Union Defends Limit On Women JAG Appointments Citing Risk Of Being Taken As Prisoners Of War; Supreme Court Questions Logic

The Supreme Court today (May 7) again questioned the rationale of the Union Government to follow a 50-50 selection criterion for women in the post of Judge Advocate General (JAG) despite claiming that the posts are gender neutral.

Also, the Court questioned why the JAG female officers are not deployed in combat zones merely because there is a threat perception that women will be taken as Prisoners of War (PoW).

A bench of Justice Dipankar Datta and Justice Manmohan has been hearing a writ petition where two female JAG candidates had challenged the notification dated 18.01.2023 for the JAG Entry Scheme 31st Course, inviting applications from Law Graduates (Men and Women). It was pointed out that while six of the vacancies are earmarked for men, only three are earmarked for women. They stated that they had secured ranks 4 and 5 in the common selection process. However, as larger vacancies are earmarked for male candidates, despite the better merit, they will be deprived of their entitlement to appointment as JAG officers.

On the last occasion, the Additional Solicitor General Aishwarya Bhati had submitted that the earlier criteria for selection in JAG were 70:30, which means 70% of the vacancies will be for men and 30% for women. This was based on a report of 2012 study group applicable for 10 years. Now, as per the recent report, applicable from 2023 to 2033, the vacancy would be 50:50 percent. She said that this is what made the JAG post gender neutral.

However, both judges objected to this understanding and questioned how this would be gender neutral when the vacancy is still bifurcated into male and female vacancies.

Today, Bhati replied that the JAG women are not commissioned for this role because the Government does not want the women to become Prisoners of War(PoW).

Justice Manmohan did not accept this argument. He said: "Once you allow them in JAG, you will have to allow it in [all positions]. According to us, why are you making a discrimination that they will not be posted in A area, B area. Why cannot you deploy them everywhere?"

Bhati responded that this will change when the face of warfare changes. She said: "...we don't want our women to be taken as Prisoners of War. That is the policy decision of the Central Government, Mylords."

Justice Manmohan asked: "According to you, any person who is a member of JAG is a combatant to you?"

When she answered in affirmative, he added: "If including JAG is a combatant, [which means] including lady officers would be a member of combatant. If she is a combatant, she can be deployed anywhere. She can be arrested as a Prisoner of War anywhere...Your whole case is, the written submissions you have been putting up...in one place, you say she is a combatant and in other places you say, she is not a combatant."

Bhati replied that combatant does not mean that women have to be deployed at the front. She said: "Women are playing very important role in the back...Balakot strike was engineered by a woman sitting in the control role. So, the face of warfare is changing. It will change. But it does not mean you do away with the majority of men that fighting forces required." 

To this, Justice Manmohan remarked: "But where are you appreciating it?...Madam, look at this way, 50% population has to be made a part of the fighting forces. There is no nation in an attempt to defend itself in today's time, 50% of the population not being allowed to enter some portion of the area. You cannot exclude them and then say, only the men will fight! Today's time, in major countries, especially that facing a large threat perception, the entire population contributes. Each and every member of the country, each citizen, fights for the country irrespective of status, religion...a country of this magnitude with such a large population and so many hostile countries around it, you need the entire nation mobilised...especially in a position like JAG, where women are doing exceptionally well. Even in our high courts, where we do enrolment, there are more women which are recruited than men. And what do you get, you get only meritorious people. We are not saying a less deserving person should come in. If a lady has more marks, she surely needs to be there! Why should you make a decision that you only need men? People who are lower in merit, you will take just because of gender?! I don't think the Army needs such sort of philosophy. You are progressive, you have done do well!"

The hearing will continue another day.

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

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