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

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. [2025] 8 S.C.R.  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, subsequently, the policy relating to attachment of JAG Women Officers with other corp or branches of the Army were brought ‘at par with the Male Officers’ by way of policies dated 16th December 2022 and 12th February 2023, as extracted hereinabove. They are now trained under identical operational conditions, including logistics, terrain and regimental structure. These admissions effectively 1288 dismantle the argument that only male officers receive “essential” exposure. Field parity has already been institutionalised. ARGUMENT THAT WOMEN OFFICERS ARE NOT POSTED WHERE CONTACT WITH ENEMIES IS LIKELY, HAS NO BASIS

62. The argument that women officers are not deployed for counter- insurgency or in counter terror forces such as Rashtriya Rifles and Assam Rifles or are not attached to Infantry Units as they are not expected to discharge the role of combatants in case of armed conflicts has no legislative sanction/basis.

63. There is also no restriction on appointment of women in departments in other Armed Forces which are ejusdem generis on the ground that these posts are combative in nature. In fact, the Air Force has continually opened new combat air force roles for women as fighter pilots, helicopter pilots, etc.

64. It does not stand to reason that when women officers like Captain Ojaswita Shree of the elite Parachute Air Defence Unit, Major Dwipannita Kalita of highly specialised airbone medical unit of the Indian Army and Flight Lieutenant Shivangi Singh (Pilot of Rafale Jet) of the Indian Air Force can operate behind enemy lines with all expected risks, why women officers in times of emergency cannot be deployed for counter-insurgency or in counter-terror forces or attached to Infantry/Artillery Units.

65. This is supported by the fact that the Indian Army entrusts women officers with complex tasks, such as transporting convoys of 30 to 50 vehicles through militant-prone areas in Leh, Srinagar, Udhampur and the North-East. For instance, Major Gopika Bhatti commanded a convoy from Leh to Pathankot in 2010, overseeing Junior Commissioned Officers and Jawans, managing logistics, arms, and ammunition.

66. Women officers like Colonel Anshu Jamwal have also been actively involved in UN Peacekeeping missions since 2004, serving in combat zones like Syria, Lebanon, Ethiopia, Congo and Israel, further illustrating their capability to perform in high-risk, operational environments. Consequently, in the opinion of this Court, there exists no legal or operational bar, express or implied, that restricts deployment based on gender at peace locations. [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors.

67. This Court understands that people always fear change. But as Bill Gates, Microsoft co-founder famously said ‘people feared electricity when it was invented. Didn’t they’.

68. Further, no one is suggesting, including this Court, that women officers, once they are recruited in the Army, need special treatment in the form of relaxed standards/criteria. This Court is only observing that if women candidates are more meritorious than men in the JAG entrance exam, then merit must be given a chance. If the women officers do not conform the discipline or match up to standards prescribed or expected of them, the Army shall be at liberty to act as they would with regard to the ‘errant’ or ‘inefficient’ or ‘unfit’ male officers in accordance with law. NO WAIVER OF FUNDAMENTAL RIGHTS

69. 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. In K.S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1, it has been held that Part III of the Indian Constitution which embodies Fundamental Rights is part of the wider notion of securing the vision of justice of the Founding Fathers and as a matter of doctrine, the rights guaranteed are not capable of being waived. This Court also in Basheshar Nath Vs. Commissioner of Income Tax Delhi & Rajasthan and Another, 1958 SCC OnLine SC 7 has held as under:- “68. It is suggested that if a person, after waiving his fundamental right to property and allowing the State to incur heavy expenditure in improving the same, turns round and claims to recover the said property, the State would be put to irreparable injury. Firstly, no such occasion should arise, as the State is not expected to take its citizens’ property or deprive them of their property otherwise than by authority of law. Secondly, if the owner of a property intends to give it to the State, the State can always insist upon conveying to it the said property in the manner known to law. Thirdly, other remedies may be open to the State — on that I am 1290 not expressing any opinion — to recover compensation or damages for the improvements bona fide made or the loss incurred, having regard to the circumstances of a particular case. These considerations, in my view, are of no relevance in considering the question of waiver in the context of fundamental rights. By express provisions of the Constitution, the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution. The State is not, therefore, expected to enforce any right contrary to the constitutional prohibition on the ground that the party waived his fundamental right. If this prohibition is borne in mind, no occasion can arise when the State would be prejudiced. The prejudice, if any, to the State would be caused not by the non-application of the doctrine of waiver but by its own action contrary to the constitutional prohibition imposed on it.”

