Supreme Court Rejects Union's Plea To Modify Direction To Fill 50% JAG Posts From Women

The Supreme Court yesterday rejected a Miscellaneous Application filed by the Union Government seeking modification of the last year's judgment which directed that at least 50% vacancies of Judge Advocate General(JAG) posts in the Indian Army must be allotted to women.

It may be recalled that last year in August, the Supreme Court in Arshnoor Kaur v UOI struck down the policy of the Indian Army to reserve a higher number of posts in the JAG branch for men and restrict the number of women who can be appointed to the JAG post.  To compensate the sidelining of women candidates in the past, the Court directed that 50% vacancies must be allotted to them in the future.

The Union later filed an MA seeking modification of paragraph 114, which says: "Moreover, as held hereinabove, male and female JAG officers do not have distinct cadres with different conditions of service and the true meaning of concept of 'genderneutrality' 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. 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."

A bench comprising Justice Dipankar Datta and Justice Manmohan, who had passed the judgment, heard the matter.

At the outset, Senior Advocate Gopal Shankarnaryan, assisted by Advocate on Record Mandeep Kalra(for the original petitioner), objected to the maintainability of the Union's MA. Referring to a 1987 judgment, he submitted that in disposed of cases, MA's can't be entertained. He added that the Union has suppressed certain facts in their additional affidavit. 

Additional Solicitor General Aishwarya Bhati( for the Union) said: "We have no difficulty in complying with your lordships' judgment. In fact, the two subsequent advertisements we did equal-equal, but the next advertisement due, we will only have the number of vacancies. But we are unable to reconcile."

Justice Manmohan, who authored the judgment, asked what the difficulty was in complying. He said: "There were two factors which were operating in my mind. At first blush, it seems there is a contradiction, but there is a deeper analysis of the Sections that were involved. Firstly, ma'am, your policy decision itself is to have 50% ladies in JAG. If we made it merit-based and if there were less women who were available, then they would have fallen less than 50%. Then the beneficial policy of yours would not have been given effect to by incorporating merit."

He then added: "So, we incorporated merit in case they are beyond 50%. In case they are below 50%, they still touch 50% according to your policy. That's the reconciliation we have done. Otherwise, your whole policy itself would have been defeated. Your policy is to achieve 50%. Even today, they are not 50%; ladies are only 38%. Therefore, we said that 50% should be in accordance with your policy, but in case they are better in merit, they can exceed 50%, and then they should be given. Similarly, as in the Scheduled Caste and the Scheduled Tribes, today, what is happening? If a person is meritorious and gets in the open quota, then we say don't adjust the SC/ST seats, put them in the open quota. That's similar logic. But not less than 50% because then the judgment would be running on its head. See the judgment which would promote merit would have promoted discrimination at the end of the day by ensuring that they don't touch 50% according to your policy."

Justice Manmohan clarified that the Court did not touch those streams where the Central Government does not recruit women candidates, as it is the government's policy, and therefore, it should be decided by them.

The Court in the judgment in paragraph 41 clearly stated that the eligibility of women for enrolment or engagement in the regular Army is conditional on a notification issued by the Central Government in terms of the enabling provisions under Section 12 of the Army Act, 1950.

He remarked:

"This judgment has not been written overnight, ma'am. It is a laboured judgment; it has gone through many rounds and really, the intent was to take care of all the contradictions. We have not brought them into the streams where you have not permitted them...I have discussed it so many times with my brother [judge], and many times, exchanges took place. It is not a half-baked judgment, we have thought it through...You have to bring them in; you can't have 50% of the population not participating in the warfare. You can't fight with 50% of the population, it's like fighting with your hands tied behind your back. You won't allow them to join in JAG also? I have put it from the High Court's experience. Look at the ADJs enrolling today, we are going beyond 50% as far as ladies are concerned. Why can't they join JAG? I really do not understand your [MA]. In fact there are contradictions in your arguments advanced."

 Bhati submitted that based on various study groups, the reservation for ladies has increased from 30% to 50%. But Justice Manmohan added that if tomorrow, the Union brings that reservation to 25%, then what happens?

 Bhati said: "There is no sunset clause in the judgment as to till when the meritorious and at least 50% has to be completed...mylords may permit to at least say that this will continue for 5 years after which.."

Bhati continued to insist that the Court must confine this to JAG because the Union is having "real trouble" with other services. "Our problem is this, JAG has a specific entry and if my lords look at the pie chart, this is the strength of the combat support arms and the services. Now, JAG is a minuscule functional arm in this 300 odd officers. This was total 37,500 officers, now combat arms are in red, then blue is combat support arms which also has a combat element so women are not there is combat at all. Women are there is combat support arm but not in 830 posts, which are for combat. Now, JAG is a separate entry because you need a law graduate and rest of the entries are only by way of technical or non-technical entry."

What mylords have considered qua JAG, the scenario of the combat arm and combat support arms is very different...we have suffered great difficulty in combat arms because we can't have more number of women here because the whole cadre structure...we don't do separate enteries for combat support arms because all tecnical engineers 60% of them go to technical branches and the rest of 35% go to rest of the non-technical branches so our enteries are not like that. We have UPSC entry, and then NDA entry...mylords may consider they will impact the defence preparedness of the nation. " she added.

But the Court refused to entertain.

Case Details: W.P.(C) No. 772/2023 ARSHNOOR KAUR AND ANR. v UNION OF INDIA AND ORS|MA 1896/2025