Case Summary and Outcome

The High Court of Delhi, in response to a Public Interest Litigation (PIL) filed by Petitioner Kush Kalra, delivered a unanimous decision challenging the exclusion of women from joining the Indian Territorial Army as officers. The Petitioner contested a public advertisement limiting applications to ’employed young men,’ emphasizing discrepancies between the advertisement and information provided in the Territorial Army brochure. The Court examined historical and constitutional perspectives on gender discrimination, highlighting previous cases and constitutional provisions promoting equality. The Court scrutinized the statutory framework, emphasizing Section 6 of the Territorial Army Act, and rejected the Respondents’ claim of a statutory bar on women’s recruitment. It refuted justifications for gender-based discrimination and cited international precedents, ultimately declaring women eligible for Territorial Army service and quashing the discriminatory advertisements and policy.

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Facts

Kush Kalra, the Petitioner, filed a Public Interest Litigation before the High Court of Delhi, India seeking issuance of a mandamus to treat female gainfully employed candidates on par with their male counterparts, allowing their recruitment into the Indian Territorial Army.

The PIL was initiated against a Public Advertisement issued by the Respondents captioned “Join Territorial Army As An Officer.” The advertisement invited applications from “employed young men’ to join the Territorial Army as officers. It stated that ‘gainfully employed civilians,” who fulfilled the prescribed criteria of being graduates between 18 to 42 years old can apply. It emphasized the unique opportunity for individuals to serve as civilians and soldiers, allowing them to maintain their primary professions while contributing to the nation in a military capacity. The advertisement promoted a part-time commitment with full-time honor, highlighting the adventure and diverse experiences of serving in the Territorial Army. As of the disclosed information on http://territorialarmy.in/, the Territorial Army had a strength of approximately 40,000 individuals, consisting of Departmental TA units in entities like Railways, Indian Oil Corporation, Oil & Natural Gas Corporation, Telecommunications, and General Hospital. Additionally, there were Non-Departmental TA units, including Infantry Bn and Ecological Bn, affiliated with various infantry regiments of the Indian Army.

The Petitioner highlighted discrepancies between the information provided in the brochure/handout “How to Join Territorial Army” received from the Respondents and the Public Advertisement. The brochure, outlining the process of joining the Territorial Army as an officer, does not indicate any gender or unit-based prohibitions. It specifies that gainfully employed civilians meeting the criteria can apply, contradicting the restrictions mentioned in the Public Advertisement. 

Aggrieved by the prohibition against women joining the Territorial Army as officers, the Petitioner wrote a letter in August 2015 to the Additional Directorate General of Territorial Army, pointing out the illegality and requesting a policy change. The Respondents, in a response in September 2015, cited Para 6 of Appendix I of the Territorial Army Act, stating “women were ineligible.” However, the Petitioner highlighted that Para 6 merely outlines the eligibility criteria for enrollment without gender specification. 

In April 2016, the Petitioner sought information through the Right to Information Act, inquiring about Territorial Army eligibility for female candidates. The response clarified that female candidates were eligible for enrollment/commissioning only in departmental Territorial Army units, specifying age, medical category, education qualifications, and technical requirements. Consequently, the prohibition applied solely to infantry (non-departmental Territorial Army) units. 

Aggrieved by the Advertisement and Respondent’s response to the letter, the Petitioner filed PIL under Article 226 before the High Court.  

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Decision Overview

Chief Justice (Acting) Gita Mittal and Justice Hari Shankar delivered a unanimous decision. The primary issue before the Court was to determine whether the exclusion of women from joining the Territorial Army as an officer as stated in the Public Advertisement is discriminatory and violated fundamental principles of the Indian Constitution.

The Respondent opposed the Writ Petition and contended that the prohibition stated in the public advertisement was in line with the policy of Section 6 of the Territorial Army Act, 1948, and a change in the policy would necessitate an amendment to the Territorial Army Act of 1948.

The Court before deliberating on the impact of discrimination, noted the history of the Territorial Army, its role, and structure in India. The Court noted that the Territorial Army was formed in 1857 and consisted of volunteers only comprising of Europeans & Anglo-Indians. On October 1, 1920, the Indian Territorial Force Bill was passed by the British which organized two wings, namely, “the Auxiliary Force” for Europeans and Anglo-Indians and “the Indian Territorial Force” for Indian volunteers. After the independence from Colonial rule, the Territorial Army Act, of 1948 was enacted and the Territorial Army was formally inaugurated on October 9, 1949. 

The Territorial Army is an integral part of the regular Indian Army with a current role designated to relieve the regular army from static duties. Its primary functions include assisting civil administration during natural calamities, ensuring the maintenance of essential services in crises affecting community life, and providing units for the regular army when needed to address threats to national security.

