ARSHNOOR KAUR & ANR. v. THE UNION OF INDIA & ORS

Citation: 2025 INSC 954, [2025] 8 S.C.R. 1241

Court: Supreme Court of India

Bench: Dipankar Datta and Manmohan, JJ.

Judgment text

SUPREME COURT OF INDIA Arshnoor Kaur & Anr. v. The Union of India & Ors. Writ petition sought to declare the aforesaid notification as ultra vires Arts. 14 [2025] 8 S. C. R. 1241 : 2025 INSC 954 Arshnoor Kaur & Anr. v. The Union of India & Ors. (Writ Petition (C) No. 772 of 2023) 11 August 2025 [Dipankar Datta and Manmohan,* JJ. ] Issue for Consideration (i) Whether after allowing induction of women in a particular corp or branch under section 12 of the Army Act, 1950, can the Respondents by way of a policy and/or administrative instruction restrict the number of women candidates joining the said branch; (ii) Whether the current policy of Union of India with regard to enrolment of women in JAG course is 'gender-neutral' or 'gender-specific'. Headnotes† Constitution of India - Arts. 14, 15, 16, 33 - Army Act, 1950 - s. 12 - A notification u/s.

12 of the Army Act, 1950 was issued for the JAG Scheme 31st Course, qua Short Service Commission ('SSC') Course for Law Graduates - The said notification allows induction of women in JAG, and notified three vacancies for female candidates as against six vacancies for male candidates - The notification, further, provides for separate merit list for male and female candidates - In the instant case, Petitioner No. 2 (Female) who was ranked 4th with 477 marks (Female Merit List) and Petitioner No. 1 (Female) who was ranked 5th with 447 marks (Female Merit List) denied admission in preference to one male candidate who secured third rank with 433 marks in the male merit list - The Petitioners through this Writ petition sought to declare the aforesaid notification as ultra vires Arts.

14, 15, 16 and 19 of the Constitution, further publication of a common merit list irrespective of sex of the candidate so as to give effect to 'gender-neutral' policy of recruitment in JAG branch - Correctness: Held: Articles 14, 15 and 16 of the Indian Constitution form 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 * Author 1242 relating to public employment irrespective of religion, race, caste, place of birth or sex/gender - Article 33 of the Indian Constitution carves out an exception to the aforesaid right to equality insofar as it empowers Parliament to modify the Fundamental Rights in their application to members of the Armed Forces - It needs to be emphasised that such restrictions or abrogation must be made by law passed by Parliament - It is by virtue of the power conferred by Article 33 of the Indian Constitution that Parliament has enacted the Army Act, 1950 - Section 12 of the Army Act, 1950 restricts the Fundamental Right of females to join the Indian 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 -Upon a harmonious reading of Articles 14, 15, 16, 33 of the Indian Constitution and Section 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] Arshnoor Kaur & Anr. v. The Union of India & Ors. 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 1244 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, 'gender- neutral' and 'gender-equal' is well known to the Respondents and the Respondents have accepted and implemented the 'Gender- Neutral 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 Arshnoor Kaur & Anr. v. The Union of India & Ors.

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] Case Law Cited R. Viswan and Ors. v. Union of India and Ors. [1983] 3 SCR 60 : (1983) 3 SCC 401; Babu Verghese v. Bar Council of Kerala [1999] 1 SCR 1121 : (1999) 3 SCC 422; K. S. Puttaswamy v. Union of India [2017] 10 SCR 569 : (2017) 10 SCC 1; Basheshar Nath v. Commissioner of Income Tax Delhi & Rajasthan and Another [1959] Supp. 1 SCR 528 : 1958 SCC OnLine SC 7; Gopika Nair & Ors. v. Union of India & Ors. , SLP (C) 3293/2023; Lieutenant Colonel Nitisha and Ors. v. Union of India and Ors. [2021] 4 SCR 633 : (2021) 15 SCC 125 - relied on. Secretary, Ministry of Defence v. Babita Puniya & Ors. [2020] 3 SCR 833 : (2020) 7 SCC 469 - referred to. Dattatraya Motiram More v. State of Bombay, ILR 1953 Bom 842; Babita Puniya v. Secretary & Anr. , 2010 SCC OnLine Del 1116 - referred to. 1246 Action Travail des Femmes v. Canadian National Railway Co.

, 1987 SCC OnLine Can SC 37 : (1987) 1 SCR 1114; Taylor v. Taylor (1875) 1 Ch. D. 426; Nazir v. King Emperor, AIR 1936 PC 253 - referred to. Books and Periodicals Cited Global Gender Gap Report, 2024; The Oxford Handbook of The Indian Constitution; Article by C. Raj Kumar, The Times of India dated January 7, 2025; How India Scaled MT G20 The Inside Story of the G20 Presidency by Mr. Amitabh Kant. List of Acts Constitution of India, 1950; Army Act, 1950; Women's Reservation Act, 2023. List of Keywords Article 14 of Constitution; Article 15 of Constitution; Article 16 of Constitution; Right to equality; Gender neutrality; Induction of women in JAG; Army; Indirect discrimination; Common merit list; Admission denied; Armed forces; Internal administration instructions; Gender discrimination; Constitution and government policy towards women; Merit; Waiver of fundamental rights. Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.

772 of 2023 Under Article 32 of the Constitution of India Appearances for Parties Advs. for the Petitioners: Gopal Sankarnarayanan, Sr. Adv. , Mandeep Kalra, Ms. Anushna Satapathy, Ms. Radhika Jalan, Ms. Widaphi Lyngdoh, Yashas J, Ms. Shweta Singh, Vaibhav Yadav, Paras Mohan Sharma, Ms. Shefali Tripathi, Ms. Radhika Narula, Rishabh Lekhi, Vishal Sinha, Ms. Ishita Chowdhury. Advs. for the Respondents: Aishwarya Bhati, A. S. G. , Rana Mukherjee, Sr. Adv. , Mukesh Kumar Maroria, Ms. Shagun Thakur, Kartikay Agarwal, Chitvan Singhal, Arshnoor Kaur & Anr. v. The Union of India & Ors. Raman Yadav, Ms. Sonali Jain, Abhishek Kumar Pandey, Purnendu Bajpai, Mukesh Kumar Singh, Dr. Dinesh Rattan Bhardwaj, Irshad Ahmed, Mahesh Singh, Dr. Ashutosh Garg, Samarth Mohanty, Abhisth Kumar, Pankaj Kumar Sharma, Ms. Vernika Tomar. Judgment / Order of the Supreme Court TABLE OF CONTENTS Para Nos. Primary issue ....................................................................

1 Arguments on behalf of Petitioners .................................. 2-7 Arguments on behalf of Respondent No. 3 ........................ 8-10 Arguments on behalf of Union of India and Army ............. 11-24 Rejoinder ........................................................................... 25-31 Additional Arguments on behalf of the Respondents ....... 32-36 Order dated 08th May 2025 ............................................... 37 Reasoning .......................................................................... 38-110 Since 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 ...................... 38-50 Circulars of 11th November 2011 and 14th March 2012 are untenable in law ...................................................................

