The Supreme Court recently raised concerns over the apparent gender disparity in the recruitment process for the post of Judge Advocate General (JAG) in the Indian Army. The court questioned the rationale behind limiting the number of vacancies for women while claiming that the post is gender-neutral.
In a writ petition, the petitioners challenged the notification dated January 18, 2023, regarding the JAG Entry Scheme 31st Course. According to this notification, six vacancies were earmarked for men, while only three were allotted to women. The petitioners argued that such an allocation contradicts the claim of gender neutrality.
The Union Government defended its position by citing a 2012 study group report, which suggested that over a ten-year period (2013–2023), only 30 women should be commissioned as JAG officers. The report factored in practical working conditions, organizational needs, and other relevant considerations to reach this conclusion.
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A Supreme Court bench comprising Justices Dipankar Datta and Manmohan scrutinized the government’s stance. Justice Datta raised a fundamental question:
"Why not more than 30%? There has to be some rationale behind it."
Additional Solicitor General Aishwarya Bhati, representing the Union, explained that the functional requirement set by the study group determined a 70:30 male-to-female ratio. She assured the court that the next study, applicable for the period 2023-2033, recommends a 50:50 ratio for JAG posts.
However, Justice Manmohan was not convinced. He questioned:
"You are using the expression ‘gender neutral.’ Where is the question of any quota being fixed? If there are 10 vacancies and 10 qualified women, all should get selected. Similarly, if there are 10 qualified men, they should be chosen. Gender neutrality should mean selecting the best candidates, irrespective of gender."
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Justice Manmohan further pointed out that in the current scenario, even if women candidates ranked higher in merit, they were being denied selection due to limited vacancies for women.
"If these women are better in merit, they should get the entire 100%. But instead, you are restricting them to 50%. Why?" he questioned.
Bhati responded that the current functional requirement made it difficult to accommodate equal numbers of women. However, she emphasized that the government was striving for gender neutrality.
Justice Manmohan countered:
"Then don't say you are gender neutral. You must provide data showing that certain branches of the armed forces cannot accommodate women. However, there appears to be no such data to support your claim of gender neutrality."
Justice Datta further questioned the 70:30 ratio, citing a Supreme Court judgment that mandates equal opportunities for women in permanent commission posts. He asked:
"Are you inducting less qualified or less suitable women candidates? If not, and if women are equally qualified, why restrict them based on gender?"
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When Bhati referred to the readiness of the armed forces as a determining factor, Justice Datta inquired:
"Is the functional requirement being compromised because women are being inducted? If so, where is the data proving this? Are there infrastructural deficiencies? If so, what are they?"
After the court resumed post-lunch, Justice Datta reviewed the merit list for the JAG Entry Scheme 31st Course. He observed that while the first-ranked candidate had secured high marks, the second to fourth-ranked male candidates had scored lower than the top three female candidates. Additionally, the sixth-ranked male candidate had marks equivalent to the 12th-ranked female candidate.
"The second, third, and fourth-ranked men have secured fewer marks than the top three-ranked women. However, due to gender-based vacancy allocation, they are getting selected over more meritorious women candidates. How is this justified?" Justice Datta questioned.
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Since one of the female candidates had joined the Navy under an interim order, the court sought clarification on whether she wished to continue her post in the Navy or switch to JAG.
The petitioners, two female candidates, argued that earmarking double the number of vacancies for male candidates was discriminatory. They highlighted that despite securing ranks 4 and 5 in the common selection process, they were deprived of selection due to the gender-based vacancy allocation.
When the Court asked why they had directly approached the Supreme Court under Article 32 of the Constitution, Senior Advocate Gopal Sankaranarayanan, representing the petitioners, pointed out that the court had entertained similar cases addressing gender inequality in armed forces recruitment.
Case Details: ARSHNOOR KAUR v UNION OF INDIA|W.P.(C) No. 772/2023
