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.

THE DECISION OF THE COURT

Steering slightly away from the usual suspect, i.e. indirect discrimination, the Supreme Court addressed whether the Respondents may, by way of a policy and/or administrative instructions, restrict the number of women candidates and if this flows from Section 12 of the Act, 1950. The decision clarifies that Article 33 of the Indian Constitution provides that the Fundamental Rights may be limited in their application to the members of the Armed Forces, the limitation or law, passed by the Parliament, however, must make such abrogation. While harmoniously interpreting Article 14, 15, 16, 33 of the Indian Constitution and Section 12 of the 1950 Act, the Court found that women were only eligible for employment where the Central Government, by notification in the Official Gazette, specifies such recruitment. The Court deemed that the Respondents having restricted the corps where women will be inducted could not go ahead and implement an additional restriction regarding the “extent of induction”. It was also noted that this “extent of induction” was not stemming from the Notification in the Official Gazette and thus it went against the settled law outlining 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 Court also rejected the Union of India’s reliance on an internal order published thirteen years ago. Notably, the same submission was similarly rejected in the decision of Civil Appeal 9367-9379/2011 Ministry of Defence Vs Babita Puniya decided on 17-02-2020.

On the interesting and novel submission that JAG consists of “exclusively combat personnel”, the Court pointed out that acceptance of this kind of a submission would mean departure from the prior directions of not only the Supreme Court but also the Respondents’ own policies dated 16 December 2022 & 12 February 2023 wherein it was clear that JAG Women Officers were trained under identical operational conditions but were also attached with Infantry Battalions at par with male officers. Thereby, the Court noted that, “field parity has already been institutionalised”.

On the participation of the Petitioner in the recruitment process, knowing well the recruitment policy, Supreme Court observed that the marks obtained are not placed in public domain, and thus, it was not possible for them to know that this illegality has crept in. A direction to reveal the marks hereinafter was also made by the Court to address this malaise.

WORTHWHILE ADDITION TO SUBSTANTIVE EQUALITY JURISPRUDENCE

The fight for substantive equality for women in the Defence Forces of India has been ever-continuing as the provisions of Act, 1950 and its para materia provisions for the Air Force and Navy that prohibit the induction of women in the Forces, except when notified by the Government of India. The Court observed that while women are now inducted at much higher rates, however, parameters for their recruitment remain the same as what they were when the induction was limited to male candidates thereby, axing down the principles of substantive equality.

Interestingly, while the fight for equality was addressed by the Supreme Court in the judgments of Babita Puniya (supra), WP(C) 1109/2020 Lt Col Nitisha Vs Union of India decided on 25-03-2021 and Civil Appeal 2182-187/2020 Union of India Vs Lt Cdr Annie Nagaraja decided on 17-03-2020, the issue of reservation for males in the military had first been addressed by the Punjab & Haryana High Court in CWP 23662/2022 Satbir Kaur Vs Union of India, wherein on 17-10-2022, by way of an interim order, when a Division Bench comprising Justice GS Sandhawalia and Justice Jagmohan Bansal had allowed the participation of a woman candidate with higher marks than her male counterparts in the interview process for the Army Dental Corps when the establishment had reserved 27 seats for men and only 3 seats for women and had resultantly refused to call much more meritorious women for interviews. The issue ultimately culminated in the order of the Supreme Court dated 11 April 2023 in SLP(C) 3293/2023 Gopika Nair Vs Union of India wherein the Supreme Court observed- “we find that depriving the highly meritorious female candidates from participating in the selection process is putting the clock in reverse direction. Leave aside giving preferential treatment to the female as envisaged under Article 15 of the Constitution of India, the stand of the respondent-Union of India is violative of Article 14 of the Constitution of India, inasmuch as it deprives a meritorious female to compete and permits much less meritorious male to participate in the selection process.”

The road from Babita Puniya to Satbir Kaur to Gopika Nair to Arshnoor Kaur has been thorny but worth the fight.

This judgment in Arshnoor also addresses the distinction between “Gender-Neutrality” and “Gender-Equality”. Speaking plainly, that the process of recruitment to JAG has been blatantly discriminatory leading up to the present litigation. Notwithstanding, the Respondents submitted that their subsequent action of ensuring “equality” in the 2024 recruitment and their 50:50 policy should be enough to satiate the woes of the Petitioners. 

One should hope that this judgment resolves the confusion surrounding the term “Gender Neutral” and how it means exactly the same for the Indian Military as for the rest of the nation.

Although the noble intentions of the Indian Military are time and again reminded to us by PR campaigns on empowerment of women, the Indian Army’s insistence to go back to old practices is evident from their discomfort in enforcing this decision. Quite surprisingly, recently, the Supreme Court was again burdened with a Miscellaneous Application (“MA”) seeking “modification” of Para 114 of the decision. The Indian Army by way of this application submitted, in a rather self-contradictory manner, that they were unable to “reconcile” with the directions in Arshnoor Kaur. The application not only was not-maintainable but also drew the deserved ire of the bench which succinctly clarified that, firstly, the decision in this case did not even touch upon other streams where women were not recruited, and more importantly, reportedly remarked how “you cannot have 50% of the population not participating in warfare. You cannot fight with 50% of the population, it's like fighting with your arms tied behind your back.” Accordingly, the application was deservedly dismissed. 

The dicta addressed the patent and visible discrimination towards women wherein apart from the Petitioners, nine women were held back due to their gender. The capability of these women is now redeemed by this judgment.

We leave the reader with this quote by the writer Laura Bates–

“This is not a men vs. women issue. It’s about people vs. prejudice.” 

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Ananya Sharma and Roopan Atwal are practicing advocates at the Punjab and Haryana High Court, India