New Delhi: In a major step towards ensuring gender neutrality in the country’s armed forces, the Supreme Court, on Monday, struck down a policy of the Indian Army to reserve posts in its Judge Advocate General (JAG) branch for men.
The Army’s JAG branch deals with all legal affairs of the force and recruits lawyers directly. Till now, the rules restricted the number of women who can be appointed to JAG posts.
Holding that the true meaning of gender-neutrality is to select candidates on the basis of merit, irrespective of gender, the Bench of Justice Dipankar Datta and Justice Manmohan directed the Union of India and the Indian Army to conduct recruitment in JAG in a suitable manner, without any prejudice. If all female candidates are deserving, all of them should be selected, the Court held. It also directed that a common merit list in JAG be published to make the marks of all candidates public.
“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 vacancies for female candidates as against six vacancies 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,” the Bench observed.
“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. To compensate the women for their previous non-enrollment, 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… 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 commissioned in the JAG Department of Indian Army,” the Court ordered.
“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,” it was further ordered.
The Court was hearing a petition 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.
The Court granted interim relief to petitioner Arshnoor Kaur, and directed the Union and the Army to induct her in the next available training course for appointment as a JAG officer. The other petitioner joined the Indian Navy during pending of the petition. The Court has sought clarification on whether she wants to continue with the Navy.