The High Court of Karnataka has invalidated a provision from the Indian Military Nursing Services Ordinance of 1943 that mandated 100% reservation for women in the 'nursing officers' cadre.

In a recent judgment on January 5, 2024, the High Court of Karnataka granted approval to a petition filed in 2011 that contested a provision in the British-era Indian Military Nursing Services Ordinance of 1943. The court declared the phrase 'if woman' in Section 6 of the ordinance unconstitutional. Notably, the High Court clarified that appointments made under this provision in the past are not considered void, despite the striking down of the specific language in the ordinance.

"Such an interpretation will have far-reaching, undesirable consequences and unsettle many things that have settled long ago," it said.

The petitioners, including Sanjay M. Peerapur, Shivappa Maranabasari, and the Karnataka Nurses Association, argued before Justice Anant Ramanath Hegde's bench that the 1943 ordinance, which mandated 100 percent reservation, was established by the British Crown during World War II to address the emergency situation at that time.

Sanjay M Peerapur and Shivappa Maranabasari, who contested their exclusion from the 2010 recruitment of nursing officers, brought the matter before the high court. It's noteworthy that the 1943 ordinance, which implemented 100 percent reservation, was adapted under The Adaptation of Laws and Orders 1950 by the President after India gained independence.

The High Court however said that “The law adapted under Article 372(2) of the Constitution of India, cannot be equated with the law enacted by the Parliament under Article 33 of the Constitution of India.”

The High Court said that though Parliament has special powers, this ordinance was not passed by the Indian Parliament.

"This court is of the view that exclusive reservation conferred on women while recruiting "nursing officers" under ordinance, 1943 does violate the rights guaranteed under Articles 14, 16(2), and 21 of the Constitution of India as the classification," the judgment says.

The High Court, in partially granting the petition and simultaneously rejecting the plea to annul the 2010 recruitment process, expressed, "The underlying philosophy of reservation is to accommodate and include, but not to exclude."

However, if such an accommodation which is termed as a reservation, becomes exclusive and hundred per cent, without justifiable grounds, then such exclusive reservation ceases to be a reservation in its true sense and it amounts to an exclusion which is not envisaged under the Constitution at all."