Can't restrict ‘extent of induction'—why SC struck down gender quotas in Army's JAG recruitment

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2 days ago

'The executive cannot earmark vacancies exclusively for men. Allocating six seats for men and three for women is arbitrary and cannot be justified in the name of induction,' observed the bench, stressing that 'the essence of gender neutrality and the 2023 rules is that the Union must select candidates purely on merit. Imposing limits on women's seats breaches the right to equality.'
In a detailed judgment Monday, a bench of Justices Dipankar Datta and Manmohan struck down gender-based vacancy splits in the Army's JAG branch as lacking sanction under the Army Act, 1950, and in breach of the Constitution's equality guarantees. The court directed that a single, unified merit list be drawn up for all candidates, irrespective of gender.
New Delhi: The Supreme Court has ruled that the Indian Army cannot cap the number of women in its Judge Advocate General (JAG) branch once the government has opened it to them by statutory notification.
The judgment arose from a petition filed by Arshnoor Kaur and Astha Tyagi, both law graduates, who had applied for the JAG-31 course scheduled to commence in October 2023.
Under the challenged notification, the Army prepared separate merit lists for male and female candidates, allocating six seats to men and three to women. In the women's merit list, Tyagi ranked 4th with 477 marks, while Kaur was placed 5th with 447 marks.
In contrast, in the men's merit list, the third-ranked candidate had 433 marks, lower than several women who were not selected. Because of the gender-based allocation, the petitioners were denied entry despite having higher marks than some selected male candidates.
Subsequently, the two women sought a declaration that the notification was ultra vires (issued without legal authority) violating Articles 14, 15, 16, and 19 of the Constitution. They also sought the publication of a common merit list irrespective of gender and the adoption of what they described as a genuinely gender-neutral recruitment policy for the JAG branch.
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'No basis for gender-based caps'
Appearing for the petitioners, senior advocate Gopal Sankaranarayanan argued that the selection process for men and women in the JAG branch was identical. He described the Services Selection Board (SSB) procedure, which evaluates candidates on 15 'Officer-Like Qualities' through a combination of psychological tests, group tasks and personal interviews. These assessments, he said, are common to both genders, with only minor physical standard variations in some individual obstacle tasks.
He relied on a Ministry of Defence press release from March 2023, which read, '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 organisational requirements and employment is as per qualifications and service qualitative requirements.' This, he submitted, undermined the Army's position that operational requirements justified limiting the number of women in the JAG branch.
On the constitutional question, he cited the Bombay High Court's ruling in Dattatraya Motiram More v. State of Bombay (1953), which held that while the State may discriminate in favour of women under Article 15(3), it may not discriminate in favour of men against women. According to him, once the minimum number reserved seats for women are filled, the remaining vacancies must be awarded strictly on merit without gender-based exclusion.
Army defends gender-based quota
Appearing for the Union of India and the Army, Additional Solicitor General Aishwarya Bhati argued that determining the 'extent of induction' of women officers is a matter for the Service Headquarters in order to maintain 'fighting efficiency, combat effectiveness and functionality' of the armed forces.
She submitted that all JAG officers are combatants and may be deployed in combat situations, noting that male JAG officers undertake extended attachments with infantry battalions, 18 months in some cases, which female officers do not. Bhati pointed out that during Operation Pawan and Operation Vijay, officers from the JAG Department were deployed in active roles alongside infantry units.
She further based her argument on the central government's policy from November 2011, which laid down the broad framework for inducting women officers into the armed forces. That policy gave each branch of the military—Army, Navy, and Air Force—the authority to issue its own administrative instructions specifying the conditions of induction, such as how many women could be recruited and into which branches or roles.
She further referred to a March 2012 directive that imposed explicit operational restrictions on women officers, barring them from frontline combat deployment. This included exclusion from Rashtriya Rifles battalions, isolated posts engaged in active operations, and prolonged infantry attachments with units in combat-oriented roles. These measures, she noted, effectively kept women officers away from the most direct and high-risk operational postings.
Bhati further explained that the Army had in 2012 adopted a 70:30 male-to-female intake ratio for JAG officers. This was revised to 50:50 from 2024 following a study by senior officers which examined operational requirements, cadre structure, and gender parity. The study described JAG as an 'ideal opportunity' for gender-neutral entry but recommended a calibrated transition to parity to maintain cadre health and meet deployment obligations.
She argued that under Article 33 of the Constitution, the Parliament may modify the fundamental rights of armed forces personnel and that Section 12 of the Army Act makes women ineligible for enrolment in the regular Army except in corps notified by the government. While JAG was notified in 1992, she maintained that this did not preclude the Army from determining the extent of induction based on operational needs.
'Army can't impose additional restriction'
The bench ruled in its judgment by outlining the relevant constitutional provisions. Articles 14, 15 and 16 guarantee equality and prohibit discrimination, while Article 15(3) permits special provisions for women. Article 33 empowers Parliament to restrict the fundamental rights of armed forces personnel, but, the court emphasised, 'such restrictions or abrogation must be made by law passed by Parliament'.
Furthermore, Section 12 of the Army Act, enacted under Article 33 of the Constitution, renders women ineligible for Army service except in corps, departments or branches specifically notified by the government. In 1992, the government issued such notifications, opening ten non-combat arms, including the Judge Advocate General (JAG) Department to women. The bench noted that Section 12's limitation applies only to a woman's eligibility to serve in certain branches; 'it does not authorise imposing further caps on the number of women once they have been admitted to those branches'.
'Once the Army permits women officers to join any corps, department or branch forming part of the regular Army, it cannot impose an additional restriction with regard to 'extent of induction'… as Section 12 does not empower it to do so,' the bench observed.
The court rejected the argument that JAG postings require gender-based numerical limits, stressing that male and female candidates undergo the same selection process and are assessed against identical criteria. In such circumstances, a combined merit list should be prepared. 'Merit-based selection will improve efficiency of JAG,' the judgment read.
The bench distinguished this case from earlier rulings such as Babita Puniya v. Ministry of Defence (Delhi High Court, 2010; Supreme Court, 2020), where restrictions on women in combat arms were upheld as matters within the executive's domain. Whereas, in the present case, JAG was already a notified branch open to women under Section 12; the issue was not whether women could be inducted at all, but whether the Army could lawfully limit their numbers after granting eligibility by law.
Declaring the January 2023 notification's gender-based allocation unconstitutional, the court ruled that petitioner Astha Tyagi had since joined the Navy's JAG branch and no longer sought relief. It, therefore, directed that the remaining petitioner, Arshnoor Kaur, be inducted into the next available JAG course.
The bench further clarified that recruitment to any branch open to women must be 'gender-neutral in fact and effect' and based solely on merit, a principle it said should guide future policy in non-combat branches where men and women follow identical selection procedures.
(Edited by Viny Mishra)
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