70. It is pertinent to mention that the marks obtained by the candidates (both male and female) were not placed in the public domain by the Respondent-Union of India and it is only in course of this proceeding that the marks were disclosed; hence, the Petitioners cannot be expected to know of the illegality that crept in the process of selection before presenting the Writ Petition under Article 32 of the Constitution.

71. Consequently, Respondent No.3’s submission that the Petitioners have waived their rights to challenge the impugned Notification is untenable in law and that too when the violation of Fundamental Rights in the present instance is egregious. CONSTITUTION AND GOVERNMENT POLICY TOWARDS WOMEN

72. In view of the aforesaid conclusions, this Court will have to examine as to what is the constitutional mandate and the policy of the government with regard to status of women.

73. It is settled law that Articles 15 and 16 read together prohibit direct discrimination between members of different sexes. No less favourable treatment can be meted out to women on gender-based criterion which would favour the opposite sex. The constitutional mandate is infringed only where the females would have received same treatment with males, but for their sex. However, Articles 14, 15 and 16 do not prohibit special treatment of women. [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors.

74. As stated hereinabove, Article 15(3), which additionally allows the State to make special provisions for women, has largely been interpreted as an exception to the principle of non-discrimination or what has been described as ‘positive discrimination’. However, in some judgments like Dattatraya Motiram More vs. State of Bombay (supra), Article 15(3) has been interpreted as a part of the equality provisions as a whole, so that the differential treatment authorised by this Article is not an exception, but a part of equality.

75. According to ‘The Oxford Handbook of The Indian Constitution’ there are three very different approaches to the question of gender difference and equality namely: protectionist, sameness and compensatory. In the first approach, women are understood as different from men—more specifically, as weaker, subordinate, and in need of protection. In the name of protecting women, this approach often serves to reinforce their subordinate status.

76. The second approach is an equal treatment or sameness approach. In this approach, women are understood as the same as men—that is to say, for the purposes of law, they are the same and must be treated the same. In this approach, any legislation or practice that treats women differently from men is seen to violate the equality guarantees.

77. In the third approach, women are understood as a historically disadvantaged group, and as such, in need of compensatory or corrective treatment. In this approach, rules or practices that treat women differently from men can be upheld, if such rules or practices are designed to improve the position of women. Proponents of this compensatory approach attempt to illustrate how the ostensibly ‘gender-neutral’ rules of the formal equality approach are not gender- neutral at all—but rather, based on male standards and values. In such a model, women will only qualify for equality to the extent that they can conform to these male values and standards. Thus, the compensatory approach argues that gender differences must be considered in order to produce substantive equality for women.

78. Women make up slightly less than half (48.4%) of India’s population but contribute less than a fifth (18%) of GDP, per world Economic Forum’s (WEF) 2024 Global Gender Gap Report, which also shows that purely in terms of gender gap in economic participation, India ranks 142nd among 146 countries. In terms of overall gender gap – 1292 which also includes education, political participation and health and survival – India stands at 129th out of 146 countries. [See: Article by C. Raj Kumar, The Times of India dated January 7, 2025].

79. Consequently, the Government of India has in pursuit of creating a more inclusive society, in the last decade implemented a series of proactive policies and programmes aimed at empowering women across various spheres. Key initiatives such as the Women’s Reservation Act 2023 reflect the commitment to tangible action. The Act 2023, a landmark in India’s legislative landscape, seeks to enhance women’s representation in political spheres, ensuring their voices contribute significantly to decision-making processes.

80. In fact, India celebrated its 75th Republic Day on January 26, 2024, displaying the prowess of its armed forces and cultural richness and ‘Nari Shakti’. With the themes of ‘Viksit Bharat’ and ‘Bharat – Loktantra ki Matruka’, the 75th Republic Day parade was women-centric.

