'If A Lady Can Fly Rafale In Air Force, Why Fewer Women Allowed In JAG Posts?' Supreme Court Asks Army, Reserves Judgment

The Supreme Court on May 8 reserved judgment in a writ petition filed by two women seeking appointment to the post of Judge Advocate General (JAG) (Indian Army) Entry Scheme 31st Course, challenging the disproportionate vacancies for men and women. As per their petitioners, though they secured ranks 4 and 5, respectively, and are higher in merit than male candidates, still, due to the fewer vacancies earmarked for women (3 in number as compared to 6 for men), they could not be selected. 

A bench of Justice Dipankar Datta and Justice Manmohan heard the matter. The Court granted interim relief to Petitioner 1. Arshnoor Kaur, and directed the Union and the Army to induct her in the next available training course for appointment as a JAG officer.

As for the other petitioner, it was pointed out that the candidate had joined the Indian Navy during the pendency of the petition. The Court has sought clarification on whether she wants to continue her post in the Navy.

During the hearings, the Court questioned the Union for earmarking fewer posts for women, despite claiming the posts to be gender neutral.  

On Friday as well, the Court did not appear to be convinced by the reasoning offered by Additional Solicitor General Aishwarya Bhati that the JAG posts are gender neutral and that 50:50 is the ratio of selection from 2023 onwards. The Court questioned how this could be termed as gender-neutral when women candidates with higher merit are not qualified because vacancies are still gender bifuracted. 

Justice Manmohan said that if 10 women qualify for JAG and all 10 of them are better in terms of merit, all of them should be appointed as officers. "...gender neutrality does not mean 50:50 per cent. Gender neutrality means it does not matter from which gender you come," Justice Manmohan said.  

ASG Bhat defended that the gender-specific vacancies are there in all branches of the Army, and it is based on manpower assessment and requirement. She added that medical and dental branches are exclusively for women, and men are not permitted. In fact, there are writ petitions before the Delhi High Court that men should be allowed in these branches. 

Justice Manmohan said:

"As far as recruitment in a particular arm is concerned, that is your prerogative in view of Section 12 of the [Army Act]. Section 12 carves out or gives you that power. You have permitted them [women] in some services like in JAG. Once you have permitted them, then to restrict their induction to a certain number, would that be permissible? That's a moot question we are flagging that we don't find any restriction on induction or numbers. This was the first time we found in your policy, it wasn't there in your previous submissions or counter anywhere. Now, in the third written submission, you have placed for the first time relevant policy which gives you this right, now the source of this policy must be found. Source can only be Section 12 but Section 12 does not give that power to you..."

The Court also objected to the Union's reasoning that if women JAG officers are appointed as combatants on international borders, they could run a risk of being taken as prisoners of war.

Justice Datta mentioned that he read in the newspaper that a woman fighter pilot would be flying Rafale aircraft. He added that even in this case, she could be taken as a prisoner of war. 

"If it's permissible in the Air Force for a lady to fly a Rafale, what is so very difficult for the Army? Of course, it's a possible decision. We are no one to say anything," Justice Datta said.

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

Click Here To Read Order

Appearances:  Mr. Gopal Sankarnarayanan, Sr. Adv. Mr. Mandeep Kalra, AOR Ms. Anushna Satapathy, Adv. Ms. Radhika Jalan, Adv. Ms. Widaphi Lyngdoh, Adv. Mr. Yashas J, Adv. Ms. Shweta Singh, Adv. Mr. Vaibhav Yadav, Adv. Mr. Paras Mohan Sharma, Adv. Ms. Shefali Tripathi, Adv. Ms. Radhika Narula, Adv. Mr. Rishabh Lekhi, Adv. Mr. Vishal Sinha, Adv. Ms. Ishita Chowdhury, Adv. [Petitioners]

Ms. Aishwarya Bhati, A.S.G. Mr. Mukesh Kumar Maroria, AOR Ms. Shagun Thakur, Adv. Mr. Kartikay Agarwal, Adv. Mr. Chitvan Singhal, Adv,  Mr. Raman Yadav, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Purnendu Bajpai, Adv. Mr. Mukesh Kumar Singh [Respondents]

Adv. Mr. Rana Mukherjee, Sr. Adv. Dr. Dinesh Rattan Bhardwaj, AOR Mr. Irshad Ahmed, Adv. Mr. Mahesh Singh, Adv. Dr. Ashutosh Garg, Adv. Mr. Samarth Mohanty, Adv. Mr. Abhisth Kumar, Adv. Mr. Pankaj Kumar Sharma, Adv. [Respondents]

Ms. Vernika Tomar, AOR [Respondents]