Supreme Court: In a significant matter the primary issue was whether Union of India after having issued a Notification under Section 12 of the Army Act, 1950 allowing induction of women in the Judge Advocate General (‘JAG’) branch, could have denied admission to the Petitioners who secured 4th and 5th rank in the merit list of women candidates in preference to Respondent 3 who secured 3rd rank in the merit list of men candidates, but obtained lesser marks than the female candidate placed at 10th in the Females Merit List. The Division Bench of Dipankar Datta and Manmohan*, JJ., opined that Executive cannot restrict number of women candidates and/or make a reservation for male officers under the guise of ‘extent of induction’ by way of a policy or administrative instruction.
The Court further held that notification dated 18-1-2023 for the JAG Scheme 31st Course, qua Short Service Commission (‘SSC’) Course for Law Graduates (impugned notification) to the extent that it provides for only 3 vacancies for female candidates as against 6 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’.
The Court directed that Union of India to conduct JAG recruitment where it shall allocate not less than 50% of the vacancies to women candidates, as well as publish a common merit list for all JAG candidates (i.e. for all male and female candidates) and make the merit list public as well as the marks obtained by all candidates participating in the selection process.
Background and Contentions:
During the recruitment for JAG, Petitioner 2 achieved 4th rank with 477 marks and Petitioner 1 achieved 5th rank with 447 marks in the merit list of women candidates. Whereas Respondent 3 secured 3rd rank with 433 marks in the merit list of men candidates, but obtained lesser marks than the female candidate placed at 10th rank in the Females Merit List.
However, in pursuance to the impugned notification, Respondent 3 was preferred over the Petitioners 2 and 1 on the grounds that the impugned Notification provided for separate merit list for male and female candidates and there were only 3 vacancies for female candidates, as against 6 vacancies for male candidates.
Aggrieved with the outcome, the Petitioners sought declaration that the impugned Notification is ultra vires Articles 14, 15, 16 and 19 of the Constitution; 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’.
Counsel for Respondent 3 submitted that once the Petitioners had participated in the selection procedure and failed to secure a suitable rank for appointment against the vacancies so notified, they are deemed to have waived their right to challenge the selection procedure.
Counsel for Union of India and Indian Army contended that maintenance of defence forces is a sovereign function and it is up to the Service Headquarters to decide the induction of Women Officers, including the ‘extent of induction’, so as to ensure that fighting efficiency, combat effectiveness and functionality of Armed Forces are maintained. It was contended that contended that all JAG Officers are combatants and there is a likelihood of all of them being deployed in combat. In support of this contention, the counsel relied upon Union of India’s Policy on Induction and Employment of Women in Armed Forces dated 11-11-2011. It was further emphasised that the services in Indian Army cannot be compared with any other services, be it public or private. Determination of vacancies is based on war time requirement to maintain optimal functional and operational need and thus, the same is gender-specific and not ‘gender-neutral’.
Per contra, counsel for the Petitioners contended selection criteria for male and female candidates in the JAG branch were not separate as they were assessed on identical parameters. Only few indicators such as physical attributes were different. He pointed out that the Service Selection Board (“SSB”) procedure for male and female candidates is identical in content, structure and evaluation, including the 15 Officer Like Qualities. The Petitioners argued that there is no rational basis to treat men and women separately in JAG and any such attempt would be violative of the Constitution. It was stated that reference to any ‘operational and functional requirements’ is baseless and not supported by any justifiable reason or empirical data. Furthermore, it was contended that the Respondents were misleading the Court by representing that being a combatant is a pre-requisite for all JAG Officers as there is a likelihood of all of them being deployed in combat.
Court’s Assessment:
Notification issued under Section 12 of Army Act, 1950 permits women to join JAG, their number cannot be Restricted in the manner sought to be done
Perusing the matter, the Court opined that Articles 14, 15 and 16 of the Constitution forms a string of constitutional rights which firmly guarantee the right to equality. The said Articles supplement each other and recognize the right to equality of opportunity to all the citizens in matters relating to public employment irrespective of religion, race, caste, place of birth or sex/gender. Article 33 of the Constitution carves out an exception to the right to equality insofar as it empowers Parliament to modify the Fundamental Rights in their application to members of the Armed Forces. Since Article 33 is an exception to Fundamental Rights, the Court opined that any Act passed by Parliament under the said power would have to be strictly construed/interpreted.
By virtue of the power conferred by Article 33 of the Constitution that Parliament has enacted the Army Act, 1950. Eligibility of women for enrolment or engagement in the regular Army is conditional on a notification being issued by the Central Government in terms of the enabling provision of Section 12 of the Army Act, 1950. Consequently, the extent to which restrictions can be imposed on Articles 14, 15 and 16 has to be clearly ‘spelt out’ in Section 12 of the Army Act, 1950 and the Union of India is authorised to impose restrictions on these Fundamental Rights only to the extent of Section 12 of the Army Act, 1950 and no more.
Under Section 12 of the Army Act, 1950, the Respondents had issued notifications on 30-1-1992 (published on 15-2-1992) and 31-12-1992 making women eligible for appointment as SSC officers in 10 streams which included JAG. SSC appointments for women in the 10 streams are limited to Combat Support Arms and Services and not to Combat Arms like Artillery, Armoured Division and Mechanised Infantry.
The Court opined 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. Once the Service Headquarters decides to induct women officers in a particular branch or corps 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’.
“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, 1950”.
Argument that JAG branch consists of primarily combatants is misconceived
Taking note of the Respondents’ argument that JAG branch consists of ‘exclusively combatant personnel’ as they constitute a reserve for mobilisation, the Court found this contention to be misconceived as it runs contrary to the directions of the Court and all policy decisions of the Respondents, which itself 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.