81. Recently, India’s presidency of The Group of Twenty (G20), inspired by vision of an Amritkaal where Nari Shakti (the power of women), endeavoured to shift the global focus from old UN terminology of gender equality and women’s development to women-led development. India’s presidency of G20 was celebrated for negotiating impactful outcomes centered on global empowerment of women. Mr. Amitabh Kant (India’s G20 Sherpa) in his recent book “How India Scaled MT G20 The Inside Story of the G20 Presidency” has written as under:- “Instead of viewing women solely as recipients of opportunities, there was a fundamental shift towards recognizing their role as leaders and changemakers. This wasn’t merely a rhetorical adjustment, but a call to action necessitating concrete policies that positioned women at the forefront of decision-making processes, thereby challenging and transforming existing systems. This was evident at the G20 tables, where discussions emphasized the need for women to lead the discourse and shape the socio-economic landscape. To create a world where women wield substantial influence, recognized the importance of moving beyond inclusion to active participation…. However, promoting women-led development faced significant challenges. Many countries insisted on UN [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. terminology like ‘gender equality’ and argued against women-led development. Our push for women-led development met severe resistance, but through ambitious, aggressive, forward-looking negotiations, we saw women- led development through.…. ……The NDLD (‘New Delhi Leaders’ Declaration’) underscored the essential role of gender equality and female leadership, emphasizing how empowering women and girls could accelerate progress towards the 2030 Agenda. India’s comprehensive strategy rested on four key pillars: The first, ‘Enhancing Economic and Social Empowerment’, aimed to break down barriers hindering women’s progress and ensure equal access to resources. The second, ‘Bridging the Gender Digital Divide’, focused on providing women with equitable opportunities in the digital world. ‘Driving Gender-Inclusive Climate Action’ recognized the unique challenges climate change poses for women and incorporated a gender-sensitive approach to climate initiatives. Last, ‘Securing Women’s Food Security, Nutrition, and Well-Being’ addressed crucial aspects of women’s health, emphasizing access to nutritious food and healthcare. These pillars formed a multi-faceted approach, showcasing a holistic strategy for the global empowerment of women.”

82. Consequently, the constitutional mandate and the national as well as international policy of the Government of India is to ensure that women are not discriminated in any manner and a more inclusive society is created by enhancing representation of women in all spheres of life. IMPUGNED NOTIFICATION IS UNCONSTITUTIONAL AS IT RESERVES DOUBLE THE NUMBER OF VACANCIES FOR MALES

83. Accordingly, this Court is of the view that the impugned notification to the extent that it provides for only three (03) vacancies for female 1294 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. THE PROFESSED POLICY OF ENROLMENT IS GENDER- NEUTRAL AND NOT GENDER-SPECIFIC

84. Another issue that arises for consideration is whether the current policy of Union of India with regard to enrolment of women in JAG course is ‘gender-neutral’ or ‘gender-specific’.

85. As fairly pointed out by the learned ASG, a study team of senior experts and senior officers in 2023 has examined afresh the ratio of men and women in various branches of Indian Army to be introduced with effect from the year 2024. The said study team’s 2023 report which has been approved by the competent authority at the highest level has recommended that JAG branch offers an ideal opportunity to have a ‘gender-neutral entry’. The annexure to ‘Holistic appraisal of induction and employment of women officers in Indian Army post commencement of induction of women cadets in NDA and grant of PC to women officers’ – (2023 report) succinctly sums up its recommendation with regard to enrolment of women in JAG branch as under:- “JAG Dept Appts. JAG presently consists of 75 WOs in the cadre str of 285. The study gp feels that like AEC, JAG also offers an ideal opportunity to have a gender-neutral entry. A functional capacity of 142 WOs, has therefore been recommended in the JAG Dept. Summary of functional capacity is att as Annexure.”

86. Even in the counter affidavit filed by the Union of India in the present case, it has been repeatedly stated that the selection process for JAG is ‘gender-neutral’. In addition to para 25 of the counter affidavit as pointed by learned senior counsel for the Petitioner and as quoted hereinabove, in para 12 of the counter affidavit, it has been stated, “That with regard to the statement made in para 4 to the petition, under reply, it is stated that the Indian Army carries out an absolutely fair, gender-neutral selection process for both Men and Women candidates appearing for any of the officer entries. There are no quotas for caste, creed, region, religion and place of birth. Right from [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. the step of accepting applications based on the merit of exam filter, educational qualifications, testing process and degree of difficulty for various tests, all steps involved in the selection process are fair and gender neutral……”

87. Consequently, the professed policy of the Respondents of enrolment/ recruitment in JAG branch is ‘gender-neutral’ and not ‘gender- specific’ as contended by the Respondents during the course of oral arguments. DISTINCTION BETWEEN GENDER-NEUTRAL AND GENDER- EQUAL

88. This Court is of the view that the expression ‘gender-neutral entry’ in the 2023 policy (which has been accepted and implemented by the Respondents from 2024) is of significant import. ‘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’.

