SC strikes down gender-based cap in Army's JAG recruitment orders common merit list

     New Delhi, Aug 11 (PTI) The Supreme Court on Monday struck down a policy limiting the number of women in the Judge Advocate General (JAG) branch of the Indian Army, underlining the constitutional mandate of non-discrimination against women.
     A bench of Justices Dipankar Datta and Manmohan held once the Army allowed women to join a branch under Section 12 of the Army Act, 1950, it couldn't impose additional restrictions on their numbers through an executive policy.
     "If women candidates are more meritorious than men in the JAG entrance exam, then merit must be given a chance. Restricting them to 50% seats, despite higher performance, violates the right to equality," the bench ruled.
     Section 12 of the Army Act deals with ineligibility of females for enrolment or employment and says, "No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf."
     The verdict, however, underscored the constitutional mandate besides the national and international policy of the Government of India to ensure women were not discriminated against in any manner and enhancing their representation in all spheres by creating a more inclusive society.
     The top court held the existing notification reserving six vacancies for men and only three for women in the 31st Short Service Commission JAG course violated Articles 14, 15, and 16 of the Constitution besides Section 12 of the Army Act.
     "Impugned notification to the extent that it provides for only three (3) vacancies for female candidates, whereas six (6) vacancies have been notified for male candidates is violative of Articles 14, 15 and 16 as well as Section 12 of the Army Act," read the verdict, authored by Justice Manmohan.
     The bench, therefore, held the executive couldn't "restrict their numbers" or make a reservation for male officers under the guise of "extent of induction" through a policy or administrative instruction.
     The bench was examining the question if the Army through a policy or administrative instruction restrict the number of women candidates during the induction of women in particular branch.
     "Articles 14, 15 and 16 form a string of constitutional rights which firmly guarantee the right to equality. The said articles supplement each other and recognise the right to equality of opportunity to all the citizens in matters relating to public employment irrespective of religion, race, caste, place of birth or sex/gender...but clause (3) of Article 15 enables the state to make any special provision for women and children," the verdict said.
     Article 33 of the Constitution was stated to carve out an exception to the right to equality as it empowers Parliament to modify the fundamental rights in their application to members of the Armed forces.
     "Once the Army permits women officers to join any corps, department or branch forming a part of the regular Army, it cannot impose an additional restriction with regard to 'extent of induction' of women officers in the said corps, department or branch as Section 12 of the Army Act, 1950 does not empower it do so," it added.
     The verdict referred to the Babita Puniya judgment which upheld the right to equal opportunity and mandated non-discriminatory consideration for Permanent Commission, irrespective of gender.
     "Also, with a strength of over 1.4 million active, 2.1 million reserve and 1.3 million paramilitary personnel and with only about two hundred and eighty five (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," it noted.
     The bench said there was "no bar to such an off-chance deployment".
     "There is also no restriction on appointment of women in departments in other Armed Forces which are ejusdem generis (of the same kind) on the ground that these posts are combative in nature. In fact, the Air Force has continually opened new combat air force roles for women as fighter pilots, helicopter pilots, etc." it said.
     The verdict gave examples of Captain Ojaswita Shree of the elite Parachute Air Defence Unit and Major Dwipannita Kalita -- both of whom were said to be capable of operating "behind enemy lines with all expected risks".
     "Why can't women officers in times of emergency be deployed for counter-insurgency or in counter-terror forces or attached to Infantry/Artillery Units?" it asked.
     Saying Articles 15 and 16 together prohibit direct discrimination between members of different sexes, the bench said, "No less favourable treatment can be meted out to women on gender-based criterion which would favour the opposite sex."
     The verdict went on, "The constitutional mandate is infringed only where the females would have received same treatment with males, but for their sex. However, Articles 14, 15 and 16 do not prohibit special treatment of women."
     The bench further dealt with the distinction between "gender neutral" and "gender equal".
     While gender-neutrality does not just prohibit sex-based classification but ensures most meritorious candidate is selected for the job, the court said, the principle of gender-neutrality in service does not preclude or limit deployment in any operational area or role.
     "However, 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," it said.
     The Centre was therefore directed to conduct recruitment accordingly and publish a common merit list for all JAG candidates.
     The petitioners, Arshnoor Kaur and Astha Tyagi, secured fourth and fifth positions in the merit list, respestively, but were denied entry owing to the gender-based vacancy cap.

(This story has not been edited by THE WEEK and is auto-generated from PTI)