51-54 Argument that JAG Branch consists of primarily combatants is misconceived .................................................................. 55-58 Field parity has been institutionalised ............................... 59-61 Argument that women officers are not posted where contact with enemies is likely, has no basis .................................. 62-68 No waiver of fundamental rights ....................................... 69-71 Constitution and Government policy towards women ....... 72-82 Impugned notification is unconstitutional as it reserves double the number of vacancies for males ....................... 83 1248 The professed policy of enrolment is gender-neutral and not gender-specific ................................................................... 84-87 Distinction between gender-neutral and gender-equal ..... 88-92 Present recruitment policy leads to indirect discrimination ...

93-99 As the nature of tests of male and female candidates is similar, a combined merit list ought to be prepared .......... 100-103 Constitutionally valid interpretation of the 2023 recruitment policy implemented w. e. f. 2024 .......................................... 104 Merit-based selection will improve efficiency of JAG ........ 105-110 Conclusion .......................................................................... 111-118 Judgment Manmohan, J. PRIMARY ISSUE 1. The primary issue that arises for consideration in the present case is whether Respondent-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 Petitioner No. 2 (Ms. Astha Tyagi), who has achieved the fourth (4th) rank with 477 marks and Petitioner No. 1 (Ms. Arshnoor Kaur), who has achieved (5th) rank with 447 marks in the merit list of women candidates in preference to Mr.

Himanshu Panwar who has secured third rank with 433 marks in the merit list of men candidates, but has obtained lesser marks than the female candidate placed at Serial No. 10 in the Females Merit List in pursuance to the notification dated 18th January, 2023 for the JAG Scheme 31st Course, qua Short Service Commission ('SSC') Course for Law Graduates (impugned notification) on the grounds that the said Notification provides for separate merit list for male and female candidates and provides for only three (03) vacancies for female candidates, as against six (06) Arshnoor Kaur & Anr. v. The Union of India & Ors. vacancies for male candidates.

It is pertinent to mention here that the Petitioners have sought not only a declaration that the impugned Notification is ultra vires Articles 14, 15, 16 and 19 of the Constitution, but also 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'. ARGUMENTS ON BEHALF OF PETITIONERS 2. Mr. Gopal Sankaranarayanan, learned senior counsel for the Petitioners stated that the 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 fifteen (15) Officer Like Qualities. The relevant portion of the procedure and testing parameters of the Officer Like Qualities considered by the SSB and the conduct thereof for recruitment to the Indian Armed Forces is reproduced hereinbelow: - ".... Note: 1. Each candidature is tested for the above mentioned 15 OLQs. 2. There are mainly three people who test candidates for 15 OLQs they are: - (a) Psychologist. (b) Ground Testing Officer (GTO). (c) Interviewing Officer. Three officers are well trained in their fields to undertake the task. They independently interact with candidates to assess them for possessing the 15 OLQs. The Psychologists do not physically interact with the candidates but assess them on the answers given by them.

1250 CONDUCT OF SSB DAY ACTIVITY TEST TEST PROCEDURE REMARKS CONDUCTED AND REASON FOR TEST Stage 1: This is a coarse filter. The aim is to retain only those candidates who have the potential and fit to undergo detailed testing for four days. The Stage 1 selection system includes the following: DAY Stage I 1. Intelligence 1. Intelligence Test Common 1 Screening Test Test for Men (Intelligence This is a simple and Test) 2. Picture test of logic / Women Perception analytical aptitude Candidates and based on which an Discussion intelligence rating Test ranging from I to V is rewarded 2. Picture Perception and Discussion Test Picture is flashed for 30 seconds. The candidates have to broadly note down seven basis parameters viz number of characters, age, sex, mood, action relating to past, present and future for each character in one minute. Time for story writing is four minutes. The key to performing well in this test is the accuracy of their perception.

Discussion Test In this phase batch is divided into different groups. Strength of group is around 15 candidates. Arshnoor Kaur & Anr. v. The Union of India & Ors. Each candidate narrates his individual written story verbatim. Subsequently, in Part-II all the candidates have to discuss amongst themselves and achieve a common consensus about the characters and theme of the story. In this phase, candidates are evaluated on their power of expression, clarity of language (both grammatical and logical), confidence, participation, and their ability to accept and integrate others' ideas. Candidates who successfully clear Stage 1 proceed to Stage 2, which is based on their individual performance in Stage 1, as well as the administrative and logistical capacity of the selection center. The stage-II tests comprise of three different techniques, namely the psychological tests, group tasks and personal interview.

It is emphasized that in all the three techniques the assessment is of your personality which is based on specified 15 OLQs (Officer Like Qualities). DAY Stage-II The Tests conducted: Common 2 Psychological Psychological for Men Test Test. i. Thematic and Apperception Test Women It is a test of your The (TATs) - 60 items: Candidates mind. Candidate's psychologist answers are does not 12 Pictures including required to be interact with one blank are natural responses candidate shown. Candidates and not nor does he are asked to write a preconceived. know them by story around what their physical led to the situation, appearance what is going on or attribute. and what would be He assess the likely outcome. personality Each Picture is merely through shown 1252 the inputs for 30 seconds which and candidates are candidates asked to write it in give. 4 minutes. In the blank side, they have to think a picture of their own choice and write a story around that. ii.

Word Appreciation Test (WATs) - 60 items: In this test, a series of 60 words are shown to the candidates one after another for 15 seconds each. The candidate is required to write down the first thought or idea that comes to his mind. iii. Situation Reaction Test (SRTs) - 60 items This test consists of 60 routine life situations regarding day to day activities. The situations are printed in a booklet and the candidate is asked to write his/her reactions by completing the sentences, as to how they would feel, think and act in these situations. iv. Self-Description Test (SD). Candidate is asked to write five separate paragraphs on Arshnoor Kaur & Anr. v. The Union of India & Ors. each context about the opinion of his parents/ guardian, friends, teachers/superiors. Aim of these tests is to check for 15 OLQs by Psychologists independently Day Stage-II GTO 1. Group 1. Group Discussion Common 3&4 Test Discussion (GD): for Men (GD): and Two topics of Women 2.

Group common interest Candidates Planning (social issues and Exercise current events) are (GPE) discussed. 3. Progressive It is an informal Group Task discussion and not (PGT) a debate. Each topic is allotted 20 4. Snake/ minutes each. No Group definite conclusion Obstacle is required to be Race deduced. There 5. Lecturette is no standard answer. 6. Half Group Task (HGT) Done: To assess communication 7. Individual skills, ability to Obstacles express opinions, Task (IOT) and listen to others. 8. Command Task 2. Group Planning Exercise (GPE): 9. Final Group Task It comprises of five stages viz. , explanation of the model, reading of the narrative by GTO, five minutes for self-reading by candidates, 10 minutes for individual written solutions and 20 minutes for group discussion. 1254 Narration of the group solution and definite conclusion is required. Done: To evaluate problem-solving abilities, logical thinking, and teamwork. 3. Progressive Group Task (PGT) It is the first outdoor task.

A set of four obstacles with progressively increasing level of difficulties are to be completed in 40 to 50 minutes. Structures. Helping material and load are provided to the group. Done: To assess teamwork, leadership, determination, and physical stamina. 4. Snake/Group Obstacle Race In this task the group is pitched against each other over a set of six obstacles with a snake like load to carry. Done: To assess physical stamina, coordination, and teamwork. 5. Lecturette It is an individual task and the candidate is required to give a short talk to the Arshnoor Kaur & Anr. v. The Union of India & Ors. group. Three minutes are allowed to prepare any chosen topic from the 3-4 given in the Lecturette Cards for the talk. Done: To evaluate communication skills, clarity of thought, and ability to present information. 6. Half Group Task (HGT) It has one obstacle similar to progressive group task with helping material and load to be carried.