89. 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’.

90. 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.

91. It is pertinent to mention that during the hearing of Gopika Nair & Ors. Vs. Union of India & Ors., SLP (C) 3293/2023 relating to the challenge of reservation for men in the Army Dental Corps, the Respondents gave an undertaking to make the selection by applying ‘gender-neutral formula’ and by not restricting the entry of women candidates to fifty per cent (50%) vacancies. The orders dated 11th April 2023 and 08th May, 2023 in Gopika Nair (supra) case are reproduced herein below:- 1296 Order dated 11th April, 2023: “Prima facie, we are of the view that the stand of the respondent is violative of Article 14 of the Constitution of India. Whereas the male candidates who have rank till 2394 are permitted to participate in the selection process, in so far as the female candidates are concerned, the cut-off rank is 235. 2. It is sought to be argued by Mr. K.M. Nataraj, learned Additional Solicitor General that this is on the ground of various exigencies which are peculiar to the defence services. It is submitted that taking into consideration this aspect in the present selection process, only 10 per cent seats are reserved for female candidates. 3. We find that an anomalous situation has arisen due to such a stand. Whereas a male candidate who is 10 times less meritorious than a female candidate is permitted to appear in the selection process, a female candidate who is 10 times meritorious than a male candidate is deprived from being participating in the selection process. 4. Though, we have expressed readiness to hear the matter finally, learned Additional Solicitor General, appearing for the Union of India submits that taking into consideration wider ramification, the matter will have to be heard at length. He submits that the entire selection process is stalled thereby depriving the service of dental surgeon to which are necessary for the establishment of the defence service. 5. Prima facie, we find that depriving the highly meritorious female candidates from participating in the selection process is putting the clock in reverse direction. Leave aside giving preferential treatment to the female as envisaged under Article 15 of the Constitution of India, the stand of the respondent-Union of India is violative of Article 14 of the Constitution of India, inasmuch as it deprives a meritorious female to compete and permits much less meritorious male to participate in the selection process. [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. 6. In any event, learned Additional Solicitor General, on instructions, has expressed willingness to conduct the interviews of the present petitioners whose ranking in the NEET (MDS) – 2022 is much below 235. 7. It is further stated that interview will be conducted within two weeks. 8. List this matter on 03.05.2023. 9. We request the learned Additional Solicitor General to place before us the result of the petitioners’ interview alongwith the results of the interview of the other candidates. 10. Needless to state that after the interview of the petitioners are conducted, the respondent would be free to declare the results.” Order dated 08th May, 2023: “1. Shri K.M. Nataraj, learned Additional Solicitor General (“ASG” for short) states that all the petitioners herein as well as the petitioners before the High Court of Punjab and Haryana and the High Court of Madhya Pradesh were interviewed by the respondents. As per the result sheet, three of the female candidates find place in the list of 27 persons. 2. It is submitted that the said three female candidates would be appointed as per their position in the select list of first 27 candidates. 3. It is submitted that insofar as three seats reserved for female category are concerned, they would be filled by the female candidates as per their merit after the first 27 candidates are appointed. 4. It is further submitted that since there are other vacancies, three more male candidates would be accommodated. 5. Learned ASG further submits that hereinafter the selection would be made by applying gender neutral formula. 6. In that view of the matter, we find that the grievance of the petitioners stands satisfied. 1298 7. The special leave petition is disposed of accordingly. 8. Pending application(s), if any, stand(s) disposed of.” 92. Consequently, 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. PRESENT RECRUITMENT POLICY LEADS TO INDIRECT DISCRIMINATION 93. Though the study report recommends a ‘gender-neutral’ entry in JAG branch, yet it paradoxically recommends an intake ratio of 50% (Men) and 50% (Women) for JAG branch with effect from year 2024 till year 2032 or till the time 50:50 cadre ratio is achieved whichever is earlier. 94. This Court is of the view that the actual practice of recruiting equal number of male and female candidates in JAG branch, though neutral in form, is anything but gender-neutral in application and practice. The policy, as per the evidence and empirical data before this Court in the form of marks obtained by the candidates, shows that it has adverse impact on women who are more meritorious than the male candidates. 