'If JAG Posts Are Gender Neutral, Why Fewer Women Allowed?' Supreme Court Questions Union

The Supreme Court today(Wednesday) questioned the rationale behind the low vacancy of women in the post of Judge Advocate General (JAG). It asked the Union why, despite its claim that the JAG post was gender-neutral, it preferred men over equally qualified women.

In this writ petition, the petitioners challenged the notification dated 18.01.2023 for the JAG Entry Scheme 31st Course, inviting applications from Law Graduates (Men and Women). It was pointed out that while six of the vacancies are earmarked for men, only three vacancies are earmarked for women.

The Union Government, relying on a 2012 study group, stated that they support the view of the report that in the next 10 years(applicable from 2013 to 2023), a total of 30 women for the post of JAG were to be commissioned. It is stated that the study group considered the pragmatic working conditions, inevitable personal requirements, organisational imperatives, etc to reach this conclusion.

Additional Solicitor General Aishwarya Bhati stated that the functional requirement is 70:30 as also suggested by the study group, which is 70% male and 30% female. Going by this, she added that every year, a total of six women will be selected for JAG for the next 10 years.

A bench of Justices Dipankar Datta and Manmohan is hearing the matter. Both judges questioned the stand of the Union. Justice Datta asked Bhati, "Why not more than 30%? There has to be some rationale behind it."

Bhati responded that this was based on various considerations. She added that the next study, applicable from 2023-2033, suggests a 50:50 ratio for the JAG posts.

Justice Manmohan questioned Bhati as to why she was saying that the posts were "gender neutral".

"You are using the expression gender neutral, where is the question of any quoto being fixed? See, if there are 10 vacancies, and there are 10 good ladies, all should get it. If it's gender neutral, there are 10 good men, you get the best. Where is the question of segregating it and saying 50%. You are understanding 50% as gender neutral. Is 50% gender neutral? Or just notifying the vacancies and saying whosoever is the best, be [allowed] to come it...Apart from merit, nothing should matter.

For instance, in this case, the ladies are in 4th and 5th slot[rank], they are entitled to fill up the slots. But you are not giving them the 4th and 5th slot saying that there are only three vacancies for women and the rest have to go to men...You are saying 50%, we are not able to understand why 50% percent. These ladies are better in merit, they get the entire 100%.," Justice Manmohan said.

Bhati responded that the current functional requirement is such that they cannot accommodate such a situation. But the Union is aspiring to be gender-neutral.

"Then don't say you are gender neutral..You have to make it good on some data that that in some forces, or certain branches, you cannot have [women in posts]...There must be some data on that. We are not finding any data in that and it seems there is no data because its your case its gender neutral.," Justice Manmohan responded.

Justice Datta also questioned the 70:30 ratio of men and women in JAG relying on the Supreme Court's judgment which says women should be allowed for posts in permanent commission.

"Are you inducting any less qualified or less suitable women candidates? If its not that case, women are equally qualified, equally suitable. If they are higher in merit, this should be the end of the matter," Justice Datta remarked.

When Bhati responded that it was a question of functional requirement and readiness of the armed forces, Justice Datta asked:

"Is the functional requirement comprised because the ladies are being inducted? Why are you not ready? Infrastructural deficiencies, where is that? Come to page 12, turbulence and career-management issues post-grant of PC to women? Why do you mean turbulence in the Army because the Supreme Court has passed an order? It should be what it says. You are not accepting the Supreme Court's order with grace".

Post lunch, the Court asked for the marks obtained by the candidates for the JAG Entry Scheme 31st Course since this scheme has been challenged. Justice Datta,  reading the marks revealed that while the marks obtained by the first ranker were well-deserved, the marks obtained by the second to fourth rank in men were less than the marks obtained by first to third rank in ladies. Justice Datta also revealed that the marks obtained by the 6th ranker in men is equivalent to the 12th rank in women's merit list. 

It should be noted that in JAG, the merit lists are separately prepared for men and women.

"You see, number one was a brilliant candidate, he thought that he will join somewhere else. Number two, three, four and five of men secured less marks than one, two, and three rank of ladies. There are four [officers] already appointed, two posts have been kept vacant pursuant to Court's interim order. It will go to two ladies only at number 4 and 5...Any revelation, he's number 6th[who is also a part of this proceedings], the marks obtained by him is the same obtained by number 12th in the women's list. What happened to the other ladies?"

Since one of the ladies joined Navy during the interim order, the Court has now asked to seek a clarification if she wants to continue her post in Navy.

In this petition, two female candidates contended that double the number of vacancies are earmarked for male candidates, which is discriminatory. The petitioners stated that they had secured ranks 4 and 5 in the common selection process. However, as larger vacancies are earmarked for male candidates, despite the better merit, they will be deprived of their entitlement for appointment as JAG officers.

When the Court asked why the petitioners are directly approaching the Supreme Court under Article 32 of the Constitution, their lawyer Senior Advocate Gopal Sankaranarayanan, replied that the Court has entertained other matters pertaining to gender inequality in armed forces recruitment.

A bench comprising Justices Hrishikesh Roy and Pankaj Mithal in 2023 issued a notice to the Union Government returnable within two weeks. The Court also ordered to keep aside two of the notified vacancies till the next posting date.

Case Details: ARSHNOOR KAUR v UNION OF INDIA|W.P.(C) No. 772/2023 

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