The Centre and the Indian Army has told the Delhi High Court that any change in the policy which bars married males and females from recruitment in Judge Advocate General (JAG) department and other entries across the board will affect security of entire nation and the interest of 130 crore people cannot be challenged or compromised for merely thousands of people applying for JAG department.
The affidavit sworn by an adjutant, electronic equipment evaluation Sub group and filed before the high court by the standing counsel of Centre, denied making any discrimination on the basis of marital status of candidates.
The affidavit was filed in response to a PIL moved by Kush Kalra challenging the restriction on married males and females in applying for recruitment to JAG department in violation of Article 14, 16 and 21 of the Constitution.
The affidavit says, if the petition is allowed, "the affect shall be felt on the whole nation's security".
On the petitioner arguing against the bar on married men and women being in violation of Article 21, the affidavit says, "Right to marry cannot be right to life under Article 21. There is no where written or proved that life of person would be miserable or unhealthy without marriage."
It is to be noted that till 2017, married females were not eligible for recruitment in JAG department while there was no such restriction on married males. This policy was challenged by Kalra in year 2016 for being discriminatory to female candidates.
During the pendency of the said petition, the government issued a corrigendum dated August 14, 2017 thereby amending the marital criterion according to which now just like female counterparts, only unmarried men were to be considered eligible for various entry schemes of Army including JAG department.
Following this, Kalra withdrew his earlier petition and filed a fresh one challenging the discrimination towards married females and also males and said the corrigendum curtailed the civilians' rights to marry after attaining the legal age.
In response, the Centre and the Indian Army said, "In so far as the public interest is concerned…the prime duty and responsibility of Indian Army are to protect the interest of nation which is made out of entire territory and approx. 130 crore people of India. Thus, any policy, rules pertaining to terms and conditions of service as well as the eligibility criteria for Army is formulated by the government of India keeping in view the effectiveness, functional and operational requirement of Army to protect the interest of 130 crore people of India.
"Whereas the number of candidates applying for JAG department is only in thousands. Thus, the interest of 130 crore people cannot be challenged or compromised for merely thousands of people on the basis of Public Interest Litigation".
The affidavit said if the petition is allowed the larger public interest would be overlooked for personal interest of a few people.
It also said that there is no violation of Article 14 of the Constitution as the recruitment conditions as to marital status is uniformly applied not only for JAG entry but the entire Army wherein only unmarried males and females are eligible to be commissioned in all streams of the Army.
**Can marriageable age be held discriminatory
The affidavit draws an analogy between the eligibility conditions under challenge in the petition and the legal age of marriage in India under the provisions of the Prohibition of Child Marriage Act read with the Hindu Marriage Act.
It said, as per law, a female is permitted to marry at the age of 18 while a male, despite being eligible to vote, is legally permitted to marry only at the age of 21.
"If we go with the analogy of the petitioner, a male is deprived of marriage for 3 years and the same is gross discrimination on the basis of gender. Further such reasonable restriction…deprive them of matrimonial life for three years thus resulting in violation of Article 21 of the Constitution," it said stressing that rules and policies cannot be diluted to hinder the effectiveness as well as functional and operational requirements of Indian Army with regard to physical fitness and medical aspects.
The affidavit further states the Indian Army cannot be bound by equality in public employment under Article 16 as already during and after the implementation of recommendation of Mandal Commission, the Indian Army has been exempted from the provisions of reservation.
It goes on to cite the example of government providing 730 days of child care leave to all female employees and 180 days of maternity leave, be it civilian or defence personnel, while male employees do not get child care leave and just 15 days of paternity leave.
"If we go by the analogy of the petitioners, these may be challenged before the court saying it is discriminatory for male employees on the basis of gender. But, in fact, these are not discriminatory as the same is the requirement of our society to empower females for better and bright tomorrow".
It also said the Rules of recruitment as to marital status for JAG department are not different from other streams of the Army to ensure uniformity and non-discriminatory recruitment while emphasising that marriage is restricted only till the pre-commission training is completed and commission is granted.
** Bar on marriage only till grant of commission
On the recruitment rules being violative of Article 14, 16 and 21, the affidavit said that, "In Indian Army, both males and females are treated equally and granted equal opportunity in the matter of appointment. The condition of being unmarried for both males and female candidates aged between 21-27 years for grant of commission is restricted only for the period of recruitment and pre-commission training which involves a high amount of physical and mental stress, strain and rigours of military life. Once the unmarried lady cadets and gentlemen cadets complete their training and are granted commission, there is no bar for getting married or its natural consequences viz pregnancy etc and service benefits viz maternity leave, child care leave, paternity leave or married accommodation etc. Thus there is no discrimination on the ground of marital status".
"Indian army women officers are not dismissed on the ground of marital status and pregnancy as the Indian Army considers pregnancy a natural consequence of marriage. Pregnancy is their natural right being natural consequence of marriage and hence, after commission, they are granted all service benefits viz maternity leave, child care leave etc.
It also said that "all officers of the Army are trained and equipped to fill into shoes of an officer of any other arms/ service if necessitated due to ops exigencies. Hence JAG Department officers cannot be treated differently in so far as the pre-commissioning training is concerned and their role after commissioning has no relevance to the eligibility".