source:barandbench.com The Delhi High Court yesterday declared that women are eligible for recruitment and appointment to the Territorial Army under Section 6 of the Indian Territorial Army Act, 1948.
The judgment was delivered in a writ petition filed by one Kush Kalra regarding an advertisement for employment in the Territorial Army which had invited applications from gainfully employed ‘young men’ within the age group of 18-42 years.
It was contended that the prohibition on women from joining the Territorial Army amounts to institutional discrimination by the state and violates Articles 14, 15 and 16 of the Constitution and also impinges on their basic human rights.
The Division Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar started off with a statement by John Stuart Mill regarding gender equality,
“The subordination of one sex to the other ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.”
The Court held that the Government failed to show any decision of policy, let alone binding policy, enabling them to deny opportunity to the women to serve in all units of the Territorial Army.
“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.”
Advocate Gautam Narayan, who was the amicus curiae in the matter, submitted a list of 22 countries including the US and UK, which allow women to serve even in combat roles in its defence forces, along with the year from which they were so allowed.
The Bench however stated that at this stage, it is not necessary for it to deal with the issue as to whether prohibition of engagement in the combat roles would be justified or not.
The Court evaluated the law regarding military service of women in other jurisdictions and considered various judgments delivered in the United States, Canada and even Israel.
Finally, the Court declared the impugned advertisements to the extent that they exclude women from appointment to the Territorial Army as ultra vires Articles 14, 15, 16 and 19(1)(g) of the Constitution of India and quashed the same.
Read the judgment below.