Group is divided into two Sub Groups and assigned the same obstacle in turn in such a way that when one group is working, the other one is not allowed to watch it. Time allotted to each sub group is 15 minutes. Done: To assess leadership, delegation, and ability to work under pressure. 7. Individual Obstacles Task (IOT) A set of 10 obstacles is set to be tackled individually. Obstacles are numbered from one carries. 1256 Each individual is given three minutes. (In certain instances, female candidates may be permitted to complete 8 obstacles instead of the full 10. However, they retain the option to attempt the remaining 2 obstacles, and marks will be awarded for those obstacles upon successful completion. Additionally, candidates may repeat any obstacle, provided that all 10 obstacles are completed before attempting again. It is further stipulated that the marking scheme is uniform for both male and female candidates.

A female candidate who completes 8 obstacles shall not be granted marks equivalent to those awarded to a male candidate who completes all 10 obstacles. This provision ensures the integrity of the testing process, making it Gender Neutral. Arshnoor Kaur & Anr. v. The Union of India & Ors. Done: To assess physical fitness, determination, and problem-solving skills. 8. Command Task: Each individual is nominated as commander for one task consisting of one obstacle similar to be Progressive Group Task Time given in 15 minutes. Done: To assess leadership potential, ability to take charge, and motivate others. 9. Final Group Task (FGT). Task consisting of one obstacle similar to the Progressive Group Task. Time given to complete this task is 15-20 minutes May include scenarios involving problem-solving, decision-making, and teamwork. GTOs closely observe the way a candidate participates in various tasks and builds a personality profile.

DAY Stage-II Interview Tested for 15 OLQs Common 2-4 Interview for Men The interviews are and Conc The interviewing normally conducted in Women urre officer discusses the afternoon by the Candidates ntly by way of Interviewing Officer 1258 questions and (IO), who answers the is also one opportunities you of the three had in your life assessors. The and the positive interviews will or otherwise carry on from benefit you have day 1 to day 4. derived from Each candidate them. It is a test is interviewed of your heart. only once and The interviewing is informed officer is fairly about it well in senior and advance. The experienced atmosphere in the armed throughout forces. While he the interview interacts with is relaxed and you he discerns informal. The whether you questions are have the qualities generally based required to be on everyday an army officer. experience.

What you have done till date with regard to your academics, competitive exams, your achievements in extracurricular activities, your interests in life, sports you play, your feelings for your parents, friends, teachers and society at large, your general knowledge and awareness and your physical and mental fortitude are all important faces of his assessment. DAY Stage-II Confirmation Common 5 Conference test to select for Men or reject the and The three candidate Women assessors have Candidates Arshnoor Kaur & Anr. v. The Union of India & Ors. individually carried out their assessment. However, there is no discussion as sharing of facts of assessment between them not any results of your performance is known to them or anybody else at the beginning of the conference. For the final result on the performance of a candidate all the three assessors and all members of the board must interact as also meet the candidate in person. Thus, we have the final board conference.

During this, this individual assessments are discussed and a candidate's plus points and weak qualities are deliberated upon in detail. All aspects of a candidate are analyzed to see if he/she has the required qualities to be trained to become a good armed forces officer. ...... " 1260 3. He emphasised that the Ministry of Defence in its Press Release dated 17th March 2023 affirmed that employment in the Indian Armed Forces is 'gender-neutral' and that there is no distinction in testing, deployment or working conditions. The relevant portion of the Press Release is reproduced hereinbelow: - "Employment in Indian Armed Forces is gender neutral. There is no distinction in the deployment and working conditions of male and female soldiers in the arms and services in which they serve. The postings are as per organizational requirements and employment is as per qualifications and service qualitative requirements. " 4.

He also stated that the Union of India had repeatedly stated in its counter affidavit that the selection process for JAG is 'gender-neutral' and is based purely on merit. In support of his contention, he relied on para 25 of the counter affidavit which is reproduced hereinbelow: - "25...... The process of shortlisting of candidates for SSB is done on a gender neutral common cut off marks obtained by the candidates in CLAT PG Exam. Secondly the process of Stage I during SSB verily forms part of a scientifically approved testing process by the DIPR (Defence Institute of Psychological Research) which is a premier National Institute responsible for creation and sustenance of Selection process of Indian Armed Forces....

The process of merit formulation is based on Directorate General Recruiting/Recruiting 'A' policy No 58538/ Recruiting P&C dated 31 Mar 2004 which has the approval of the competent authority on whose behalf the Directorate carries out selection of officers for Indian Army wherein candidates are placed in order of merit purely based on the marks obtained by them at the SSB. " (emphasis supplied) 5. Thus, according to him, there is no rational basis to treat men and women separately in JAG and any such attempt would be violative of Article 14 of the Constitution. He stated that reference to any 'operational and functional requirements' is baseless and not supported by any justifiable reason or empirical data. Arshnoor Kaur & Anr. v. The Union of India & Ors. 6. He submitted that reserving additional seats for men in any public examination is not permissible and violative of Articles 14, 15 and 16 of the Constitution.

The relevant portions of Articles 14, 15 and 16 of the Constitution are reproduced hereinbelow: - 14. Equality before law. --The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth-- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. xxx xxx xxx (3) Nothing in this article shall prevent the State from making any special provision for women and children...... 16. Equality of opportunity in matters of public employment-- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State..... " 7. He submitted that seats can only be reserved for women in view of Article 15(3). The other seats must be kept unreserved and filled up exclusively through merit. In support of his submission, he relied upon Dattatraya Motiram More Vs. State of Bombay, ILR 1953 Bom 842, wherein it has been held as under: - "...... In our opinion, if that was the object of enacting art. 15(3), then art. 15(3) need not have been enacted at all because if the special provision for women contemplated by art. 15(3) were only those provisions which did not discriminate against men, then no proviso to art. 15(1) was necessary. Article 15(3) is obviously a proviso to art. 15(1) and proper effect must be given to the proviso.

It is true that in construing a proviso one must not nullify the section itself. A proviso merely carves out something from the section 1262 itself, but it does not and cannot destroy the whole section. The proper way to construe art. 15(3) in our opinion is that whereas under art. 15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of art. 15(3) discrimination in favour of women is permissible and when the State does discriminate in favour of women it does not offend against art. 15(1). Therefore as a result of the joint operation of art. 15(1). and art. 15(3) the State may discriminate in favour of women against men, but it may not discriminate in favour of men against women...... " ARGUMENTS ON BEHALF OF RESPONDENT NO. 3 8. Mr. Rana Mukherjee, learned senior counsel appearing on behalf of Respondent No.

3 pointed out that on 24th July, 2023, the instant writ petition had been filed by the Petitioners, after having participated in the selection process and having failed to secure a spot in the woman's merit list (ranked 4th and 5th) dated 14th July, 2023 for appointment against the vacancies notified for JAG branch of the Indian Army, 31st Course, October, 2023, inter-alia on the ground that notification was discriminatory as the vacancies notified for men were greater (6) than those notified for women (3). He 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. 9. He stated that Respondent No. 3 a successful candidate having secured the 6th rank in the men's merit list dated 21st July 2023, was not made a party to the said writ petition. 10. He contended that Respondent No.

