HC nixes 81-yr-old law on 100% women's quota

BENGALURU: The Karnataka high court has struck down an 81-year-old law, which had effectively provided 100% reservation to women in Military Nursing Services.

"The exclusive reservation conferred on women while recruiting 'nursing officers' under Military Nursing Services Ordinance, 1943, violates the rights guaranteed under Articles 14, 16(2), and 21 of the Constitution of India," the court observed in a recent judgment.

Partly allowing a petition filed in 2011, Justice Anant Ramanath Hegde struck down as unconstitutional the expression "if a woman" found in Section 6 of the said ordinance. The said section had prescribed that "if a woman" is found eligible for appointment as Indian military nursing services officer, she may be appointed to the post.

Women are justifiably considered to be a separate class under the Constitution. However, it doesn't mean that there can be 100% reservation in employment for women to the exclusion of all others when the classification is solely based on the sex and has no 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 judge observed.

Sanjay M Peerapur and Shivappa Maranabarasi, who were working as Principal and Lecturer, respectively, in KLE Institute of Nursing, Hubballi, along with the Karnataka Nurses Association had challenged the February 13, 2010, notification providing for 100% reservation to women in military nursing services, calling it discrimination.

On the other hand, the defence ministry argued that the exclusive reservation for women is being provided to fill up the contingent, temporary vacancy that may arise when male nursing officers who are recruited under a separate recruitment process and working in hospitals, are deployed to attend to soldiers on the warfront.

However, Justice Ananth Ramanath Hegde pointed out that the Ordinance, 1943, was promulgated by the then British Crown, and was later adapted vide the adaptation laws, Orders 1950 under Article 372(2) of the Constitution of India. "The law adapted under Article 372(2) of the Constitution of India cannot be equated with the law enacted by Parliament under Article 33 of the Constitution of India," the judge further observed.