GITA MITTAL, J.

“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.”

John Stuart Mill

1. This writ petition, instituted in public interest by the petitioner, complains of institutional discrimination by the respondents against women and prays for issuance of a writ in the nature of a mandamus to place female gainfully employed candidates at par with similarly placed male candidates and allowing their recruitment into the Indian Territorial Army. The writ petitioner contends that as per the advertisement put out by the respondents, there is no scope for women to join the Territorial Army as an officer, even if they are gainfully employed and within the age group of 18-42 years, while this is the eligibility condition enabling similarly placed men to join. The challenge, therefore, is premised primarily on the ground that this discrimination, based on gender, is violative of the fundamental rights guaranteed to all women under Articles 14, 15 and 16 of the Constitution of India and also impinges on their basic human rights.

2. In order to appreciate the impact of this discrimination, it is essential to understand the history of the Territorial Army, its role and structure as well as its current strength.

Historical background

3. The origin of the Territorial Army (‘TA’ hereafter) can be traced back to the year 1857, when it was formed and consisted of volunteers only comprising of Europeans & Anglo-Indians. On 1st October, 1920, the Indian Territorial Force Bill was passed by the British and at that time it was organized into two wings, namely, ‘the Auxiliary Force’ for Europeans and Anglo-Indians and ‘the Indian Territorial Force’ for Indian volunteers. After independence, the Territorial Army Act, 1948 came to be enacted and the TA was formally inaugurated on 9th October, 1949 by the Governor General of India Shri C. Rajagopalachari.

Role and structure of the Territorial Army

4. So far as its role is concerned, the TA is part of the regular Indian army. Its present declared role is to relieve the regular army from static duties and assist the civil administration in dealing with natural calamities and maintenance of essential services in situations when life of communities is affected or the security of the country is threatened as well as to provide units for the regular army as and when required.

5. The respondents have also placed on record a Brochure which was issued inviting applications to the TA which informs that the TA is active in numerous fields.

6. Information regarding the structure of the TA is disclosed on its website i.e. http://territorialarmy.in/. It is disclosed that as on date, the TA has a strength of approximately 40,000 persons comprising of Departmental TA units such as units in the Railways; the Indian Oil Corporation; the Oil & Natural Gas Corporation; Telecommunications and the General Hospital. It also has Non-Departmental TA units of Infantry Bn (TA) and Ecological Bn (TA) affiliated to various infantry regiments of the Indian Army.

7. The Brochure placed on record additionally informs that the TA consists of engineer units for line of control fencing. Raising of four composite Ecological Task Force Battalions (National Mission for Clean Ganga) is also under consideration.

Who is eligible to apply

8. Inasmuch as the substantial challenge in this case is with regard to the prohibition of women candidates from joining the TA imposed by way of the advertisements being issued inviting application for joining, it becomes necessary to examine the prescriptions made by the respondents with regard to the eligibility based on gender and as prescribed by law.

9. Interestingly, the Brochure/handout furnished to the petitioner by the respondents, referred to above, contains no such prohibition either by gender or by unit. This handout gives information on “How to Join Territorial Army” as a