3, who had bona fide participated in the selection process and succeeded therein, was now on the verge of losing the opportunity to join the Army for no fault of his. He prayed that this Court may take a sympathetic view as Respondent No. 3 has now become overage and is not eligible to participate in any further recruitment examination for the JAG branch. ARGUMENTS ON BEHALF OF UNION OF INDIA AND ARMY 11. At the outset, Ms. Aishwarya Bhati, learned Additional Solicitor General ('ASG') fairly handed over marks of all the candidates (male Arshnoor Kaur & Anr. v. The Union of India & Ors. and female) as per merit list who had appeared in SSC (JAG-31) Course. The mark lists are reproduced hereinbelow:- MERIT LIST : SSC (JAG)-31 (MEN) COURSE (OCT 2023) Vacancy as per Notification - 06 Merit Roll No Name DoB SSB MARKS 1. 900525 SURYA DEV SINGH 27/12/1997 548 BHANDARI 2. 900023 AKASH 12/10/1998 485 3. 900039 HIMANSHU PANWAR 17/08/1998 433 4. 900482 PATH MEHTA 27/12/1999 431 5.

900130 RAJAS JANI 12/8/1996 425 6. 900096 SUNEET SINGH 8/12/1996 424 7. 900188 SOURABH SHUKLA 24/07/1997 404 8. 900020 AABID KHAN 28/03/1998 395 9. 900423 SANEER SINGH 4/10/1998 394 DAHIYA 10. 900216 UJJUAL SINGH 22/06/1998 392 11. 900123 HARSH KUMAR 29/05/1999 392 12. 900476 AMIT CHOUDHARY 14/10/1997 385 13. 900248 RITIK SHARMA 9/11/1998 382 14. 900613 SHAMS SIDDIQUI 23/08/1996 378 15. 900608 SHAMAL SANGAM 10/7/1998 374 16. 900332 ADEET SRIVASTAVA 6/12/1998 373 17. 900107 PUNEET JANGID 1/4/1999 369 18. 900094 ABHISHEK KANDWAL 25/02/1999 368 1264 MERIT LIST : SSC (JAG)-31 (WOMEN) COURSE (OCT 2023) Vacancy as per Notification - 03 Merit Roll No Name DoB SSB MARKS 1. 950016 VANISHA UPADHYAY 31-Mar-98 494 2. 950089 CATHERINE JIMMY 1-Dec-98 492 3. 950153 AMANATBIR KAUR 23-Feb-98 490 4. 950023 ASTHA TYAGI 27-Jul-99 477 5. 950245 ARSHNOOR KAUR 6-Nov-96 447 6. 950209 DEEKSHA TRIPATHI 19-Jul-97 447 7. 950145 SAMYUKTA MENON 30-May-97 446 8. 950007 LAVANYA YADAV 30-Aug-98 444 9.

950415 RASHMI KUMARI 23-Sep-00 438 10. 950114 SHRUTI PATHAK 2-Jul-96 437 11. 950057 NANDANI ANAND 21-Jan-99 429 12. 950077 SAUMYA KATARA 11-Jan-98 424 13. 950284 AISHWARYA SETHI 6-Aug-99 423 14. 950249 HIMANSHI CHOUHAN 13-Oct-98 421 15. 950477 KAJAL RAI SADANA 10-Jun-99 407 16. 950485 KAMNA CHOPRA 6-Jun-97 406 17. 950433 ANUSHRI SANTOSH 14-Jun-00 405 SHUKLA 18. 950159 VAISHALI TOMAR 19-Oct-97 402 19. 950033 PRIYANKA GOYAL 14-Sep-96 401 20. 950039 POOJA JANGRA 15-Jul-98 397 Arshnoor Kaur & Anr. v. The Union of India & Ors. 21. 950461 NEHA RATHORE 16-Feb-97 396 22. 950357 KIRANDEEP KAUR 5-Aug-97 392 23. 950168 RHYTHM SINGH 10-Jan-97 385 THAKUR 24. 950131 SHIVANI PATEL 18-Dec-98 366 12.

Learned ASG submitted 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. She contended that all JAG Officers are combatants and there is a likelihood of all of them being deployed in combat. In support of her contention, learned ASG relied upon Union of India's Policy on Induction and Employment of Women in Armed Forces dated 11th November 2011. The relevant portion of the said Policy is reproduced hereinbelow:- "2. Respective Services Headquarters will issue appropriate administrative instruction on induction of women officers including the extent of induction, so as to ensure that fighting efficiency, combat effectiveness and functionality of the Armed Forces are maintained. " 13.

She emphasised that the services in Indian Army cannot be compared with any other services, be it public or private. According to her, 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'. 14. She stated that initially Women JAG Officers on commissioning were being posted in JAK LI (Jammu and Kashmir Light Infantry) Regiment Centre for a period of twelve (12) weeks only. She emphasised that at that time i. e. in 1992 training of Women Officers for the combat role was not a part of their induction and employment in the Indian Army as it was not a permanent cadre. She stated that it was only subsequently in 2008 that the Women Officers of JAG branch were brought on par with male officers for grant of permanent commission. 15.

She further contended that despite bringing Women Officers at par with Male Officers for consideration of Permanent Commission, 1266 there was no change in its policy of not posting the Women Officer in Combat Arms due to the peculiar requirement of Indian Army. She emphasised that it is a conscious decision of the Government of India to restrict the employment of Women Officers from being posted in frontline combat deployment where contact with the enemy/ hostiles is likely. She stated that Women Officers are not posted to Rashtriya Rifles Battalions and isolated posts engaged in conduct of active operations, including Counter Insurgency Operations. She stated that in view of Army HQ Policy dated 14th March 2012, Women Officers of JAG Department, among others, do not undergo the attachment with Infantry battalions [which is for a period of eighteen (18) months].

She pointed out that at any given point of time, approximately fifteen (15) JAG Male Officers are attached to various infantry battalions to perform the combat duties. By way of example, she stated that during Operation Pawan and Operation Vijay, JAG's Department officers were actively deployed alongside Infantry Units. The relevant portion of administrative instruction dated 14th March 2012 is reproduced hereinbelow:- " ADM INSTRS ON INDUCTION AND EMP OF WOs IN ARMY 1. Reference Govt of India MoD letter No. 671/2009- D(AG) dated 11 Nov 2011 regarding policy on Induction and Employment of Women in Armed Forces, copy enclosed. 2. In accordance with Para 2 of ibid Govt letter, Adm Instrs on induction and employment of WOs are as under: (a) Tenure. 10 years extendable by 4 years with a special provision for release on completion of 05th year of service, subject to approval of Army HQ.

During extended tenure, can be permitted to seek release to take up civil jobs, pursuing higher education, starting own business/joining family business. (b) Substantive Promotions (i)Time based substantive promotions as SSCOs to the ranks of Capt. , Maj. And lt. Arshnoor Kaur & Anr. v. The Union of India & Ors. Col. on completion of 02, 06 and 13 years of reckonable commissioned service. Mandatory courses for grant of substantive ranks including promotional exams as applicable to PC Offrs will be applicable. (ii) WOs commissioned in AEC & JAG will be considered for PC in 10th yr. subject to passing JAG Deptt. exam in case of JAG WOs. (c) Physical Standards As per existing policy issued by MT Dte. (d) Adjustment of Seniority Adjustment of seniority to the extent of shortfall in training vis-à-vis PC offrs will be made at the time of grant of first substantive rank of Capt.

