Court’s Decision
The Supreme Court struck down the Army’s practice of reserving disproportionately fewer vacancies for women than men in the Judge Advocate General (JAG) branch, holding it violative of Articles 14, 15, and 16 of the Constitution. It ruled that once women are permitted to join a branch under Section 12 of the Army Act, 1950, the Government cannot impose an additional cap on their induction through policy or administrative instructions. The Court ordered that women and men must compete in a common merit list for JAG recruitment and directed the induction of petitioner Arshnoor Kaur into the next available course.
Facts
The petitioners, both law graduates, participated in the selection for the 31st Short Service Commission (JAG) Course (October 2023). Despite securing higher marks than several male candidates selected under the men’s quota, they were denied entry because the recruitment notification limited women’s vacancies to three, compared to six for men.
Both male and female candidates underwent identical Service Selection Board (SSB) procedures and evaluation standards. The petitioners challenged the notification’s separate merit lists and vacancy caps for men and women as discriminatory and unconstitutional.
Issues
- Whether, after issuing a notification under Section 12 of the Army Act permitting women in the JAG branch, the Government can restrict their intake through policy.
- Whether the vacancy ratio (6 men: 3 women) in JAG recruitment violates equality provisions under Articles 14, 15, and 16.
- Whether the recruitment should be through a common merit list for all candidates.
Petitioner’s Arguments
The petitioners argued that the SSB process for both genders is identical in content, structure, and evaluation, with only minor differences in physical testing. They cited Ministry of Defence statements affirming gender neutrality in Armed Forces employment. Since the Constitution permits special provisions for women (Art. 15(3)) but not for men, giving more vacancies to men is impermissible.
They stressed that Article 33 allows Parliament—but not the executive—to limit rights of Armed Forces personnel, and Section 12 of the Army Act only governs eligibility, not intake caps. Once women are allowed in a branch, their intake cannot be restricted absent statutory authority.
They relied on Dattatraya Motiram More v. State of Bombay to argue that discrimination in favour of men is unconstitutional.
Respondent’s Arguments
The Union of India and Army contended that defence forces’ operational readiness is a sovereign function. JAG officers are combatants and may be deployed in combat; thus, induction must consider operational and field constraints. Historically, women JAG officers were not attached to infantry units or frontline roles.
They argued that intake ratios (initially 70:30, later revised to 50:50 from 2024) were based on functional requirements, cadre health, and deployment restrictions, as approved by policy studies. They relied on Babita Puniya cases to highlight judicial deference to defence policy decisions.
Respondent No.3, a male candidate selected under the men’s quota, claimed that petitioners participated without objection and should be estopped from challenging the process.
Analysis of the Law
The Court examined Articles 14, 15, 16, 33 of the Constitution, and Section 12 of the Army Act. Article 33 allows Parliament to limit rights of Armed Forces members, but only through legislation. Section 12 limits women’s employment to notified corps but contains no authority to cap their numbers.
Applying R. Viswan v. Union of India, the Court held that restrictions on rights must be found in the statute itself; executive policy cannot impose additional limitations. Once women are notified as eligible for JAG, they must be treated equally to men in recruitment.
Precedent Analysis
- R. Viswan v. Union of India (1983) 3 SCC 401 – Restrictions on rights must be clearly authorised by statute.
- Dattatraya Motiram More (1953) – Art. 15(3) permits special provisions for women but not for men.
- Babita Puniya v. Secretary (2010) & Secy. MoD v. Babita Puniya (2020) – Judicial restraint in operational matters, but not applicable to restricting notified women’s intake in non-combat roles.
- Kotak Mahindra Bank v. Stiefel – On jurisdiction transfer principles (analogous in reasoning on statutory scope).
Court’s Reasoning
The Court held that:
- Section 12 permits the Government to decide where women may serve, not how many may be inducted once permitted.
- Vacancy caps based on gender in the same selection process, where criteria are identical, violate equality principles.
- “Extent of induction” cannot be used to override constitutional rights without statutory sanction.
- Separate merit lists with uneven vacancies cause indirect discrimination when assessments are common.
Conclusion
The impugned notification’s 6:3 male-female vacancy split was declared unconstitutional. The Court directed preparation of a unified merit list for future JAG recruitment and ordered petitioner Arshnoor Kaur’s induction in the next course.
Implications
The judgment ensures that once women are permitted in a military branch, they must compete on equal terms with men, without arbitrary vacancy caps. It sets a precedent for challenging gender-based intake restrictions in other Armed Forces branches and underscores that executive policy cannot curtail constitutional rights without legislative authority.
FAQs
1. Can the Army limit women’s vacancies in a branch where they are permitted?
No. Once women are notified as eligible under Section 12 of the Army Act, intake caps need statutory backing, not mere policy.
2. Is a common merit list mandatory for men and women in JAG recruitment?
Yes. When evaluation criteria are identical, a unified merit list is required to ensure equality.
3. Does this judgment apply to combat roles?
No. Section 12 notifications determine eligible branches. The case concerns JAG, a notified branch, not combat arms where women are not yet notified.
