Karnataka High Court strikes down provision for 100% reservation to women in Military Nursing Services

The Karnataka High Court recently struck down a provision of the Indian Military Nursing Services Ordinance, 1943 that provided for 100 percent reservation for women in Military Nursing Services [Sanjay M Peerapur & Ors vs Union of India and Ors]..Justice Anant Ramanath Hegde highlighted that the underlying philosophy of reservation is to accommodate and include, not exclude. ."However, if such an accommodation which is termed as a reservation, becomes exclusive and hundred percent, without justifiable grounds, then such exclusive reservation ceases to be a reservation in its true sense and it amounts to an exclusion which is not envisaged under the Constitution at all," the Court added..The Court was hearing a challenge by two men to a 2010 notification for the recruitment of nursing officers in the Indian Army, which excluded male candidates. The Karnataka Nurses Association was also a petitioner in the matter. Notably, the plea challenged the validity of Section 6 of the Indian Military Nursing Services Ordinance, 1943, which provided 100 percent reservation to women in the cadre of 'Nursing Officers'..The petitioners contended that in matters of public employment, Article 15(3) of the Indian Constitution, which empowers the Central government to make special provisions for women and children, has no role to play. They argued that Articles 14 (right to equality) and 16 (prohibition of discrimination in employment) would apply instead.Further, they argued that the classification based on gender in Section 6 of the ordinance did not pass the twin test of reasonable and the rational nexus between the classification and the object sought to be achieved.They also claimed that Section 6 of the ordinance was a temporary measure to overcome an emergency prevailing back when it was enforced, which was not relevant anymore..On the other hand, the Union of India contended that exclusive reservation for women was provided to fill contingent temporary vacancies that may arise when male nursing officers, who are recruited under a separate process, may be deployed to attend soldiers during war.The Union government further highlighted that exclusive reservation was also provided for men being employed as nursing officers under a separate recruitment process. As such, there is no discrimination, it was contended..Based on the Supreme Court's verdict in Indra Sawhney & Ors v Union of India, the High Court agreed with the petitioners' submission that in matters related to public employment, Article 16(2) overrides Article 15(3) of the Constitution.The High Court further noted that the Indra Sawhney judgment had held that reservation in public employment cannot exceed more than 50 percent.Furthermore, the Court observed that although there may be circumstances where the very nature or place of work, or the persons for whom the work is done, require only women to be employed, the same was not pleaded by the Union government in this case.In response to the government's contention that even men (through a different process) had exclusive reservation to be employed as nursing officers, the Court noted that there was no guarantee that the recruitment processes will take place simultaneously."Not going for recruitment under one Ordinance or law, when the recruitment takes place under another Ordinance or law, and if a particular sex is a disqualification to apply for the post, then it results in denial of an equal opportunity in employment guaranteed under Article 16 of the Constitution," the Court explained..The Court noted that the Act that adopted the ordinance did not spell out objects for providing `100 percent reservation for women.It stated that if the requirement was to ensure that enough women nursing officers are available to deploy on duty in hospitals to make up for temporary vacancies arising in a war situation where male nursing officers will be deployed on the battlefield, a law could be made for such a purpose in such a way that it does not violate guarantee under Article 16(2) of the Constitution of India. "One of the ways probably is to provide reservation for both men and women in both units where as of now the reservation is exclusively provided either for men or women," the Court added..The Court emphasized that women are justifiably considered to be a separate class under the Constitution but clarified that it does not mean that there can be hundred percent reservations in employment for women to the exclusion of all others, particularly when the classification is solely based on the sex without having any rational nexus to the object sought to be achieved. "The law providing for exclusive reservations without any intelligible differentia having nexus to the object sought to be achieved violates the Constitutional guarantee under Article 14 and Article 16 (2) of the Constitution of India and is not saved by Article 15(3) of the Constitution," the Court held.It further stated that the ordinance was not protected by Article 33 (by which Parliament is empowered enact laws to limit rights for certain sections of society, including members of the Indian Armed Forces) of the Constitution of India as it was not a law promulgated by the Parliament.Accordingly, the Court struck down the part of Section 6 giving exclusive reservations to women as unconstitutional and directed the Union government to consider the petitioners' candidature for the nursing posts.Importantly, the Court clarified that all earlier appointments made under ordinance and consequences flowing from such appointments will be not be affected by this verdict. .[Read Order]