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

The Supreme Court today(August 11) struck down a policy of the Indian Army to reserve the posts in the Judge Advocate General (JAG) branch for men and restricted the number of women who can be appointed to JAG posts. 

"Keeping the above noted analytical framework in consideration, this Court is of the opinion that the practice challenged in the present petition results in indirect indiscrimination. The practice of fixing a ceiling limit to recruitment of female candidates has the effect of perpetuating the status quo, which has been historically discriminatory to women candidates. The result of such practice is confinement of women candidates, irrespective of their performance/merit, in their gendered category, thereby being destructive of not just the Constitutional scheme under Articles 15 and 16 as noted hereinabove, but also of the concept of 'gender-neutrality' and 'merit'."

The Court held that the true meaning of gender-neutrality is that all meritorious candidates, irrespective of gender, should be selected. Therefore, it has directed the Union of India and the Indian Army to conduct recruitment in JAG in a manner that there is no bifurcation of seats for any gender, that is, if all female candidates are deserving, all of them should be selected. 

The Court has also directed that a common merit list in JAG will be published including the marks of all candidates will be made public. 

A bench comprising Justice Dipankar Datta and Justice Manmohan observed: " The respondents by notification issued under Section 12 of the Army Act, 1950, have permitted women to join the JAG branch, this Court is of the view that the executive can't restrict numbers and/or make reservation for male officers under the guise of induction by way of policy or administrative instructions. Further the impugned notification to the extent that it provides for only three vacanies for female candidates as against six vacanies for male candidates is against the concept of equality as enshrined under the Constitution as it makes reservation for male candidates under the guise of induction. 

Though men and women under the JAG procedure appear for separate posts, yet the selection criteria and testing parameters are 15 officers are quality are identical. This Court is of the view that the combined merit list ought to be prepared.

Male and female officers don't have distinct cadres or different conditions of service and the true meaning of the concept of gender neutrality and 2023 policy is that the Union of India shall recruit the most meritorious candidates irrespective of gender, as the primary role of this branch is to legally advise and conduct cases, but to 'correct the past' and to 'compensate the women for their previous non-enrolment', the Union of India shall allocate not less than 50% of the vacancies to women candidates.

However, to restrict women to 50% of the seats, as argued by the Respondents despite being meritorious than the male candidates is violative of the right to equality. Since in the present case, the petitioner has obtained 447 as against 433 marks by the Respondent no. 3. This Court directs the Respondent Union of India and the Army to induct Petitioner no. 1 in the next available training course for being commission in the JAG Department of Indian Army. 

As for Respondent no. 3 despite having secured the third rank with 433 marks, in the merit list of men candidates, has obtained less marks than the female candidate placed at serial no. 10 in the female merit list. This Court is of the view that his selection by the Respondent amounts to indirect discrimination and therefore, he is not entitled to any relief. This Court clarifies that it is not imposing its own views or predilection in the army but only implementing the Constitution in the mandate of law. 

This Court agrees with the view that no nation can be secured if half of its population, that means its own force is held back. Consequently, it directs Union of India to henceforth conduct recruitment in the aforesaid manner as well as publish common merit list for all candidates, that means for all male and female candidates and make merit list public as well as marks obtained by candidates participating in the selection process."

On May 8, it reserved judgment in a writ petition filed by two women seeking appointment to the post of Judge Advocate General (JAG) (Indian Army) Entry Scheme 31st Course, challenging the disproportionate vacancies for men and women. According to the petitioners, although they secured ranks 4 and 5, respectively, and are higher in merit than male candidates, they were still unable to be selected due to the fewer vacancies earmarked for women (3 in number compared to 6 for men). They had argued that JAG provides reservation for men, which is arbitrary and discriminatory.

Respondent no. 3 had also filed an impleadment application challenging the writ petition. He argued that he has ranked third and was on the verge of losing his seat.

The Court granted interim relief to Petitioner 1. Arshnoor Kaur, and directed the Union and the Army to induct her in the next available training course for appointment as a JAG officer. As for the other petitioner, it was pointed out that the candidate had joined the Indian Navy during the pendency of the petition. The Court has sought clarification on whether she wants to continue her post in the Navy.

During the hearings, the Court questioned the Union for earmarking fewer posts for women, despite claiming the posts to be gender neutral. The Court did not appear to be convinced by the reasoning offered by Additional Solicitor General Aishwarya Bhati that the JAG posts are gender-neutral and that 50:50 is the ratio of selection from 2023 onwards. The Court questioned how this could be termed as gender-neutral when women candidates with higher merit are not qualified because vacancies are still gender bifuracted.

Justice Manmohan said that if 10 women qualify for JAG and all 10 of them are better in terms of merit, all of them should be appointed as officers. The Court also objected to the Union's reasoning that if women JAG officers are appointed as combatants on international borders, they could run a risk of being taken as prisoners of war.