In a landmark decision, Justice Anant Ramanath Hegde of the Karnataka High Court, presiding over the Dharwad bench, declared on January 5 that the 100% reservation for women specified in Section 6 of the Military Nursing Services Ordinance of 1943 is unconstitutional and doesn't apply to the modern context. This ruling came as a response to a petition challenging the reservation provision, asserting that it contravenes Article 16(2) of the Constitution, which guarantees the right against discrimination on various grounds, including sex.
As per reports, Sanjay and Shivappa were denied participation in military nursing services in 2010 because of the reservation for women. The petitioners argued that Article 15(3) of the Constitution (special provisions for women and children) cannot override Article 16(2) (right against discrimination on grounds such as religion, sex, etc.)
The 1943 Ordinance was created to deal with the emergency situation raised during World War II by the British Crown ruling India.
Historical Context vs. Modern Relevance
However, the High Court removed the word 'if women' from Section 6 of the Ordinance, claiming it unconstitutional. The bench headed by Justice Anant Ramanath Hegde said, "The expression 'if woman' found in Section 6 of the Indian Military Nursing Services Ordinance, 1943, is struck down as unconstitutional." The court further said that there was no "rational nexus" between the reservation and the aim it wanted to achieve. The reservation was made during the emergency period of World War II, which is no longer the situation now.
The court said, "Though it is urged that the exclusive reservation for women is also provided to encourage women to join the services under the Armed Forces as the women in those days were reluctant to join the Armed Forces, the emergency that was prevailing then in 1943 is no longer there. Assuming that the Ordinance was adapted to encourage women from joining the Armed Forces, no grounds are made out to justify 100% reservation for women. It is not out of place to mention that in olden days, and even today, it is women who are preferred for nursing jobs. If the women in the 1940s were reluctant to join as nursing officers under the military establishments, no case is made out to suggest that such a situation is still prevailing to justify exclusive reservation for women.”
The court further added that although the Constitution justifiably considers women as a separate class, it is not rational to give them a 100 percent reservation in employment. It will cause the exclusion of others solely based on sex, without any other "intelligible differentia."
However, in an interesting twist, the court ruled that all appointments made under this provision should be preserved. It also said that if the petitioners wanted to join the service, the time it took to file the petition should be subtracted from their age.
In opposition, the counsel defending the provision argued that it was in place to cover vacancies when male nursing officers, recruited through a different process, would be deployed to the front lines during war. Moreover, they argued that there is no discrimination because men too are provided full reservations in another recruiting procedure for nursing services.
This landmark judgment challenges existing norms and opens a dialogue on gender-based reservations in various spheres. The implications of this ruling are not limited to the immediate context but extend to broader discussions on constitutional guarantees and the evolving nature of societal needs.