No Nation Can Be Secure, When The Women Force Is Held Back’, SC Strikes Down Gender-Based Cap In Army's JAG Recruitment

New Delhi: The Supreme Court on Monday said no nation can be secure when half of its population, its women force, is held back, and to restrict the women candidates to 50% of the seats, despite them being more meritorious than the male candidates, is violative of the right to equality. The apex court said the executive cannot restrict their numbers and/or make a reservation for male officers under the guise of ‘extent of induction’ by way of a policy or administrative instruction, and directed Centre to henceforth conduct recruitment to the judge advocate general (JAG) branch in Army by preparing a common merit list of male and female candidates.

A bench of Justices Dipankar Datta and Manmohan said: “to restrict the women candidates to 50% of the seats, as argued by the Respondents, despite them being more meritorious than the male candidates, is violative of the right to equality…”.

The bench 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, 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".

The bench clarified 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’”, said Justice Manmohan, who authored the 85-page judgment on behalf of the bench.

The bench said the respondents vide 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 cannot restrict their numbers and/or make a reservation for male officers under the guise of ‘extent of induction’ by way of a policy or administrative instruction.

The bench said apart from the Army, the JAG’s department is present in the following other branches of the Armed Forces: - i. Air Force; ii. Navy; iii. Border Security Force; iv. Central Armed Police Forces; v. Coast Guard [known as ‘Assistant Commandant (Law)]; vi. National Security Guard (known as ‘Judge Attorney). “In none of the aforesaid branches, the enrolment of women candidates is restricted on the ground of operational efficiency”, said Justice Manmohan

The bench said this court takes judicial notice of the fact that female candidates have been outperforming their male counterparts in the entrance examination for judicial services. “For instance, in the Delhi Judicial Service, during the period 2019 to 2023, the female candidates have been outperforming their male counterparts. From being 50% in the 2019 batch, the number of female judicial officers in the 2023 batch is nearly double the male judicial officers”, it said.

The bench said the respondents have failed to establish how a merit-based ‘gender-neutral’ selection process would negatively impact functionality, manpower planning, or operational efficiency of the JAG branch. “On the contrary, a merit-based selection process will improve efficiency of the JAG branch”, it added.

The bench said legal advice has to be within the framework of the Constitution of India and its amendments thereof as on the date and day of promulgation. “Consequently, the submission of the respondents that being a combatant is a prerequisite to be a JAG officer is incompatible with the job description of JAG officers”, noted the bench.

“This court is also of the view that the understanding of 2023 policy as implemented by the respondents is not only untenable in law as after allowing women to join Combat Support Arms and Services there can be no reservation category for ‘male’ or ‘men’, but also contrary to facts as no explanation has been offered by the Union of India as to 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”, said Justice Manmohan.

Arshnoor Kaur and another candidate moved the apex court against the notification of January 18, 2023, which provided for separate merit lists for male and female candidates and provided for only three vacancies for females as against six vacancies for male candidates. One of the petitioners, Astha Tyagi, achieved the fourth rank with 477 marks, and Kaur got the fifth rank with 447 marks in the merit list of women candidates.

Both were denied selection in preference to Himanshu Panwar, who secured third rank with 433 marks in the merit list of men candidates, but has obtained lesser marks than the female candidate placed at serial number 10 in the female merit list.

“Since in the present case, petitioner no.1 has obtained 447 marks as against 433 marks of respondent no.3, this court directs the respondents-Union of India and Army to induct petitioner no.1 in the next available training course for being commissioned in the JAG Department of the Indian Army”, said the bench.

The bench added that the 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.

“Though men and women candidates during the JAG selection procedure appear before separate boards, yet as the selection criteria and testing parameters of the fifteen (15) Officer Like Qualities are identical, this court is of the view that a combined merit list ought to be prepared”, it said.

The bench said the impugned notification, to the extent that it provides for only three (03) vacancies for female candidates as against six (06) vacancies for male candidates, is against the concept of equality as enshrined in the Constitution, as it makes a reservation for male officers under the guise of ‘extent of induction’.

The bench said this court is of the opinion that if the 2023 Policy is read with the mandate of law, it means that Union of India shall recruit the most meritorious candidates in JAG branch irrespective of their sex/gender, but to ‘compensate the women for their previous non-enrolment’, the Union of India has decided to allocate at least 50% of the vacancies to women candidates. “This intent is apparent from the 2023 policy when it states that the Indian Army has decided to increase the number of Women Officers in the JAG branch from the current 75 to 142 by allocating at least 50% of the seats in the JAG branch to Women Officers”, it said.

The bench said that with a strength of over 1.4 million active, 2.1 million reserve and 1.3 million paramilitary personnel and with only 285 JAG officers, it is an extreme stretch to claim that, because there may be JAG deployment at the time of war, women ought to be excluded. “This court is further of the view that there is no bar to such an off-chance deployment, but this still does not provide a rationale to prevent JAG women from being inducted," the bench said.

The bench found that 10 streams, including JAG, in which women are eligible for appointment as SSC officers, formed part of the ‘Combat Support Arms’ or the ‘Services’ category and not ‘Combat Arms’.

"Thus, the contention of the Union of India that JAG officers are primarily combatants and a reserve for mobilisation is not entirely correct," it said.

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