Supreme Court strikes down Army’s discriminatory policy on Judge Advocate General recruitment

Noting that ‘no nation can be secure, when half of its population (women force) is held back’, the Supreme Court on Monday struck down a policy of the Indian Army to reserve six posts of Judge Advocate General (JAG) for men, leaving only three vacancies for women candidates.

JAG is the legal branch of the Indian Army to assist it in disciplinary cases/litigation and to advise the Chief of the Army Staff on legal matters.

“The impugned notification to the extent it provides for only three vacancies for female candidates as against six vacancies for male candidates is against the concept of equality as enshrined in the Constitution as it makes reservation for male candidates under the guise of induction,” a Bench of Justice Dipankar Datta and Justice Manmohan said.

Writing the judgment for the Bench, Justice Manmohn said, “…Male and female JAG officers do not have distinct cadres with different conditions of service and the true meaning of concept of ‘gender-neutrality’ and 2023 recruitment policy is that Union of India shall recruit the most meritorious candidates in JAG branch irrespective of their sex/gender as the primary job of this branch is to give legal advice and conduct cases…”

However, “….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,” the Bench ordered.

The order came on a petition filed by officers Arshnoor Kaur and Astha Tyagi, who despite securing 4th and 5th ranks respectively -- higher in merit than their male counterparts -- weren't selected for the JAG Department due to fewer vacancies earmarked for women.  They had contended that they could not be selected as there were only three vacancies for women out of the total six posts.

"If it's permissible in the Indian Air Force for a lady to fly a Rafale fighter jet, then why is it so difficult for the Army to allow more women in JAG?" Justice Datta had asked the Centre and the Army.

Questioning the Army’s policy of inducting men and women officers in the office of Judge Advocate General (JAG) in the ratio of 50:50, the top court had in May said that women candidates with higher merit can’t be ignored for selection.

Since in the Petitioner No.1 (Arshnoor Kaur) has obtained 447 marks as against 433 marks of Respondent No.3 (a male candidate), the top court on Monday directed the Centre and the Army to induct her in the next available training course for being commissioned in the JAG Department of Indian Army.

“As Respondent No. 3 despite having secured 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 Females Merit List, this Court is of the view that his selection by the Respondents amounts to indirect discrimination and, therefore, he is not entitled to any relief,” the Bench said.

Noting that the Army by a notification issued under Section 12 of the Army Act, 1950, permitted women candidates to join the JAG Branch, the Bench said 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.

It directed “the Union of India to henceforth conduct recruitment in the aforesaid manner as well as publish a common merit list for all JAG candidates (ie, for all male and female candidates) and make the merit list public as well as the marks obtained by all candidates participating in the selection process.”

It rejected the Centre’s submission to restrict the women candidates to 50% of the seats despite them being more meritorious than the male candidates, saying it was violative of the Right to Equality.