‘If women can fly Rafale, why fewer of them in Army legal branch?’ SC asks Centre

Questioning the Army’s policy of inducting men and women officers in the office of Judge Advocate General (JAG) in the ratio of 50:50, the Supreme Court has said women candidates with higher merit can’t be ignored for selection.

JAG is the legal branch of the Army to assist it in disciplinary cases or litigation and advises the Chief of Army Staff on legal matters. A Bench of Justice Dipankar Datta and Justice Manmohan sought to know why the posts were termed gender-neutral when women candidates with higher merit were not qualified owing to the vacancies still being bifurcated on gender. Gender neutrality didn’t mean 50:50 per cent but it meant that it didn’t matter from which gender one was from, it added.

The top court was hearing a petition filed by officers Arshnoor Kaur and Astha Tyagi, who despite securing 4th and 5th ranks, respectively — higher in merit than their male counterparts — weren’t selected for the JAG department due to fewer vacancies earmarked for women. The petitioners contended that they could not be selected as there were only three vacancies for women out of the total six posts.

“If it’s permissible in the Indian Air Force for a lady to fly a Rafale fighter jet, then why is it so difficult for the Army to allow more women in JAG?" Justice Datta asked Additional Solicitor General Aishwarya Bhati, who represenNew Delhi, Judge Advocate Generalted the Centre and the Army.

“Prima facie, we are satisfied with the case set up by the petitioner 1 Arshnoor Kaur. Accordingly, we direct the respondents (Centre and Army) to initiate whatever action is required for the purpose of her induction in the next available training course for appointment as Judge Advocate General (JAG),” the Bench said on May 8, while reserving its verdict.

The Bench questioned the Centre over earmarking fewer posts for women despite claiming the posts to be gender neutral.

ASG Bhati, however, contended that the induction and employment of women officers in the Army, including the JAG Branch, was a progressive process keeping in view its operational preparedness.

“To say the policy of intake of men and women officers from 2012 to 2023 in the ratio of 70:30 (or now being 50:50) as discriminatory and volatile of fundamental rights would not only be incorrect but will also transgress into domain of the Executive which is the only competent and sole authority for deciding the intake of men and women officers in Indian Army," Bhati submitted.

Bhati defended the Centre’s decision and said the gender-specific vacancies were present in all branches of the Army based on the manpower assessment and requirement. Terming gender integration in the defence services an evolving process, calibrated to the operational needs and subject to periodic review and studies; she said it should be left to the Executive.

“Functioning of the JAG branch cannot be seen in isolation as mere legal advisers to military commanders during peacetime. It’s an integral part of the Indian Army also having an equally important role in its operational preparedness," Bhati said.

India