the house, including a noose and pills. She also disclosed that she had difficulty in obtaining information and updates from the military police. 

His wife told the commission that he was transported by ambulance to the hospital where he was pronounced dead.  Military police did not go to the hospital or notify MCpl Orton's wife about his death, she told the commission.

The complaint also said Ms. Orton reported struggling to get updates from military police. 

Her complaint alleges military police may have played a role in the death of Master Corporal Shaun Orton in April 2024 by failing to conduct a wellness check sooner and delaying going into his home and performing first aid. 

"The allegations in this complaint are serious," wrote the watchdog's chairperson Tammy Tremblay in her decision to hold a public hearing.

"If substantiated, they could amount to a failure to conduct a welfare check in an adequate and timely manner which could have potentially saved a life."

 

Section 7 of the Canadian Charter of Rights and Freedoms mandates “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Canada’s military police failed MCpl Orton, like they have failed so many others, including Corporal Stuart Langridge, and Major Cristian Hiestand. Also left hanging from the yardarm of their incompetence and malfeasance are a dozen generals and admirals stigmatized by allegations of wrongdoing for which the military police and its subsidiary, the CF National Investigation Service, could find no evidence.

In MCpl Orton’s case, the military police response functioned like a command structure severed from its troops -- every transmission was received and acknowledged, but none acted upon. While Sarah Orton raced against time, the military police moved with the indifference of a glacier—slow, impersonal, and utterly unmoved by the human tragedy unfolding before them.

Perhaps it is time for the Canadian military justice system to be swept into the dustbin of history as a failed effort; for the military police to be relegated to physical security at DND bases, stations and facilities; for real police work to be left to real police.

-30-  

References

Burke, Ashley. “Call Transcripts Shed Light on Military Police’s Alleged Mishandling of Suicide.” CBC News, May 9, 2026. https://www.cbc.ca/news/politics/military-police-watchdog-public-hearing-alleged-mishandling-suicide-case-9.7193432.

Burke, Ashley. “Military Police Watchdog Calling Rare Public Hearing into Alleged Mishandling of Suicide Case.” CBC News, May 21, 2025. https://www.cbc.ca/news/politics/military-watchdog-public-hearing-alleged-negligence-1.7540068.

Government of Canada, Military Police Complaints Commission. “Decision to Conduct a Public Interest Hearing (MPCC-2024-037).” March 2, 2023. https://www.mpcc-cppm.gc.ca/public-interest-investigations-and-hearings-enquetes-et-audiences-dinteret-public/orton-hearing-audience/pii-eip-2024-037-decision-to-conduct-a-hearing-decision-de-tenir-une-audience-eng.html.

Government of Canada, Military Police Complaints Commission. “Orton Public Interest Hearing (MPCC-2024-037) - Homepage.” January 18, 2024. https://www.mpcc-cppm.gc.ca/public-interest-investigations-and-hearings-enquetes-et-audiences-dinteret-public/orton-hearing-audience/pii-eip-2024-037-index-eng.html.

“Shaun Vincent Orton (obituary) | Beechwood.” July 9, 1979. https://qa.beechwoodottawa.ca/en/services/shaun-vincent-orton.

The Canadian Press. “Rare Hearings Wrap on an Alleged Mishandling of Suicide by Military Police | Canada’s National Observer: Climate News.” May 15, 2026. https://www.nationalobserver.com/2026/05/15/news/rare-hearings-wrap-alleged-mishandling-suicide-military-police.

 

---

[1] Burke, Ashley. “Call Transcripts Shed Light on Military Police’s Alleged Mishandling of Suicide.” CBC News, May 9, 2026. https://www.cbc.ca/news/politics/military-police-watchdog-public-hearing-alleged-mishandling-suicide-case-9.7193432.

 

[2] “Shaun Vincent Orton | Beechwood.” July 9, 1979. https://qa.beechwoodottawa.ca/en/services/shaun-vincent-orton.

[3] Government of Canada, Military Police Complaints Commission. “Decision to Conduct a Public Interest Hearing (MPCC-2024-037).” March 2, 2023. https://www.mpcc-cppm.gc.ca/public-interest-investigations-and-hearings-enquetes-et-audiences-dinteret-public/orton-hearing-audience/pii-eip-2024-037-decision-to-conduct-a-hearing-decision-de-tenir-une-audience-eng.html.

