'Gender-Neutral' Often Misunderstood As 'Gender Equality' : Supreme Court

The Supreme Court recently struck down the Indian Army's policy of reserving seats for male candidates in the Judge Advocate General (JAG) branch.

While ordering that the appointments should be merit-based, the Court observed that the term "gender-neutral" is often incorrectly conflated with "gender equality."

The Court was deciding a case where the female candidates challenged the Army's policy of issuing separate merit lists for women and men and earmarking lesser vacancies (3) for women as against the vacancies (6) reserved for men.

A bench comprising Justices Dipankar Datta and Manmohan held that if the JAG recruitment policy was truly gender-neutral and was based solely on merit, irrespective of gender, then imposing a cap on female candidates was unjustified. The Court ruled that the policy violated the right to equality, noting that while the Army claimed the process was gender-neutral, it had erroneously equated neutrality with equality, thereby restricting women's entry.

“'Gender-neutral' in ordinary parlance means that no discrimination shall be made between candidates on the basis of gender or sex of an individual. The expression 'gender-neutral' is normally misunderstood and often thought to be synonymous with the expression 'gender-equality'.”, the Court said.

Explaining the difference between the expressions 'gender-neutral' and 'gender-equality', the court observed:

“A simple analogy to address the difference would be that when an employer hires the same number of men and women, it would be deemed to be following the policy of 'gender-equality'; on the other hand, if the employer hires the best candidate for the job regardless of gender/sex, it would be deemed to be following the policy of 'gender-neutrality'.”

The Court explained that “the concept of gender-neutrality does not just prohibit sex-based classification but it ensures that the most meritorious candidate is selected for the job.”

“Also, the principle of 'gender-neutrality' in service does not preclude or limit deployment in any operational area or role.”, the court added while noting against the fixation of seats for the female candidates.

The Court emphasised that more meritorious female candidates must be preferred over less meritorious male candidates, holding that capping women's positions despite their higher merit undermines the very concept of equality and is impermissible under the law

Reference was made to the recent case of Gopika Nair & Ors. v. Union of India & Ors. (2023), where three female candidates, despite being more meritorious than certain male candidates, were initially excluded from the first list of 27 selected candidates, notwithstanding the existence of a gender-neutral policy. Challenging this exclusion, the women argued that their omission was unjustified. A three-judge bench ruled in their favour, holding that they should be included in the first list of 27 candidates on merit, irrespective of any separate seats reserved for female candidates beyond those 27 seats as part of the special arrangements for women under Article 15.

“Prima facie, we find that depriving the highly 3 meritorious female candidates from participating in the selection process is putting the clock in reverse direction. Leave aside giving preferential treatment to the female as envisaged under Article 15 of the Constitution of India, the stand of the respondent-Union of India is violative of Article 14 of the Constitution of India, inasmuch as it deprives a meritorious female to compete and permits much less meritorious male to participate in the selection process.”, the court observed.

Case Details: ARSHNOOR KAUR v UNION OF INDIA|W.P.(C) No. 772/2023

Citation : 2025 LiveLaw (SC) 788

Click here to read/download the judgment

Also From Judgment: 'Against Equality' : Supreme Court Quashes Army Policy To Reserve Higher Number Of JAG Posts For Men Than Women