Delhi HC Clears Way For Recruitment Of Women In Territorial Army [Read Judgment]
It is declared that 'any person' mentioned in Section 6 of the Territorial Army Act, 1948 includes both males as well as females.
In a path breaking decision, the Delhi High Court on Friday opened the gates for women to enter the Territorial Army.
“Women are eligible for recruitment and appointment to the Territorial Army under Section 6 of the Indian Territorial Army Act, 1948”.
A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar held that the impugned advertisements imposing a blanket bar on appointment of women to both departmental and non-departmental battalions of the Territorial Army without any credible, reasonable or compelling justification for imposing such restrictions.
“The restriction of enrolment of women contained in the impugned advertisements and the claimed policy is neither reasonable nor rational and has to be quashed”
“The impugned advertisements to the extent they exclude women from appointment to the Territorial Army and the claimed policy in this regard are ultra vires of Articles 14, 15, 16 and 19(1)(g) of the Constitution of India and are hereby quashed”
“The impugned advertisements imposing a blanket bar on appointment of women to both departmental and non-departmental battalions of the TA without any credible, reasonable or compelling justification for imposing such restrictions. The restriction of enrolment of women contained in the impugned advertisements and the claimed policy is neither reasonable nor rational and has to be quashed”.
The court’s decision comes on a PIL filed by Kush Kalra against what he called the “institutionalized discrimination”.He had challenged the advertisement calling male candidates only for recruitment in Territorial Army.
The bench held that the prohibition notified in the Advertisements with regard to employment of women is concerned, the same is not supported either by statute or by any policy document placed on record.
The bench observed that a careful evaluation of the military service of women in other jurisdictions has been placed by Mr. Gautam Narayan, amicus curiae manifests that more and more countries have moved away from positions of total prohibition/exclusion of women to permitting recruitment of women even in combat roles in the Armed Forces.
Women In Combat Roles: Countries/ Foreign Precedents That Lead The Way
The Delhi High Court has considered data from other countries placed before it by amicus curiae Gautam Narayan showing that North Korea allowed women in combat roles in as early as 1950, followed by the Netherlands in 1979. The United States of America and the United Kingdom did so in year 2015 and 2016, respectively. In all, 22 countries allow women in the Armed Forces, even in combat roles.
The Delhi High Court was of the view that “more and more countries have moved away from positions of total prohibition/exclusion of women to permitting recruitment of women, even in combat roles in the Armed Forces”.
Here are some of the cases from other jurisdictions which were presented before and considered by the Delhi High Court before delivering the Friday’s landmark judgment:
- The Delhi High Court emphasised the observation of US Supreme Court in 1979 in case titled Personnel Administrator of Massachusetts v B Feeney, wherein it said “…Although public employment is not a constitutional right, … and the States have wide discretion in framing employee qualifications, …these precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause of the Fourteenth Amendment”.
- In the verdict delivered in 1996 in case titled United States v Virginia et al, the United States Supreme Court was considering the decision rendered by the Court of Appeals for the Fourth Circuit laying down that the exclusion of women from the educational opportunities by the Virginia Military Institute (VMI) as violative of the equal protection to women. In 1990, prompted by a complaint filed with the Attorney General by a female high school student seeking admission to the Virginia Military Institute (VMI), the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment.
It was held that Virginia had shown no “exceedingly persuasive justification” for excluding all women from the “Citizen-Soldiers” training afforded by the VMI.
- In a 1978 decision of the United States District Court for the District of Columbia titled Owens v Brown, the court decided that the absolute prohibition that prevented the Secretary from exercising the discretion to assign female personnel to duty at sea is violation of the Fifth Amendment of the Constitution.
- The Supreme Court of Israel held in case titled Alice Miller v Minister of Defence that the budgetary and planning considerations did not justify a general policy of rejecting all women from being trained as Air Force pilots.
- In case titled Gauthier v Canadian Armed Force, the Canadian Human Rights Tribunal held that there is no risk of failure of performance of combat duties by women sufficient to justify a general exclusionary policy in respect of their entry to the Canadian Armed Forces. A policy of this sort cannot constitute a bonafide constitutional requirement and is deemed to be discriminatory on the grounds of sex.
Read the Judgment Here