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...

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

Gursimran Kaur Bakshi

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