Indirect Discrimination in Indian Army: Court Ushers in Change

Arshnoor Kaur v. Union of India

In the present case, the SC struck down an arbitrary and unconstitutional policy of the Indian Army, which earmarked 6 out of 9 seats of Judge Advocate General (JAG) for men, and the rest for women.  The SC said that the practice was against fundamental laws given under Article 14 and 21.

Factual Matrix

The rank lists for men and women were published separately. The petitioner and one another ranked 4^th and 5^th in the women’s list, and scored more than their male counterparts. However, the Army selected three other men, whose scores were lower than their female counterparts, to fill the vacancy, effectively imposing a cap on how many women can become members of JAG.

Court’s Reasoning

The Court rejected the Respondents’ arguments and claimed that this practice was a result of indirect discrimination. Fixing a ceiling on the number of women who can become members of the JAG discriminates against them, irrespective of their performance or merit. The court also held that the true meaning of gender-neutrality is that gender should not be a criterion at all while selecting members. If all women performed well and better than their male counterparts, all of them should be selected. It made a statement that no nation can be secured with half its population being held back.

The Court clarified that it is in no way imposing its own opinions and is only enforcing the provisions of our Constitution and upholding the fundamental principles of equality and indiscrimination against women. The court disagreed with the view of the Army that women should not be posted at any site which has direct contact with enemy combatant due to the risk of them being taken as prisoners of war. It stated that there is no legal basis for this claim, but this issue was not the subject matter of the decision.

As far as the subject matter is being discussed, the court ordered that the Army release a joint merit list from now onwards, and that the cap of 3 women be removed to ensure gender-neutrality, which the Army actually boasts of but doesn’t reflect in its actions. Simply stating that there is 50:50 selection policy when the higher positions have a gender bifurcation seems ironical and violative of Article 14.

As for relief to Arshnoor Kaur, the Court directed that she be inducted in the next available training course for appointment as a JAG officer. As for the other petitioner, the candidate had joined the Indian Navy during the course of the proceedings. The Court asked the petitioner whether she wanted to continue with her post in the Indian Navy.

The court also stated that to “correct the past” and to “compensate for the past non-enrollment of women”, the Union of India must reserve a minimum of 50% seats for women in JAG, ensuring their rights under Article 14, 15, and 21.