The Supreme Court on Monday struck down the Indian Army’s policy of reserving six out of nine Judge Advocate General (JAG) branch vacancies for men and only three for women, calling it “arbitrary”, unconstitutional and contrary to the principle of gender neutrality.
In an important ruling reinforcing gender equality in the armed forces, a bench of justices Dipankar Datta and Manmohan held that the Army and the Union government could not impose a ceiling on the number of women in the JAG cadre once they had been permitted entry under Section 12 of the Army Act, 1950. “No nation can be secure when half of its population (i.e., its women force) is held back,” emphasised the bench, adding that the “true meaning” of gender neutrality is that all meritorious candidates, irrespective of gender, must be selected.
The ruling came on petitions filed by two women candidates who had ranked fourth and fifth overall but were denied selection because of the gender-based allocation of seats in the 2023 JAG recruitment. The bench pointed out that in this case, one petitioner , Arshnoor Kaur, had secured 447 marks, higher than the 433 scored by a male candidate ranked third in the men’s list, yet she was excluded. The court directed her induction in the next available training course, noting that her exclusion amounted to “indirect discrimination” in violation of Articles 14 (equality), 15 (no discrimination), and 16 (equality of opportunity) of the Constitution. While the other candidate, Astha Tyagi had secured 477 markes, no order was passed in her case since she joined the Indian Navy during the pendency of the matter. Senior advocate Gopal Sankaranarayanan represented the petitioners.
Rejecting the Army’s reliance on “extent of induction” policies dating back to 2011 and 2012, the court held these administrative instructions had no statutory backing and could not override the Section 12 notification allowing women into the JAG branch.
The bench further declared that the 2023 recruitment policy, which envisaged at least 50% of JAG vacancies for women to “compensate for their previous non-enrolment” but capped their share at that figure, was neutral on the face of it, but discriminatory in effect.
“Though neutral in form, it is anything but gender-neutral in application and practice…The evidence of the disparate treatment is writ large in the form of the merit list… female candidates have overwhelmingly outscored their male counterparts,” the judgment noted. It cited the example from the present case where a male candidate ranked sixth in the men’s merit list had scored fewer marks than a woman ranked tenth in the women’s list, yet was selected while she was not.
“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 or merit, in their gendered category, thereby being destructive of not just the constitutional scheme but also of the concept of gender-neutrality and merit,” it held.
Observing that male and female JAG officers form part of the same cadre, face identical conditions of service, and are evaluated by the same selection criteria, the bench said there was no justification for separate merit lists. It directed that future recruitment be conducted through a common merit list for all candidates, with the list and individual marks made public.
“The primary job of this branch is to give legal advice and conduct cases… there is no explanation why gender-based vacancy allocation is necessary for a legal branch where the duties, training, and performance expectations are identical for all officers regardless of gender,” the court said, adding that a merit-based process would only improve the branch’s efficiency.
It directed the Union of India and the Army to conduct future JAG recruitments without bifurcating vacancies by gender, making it clear that if all deserving candidates happen to be women, all of them must be selected. “To restrict the women candidates to 50% of the seats, as argued by the respondents despite they being more meritorious than the male candidates is violative of the right to equality,” declared the bench.
The Army’s contention that JAG officers constitute a combatant reserve and that women are not deployed in counter-insurgency or counter-terrorism roles was dismissed as misconceived. The bench pointed to existing policy changes that have brought women’s field attachment and operational training “at par” with men, as well as examples of women officers commanding convoys in militant-prone areas, serving in elite airborne and parachute units, and operating in UN peacekeeping missions in combat zones.
The judgment noted that under the 2023 policy, at least 50% of the vacancies must be reserved for women to “compensate” for their earlier non-enrolment and to raise their strength in the JAG branch to 142 officers. However, it added that women candidates figuring in the merit list beyond this 50% quota must also be accommodated, and their intake cannot be capped at that limit.
“If women can pilot Rafale jets, operate behind enemy lines, and command convoys in high-risk zones, there exists no legal or operational bar to their deployment at peace locations in the JAG branch,” the judgment said.
It added; “This court clarifies that it is not imposing its own views or predilection on the Army but is implementing the Constitution and the mandate of law. But this court agrees with the view held by many that ‘no nation can be secure, when half of its population (i.e. its women force) is held back.”
Quoting Microsoft co-founder Bill Gates — “People feared electricity when it was invented, the court observed that resistance to change cannot justify discrimination. It stressed that women were not seeking special treatment or relaxed standards, only that merit be given a chance.
“If women officers do not conform to discipline or match the standards prescribed or expected of them, the Army shall be at liberty to act as it would with regard to any errant or unfit male officer,” it said.
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