On the discrimination against women in all spheres of life, the Court noted that the prohibition against the recruitment of women in the present case is not the first instance of such a prohibition. The Court referred to C.B. Muthamma, I.F.S. v. Union of India, (1979), a senior member of the Indian Foreign Services challenged Rule 8 of the Indian Foreign Service (Conduct and Discipline) Rules, 1961. The rule mandated that a woman member of the service obtain government permission in writing before marriage, and it allowed for potential resignation if her family and domestic commitments were deemed to hinder her duties. The Petitioner therein argued that this rule violated Articles 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), and Article 16 (Equality of opportunity in matters of public employment) of the Constitution of India. The Supreme Court of India, criticized the rule as defying Article 16, asserting that if a married man has certain rights, a married woman, under similar circumstances, should have no lesser standing. The Court emphasized the importance of gender equality enshrined in Articles 14 and 16, condemning any discriminatory posture against women as a remnant of a masculine culture. The Court acknowledged the potential for pragmatic considerations but emphasized that equality should be the governing principle, except where demonstrable differentiation is justified. [para. 28-29]

The High Court further referred to Anuj Garg v. Hotel Association of India, (2008), wherein the Supreme Court addressed the constitutional validity of Section 30 of the Punjab Excise Act, 1914, which prohibited the employment of any man under 25 years or any woman in premises where liquor or intoxicating drugs were consumed by the public. The Supreme Court declared the provision ultra vires Articles 19(1)(g), 14, and 15 of the Constitution, stating that the prohibition on women’s employment in such establishments was oppressive and violated their rights. The judgment emphasized that classification criteria must be rational and highlighted the societal changes over time, acknowledging women’s entry into various fields. It discussed the tension between the right to employment and security, advocating for proportionate measures that empower women rather than restrict their freedom, and called for the development of new security models in line with modern democratic values. [para. 30-33]

The Court noted that the Respondents did not invoke the commonly used rationale of “protection” to justify the prohibition on the recruitment of women into the Territorial Army. Referring to its prior judgments, the Court discussed cases involving gender discrimination in the military. In Babita Puniya v. The Secretary, (2010),  the Delhi High Court addressed the denial of permanent commission to women officers in the Air Force and the Army who had undergone the same training as their male counterparts. The Court ruled that the policy decision not to offer a permanent commission to women Short Service Commissioned officers needed no interference, but those who opted for it were entitled to parity with male officers. In Charu Khurana v. Union of India, (2015) the Supreme Court declared that prohibiting women from working as make-up artists in the film industry violated constitutional provisions, including Articles 14, 15, 19(1)(g), and 21 of the Constitution of India. [para. 34-38]

The High Court referenced Article 14 of the Constitution of India, emphasizing the state’s obligation not to deny equality before the law or equal protection of laws to any individual within the nation’s territory. The Court further invoked Article 15(1), barring discrimination based on religion, caste, sex, or place, and Article 16, ensuring equal opportunity in matters of employment under the State. Quoting Lord Denning’s perspective on women’s equality, the High Court highlighted the fundamental principle that women possess the same rights and capabilities as men. [para. 39-41]

The High Court referred to Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003), and clarified that while Article 16(2) prohibits discrimination based solely on sex, Article 15(3) allows the state to make special provisions for women. The Court also referred to Vijay Lakshmi v. Punjab University, (2003), emphasizing that rational classification and reasonable discrimination are permissible, especially when based on gender. Additionally, the Court acknowledged the relevance of Article 39(a), stressing equal rights for men and women in securing adequate means of livelihood. Moreover, the High Court considered the landmark case of E.P. Royappa v. State of Tamil Nadu, (1973), where it was held that Articles 14 and 16 aim to eliminate arbitrariness in state action, ensuring fairness and equality. [para. 42-47]

The High Court, in response to the Respondent’s assertion that the policy barring women from recruitment in the Territorial Army was in accordance with Section 6 of the Territorial Army Act, engaged in a thorough examination of the statutory scheme. The Court, highlighted the crucial provision in Section 6, which outlines eligibility criteria for enrollment, emphasizing that it applies to “any person” without explicit gender exclusion. The Court invoked Section 13 of the General Clauses Act, 1897, interpreting the use of the masculine pronoun “he” in Section 6 to inherently include females unless contextually repugnant. Additionally, the Court noted the explicit declaration in materials circulated by the Respondents, stating that any civilian, irrespective of gender, could seek recruitment in the Indian Territorial Army. [para. 49-54]