(e) Leave (i) Annual : 60 days Leave (ii) Casual : 20 days Leave (iii) Maternity : 180 days (for each Leave confinement subject to maximum of two confinements/two surviving children). (iv) Child Care : Presently under Leave consideration with PPOC; will be added subsequently on implementation. (f) Peace/Field Tenure As applicable to male SSCOs (g) Compassionate Posting Posting to be carried out by MS Branch keeping in view career profile and 1268 org interest. Compassionate/spouse postings to be managed as per extant policy. (h) Field/CI No attachment with Inf units as applicable to male SSCOs of ASC, AOC, JAG, AEC, EME and Int. Corps. (j) Posts to be Held While in Fd/CI Ops Area WOs while being posted in fd/ CI ops areas should tenant Regt/ Staff/ Adm/ Instrs appointments in all situations except in frontline combat deployment where contact with the enemy/ hostiles is likely. WOs would not be posted to RR bns and isolated posts engaged in conduct of active ops incl CI ops. 5.

MS Branch will disseminate the extant Compassionate/ Spouse Posting Policy as mentioned in Para 4(g) above to the environment in the interest of transparency, objectivity and fair play. 6. These Admn. Instrs may be disseminated to the unit level for strict compliance. " 16. She stated that subsequently, on revision of Policy on attachment of Women Officers and to bring them on par with Male Officers, the attachment period of Women JAG Officers in JAK LI Regimental Centre was discontinued and their attachment in combat support arms for seventy-eight (78) weeks was approved. The same is provided vide IHQ of MoD (Army) dated 16th December 2022 and 12th February 2023. The policies dated 16th December 2022 and 12th February 2023 are reproduced hereinbelow:- A) Policy dated 16th December, 2022 "Tele:23333521 Apvl & Plans Br/Apvl-2 HQ ARTRAC Room No 740 A Wing, Sena Bhawan New Delhi-110011 PC-A/41006/YO Att (WOs) 16 Dec 2022 GS/MT-11 Arshnoor Kaur & Anr. v. The Union of India & Ors.

HQ ARTRAC/APPROVAL & PLANS BRANCH APVL-2 (Erstwhile MT-11) ADM INSTRUCTIONS ON POST COMMISSIONING ATT FOR WOMEN OFFRS (WOs) 1. Pl ref:- (a) MT Dte letter No A/41006/GS/MT-11 dated 22 May 1996. (b) MT Dte letter No A/41006/GS/MT-11 11 Oct 2011. (c) AG (Pers) letter No 32318/Misc/AG/PS-2 (a) dated 14 March 2012. (d) MT Dte letter No A/1410006/YO- Att (JAG)/GS/ MT-11 dated 05 Nov 2014. (e) MS 9 Note no 04490/MS Policy dated 15 Jul 2022. (f) MT-11 Noting No. PC-A/41006/YO att (Int) GS/ MT-11 dt 03 Dec 22. 2. The proposal for Att on Post Commissioning trg modules for WOs has been analysed and has been approved by the competent auth vide ref at 1 (f) on 03 Dec 22. The new att period will be at par with the Male Offrs. Details are as under:- (a) Att For WOs of ASC/AOC/EME. WOs of ASC/ AOC/EME will be att with parent units in fd loc for the pd at par with male offrs of respective arm/services. (b) Regt Orientation for WOs of JAG Branch.

One week Regt Orientation at IML to be done as part of YO's course, without any change in the course curriculum based on letter No A/41006/ YO-Att (JAG)/MT-11. (c) Att with JAKLI RC of WOs of JAG Branch. In view of new att being at par with male offrs, att at JAKLI RC for 12 Weeks will be discontinued. 1270 (d) Att of WOs of Int Corps. Int Corps WOs will be att being at par with male offrs, for a period of 52 weeks for SSCOs & 78 weeks for Reg Offrs with Engrs/Sigs/AAD unit in fd. (e) Approved Att Period. Approved att period for the WOs of the Int Corps & JAG Branch is as under:- Ser Arm/ Engrs/Sigs Comd Total Remarks No Service AAD Units HQ (in of WOs in Fd (in (JAG Weeks) weeks) Br) (in weeks) (a) Int 52 - 52 52 Weeks/1 Corps Yr Att for WOs SSCOs (SSOs) (b) Int 78 - 78 78 Weeks/ Corps 1. 5 Yrs for WOs Reg Offrs (Reg Offrs) (c) JAG 78 26 104 Total Att Pd Branch will be 104 All WOs Weeks/2 Yrs 3. For info and necessary action pl.

Sd-X-X-X (Sanjeev Tyagi) Col Col Apvl-2 For MGGS (Apvl & Plans)" B) Policy dated 12th Feb 2023 "Tele:25018823 Integrated Headquarters of MoD (Army) Military Secretary's Branch/MS-8B South Block, New Delhi-110011 35393/WO/Policy/ 12 Feb 2023 MS 8B Arshnoor Kaur & Anr. v. The Union of India & Ors. POST COMMISSION ATTACHMENT OF WOMEN OFFICERS (WOs) 1. Refer HQ ARTRAC/Approval & Plans Br/Apvl-2 letter No PC-A/41006/YO Att (WOs) GS/MT-11 dt 16 Dec 2022 and even No dt 06 Feb 2023 (copy encl) 2. HQ ARTRAC vide its letter u/r has been informed about post commission att/posting of WOs getting commissioned in Services, Int and JAG Br. The policy will be implemented wef the next passing out course from OTA, Chennai i. e, 29 Apr 2023. The detls are as under:- (a) WOs of ASC/AOC/EME WOs of ASC/AOC/EME will have initial posting with respective parent units in fd loc. (b) WOs of Int & JAG Br.

Approved attachment period for WOs of Int Corps and JAG Br is as under:- S Arm/ Engrs/ Comd Total Remarks No Service Sigs/ AAD HQ (weeks) Units in Fd (JAG (Weeks) Br) (i) Int Corps 52 NA 52 52 weeks/ (SSCOs) 1 Yr (ii) JAG Br 78 26 104 104 weeks/ (All WOs) 2 Yrs 3. Regt Orientation for WO of ASC/AOC/EME and Int Corps will be as per existing instructions. Regt orientation for JAG Br commissioned WOs will be conducted at IML for one week duration as part of YO's course. 4. For info and necessary action please. Sd-X-X-X (MS Tomar) Lt Col AMS 8B For Military Secretary" 1272 17. She submitted that the policy of the Government of India in not posting the Women Officers in Infantry battalion has not been interfered with by any Court of Law. In fact, the same has been upheld by the High Court of Delhi vide its order dated 12th March 2010 passed in Babita Puniya vs. Secretary & Anr. , 2010 SCC OnLine Del 1116, wherein it has been held as under: - "45.

The Air Force after due sanction of the President of India itself brought a policy into force for recruitment of women. Similarly, the Army also recruited women though there was no such policy decision as in the Air Force. Thus, the policy decision was that women personnel should be recruited in certain areas of operation of the Armed Forces which are not in combat and other such services. As to whether women ought to be recruited or not into the Armed Forces and if so then in which areas of operation, does fall within policy domain. There are countries which have given opportunity to women even in combat areas but there are social and cultural ethos which vary from country to country. There has been continued debate and analysis on induction of women in Armed Services even in India. Thus, we are clearly of the view that it is not for the Court to decide as to which areas of operation of the Armed Forces should women be employed. " 18.

