Arshnoor Kaur & Anr. vs The Union of India & Ors.

12 of the Army Act, 1950, no woman is eligible for employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf – Under Section 12 of the Army Act, 1950, the Respondents had issued notifications on 30.01.1992 (published on 15.02.1992) and 31.12.1992 making women eligible for appointment as SSC officers in the ten streams, including JAG – Accordingly, SSC appointments for women in the above ten (10) streams are limited to Combat Support Arms and Services and not to Combat Arms like Artillery, Armoured Division and Mechanised Infantry – Consequently, this Court is of the view 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 to do so – Accordingly, this Court is of the view that the impugned notification to the extent that it provides for only three

(03) vacancies for female candidates, whereas six (06) 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 – Though men and women candidates during the JAG selection procedure appear before separate boards, yet as the selection criteria and testing parameters of the fifteen (15) Officer Like Qualities are identical, this Court is of the view that combined merit list ought to be prepared. [Paras 39-41, 44-47, 83, 113]

Constitution of India – Articles 14, 15, 16 – Army Act, 1950 – s.12 – Respondent No. 1 placed reliance on Internal Administration Instruction dated 11.11.2011, which empowers Service Headquarters to issue appropriate administrative instruction on induction of women officers including the extent of inclusion – Reliance was also placed on policy on induction (Army HQ Policy) dated 14.03.2012, which prohibits posting/attachment of women officers with Infantry battalions – Correctness:

Held: Internal Administration Instruction dated 11.11.2011 and policy on induction dated 14.03.2012 are untenable in law as they are contrary to the statutory Notification issued under Section 12 of the Army Act 1950 and there is no legal backing for the same in the Constitution or the Army Act, 1950 – 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 – Further, the Respondent’s reliance on an internal order that was published thirteen (13) years ago is erroneous as similar argument to treat women separately in the armed forces on the basis of apparent physiological limitations, physical capability to engage in combat and hygiene conditions has been rejected by this Court in Babita Puniya. [Paras 51-53]

Constitution of India – Waiver of Fundamental Rights – Whether permissible – Respondent No.3 submitted that once the Petitioners had participated in the selection process 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 process:

Held: It is settled law that it is not open to the Respondent-Union of India to contend that a person is not entitled to enforce his/her Fundamental Rights, in particular his/her Right to Equality, because he/she has waived it – It is always open to an aggrieved person to challenge any policy or notification or statutory provision by filing a writ petition under Article 226 or under Article 32 on the grounds that it violates his/her Fundamental Rights – It is pertinent to mention that the 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. [Paras 69, 70] Words & Phrases – ‘Gender neutral’ and ‘Gender-specific’ – Distinction – Whether the current policy of Union of India with regard to enrolment of women in JAG course is ‘gender-neutral’ or ‘gender-specific’:

Held: ‘Gender-neutral’ in ordinary parlance means that no discrimination shall be made between candidates on the basis of gender or sex of an individual – The expression ‘gender-neutral’ is normally misunderstood and often thought to be synonyms with the expression ‘gender-equality’ – A simple analogy to address the difference would be that when an employer hires the same number of men and women, it would be deemed to be following the policy of ‘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 – The distinction between the two concepts, namely, ‘genderneutral’ and ‘gender-equal’ is well known to the Respondents and the Respondents have accepted and implemented the ‘GenderNeutral Policy’ as against ‘gender-equal’ policy – On facts, held, that male and female JAG officers do not have distinct cadres with different conditions of service and the true meaning of concept of ‘gender-neutrality’ and 2023 recruitment policy is that Union of India shall recruit the most meritorious candidates in JAG branch irrespective of their sex/gender as the primary job of this branch is to give legal advice and conduct cases, but to ‘correct the past’ and to ‘compensate the women for their previous non-enrolment’, the Union of India shall allocate not less than 50% of the vacancies to women candidates. [Paras 88-90, 92, 114]

Constitution of India – Articles 14, 15, 16 – Army Act, 1950 – s.12 – Whether Present Recruitment Policy leads to Indirect Discrimination:

Held: To determine whether the recruitment policy is genuinely gender-neutral or not, one has to look beyond formal level of evaluation and take additional factors such as ‘impact’ or ‘effect’ into account – Therefore, ‘genuine’ gender-neutrality lies in addressing disparate effects of laws/policy/practice which appear to be facially fair or equal – In Lieutenant Colonel Nitisha, this Court has held that indirect discrimination is closely tied to the substantive concept of equality and the focus in anti-discrimination enquiry has switched from looking at the intentions or motive of the discriminator to examining whether a rule, formally or substantively, ‘contributes to the subordination of a disadvantaged group of individuals’ – It needs to be clarified that the use of the terms ‘indirect discrimination’ is not to refer to discrimination, which is remote, but is, instead, as real as any other form of discrimination – 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’ – Accordingly, despite their performance, the meritorious women candidates are not being selected only due to their gender. [Paras 93, 95, 98]

Constitution of India, 1950 – Articles 14, 15,16 – Constitution and Government Policy towards Women – Discussed. [Paras 72-82]