Furthermore, the High Court drew attention to Section 6A of the Territorial Army Act, specifically excluding women from compulsory service. This reinforced the argument that the legislature had intentionally excluded women in certain circumstances. Contrary to the Respondents’ stance, the Court observed that Section 6 did not contain any such prohibition or exclusion of women. The Court also drew comparisons with provisions in other armed forces legislation, such as the Army Act, Air Force Act, and Indian Navy Act, which explicitly excluded women from eligibility for enrollment. Consequently, the Court rejected the Respondents’ implied statutory bar and affirmed that Section 6 did not support the policy of excluding women from recruitment in all branches of the Territorial Army. [para. 55-59]

On the question of whether the advertisement exclusively solicits applications for infantry units of the Territorial Army, the Court concluded that the Respondents’ assertion was contradicted by the content of the advertisement itself. Contrary to the government’s stand, the Court noted that the advertisement did not specify that applications were limited to infantry units, and there was no mention or clarification that women could apply for recruitment to departmental units of the Territorial Army. The Court emphasized that the advertisement explicitly invited applications for all battalions of the Territorial Army, thereby rejecting the argument that it solely pertained to infantry units and highlighting the absolute prohibition imposed on the commissioning and recruitment of women into the Territorial Army. [para. 60-61]

On the question of justifying the prohibition for the commissioning of women into non-departmental units of the Territorial Army, the Court found that no rationale or basis had been presented before them. The Court noted that, despite the absence of any differentiation or justification, the impugned advertisement did not distinguish between applications for departmental and non-departmental battalions. Moreover, the eligibility conditions and training prescribed for candidates, as outlined in the advertisement, were the same for both male and female candidates. The Court emphasized that the discrimination against the entry of women into the Territorial Army lacked support from any discernible differences in job requirements or training regimes. [para. 62-65]

The High Court referenced a comprehensive study conducted by the Canadian Armed Forces known as the Service Women in Non-Traditional Environment and Roles (SWINTER) trials, which aimed to collect data on potential challenges, both physical and psychological, that might arise if all military operations were open to women without restrictions. This study carried out between 1980-84, ultimately led to Canada allowing women to be recruited in combat roles in 1989. In the context of the Indian Armed Forces, the Court highlighted a news report from November 21, 2017, celebrating the achievement of three women becoming fighter pilots in the Indian Air Force. [para. 66-71]

Given the Court’s finding that the prohibition against the entry of women into the Territorial Army lacked statutory support, factual basis, and rationality, it deemed it unnecessary to delve into the issue of whether a prohibition on women engaging in combat roles would be justified. The Court also took note of the evolving trends in other jurisdictions, where approximately 22 countries permitted the recruitment of women in combat roles. It particularly referenced decisions from the United States Supreme Court, such as Rostker v. Goldberg, (1981), Caban v. Mohammed, (1979), and United States v. Virginia, (1996), emphasizing the need for exceedingly persuasive justifications for gender-based discrimination. [para. 72-77]

The Court further highlighted decisions from the United States District Court in Owens v. Brown, (1978) and the Supreme Court of Israel in Alice Miller v. Minister of Defence, (1994), as well as rulings from the Court of Justice of the European Union, supporting the view that general exclusionary policies against women in military roles lacked justification and were deemed discriminatory on grounds of sex.  In particular, the High Court referred to the decision in Gauthier v. Canadian Armed Forces (1989) which concluded that a general exclusionary policy against women in the Canadian Armed Forces was not justified by the risk of failure in performing combat duties and was deemed discriminatory based on sex. The High Court relied on these international precedents to support the arguments presented by the petitioner, asserting that the prohibition against the recruitment of women in non-departmental units of the Territorial Army was devoid of rationale, completely unjustified, and arbitrary. [para. 78-83] 

The High Court concluded that women are indeed eligible for recruitment and appointment to the Territorial Army under Section 6 of the Indian Territorial Army Act, 1948. The Court held that the Respondents failed to present any binding policy that would justify denying women the opportunity to serve in all units of the Territorial Army.  The Court emphasized that, according to the brochure circulated by the Respondents, all gainfully employed civilians, regardless of gender, who are graduates between 18 to 42 years old, are eligible to apply for consideration for appointment to the Territorial Army. The prohibition notified in the advertisements concerning the employment of women lacked support from statute or any policy document. Consequently, the Court declared that the impugned advertisements, which imposed a blanket ban on the appointment of women to both departmental and non-departmental battalions of the Territorial Army, lacked credible, reasonable, or compelling justification. The restrictions on the enrollment of women contained in the advertisements and the claimed policy were deemed neither reasonable nor rational, leading to their quashing. [para. 84-88]

In conclusion, the Court allowed the Writ Petition and declared that the term “any person” mentioned in Section 6 of the Territorial Army Act, 1948 includes both males and females. The impugned advertisement, excluding women from appointment to the Territorial Army, along with the claimed policy, were deemed ultra vires of Articles 14, 15, 16, and 19(1)(g) of the Constitution of India, and were accordingly quashed. [para. 89-93]

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