She stated that the same has been upheld also by this Court vide its order dated 17th February 2010 in Secretary, Ministry of Defence vs. Babita Puniya & Ors. , (2020) 7 SCC 469, wherein it has been held as under: - "74. Courts are indeed conscious of the limitations which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the Armed Forces. For this reason, we have noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment [Babita Puniya v. Ministry of Defence, 2010 SCC OnLine Del 1116 : (2010) 168 DLT 115]of the Delhi High Court and which is not in question in the present appeals..... " 19. She stated that it was in 2012 when accretion of two hundred and fifty four (254) officers in JAG branch was sanctioned, it was Arshnoor Kaur & Anr. v. The Union of India & Ors.

decided to induct Men and Women Officers in 70:30 ratio keeping in view the functional requirement of Army from the perspective of its operational preparedness and requirement of officers in Infantry/ Combat Battalions. This, according to her, broadened the base of Officers of the rank of Lieutenant, Captain and Field/Acting Major in combat arms enabling the organization for making officers commissioned in the combat arms available for training/sharpening and enhancing their skills in courses like commando course/Young Officer's course and other all arms courses without disturbing the actual strength of the combat arms. Thus, she contended that the requirement of vacancies in the JAG Department is gender specific as it is a military necessity. 20. She stated that functioning of JAG branch cannot be seen in isolation as mere legal advisors to military commanders during peace time.

She contended that JAG branch officials are combatant personnel, who play an important role in operational preparedness of the Army as they constitute a reserve for mobilisation. 21. She contended that from 2024 onwards, the intake of Men and Women Officers in JAG branch has been recommended by a Study Team of senior experts and senior officers at 50:50 ratio to bring in gender parity in the JAG branch. The said Study Team's 2023 report, which has been approved by the competent authority (and brought into effect from 2024), has recommended that JAG branch offers an ideal opportunity to have a 'Gender-Neutral Entry'. The relevant portion of the said 2023 report, handed over by learned ASG during the hearing, is reproduced hereinbelow: - "General 1. The history of women in the military is one that ex- tends over 4000 years into the past, through a vast number of cultures and nations.

Women have played many roles in the military, from ancient warrior women, to the women currently serving in conflicts like the Russia-Ukraine War. Indian women have often been on the battlefield, Rani Durgawati of Gondwana and Chand Bibi of Ahmednagar (during Akbar's period), Rani Laxmi Bai of Jhansi during the First War of In- dependence in 1857, are a few examples of women fighters from our history. 1274 2. The Indian experience of women in armed forces as officers has been for about 79 yrs. They were inducted as Medical Officers Cadre in 1943 and have served with dedication and distinction. Induction of women officers (WOs) in other branches of the three Services started only in 1992 and now in year 2022 we have come a long way. Background 3.

In the background of the Hon'ble Supreme Court orders dated 17 Feb 2020 and 22 Sep 2021 granting PC to WOs and allotment of vacancies in NDA, there is a need to holistically analyse the fallout of these orders and formulate measures to include review of cadre strength, modes of entry, service conditions etc. In line with this, the extant study was ordered by AGs Branch, IHQ of MoD (Army) and needs to carry out a holistic appraisal of induction and employment of WOs in Indian Army, post commencement of induction of women cadets in NDA and grant of PC to WOs...... Scope of Study 6. Mandate of the Study Group. Study Group was required to give its recommendations on the under mentioned issues: - (a) No of WOs as part of the overall officer cadre in the existing Arms & Services where WOs are being commissioned (less AMC/ADC/MNS). (b) Identifying arm/service-wise billets/ appointments in units/ HQs/ establishments, based on functional requirements.

(c) Proposed yearly induction pattern (for next 10 years) through various entries to achieve desired optimal strength of WOs, in consonance with the desirable Regular to Support cadre ratio. (d) Feasibility of extending entry types to women candidates and determination of vacancies in Arshnoor Kaur & Anr. v. The Union of India & Ors. PCTAs, keeping in view the desirable Regular to Support cadre structure. (e) Grant of PC to SSC WOs while ensuring Regular to Support cadre structure. (f) Any other issue, which may emerge during conduct of study and is felt critical in overall cadre management planning. xxx xxx xxx 11. The Operational Context. India is surrounded by states inimical to our interests along the immediate neighborhood. This implies that our Army is mandated to maintain operational readiness to undertake conventional operations along Northern and Western Borders.

Given the proxy war waged by our Western adversary and the insurgency movements in various parts of the Country, there is 24x7 commitment of large quantum of forces including Rashtriya Rifles (RR), Assam Rifles (AR) units in addition to regular units and formations. All Arms and Services are also required to contribute large number of officers to RR and AR battalions. Hence, there are major challenges with employment of women in all ranks in our Army, unlike some of the Western armed forces based on large scale reservists. xxx xxx xxx 15. Optimal Cadre Strength of Each Arm/Service. (a) The optimal cadre strength of WOs in the ten Arms & Services has been arrived at by using three different approaches, as under: - (i) Considering the functional capacity of each Arm/ Service to absorb WOs considering their role and employment towards enhancing operational effectiveness.

1276 (b) Considering the requirement of male officers to man certain CT-II billets where WOs cannot be employed/ are not being employed presently. (c) Considering the ratio of women in World armies with special reference to Asian countries. xxx xxx xxx 21. Increase of Women Strength. The process for any further increase should commence only once the turbulence and career management issues post grant of PC to women have matured and the number of WOs who are unwilling to continue in service have retired with all consequential benefits due to them. Also, measures to make Short Service entry more attractive are on the anvil. Only once these issues have stabilized and their impact has been analysed should the intake be calibrated/ increased. " 22. Therefore, she submitted that the induction and employment of Women Officers in Indian Army, including JAG branch, has been a progressive process keeping in view the Army's operational preparedness.

According to her, to say that the policy of intake of Men and Women Officers from 2012 to 2023 in the ratio of 70:30 or now being 50:50 is discriminatory and volatile of Fundamental Rights would not only be incorrect but would also transgress into the domain of the executive which is the only competent and sole authority for deciding the intake of Men and Women Officers in Indian Army. 23. She emphasised that as both male and female candidates are assessed separately and independently, there cannot be a common SSB Merit list. 24. She contended that the aspect of gender integration in the defence services is an evolving process and is calibrated to the operational needs and is subject to periodic review and studies. The intake policies have evolved progressively from 70:30 ratio to 50:50 from 2024. This, according to her, is aligned with cadre health and deployment restrictions, which is not arbitrary.

She lastly stated that any imposition of this Court's own understanding of the concept of parity or neutrality without factoring in operational imperatives would undermine both command and control of the Army. Arshnoor Kaur & Anr. v. The Union of India & Ors. REJOINDER 25. Learned senior counsel for the Petitioners contended that the Respondents were misleading this 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. 26. He stated that the Union of India's reliance on letter dated 14th March 2012 issued by Adjutant General of the Indian Army as a policy decision of the Union of India not to employ women officers in frontline combat deployment is misplaced. He stated that the letter does not have any statutory force and, in any event, cannot override provisions of the Constitution and decisions of this Court. 27.