No waiver of Fundamental Rights
The Court noted that marks obtained by the candidates (both male and female) were not placed in the public domain by the Respondent-Union of India and it is only in course of this proceeding that the marks were disclosed; hence, the Petitioners cannot be expected to know of the illegality that crept in the process of selection before presenting the Writ Petition under Article 32 of the Constitution. Consequently, Respondent 3’s submission that the Petitioners had waived their rights to challenge the impugned Notification was held untenable in law.
Impugned Notification is unconstitutional as it reserves double the number of vacancies for males
The Court thus found that the impugned notification to the extent that it provides for only three vacancies for female candidates, whereas six 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.
Professed Policy of enrolment is gender-neutral and not gender-specific
The Court took note of 2023 Report examining the ratio of men and women in various branches of Indian Army. The Report that JAG branch offers an ideal opportunity to have a ‘gender-neutral entry’. It was further noted that in the counter affidavit presented by the Union of India, it has been repeatedly stated that the selection process for JAG is ‘gender-neutral’. Consequently, the professed policy of the Respondents of enrolment/recruitment in JAG branch is ‘gender-neutral’ and not ‘gender specific’ as contended by the Respondents.
The Court pointed out that ‘Gender-neutral’ in ordinary parlance means that no discrimination shall be made between candidates on the basis of gender or sex of an individual and is normally misunderstood and often thought to be synonyms with the expression ‘gender-equality’. To explain the difference, the Court elaborated that hiring the same number of men and women, it would be ‘gender-equality’; on the other hand, if the employer hires the best candidate for the job regardless of gender/sex, it would be deemed to be following the policy of ‘gender-neutrality’. Consequently, the concept of gender-neutrality does not just prohibit sex based classification but it ensures that the most meritorious candidate is selected for the job. Also, the principle of ‘gender-neutrality’ in service does not preclude or limit deployment in any operational area or role.
Present recruitment policy leads to indirect discrimination
The Court pointed that the actual practice of recruiting equal number of male and female candidates in JAG branch, though neutral in form, is anything but gender-neutral in application and practice. “The policy, as per the evidence and empirical data before this Court in the form of marks obtained by the candidates, shows that it has adverse impact on women who are more meritorious than the male candidates”.
The Court opined that the practice challenged in the present petition results in indirect indiscrimination. The practice of fixing a ceiling limit to recruitment of female candidates has the effect of perpetuating the status quo, which has been historically discriminatory to women candidates. The result of such practice is confinement of women candidates, irrespective of their performance/merit, in their gendered category, thereby being destructive of not just the Constitutional scheme under Articles 15 and 16, but also of the concept of ‘gender-neutrality’ and ‘merit’. “The evidence of the disparate treatment is writ large in the form of the merit list produced before this Court, as per which the female candidates have overwhelmingly outscored their male counterparts”.
Respondent 3 has obtained less marks than the female candidate placed at SN10 in the female’s merit list. Accordingly, despite their performance, the meritorious women candidates are not being selected only due to their gender. The Court thus opined 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.
As the nature of tests of male and female candidates is similar, a Combined Merit List ought to be prepared
The Court opined 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. However, mere existence of separate boards, does not extend to separate treatment of men and women candidates in law. It was observed that male and female JAG officers do not have distinct cadres with different conditions of service. Further, in terms of the policy dated 20-7-2006 dealing with SSC appointment of women, combined merit lists are prepared for men and women in case of seniority for SSC Non-Technical and Technical members. Therefore, the Court was of the view that similar combined merit list ought to be prepared.
Merit-Based Selections in JAG
The Court noted that JAG Department falls under the Adjutant General’s branch which majorly performs administrative duties. The Court pointed out that no explanation was offered by the Union of India as to why gender-based vacancy allocation is necessary for a legal branch where the duties, training and performance expectations are identical for all officers regardless of gender. JAG is the ‘Nodal Legal Agency’ for single point contact with the institutionalized judicial system as well as advise on all legal matters pertaining to the Army. The Respondents 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.
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. The Court clarified that that it is not imposing its own views or predilection on the Army but is implementing the Constitution and the mandate of law.
The Court further directed the Union of India to induct Petitioner 1 in the next available training course for being commissioned in the JAG Department of Indian Army.
[Arshnoor Kaur v. Union of India, 2025 SCC OnLine SC 1668, decided on 11-8-2025]
*Judgment by Justice Manmohan
Advocates who appeared in this case :
For Petitioner(s): Mr. Gopal Sankarnarayanan, Sr. Adv. Mr. Mandeep Kalra, AOR Ms. Radhika Narula, Adv. Ms. Anushna Satapathy, Adv. Ms. Chitrangada Singh, Adv. Ms. Radhika Jalan, Adv. Ms. Widaphi Lyngdoh, Adv. Ms. Gauri Rajput, Adv. Mr. Vaibhav Yadav, Adv. Mr. Paras Mohan Sharma, Adv. Ms. Shefali Tripathi, Adv. Mr. Vishal Sinha, Adv. Ms. Ishita Chowdhury, Adv. Mr. Musharraf Shrivastava, Adv.
For Respondent(s): Ms. Aishwarya Bhati, ASG Ms. Shivika Mehra, Adv. Ms. Shagun Thakur, Adv. Mr. Saurav Gaur, Adv. Mr. Mukesh Kumar Maroria, AOR Dr. Dinesh Rattan Bhardwaj, AOR Ms. Vernika Tomar
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