Limiting Article 33: Proportionality and Formal Equality in the Armed Forces

Introduction

In August of 2025, the Supreme Court struck down the Indian Army’s policy of gender-based reservations in Judge Advocate General (JAG) posts on grounds of indirect discrimination (Arshnoor Kaur v UOI; para 93). This judgment draws attention to the fact that non-combat arms in the armed forces, like JAG, continue to have arbitrary gender-based distinctions in recruitment despite the Defence Ministry’s 2023 press release claiming that employment in the Indian armed forces is ‘gender-neutral.’

The controversy in Arshnoor was centered around the Army’s JAG selection criteria which, since 2023, reserved 50% seats for women and 50% for men, in the name of ‘gender-neutrality.’ As a result, women with higher merit than men were denied selection. To that effect, the SC drew a distinction between ‘gender neutrality’ and ‘gender equality’, holding that once women are permitted entry under Section 12 of the Army Act, the executive cannot impose further restrictions on their induction under the guise of ‘extent of induction’ (para 47), and mandated that a common-merit list be evaluated henceforth.

This judgment raises the larger question of the extent to which the Parliament may abrogate the Fundamental Rights, like that of equality, of military personnel under Article 33 of the Constitution. In this blog, we aim to analyse how the SC has interpreted these restrictive powers and whether they should be subjected to substantive limits. We argue that the thresholds of proportionality and non-discrimination must be satisfied in restricting rights under Article 33. Then, we go on to critique the ‘combat-exclusion’ reasoning and its violation of these constitutional thresholds. Finally, we address why formal equality meets this constitutional standard better.

Powers under Article 33

The Armed Forces have special and peculiar needs, including extremely high standards of discipline and efficiency to ensure military preparedness. With this in mind, Article 33 gives broad power to the Parliament to ‘determine the extent to which the Fundamental Rights of members of Armed Forces, [...] or members of the Forces charged with the maintenance of public order, may be restricted or abrogated to ensure the proper discharge of their duties and the maintenance of discipline.’ This power gives discretion to the Armed Forces to regulate and restrict the fundamental rights of their personnel.

The Supreme Court has been majorly deferential in its approach to delimiting the exact scope of this power to create restrictions on Fundamental Rights, reasoning that it would ‘necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula’ (para 7). All the Court has clarified is that the intent behind Article 33 is ‘maintenance of discipline and proper discharge of duties.’

The lack of a constitutional standard restricting the powers under Article 33 often leads to arbitrary violations of the Fundamental Rights of military personnel for reasons that go beyond the scope of ‘maintenance of discipline.’ The misuse of these broad powers becomes apparent through cases like that of Samuel Kamalesan, where a Christian Officer was dismissed from service without pension and gratuity for refusing to attend the ‘religious functions in the Regiment’ without a trial by Court Martial.

However, the SC has been careful to emphasise that the restrictive power under Article 33 does not mean that the rights of military personnel ‘cease to be natural or human rights’ (para 320). The Court has clarified that the Parliament may restrict rights only in the larger interest of national security and military discipline and has warned that ‘this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution.’ (pg 36).

In light of this, judicial interpretation has increasingly created an occupational model of military service. Decisions such as Babita Puniya and Lt Col Prithi Pal Singh Bedi treat service personnel like citizens in uniform who have the same rights as any other citizen, only with necessary restrictions.

In practice, however, cases like Arshnoor address only specific instances of arbitrary restrictions without creating a systematic standard for future cases. As a result, judicial engagement with Article 33 is largely case-specific and reactive to individual circumstances without a clear and consistently applied constitutional test.

Justifying Rights-Restrictions under Article 33

Measures that restrict Fundamental Rights are ordinarily subject to constitutional scrutiny and justification. Although the Supreme Court has cautioned against enclosing Article 33 within a ‘rigid statutory formula’, (pg 16)  this does not allow the State to restrict Fundamental Rights on the basis of its own assertions. Allowing such restrictions without requiring justifications or proof  ‘may significantly weaken rights protection,’ which, as established above, military personnel are equally entitled to.

Comparative practices and military law scholarship also show that restrictions on Fundamental Rights of military personnel are expected to satisfy certain criteria that justify those restrictions. These ‘justifications’ of restrictions can be expressed most clearly through the constitutional doctrine of proportionality, which is considered a guiding principle of constitutional rights limitations. In India, proportionality has also been accepted as the constitutional lens for State restrictions on Fundamental Rights under Article 14, 19, and 21.

However, despite this acceptance, proportionality has not been systematically applied to restrictions imposed under Article 33. The military’s aim to ‘maintain order and discipline’ must not allow the government to arbitrarily curtail Fundamental Rights on the basis of outdated practice or institutional tradition. Therefore, we propose that restrictions on Fundamental Rights under Article 33 should be scrutinised against the constitutional standard of proportionality, consistent with its application to other rights limitations and comparative practice.

Applying the doctrine of proportionality in restricting rights of military personnel would require discriminatory or restrictive measures under Article 33 to satisfy the following four criteria:

1. Legitimacy: the aim of the restriction must be of sufficient importance so as to override a Fundamental Right.

2. Suitability: whether the measure actually advances the legitimate aim.

3. Necessity: the restriction of any Fundamental Right of servicemen must be absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline.