95. In fact, to determine whether the recruitment policy is genuinely gender-neutral or not, one has to look beyond formal level of evaluation and take additional factors such as ‘impact’ or ‘effect’ into account. Therefore, ‘genuine’ gender-neutrality lies in addressing disparate effects of laws/policy/practice which appear to be facially fair or equal. 96. In Lieutenant Colonel Nitisha and Ors. vs. Union of India and Ors., (2021) 15 SCC 125, 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. [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. While evolving a framework to assess claims of indirect discrimination, this Court in Nitisha (supra) has held as under: “70. A study of the above cases and scholarly works gives rise to the following key learnings. First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/ implicit biases or an inability to recognise how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. 71. Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). We are of the considered view that the intention effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, in our view, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the Canadian Supreme Court put it in Ontario HRC [Ontario Human Rights Commission v. Simpsons Sears Ltd., 1985 SCC OnLine Can SC 75 : (1985) 2 SCR 536] , requiring proof of intention to establish discrimination puts an “insuperable barrier in the way of a complainant seeking a remedy”. [Ontario Human Rights Commission v. Simpsons Sears Ltd., 1985 SCC OnLine Can SC 75, para 14 : (1985) 2 SCR 536, para 14] It is this barrier that a robust conception of indirect discrimination can enable us to counteract. 72. Third, on the nature of evidence required to prove indirect discrimination, statistical evidence that can establish how the impugned provision, criteria or practice 1300 is the cause for the disproportionately disadvantageous outcome can be one of the ways to establish the play of indirect discrimination. As Professor Sandra Fredman notes:“Aptitude tests, interview and selection processes, and other apparently scientific and neutral measures might never invite scrutiny unless data is available to dislodge these assumptions.” [ Sandra Fredman, Discrimination Law at p. 187] Consistent with the Canadian Supreme Court›s approach in Fraser [Joanne Fraser v. Attorney General of Canada, 2020 SCC 28 (Can SC)] , we do not think that it would be wise to lay down any quantitative thresholds for the nature of statistical disparity that must be established for a claimant to succeed. Equally, we do not think that an absolutist position can be adopted as to the nature of evidence that must be brought forth to succeed in a case of indirect discrimination. The absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for debunking claims of indirect discrimination. This was clarified by the European Court of Human Rights in a case concerning fifteen Croatians of Roma origin claiming racial discrimination and segregation in schools with Roma-only classes. In assessing the claims of the fifteen Croatians, the court observed that indirect discrimination can be proved without statistical evidence [Orsus v. Croatia, 2010 ECHR 337, para 153] . Therefore, statistical evidence demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination. 73. Fourth, insofar as the fashion in which the indirect discrimination enquiry must be conducted, we think that the two-stage test laid down by the Canadian Supreme Court in Fraser [Joanne Fraser v. Attorney General of Canada, 2020 SCC 28 (Can SC)] offers a well-structured framework of analysis as it accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group, as well as the harm caused by such impact. It foregrounds an examination of the ills that indirect discrimination seeks to remedy. [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. 74. Fifth and finally, while assessing the justifiability of measures that are alleged to have the effect of indirect discrimination, the Court needs to return a finding on whether the narrow provision, criteria or practice is necessary for successful job performance. In this regard, some amount of deference to the employer/defendant›s view is warranted. Equally, the Court must resist the temptation to accept generalisations by defendants under the garb of deference and must closely scrutinise the proffered justification. Further, the Court must also examine if it is possible to substitute the measures with less discriminatory alternatives. Only by exercising such close scrutiny and exhibiting attentiveness to the possibility of alternatives can a court ensure that the full potential of the doctrine of indirect discrimination is realised and not lost in its application.” 