He also contended that the stereotypes about psychological, intellectual, and physical attributes in the letter dated 14th March 2012 reflect an outdated '15th century thought process' of the Respondents regarding how war and combat takes place in the information age. According to him, any letter/standing instruction which restricts women officers based on gendered assumptions is ipso facto unconstitutional. 28. He further stated that the argument that men JAG officers undertake eighteen (18) months' attachment with infantry units and that similar attachment is not done for women JAG officers is completely unsubstantiated as no supporting documents have been filed to this effect. Further, just based on the plausibility of a potential combat deployment of any women officer, the same cannot be used as a justification to deny equal opportunities.

If this reason is taken forward, the same can be made a basis to deny recruitment of women across all non-combat positions in the armed forces, which is baseless. 29. He pointed out that as of 2021, a statistic published by the Ministry of Defence, Govt. of India, showed that the miniscule percentage of women in the forces were as follows : 0. 56% (Indian Army), 1. 08% (Indian Air Force), 6. 5% (Indian Navy). He further stated that the Respondents have presented a vague example of "one of the officers" out of a total of approximately two hundred and eighty five (285) officers as a Combatant Personnel, without specifying his place of posting despite the fact that Operations Vijay and Pawan extended across multiple regions, including Jammu & Kashmir, Punjab, Haryana 1278 and Himachal Pradesh. Furthermore, there is a complete absence of details regarding the specific roles and responsibilities undertaken by the officers in question.

A mere reference to participation in operations, without disclosing the nature of duties or the geographical area of deployment, is insufficient. He pointed out that similar feats have been achieved by women JAG Officers as under: "A. List of JAG Women Awardees a. Jyoti Sharma: In 2019, Lieutenant Colonel Jyoti Sharma created history when she was appointed as the first woman officer from the Judge Advocate General (JAG) department of the Indian Army to be deployed for a mission in a foreign country. In November 2019, Lt Col Sharma was inducted with the Government of Seychelles as a military legal expert. b. Major Radhika Sen In May 2024, Major Sen received the prestigious United Nations Military Gender Advocate of the Year Award. B. Achievements of other Women Officials: • Captain Shiva Chouhan was posted at Siachen Glacier, the world's highest battlefield, which demands extreme physical and mental endurance.

The deployment, by its very nature, contradicts the notion that women are unfit for extreme terrain or operational mobilisation. • Group Captain Shaliza Dhami became the first woman officer to command a frontline combat unit in the IAF. Command of such units is inherently mobilisation-oriented, involving high-stakes readiness and strategic execution. • Captain Abhilasha Barak was commissioned in 2022 as the first woman combat aviator in the Indian Army. Her induction into the Army Aviation Corps, which functions directly under combat conditions, nullifies the argument that women cannot be deployed in operationally intensive roles. " Arshnoor Kaur & Anr. v. The Union of India & Ors. 30. He stated that if the aim is to ensure gender integration and allow this to be an 'evolving process' where women officers are commissioned in equal numbers in the armed forces, the impugned action devolves the process one hundred (100) steps backwards when it should be marching ahead. 31.

In conclusion, learned senior counsel for Petitioners submitted that even the 2024 Policy of Recruitment though labelled as 'gender-neutral' by the Respondents, was 'in practice and in effect' discriminatory towards women candidates. He prayed that since this Court was examining the policy of recruitment in depth in the JAG branch and the prayer clause in the writ petition was broadly worded, it would be appropriate for this Court to expound the law and to give an interpretation of the 2024 Recruitment Policy in accordance with the Constitution of India and the Army Act, 1950. ADDITIONAL ARGUMENTS ON BEHALF OF THE RESPONDENTS 32. After the arguments had concluded and judgment had been reserved, the parties filed their 'Written Submissions'. The Respondent-Union of India subsequently filed 'Additional Written Submissions' and thereafter a 'Final Arguments Note'.

Since the Additional Written Submissions and the Note contained additional arguments, the matter was listed for further arguments. 33. During the course of further hearing, Ms. Aishwarya Bhati, learned ASG submitted that Article 33 of the Constitution of India provides for power of Parliament to modify the Fundamental Rights for the Armed Forces of Union of India. She submitted that in pursuance of the said power, Parliament had enacted Section 12 of the Army Act, 1950 which specifically stipulates ineligibility of females for enrolment or employment. Since considerable emphasis was laid on Article 33 of the Constitution and Section 12 of the Army Act, 1950, the same are reproduced hereinbelow:- A. Article 33 of the Constitution of India "33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,- 1280 (a) the members of the Armed Forces; or (b) the members of the forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or (d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any force, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. B. Section 12 of the Army Act, 1950 "12. Ineligibility of females for enrolment or employment.

--No female shall be eligible for enrolment or 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, specific in this behalf: Provided that nothing contained in this Section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army or any branch thereof in which females are eligible for enrolment or employment. " 34. Consequently, according to her, women can be inducted in the Army only by way of notification of the Central Government.

She stated that Government of India issued notification dated 30th January 1992 vide Gazette Notification SRO - 11 dated 15th February 1992 and Notification dated 31st December 1992, issued vide Gazette Notification SRO -1 dated 23rd January 1993, vide which women became eligible for induction into ten (10) arms and services issued. She, however, submitted that despite allowing induction of women in a particular corp or branch under Section 12 of the Army Act, 1950, the Respondents can restrict the number of women candidates joining the said branch by way of a policy or administrative instruction under Arshnoor Kaur & Anr. v. The Union of India & Ors. the guise of extent of induction. She emphasised that Union of India is authorised to impose restriction on Fundamental Rights beyond Section 12 of the Army Act, 1950. 35. In this hearing, it transpired that Petitioner No. 2 (Ms.

Aastha Tyagi), during the pendency of the present petition, had been selected and was working as a Trainee Officer in Indian Navy JAG-SSC. Therefore, learned counsel for the Petitioners stated that he was under instruction not to seek any relief qua Petitioner No. 2 in the present proceedings. The said statement was taken on record. 36. At that stage, Mr. Rana Mukherjee, learned senior counsel for Respondent No. 3 stated that since Petitioner No. 2, namely, Aastha Tyagi, had expressed her unwillingness to join the JAG branch of the Indian Army, i. e. , for the 31st Course, it would be proper for this Court to adopt a lenient and a compassionate view with regard to the two seats which had been kept vacant vide this Court's order dated 04th August, 2023 and allow the Respondent No. 3 and Petitioner No. 1-Ms. Arshnoor Kaur, to join the course in the two vacant seats. ORDER DATED 08TH MAY 2025 37.

After hearing the additional arguments, judgment was reserved on 08th May, 2025 and the following order was passed:- "1. Arguments concluded. 2. Judgment reserved. 3. Prima facie, we are satisfied with the case set up by the petitioner no. 1 Arshnoor Kaur. 4. Accordingly, we direct the respondents to initiate whatever action is required for the purpose of her induction in the next available training course for being commissioned in the Judge Advocate General (JAG) Department of Indian Army. " REASONING SINCE 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 1282 38.

Having heard learned counsel for the parties, this Court is of the view that the primary issue that arises for consideration is whether after allowing induction of women in a particular corp or branch under Section 12 of the Army Act, 1950, can the Respondents by way of a policy and/or administrative instruction restrict the number of women candidates joining the said branch. 39. This Court is of the view that Articles 14, 15 and 16 of the Indian Constitution form 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 16(2) prohibits discrimination on the ground of gender/sex, but clause (3) of Article 15 enables the State to make "any special provision for women and children". 40.