 

[4] Government of Canada, Military Police Complaints Commission. “Decision to Conduct a Public Interest Hearing (MPCC-2024-037).” March 2, 2023. https://www.mpcc-cppm.gc.ca/public-interest-investigations-and-hearings-enquetes-et-audiences-dinteret-public/orton-hearing-audience/pii-eip-2024-037-decision-to-conduct-a-hearing-decision-de-tenir-une-audience-eng.html.

[5] Burke. Call transcripts shed light.

[6] Ibid..

[7] Ibid.

[8] Ibid.

[9] Burke, Ashley. “Military Police Watchdog Calling Rare Public Hearing into Alleged Mishandling of Suicide Case.” CBC News, May 21, 2025. https://www.cbc.ca/news/politics/military-watchdog-public-hearing-alleged-negligence-1.7540068.

[10] Burke, Ashley. “Military Police Watchdog Calling Rare Public Hearing

[11] MPCC. “Decision to Conduct a Public Interest Hearing.

[12] Ibid.

[13] Government of Canada, Military Police Complaints Commission. “Orton Public Interest Hearing (MPCC-2024-037) - Homepage.” January 18, 2024. https://www.mpcc-cppm.gc.ca/public-interest-investigations-and-hearings-enquetes-et-audiences-dinteret-public/orton-hearing-audience/pii-eip-2024-037-index-eng.html.

[14] Burke. “Military Police Watchdog.”

[15] Email: Major Brigitte Van Hende, Public Affairs Officer - Office of the Canadian Forces Provost Marshal

 to The Observatory, 14 July 2026.

[16] MPCC. “Orton Public Interest Hearing (MPCC-2024-037)…” 

[17] Ibid.

[18] Tremblay, “Decision to Conduct a Public Interest Hearing (MPCC-2024-037).

No conscientious objection in Ukraine in wartime

 This article from Eurasia Review reports:

• Ukraine Is Aggressively Prosecuting Conscientious Objectors — Prosecutors have launched over 1,000 criminal cases against men (mostly Jehovah’s Witnesses, Seventh-day Adventists, Baptists, and Orthodox) whose applications for alternative civilian service were rejected, with about 500 cases reaching court.
• Hundreds Are Jailed or Held in Military Bases — At least 24 conscientious objectors are currently serving prison sentences, with 7 awaiting appeals and 21 in pre-trial detention. Hundreds more (including ~300 Seventh-day Adventists and 50 Council of Churches Baptists) are being held against their will on military bases, often facing pressure and torture.
• No Alternative Service During Wartime — Despite martial law and UN concern, Ukraine’s Defence Ministry insists alternative civilian service does not exist during wartime. A promised new law to allow it has not yet reached Parliament, despite a June 2026 deadline. Courts are handing down prison terms of 3–6 years under various Criminal Code articles.

The case of the vanishing disciplinary records

Defence Forces TribunalBinse Óglaigh na hÉireann

"The Defence Forces Tribunal has been told that the record of all official warnings against every officer in the Defence Forces was deleted in 1992." The Irish Examiner has the story here.

Civilianization -- a dirty word in Colombia?

Consider Semana's article headlined "Purge in the Military and Police Criminal Justice System: The Petro Government swept away Public Force officials and brought in civilians." Excerpt:

In hushed tones and with surgical precision, President Gustavo Petro's government has allegedly dismantled the Military and Police Criminal Justice System (JPMP). The weakening of this justice system for members of the Armed Forces is believed to have been orchestrated by former Defense Minister Iván Velásquez and one of his closest associates, the current director of the JPMP, José Reyes Rodríguez.

CAAF Rules Guide 25th

The 2026 (25th!) edition of the unofficial Guide to the Rules of Practice and Procedure for the U.S. Court of Appeals for the Armed Forces is now available from LexisNexis. As always, comments and suggestions are welcome.

The editors for this edition are Dwight H. Sullivan, Franklin D. Rosenblatt, Max Jesse Goldberg, Marcus N. Fulton, and Eugene R. Fidell.

The Broken Contract Between the State and Those Who Serve

A provactive paper by Dr Robert Parr MBE AKC,* BROKEN CONTRACT: The Legal Abandonment of British Armed Forces Personnel and the Case for Sovereign Military Operations Framework.