97. Further, this Court in Nitisha (supra) has referred with approval the judgment of The Supreme Court of Canada, in Action Travail des Femmes v. Canadian National Railway Co. [Action Travail des Femmes v. Canadian National Railway Co., 1987 SCC OnLine Can SC 37 : (1987) 1 SCR 1114] wherein it analysed the claim of woman seeking equal employment opportunities in the National Railroad Company. In echoing the mutually reinforcing consequences of direct and indirect discrimination within organisational structures as a systemic feature, the Court noted [Id. at SCR p. 1139] : (SCC OnLine Can SC) “… systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is a result of “natural forces”, for example, that women “just can’t do the job”… To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.” 1302 98. Keeping the above noted analytical framework in consideration, this Court is of the opinion that 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 as noted hereinabove, but also of the concept of ‘gender-neutrality’ and ‘merit’. The evidence of the disparate treatment is writ large in the form of the merit list produced before this Court, as per which the female candidates have overwhelmingly outscored their male counterparts. It is pertinent to mention that Respondent No.3 though placed at Serial No.6 in the mens merit list has obtained less marks than the female candidate placed at Serial No.10 in the female’s merit list. Accordingly, despite their performance, the meritorious women candidates are not being selected only due to their gender. 99. Consequently, this Court is of the view that in the present case, indirect discrimination is real and is caused by a facially neutral 50:50 criteria by not taking into consideration the underlying effect of the said criteria. AS THE NATURE OF TESTS OF MALE AND FEMALE CANDIDATES IS SIMILAR, A COMBINED MERIT LIST OUGHT TO BE PREPARED 100. The argument that there is a distinction between JAG women and JAG men on the basis that they give separate SSBs and have separate merit lists is contrary to facts as there is no evidence to show that nature of tests is different in the separate SSBs. On the contrary, it is the Union of India’s own stand in the counter affidavit that they have maintained the neutrality of the examination process. 101. Upon a perusal of the record, this Court is of the view that though men and women during the JAG selection procedure appear before separate boards, yet the selection criteria for male and female candidates are not separate and only few indicators such as physical attributes are different. The conduct of separate SSBs for men and women are a necessity due to the nature of tests involved, [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. which require close intensive physical interactions. Both male and female candidates are assessed on identical parameters. The mere existence of separate boards, however, does not extend to separate treatment of men and women candidates in law. This is apparent from the procedure and testing parameters of the fifteen (15) Officer Like Qualities considered by the SSB (as extracted hereinabove) for recruitment to the Indian Armed Forces. 102. It is pertinent to mention that male and female JAG officers do not have distinct cadres with different conditions of service. Further, in terms of the policy dated 20th July 2006 dealing with SSC appointment of women, combined merit lists are prepared for men and women in case of seniority for SSC Non-Technical and Technical members. 103. Consequently, this Court is of the view that similar combined merit list ought to be prepared. CONSTITUTIONALLY VALID INTERPRETATION OF THE 2023 RECRUITMENT POLICY IMPLEMENTED W.E.F. 2024 104. This Court is of the opinion that if the 2023 Policy is read with the mandate of law, it means that Union of India shall recruit the most meritorious candidates in JAG branch irrespective of their sex/gender, but to ‘compensate the women for their previous non-enrolment’, the Union of India has decided to allocate at least 50% of the vacancies to women candidates. This intent is apparent from the 2023 policy when it states that the Indian Army has decided to increase the number of Women Officers in JAG branch from current 75 to 142 by allocating at least 50% of the seats in JAG branch to Women Officers. MERIT-BASED SELECTION WILL IMPROVE EFFICIENCY OF JAG 105. This Court is also of the view that the understanding of 2023 policy as implemented by the Respondents is not only untenable in law as after allowing women to join Combat Support Arms and Services there can be no reservation category for ‘male’ or ‘men’, but also contrary to facts as no explanation has been offered by the Union of India as to why gender-based vacancy allocation is necessary for a legal branch where the duties, training and performance expectations are identical for all officers regardless of gender. 