A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad was hearing a plea challenging the restriction on married individuals from being considered for JAG department.
“What is the rationale of marriage and eligibility? Put it on an affidavit that a person trained for arms cannot be married. Put the policy on record because marriage and training can have no correlation,” Justice Prasad said.
The post of Judge Advocate General is held by a major general who is the legal and judicial chhief of the Army. The JAG is assisted by a separate JAG branch which consists of legally qualified Army officials.
When Additional Solicitor General Chetan Sharma, representing the Centre, asserted that marriage and training has a correlation as the selected candidates have to undergo rigorous training, the bench asked him to file an affidavit explaining the position.
“It does not make any sense. The question is if a person is married and goes for arms training, how is that going to affect his training?” the court said.
The court said such a policy needed to be tested.
The bench also asked the government to inform whether its policy related to entry of married and unmarried individuals is uniform or it differs from course to course.
“You might not have your spouse with you at that time but how does your marriage comes in the way?” the court wondered.
The ASG also clarified that the bar on marriage is only for entry into the 11 month-long training period.
The court granted the government four weeks to file an additional affidavit regarding the policy of entry into the Indian Army and listed the matter for further hearing on March 22, 2023.
The PIL was filed by advocate Kush Kalra terming as “institutionalised discrimination” the restriction on married individuals for being considered for JAG.
Advocate Charu Wali Khanna, appearing for the petitioner, said as per the advertisement, the eligible age to apply for JAG is 21 to 27 years and 50 per cent of women in India get married before the age of 21 years. Since they also gave aspirations why should they be penalised for their parents’ act of marrying them off at an early age.
The Centre, in its earlier affidavit filed in March 2019, had said the right to marry cannot be a right to life under the Constitution and there was no discrimination on the basis of the marital status of the candidates.
The authorities have sought the dismissal of the PIL, saying the Constitution does not stipulate right to marry as a fundamental right.
It has said that till 2017, married women were not eligible for recruitment in the JAG department while there was no such restriction on married men.
This policy was challenged by Kalra in 2016 for being discriminatory to female candidates. During the pendency of the petition, the government issued a corrigendum on August 14, 2017 amending the marital criterion according to which now just like their female counterparts, only unmarried men were to be considered eligible for various entry schemes of Army including the JAG department.
After the new rule was announced, Kalra withdrew his earlier petition and filed a fresh one challenging the discrimination against married individuals and said the corrigendum curtailed the civilians’ rights to marry after attaining the legal age.
The Centre’s affidavit said there was no violation of Article 14 (equality before law) 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 individuals are eligible to be commissioned in all streams.
The Centre and the Army have also drawn an analogy between the eligibility conditions which are under challenge in the plea 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 has said a female is legally permitted to marry at the age of 18 years, whereas a male, despite being eligible to vote at the age of 18, is legally permitted to marry only at the age of 21.
“The condition of being unmarried for both male 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,” it has said.
The court had earlier issued notice to the Ministry of Defence and the Directorate General of Recruiting of the Indian Army seeking their stand on the PIL.
The petition has questioned the basis for barring married persons from joining JAG when marital status is not an eligibility criteria for the “equally ranked” judicial and Indian Civil Services positions.
JAG is the legal advisor to the Chief of the Army Staff in matters of military, martial and international law, the plea has said.
It has sought that the special Army instructions of 1992 and 2017, which disentitle married women and men from applying for JAG be declared as void.