*Visiting Research Fellow, Changing Character of War Centre, Pembroke College, University of Oxford

ABSTRACT

British armed forces personnel are governed by a legal framework that no government designed, no Parliament deliberately enacted, and no operational commander can coherently apply. The progressive and unplanned conflation of International Humanitarian Law (IHL) and International Human Rights Law (IHRL)— accelerated by extraterritorial extension of the European Convention on Human Rights (ECHR) through the Strasbourg Court's post-2001 jurisprudence — has produced structural conditions of legal incoherence in which personnel may simultaneously comply with IHL and violate IHRL, without either framework providing the clarity or protection that operational command requires. Inevitably and foreseeably, this conflation has coincided with the changing nature of modern war, creating a toxic environment in which our armed forces have to navigate legal complexity whilst shouldering an inappropriate burden of legal risk. This paper argues that this incoherence is not primarily a legal problem. It is a political problem: a product of successive governments' failure to construct a coherent sovereign framework for military operations, to use available derogation mechanisms, and to honour the through-life contract between the state and those who serve it. The paper identifies that failure as a mechanism of betrayal — not merely of individual service personnel and veterans, but of national security itself. The paper advances a programme of parallel reconstruction built around two complementary instruments. The first is a sovereign Military Operations Act, providing domestic legal authority for lethal force and detention in both international and non-international armed conflict, both home and overseas, through ministerial authorisation, a triple-gateway prosecutorial filter; the establishment of an Expert Military Panel; and strict time limits on investigation — expressly disapplying the UK Human Rights Act (HRA) in the military operations

context by a statutory primacy clause, with full ECHR withdrawal reserved as the outer option if Strasbourg challenge follows. It is argued that the current unlimited burden of potential liability carried by our soldiers justifies this novel legal provision. The second instrument is the statutory crystallisation of the Armed Forces Covenant into a soldier/state through-life contract, transforming it from aspiration into an enforceable legal instrument. These are the instruments of a dual strategy: mutually supportive and equally essential.

The paper seems to exist in the Oxford Univ. Research Archive. Interestingly, it is referenced in JusticeForVeterans.uk. And we learn that Dr. Parr is a former active-duty Real Marine and Special Forces officer. 

Peru's Manchay Case -- civil v. military justice

You can find a worthwhile YouTube video here. Which cases should be tried in military court -- and which should not?

Trial judiciary caseload per judge per month

According to the most recent annual reports of The Judge Advocates General, in FY2025 the armed forces' 116 trial judges conducted a total of 1191 general, special and "short" courts-martial. Counting the reserve judges as 1/12 because they likely only serve on active duty for about one month per year, produces an adjusted total "purple" trial judiciary of 82.1 judges and an average caseload of only 14.51 cases/judge or 1.21 cases/judge/month. Both averages would be slightly higher if any of the Coast Guard's 10 military judges were reservists. Unlike the other annual reports, the Coast Guard's report does not distinguish between active and reserve component judges.

You can call it a decrescendo or a diminuendo, but the numbers are falling. For FY19, the average caseload per judge was 20.75 (1.73 cases/judge/month); for CY22, it was 16.19, or 1.35 cases/judge/month. What does the prediction market tell us for FY26?

Are there too many military judges?

Transforming domains: Space, military justice, and the Air Force Judge Advocate General’s Corps in 2050

A retired Air Force JA has this rather interesting article. Todd Pennington, Transforming domains: Space, military justice, and the Air Force Judge Advocate General’s Corps in 2050. The Space Review, 6 July 2026.

Two phenomena with inexorable momentum today will continue on their current trajectories for the foreseeable future. By 2050, I predict they will drive changes in the Air Force and the Space Force resulting in a Judge Advocate General’s Corps dramatically different from the one we know today. These two phenomena are the growth of the US Space Force (and the “space domain”) and the decline of the military justice system (and the “military justice domain”).

You might read this article for additional context. Dwight H. Sullivan, The Military Justice Decrescendo, 68 Villanova. L. Rev. 849 (2024).

Where will this Spanish case be tried?

The civilian director general of Spain's Civil Guard and its uniformed deputy director of operations are both facing legal proceedings on suspicion of administrative misconduct and obstruction of justice. The deputy director could wind up in a military court instead of the National Court if he is charged with military offenses. The question may have to be decided by the Supreme Court. El Independiente has the story here.

Exam Questions

If you were drafting a charge sheet, what UCMJ offenses would you include in Major Jason Watson's case? If you were defending, what would you argue? What sentence would you expect if he is convicted?

Attorney Cody Harnish has this to say.

Supreme Court of India’s Arshnoor Kaur judgment – gender-neutrality v. gender-equality (guest post)

(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.

July 4, 1776/2026 -- a time for reflection: "how goes it?"