106. Admittedly, the JAG Department falls under the Adjutant General’s branch which majorly performs administrative duties. As per 1304 clause 33 of Defence Service Regulations 1987 (‘DSR’), “the JAG is the legal adviser to the Chief of the Army Staff in matters of military, martial and (in its fighting service aspect) international law. He also assists the Adjutant General in matters relating to discipline involving application of military law”. JAG is the ‘Nodal Legal Agency’ for single point contact with the institutionalized judicial system as well as advise on all legal matters pertaining to the Army. The legal matters in addition to those covered by the Army Act, 1950, Regs for the Army, Special Powers Act, International Laws and Conventions agreed by the Government of India for the Indian Army and special laws invoked by the Government for the Army also includes Charter of Trades and Tariff Laws formally agreed upon by the Government pertaining to the Army. The legal advice has to be within the framework of the Constitution of India and its amendments thereof as on the date and day of promulgation. Consequently, the submission of the Respondents that being a combatant is a pre-requisite to be a JAG officer is incompatible with the job description of JAG officers. 107. Apart from the Army, the JAG’s Department is present in the following other branches of the Armed Forces:- i. Air Force; ii. Navy; iii. Border Security Force; iv. Central Armed Police Forces; v. Coast Guard [known as ‘Assistant Commandant (Law)]; vi. National Security Guard (known as ‘Judge Attorney). 108. In none of the aforesaid branches, the enrolment of women candidates is restricted on the ground of operational efficiency. 109. This Court takes judicial notice of the fact that female candidates have been outperforming their male counterparts in the entrance examination for judicial services. For instance, in Delhi Judicial Service, during the period 2019 to 2023, the female candidates have been outperforming their male counterparts. From being 50% in 2019 batch, the number of female Judicial Officers in 2023 batch is nearly double the male Judicial Officers. The details of total number of male and female Judicial Officers appointed in Delhi Judicial [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. Service during the last three Delhi Judicial Service Recruitment Examinations are as under:- DELHI JUDICIAL SERVICE Name of the Examination Year of Appointment Number of Male Judicial Officers Number of Female Judicial Officers Total Candidates Selected Delhi Judicial Service Examination 63 (Out of which 06 officers have resigned) 63 (Out of which 01 officer had resigned) Delhi Judicial Service Examination 22 (Out of which 01 officer had resigned) Delhi Judicial Service Examination 74 (Out of which 02 officers have resigned) 110. Consequently, the Respondents have failed to establish how a merit- based ‘gender-neutral’ selection process would negatively impact functionality, manpower planning, or operational efficiency of the JAG branch. On the contrary, a merit-based selection process will improve efficiency of the JAG branch. CONCLUSION 111. Keeping in view the aforesaid as well as the fact that the Respondents vide Notification issued under Section 12 of the Army Act, 1950 have permitted women to join the JAG branch, this Court is of the view that the executive cannot restrict their numbers and/or make a reservation for male officers under the guise of ‘extent of induction’ by way of a policy or administrative instruction. 112. Further, the impugned notification to the extent that it provides for only three (03) vacancies for female candidates as against six (06) vacancies for male candidates is against the concept of equality as enshrined in the Constitution as it makes a reservation for male officers under the guise of ‘extent of induction’. 1306 113. 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. 114. Moreover, as held hereinabove, 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. 115. However, to restrict the women candidates to 50% of the seats, as argued by the Respondents despite they being more meritorious than the male candidates is violative of the Right to Equality. Since in the present case Petitioner No.1 has obtained 447 marks as against 433 marks of Respondent No.3, this Court directs the Respondents-Union of India and Army to induct Petitioner No.1 in the next available training course for being commissioned in the JAG Department of Indian Army. As Respondent No.3 despite having secured third rank with 433 marks in the merit list of men candidates has obtained less marks than the female candidate placed at Serial No.10 in the Females Merit List, this Court is of the view that his selection by the Respondents amounts to indirect discrimination and, therefore, he is not entitled to any relief. 116. This Court clarifies that it is not imposing its own views or predilection on the Army but is implementing the Constitution and the mandate of law. But this Court agrees with the view held by many that ‘no nation can be secure, when half of its population (i.e. its women force) is held back’. 117. Consequently, this Court directs the Union of India to henceforth conduct recruitment in the aforesaid manner as well as publish a common merit list for all JAG candidates (i.e. for all male and female candidates) and make the merit list public as well as the marks obtained by all candidates participating in the selection process. [2025] 8 S.C.R.  Arshnoor Kaur & Anr. v. The Union of India & Ors. 118. With the aforesaid directions, the present writ petition stands disposed of. Result of the case: Writ Petition Disposed of. †Headnotes prepared by: Ankit Gyan