NEW DELHI: The Supreme Court on Monday directed the Union government to henceforth conduct recruitment to the Judge Advocate General branch in Army by preparing a common merit list of male and female candidates.
Observing that no nation can be secure, when half of its population, i.e. its women force, is held back, a bench of Justices Dipankar Datta and Manmohan held restricting women candidates to 50% of the seats despite them being more meritorious than men is violative of the right to equality under the Constitution.
The court said 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.
"In the present case, indirect discrimination is real and is caused by a facially neutral 50:50 criteria by not taking into consideration the underlying effect of the said criteria," it said.
The court said male and female JAG officers do not have distinct cadres with different conditions of service.
"The true meaning of concept of ‘gender-neutrality’ and 2023 recruitment policy is that Union government would recruit the most meritorious candidates in JAG branch irrespective of their sex/gender," the bench said.
The court said, to ‘correct the past’ and to ‘compensate the women for their previous non-enrolment’, the Union government should allocate not less than 50% of the vacancies to women candidates, as the primary job of this branch is to give legal advice and conduct cases.
The court clarified that it is not imposing its own views or predilection on the Army but is implementing the Constitution and the mandate of law.
The court rendered its judgment as two candidates Arshnoor Kaur and Astha Tyagi challenged the notification of January 18, 2023 which provided for separate merit list for male and female candidates and only three vacancies for female as against six vacancies for male candidates.
Tyagi achieved the fourth rank with 477 marks and Kaur was fifth 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 females merit list.
In its decision on their plea, the court declared the notification 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’.
"As the selection criteria and testing parameters are identical, this court is of the view that combined merit list ought to be prepared," the bench said.
The court held the Union government and others 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, it said, a merit-based selection process will improve efficiency of the JAG branch.
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, the court said, 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 court found, in 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," the court said.
The court also said the concept of gender-neutrality does not just prohibit sex based classification but it ensures that the most meritorious candidate is selected for the job. Also, the principle of ‘gender-neutrality’ in service does not preclude or limit deployment in any operational area or role.
"The actual practice of recruiting equal number of male and female candidates in JAG branch, though neutral in form, is anything but gender-neutral in application and practice," it said.
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