Article 33 of the Indian Constitution carves out an exception to the aforesaid right to equality insofar as it empowers Parliament to modify the Fundamental Rights in their application to members of the Armed Forces. But such modification is subject to Parliament by law determining the permissible extent to which any of the Fundamental Rights may be restricted or abrogated in their application to members of the Armed Forces. The effect of Article 33 is to enable Parliament to limit or abrogate the Fundamental Rights in their application to the members of the Armed Forces. It needs to be emphasised that such restrictions or abrogation must be made by law passed by Parliament. 41. It is by virtue of the power conferred by Article 33 of the Indian Constitution that Parliament has enacted the Army Act, 1950.

Section 12 of the Army Act, 1950 restricts the Fundamental Right of females to join the Indian 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. In other words, the 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. 42. Since Article 33 is an exception to Fundamental Rights, this Court is of the view that any Act passed by Parliament under the said power would have to be strictly construed/interpreted. Accordingly, restrictions on the Fundamental Rights must be found in the Army Arshnoor Kaur & Anr. v. The Union of India & Ors. Act, 1950 itself.

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. This Court in R. Viswan and Ors. vs. Union of India and Ors. , (1983) 3 SCC 401 has in the context of Section 21 of the Army Act, 1950 held as under: - "7...... Parliament was therefore within its power under Article 33 to enact Section 21 laying down to what extent the Central Government may restrict the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed Forces.

The extent to which restrictions may be imposed on the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1) is clearly indicated in clauses (a), (b) and (c) of Section 21 and the Central government is authorised to impose restrictions on these Fundamental Rights only to the extent of the Rights set out in clauses (a), (b) and (c) of Section 21 and no more..... " 43. The aforesaid conclusion applies with equal vigour to Section 12 of the Army Act, 1950. 44. Upon a harmonious reading of Articles 14, 15, 16, 33 of the Indian Constitution and Section 12 of the Army Act, 1950, this Court is of the view that no women 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. 45.

Under Section 12 of the Army Act, 1950, the Respondents had issued notifications on 30th January 1992 (published on 15th February 1992) and 31st December 1992 making women eligible for appointment as SSC officers in the following ten (10) streams:- i. Army Postal Service; ii. Judge Advocate General's Department; iii. Army Education Corps; iv. Army Ordinance Corps (Central Ammunition Depots and Material Management); v. Army Service Corps (Food Scientists and Catering Officers); vi. Corps of Signals; vii. Intelligence Corps; viii. Corps of Engineers; ix. Corps of Electrical and Mechanical Engineering; x. Regiment of Artillery. 46. 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.

Neither the Petitioners nor this Court is insisting that Women be enrolled in Artillery, Armoured Division and Mechanised Infantry as they are not the corp or branch of the Army where the Central Government has by notification permitted the women to join. 47. 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 do so. 48. Further, on 26th September 2008, the Respondents issued a circular envisaging the grant of Permanent Commission prospectively to SSC Women Officers in the JAG Department and the Army Education Corps. Subsequently, on 25th February 2019, the Respondents granted Permanent Commission to SSC Women Officers in the remaining eight (08) arms.

This Court in Babita Puniya (supra) has held that the grant of Permanent Commission to all ten (10) streams (including JAG) is 'is a step forward in recognizing and realizing the right of women to equality of opportunity in the Army'. 49. Also, while making women officers eligible for appointment in such streams, no notification has been published in the official gazette laying down the 'extent of induction'. It is settled law 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' [See: Taylor Vs. Taylor : (1875) 1 Ch. D. 426, Nazir Vs. Arshnoor Kaur & Anr. v. The Union of India & Ors. King Emperor : AIR 1936 PC 253, Babu Verghese Vs. Bar Council of Kerala : (1999) 3 SCC 422]. Accordingly, there is no basis to say that women can be appointed 'only up to a certain extent' in such streams. 50.

Consequently, this Court is of the view that once the Service Headquarters decides to induct women officers in a particular branch or corp 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'. Accepting the submission of the Respondents would amount to 'setting at naught' the Notification issued under Section 12 of the Army Act, 1950. CIRCULARS OF 11TH NOVEMBER 2011 AND 14TH MARCH 2012 ARE UNTENABLE IN LAW 51. As far as the reliance on Internal Administration Instruction dated 11th November 2011 and policy on induction dated 14th March 2012 are concerned, the same 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. 52.

As held hereinabove, 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. 53. 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, (supra)inparagraphs 65 to 70. The relevant portion of the said judgment is reproduced hereinbelow:- "65. .... xxx xxx xxx 69. The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender 1286 which discriminate against women......

Reliance on the "inherent physiological differences between men and women" rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the "weaker" sex and may not undertake tasks that are "too arduous" for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers..... 70. These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army..... " (emphasis supplied) 54.

This Court is of the view that the legal position has undergone a substantive transformation pursuant to the Babita Puniya (supra) judgment, which upholds the right to equal opportunity and mandates non-discriminatory consideration for Permanent Commission, irrespective of gender. Also, if reliance is placed on the said policy, any grant of Permanent Commission to women officers under its provisions would stand vitiated, as Clause 2(a) of the policy explicitly limited the induction of women officers to a tenure of ten years. Consequently, not only is Clause 2(a) of the said instruction inapplicable, but all other clauses of the said instruction and policy are redundant and inapplicable. ARGUMENT THAT JAG BRANCH CONSISTS OF PRIMARILY COMBATANTS IS MISCONCEIVED 55.

The Respondents' argument that JAG branch consists of 'exclusively combatant personnel' as they constitute a reserve for mobilisation is misconceived as it runs contrary to the directions of this Court and all policy decisions of the Respondents itself which 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. Arshnoor Kaur & Anr. v. The Union of India & Ors. 56. This Court is of the view that the acceptance of the stand of the Respondents would lead to exclusion of women officers from all streams of the Army and have the consequence of allowing 100% reservation for men in all streams on the ground that all posts in the Army are Combatant posts.

The same would also be inherently unconstitutional and contrary to Section 12 of the Army Act, 1950 and the Union of India's stand of 'evolving process of gender integration of women'. 57. Consequently, as stated by the Respondents, the services in the Army are classified into three broad categories: (i) Combat Arms; (ii) Combat Support Arms; and (iii) Services. By their very nature, the above ten (10) streams (including JAG) in which women are eligible for appointment as SSC officers form part of the 'Combat Support Arms' or the 'Services' category and not 'Combat Arms'. Thus, the contention of the Union of India that JAG officers are primarily combatants and a reserve for mobilisation is not entirely correct. 58. Also, with a strength of over 1. 4 million active, 2. 1 million reserve and 1.

3 million paramilitary personnel and with only about two hundred and eighty five (285) JAG officers, it is an extreme stretch to claim that because there may be JAG deployment at the time of war, women ought to be excluded. This Court is further of the view that there is no bar to such an off-chance deployment, but this still does not provide a rationale to prevent JAG women from being inducted. FIELD PARITY HAS BEEN INSTITUTIONALISED 59. While it is true that JAG male officers were initially posted with Infantry Battalions for a period of two (2) years for regular officers and one (1) year for SSC officers, it was modified to one and a half (1. 5) years for both regular officers and SSC officers by way of policy dated 02nd May 2017. 60. JAG Women Officers were not sent for attachment with Infantry battalions as per policy dated 14th March 2012. 61. However,