4. Balance: whether the benefit/efficiency and order created by restriction is balanced in proportion to the harm caused by it.

In order to constrain the abuse of discretion, statutory frameworks must require the Parliament and consequently, the Armed Forces, to explicitly justify abrogation of rights of military personnel in any of its administrative actions where it utilises its authority under Article 33. Requiring the justification of restrictions in terms of proportionality would place the responsibility for rights limitation at the point of decision-making, rather than it being addressed ad hoc through judicial intervention.

The Limits of the ‘Combat Exclusion’ Defence

Arshnoor is not the first case where the armed forces have relied on the justification of non-deployment of women during wartime, i.e., the ‘combat exclusion’ defence. This rationale has been used to deny women equal employment opportunities in various non-combat branches of the Armed Forces. The denial of opportunity to female JAG officers on the basis of this fails the proportionality standard due to the following reasons:

First, to suggest, as the respondents did in Arshnoor, that being a combatant is a prerequisite for becoming a JAG officer is an attempt to retrofit a combat stereotype onto a legal branch that has never required it. JAG officers are ordinarily not expected to be deployed during wartime in combat roles. Thus, restrictions on the right to equal opportunity on this ground fails the suitability prong. This reasoning was accepted by the SC in Arshnoor, observing that ‘with a strength of over 1.4 million active, 2.1 million reserve and 1.3 million paramilitary personnel and with only about two hundred and eighty-five (285) JAG officers, it is an extreme stretch to claim that because there may be JAG deployment at the time of war, women ought to be excluded’ (para 58).

Second, the premise underlying the combat exclusion defence is unfounded as women are already deployed along high-tension border zones during missions and as parts of transport convoys. Additionally, other modern militaries, like the US and the UK have opened all combat roles for women. In these circumstances, the restriction cannot be regarded as necessary.

Taken together, these factors show the unreasonableness of ‘combat exclusion’ as a justification for limiting equality of opportunity in the JAG branch. The justification doesn’t acknowledge the operational realities of the JAG branch and does not satisfy proportionality-based scrutiny.

Formal Equality as the Way Forward

In Arshnoor, the State sought to justify gender-based reservations in a legal branch where duties, training, and performance expectations operate under ‘identical operational conditions, including logistics, terrain and regimental structure’ (para 61). The SC found this justification to be illogical and grounded in arbitrary practice and tradition. In this context, the distinction between formal and substantive equality in the armed forces warrants closer examination.

Substantive equality aims to level the playing field by compensating for historical disadvantages. While indispensable in civilian employment or educational access, it can inadvertently preserve the very gender binaries the military claims it is trying to transcend. Substantive measures operate on the premise that women require a differentiated entry route to achieve parity. However, when the job’s demands are gender-neutral, substantive equality becomes counter-productive. It risks institutionalising assumptions about women’s capabilities even where merit-based assessment is feasible.

Formal equality on the other hand, dismantles this difference. Non-combat arms such as the JAG branch require professional competence, analytical ability and specialised qualifications rather than brute physical strength or combat endurance. It is here that formal equality, rather than substantive equality becomes imperative. When the job has no physiological or combat specific requirement linked to sex, any gender-based differential becomes discriminatory. A single merit list directly serves the military’s operational need for the best qualified officers.

It is noteworthy that a comparative analysis of modern militaries shows a clear pattern: formal equality is the global norm in non-combat arms. Militaries that have modernised successfully, such as the UK and Israel, design role-specific criteria that measure performance regardless of gender. As early as 1989, the Canadian Human Rights Tribunal in Gauthier v Canada (Canadian Armed Forces) held that CAF could no longer rely on gender-based ‘traditionalist assumptions’ to justify the exclusion or segregation of women from military roles. Similarly, the Australian Defence Force (ADF) removed all gender based restrictions across military roles by 2016, pursuant to a phased integration that began in 2013.

Conclusion

Cases like that of Samuel Kamalesan and Arshnoor Kaur reveal that the unrestricted powers under Article 33 have too often been exercised without adequate justification. Balancing the extreme requirements of military order and efficiency with Fundamental Rights of military personnel is an extremely delicate and ever-changing process that must be prioritise military order and efficiency. Nonetheless, it requires a framework that ensures restrictions are reasoned, necessary, and constitutionally grounded.

Introducing a proportionality-based standard within the framework of Article 33 would create such a framework. This would shift the onus on the State to justify its restrictions pre-emptively, and ensure that limitations on rights are rational, necessary, and balanced.

In branches like JAG, where duties are legal and advisory, the State’s reliance on the ‘combat exclusion’ defence is factually and constitutionally unsound. Gender-based caps or reservations serve neither efficiency nor discipline; they merely perpetuate long practiced stereotypes. While the acknowledgment of the need for a common merit list in JAG recruitment was a welcome step toward equality, change will be slow. Institutions change that way after all. The law also moves by small, precise nudges that reorient practices. Over time, such adjustments can reshape expectations about what equal treatment in uniform entails. Most importantly, when the next batch of officers report for duty, they must be reminded that equality is not a favour that the constitution grants, it is its demand.

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This article has been authored by Ananya Kumar, Associate Editor and Anumita Sawhney, Assistant Editor at RSRR. It is a part of the RSRR Editor's Column Series.

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